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HomeMy WebLinkAboutResolution - 80-34 - Relating to $2,975,000 Commercial Development Revenue Bond and Authorizing Issuance (Anderson Lakes Associates) - 02/19/1980 � 0 3Al Member introduced the followina resolution and moved its adoption: RESOLUTION NO.R80-34 RESOLUTION REMATI1q+G TO A $2,975, 000 COMMERCIAL DEVELOPMENT REVENUE BOND; AUTHORIZING THE ISSUANCE THEREOF PURSUANT TO MINNESOTA STATUTES, CHAPTER 474 BE IT RESOLVED by the City Council of the City of Eden Prairie, Minnesota, as follows : Section 1. Definitions. 1. 01. In this Resolution the following terms have the following respective meanings unless the context hereof or use herein clearly requires otherwise: Act: the Minnesota Municipal Industrial Development Act, Minnesota Statutes, Chapter 474, as amended; Assignment: the Assignment of Leases to be given by the Partnership to the Lender; Bond: the $2,975, 000 Commercial Development Revenue Bond (Anderson Lakes Associates Project) to be issued by the City pursuant to this Resolution; Buy and Sell Agreement: the Buy and Sell Agreement to be entered into among the Lender, the Partnership and the Permanent Lender; City: the City of Eden Prairie, .Minnesota, its successors and assigns; Construction Loan Aareement: the Construction Loan Agreement to be entered into among the City, the Partnership and the Lender; Construction Loan Guaranty: the Guaranty to be given by James E. Sutherlin, Cornelia Emison, James Emison, Joyce Jaskowiak and Leonara Jaskowiak, individuals residing in the State of Minnesota, to the Lender; Holder : the Lender or any person to whom the Bond has been assigned pursuant to Section 5. 04 of this Resolution; Improvements: the 54, 600 square foot office buildina and related facilities and improvements to be -2- constructed on the Land by the Partnership in accordance with the terms of the Construction Loan Agreement; Land: the real estate located in the County of Hennepin, State of Minnesota, and legally described in Exhibit A to the Mortgage; Lender: National City Bank of Minneapolis, Minneapolis, Minnesota, its successors and assigns; Loan Agreement: the Loan Agreement to be entered into and between the City and the Partnership; Mortgage: the Mortgage and Security Agreement and Fixture Financing Statement to be entered into between the Partnership, as mortgagor, and the Lender, as mortgagee; Organizational Documents: the following documents, each of which shall be in form and substance acceptable to the Lender : (i) A copy of the Partnership Agreement of the Partnership, certified by a partner. • (ii) An opinion or opinions of counsel reasonably acceptable to the Lender indicating that each of the documents referred to in Section 3.03 of this Resolution have been duly executed and delivered and are legal and binding obligations of the Partnership and the City, enforceable in accordance with their terms. Partnership: Anderson Lakes Associates, a Minnesota general partnership, its successors and assigns which may assume its obligations in accordance with the Loan Agreement; Permanent Lender : Investors Syndicate of America, Inc. , a Delaware corporation, its successors and assigns ; Permanent Loan Guaranty: the Guaranty to be given by James E. Sutherlin, James Emison and Leonard Jaskowiak to the Permanent Lender ; Pledge Agreement: the Pledge Agreement to be given by the City to the Lender ; -3- 3 Project: the Land and the Improvements, as they may at any time exist; Project Costs: those costs defined as Project Costs in Section 1. 01 of the Loan Agreement; Resolution: this resolution of the City; and Subordination Agreements: the Subordination and Non-disturbance Agreement to be entered into among Bachman-Anderson, Inc. , a Minnesota corporation, the Lender and the Partnership, and the Subordination and Non-disturbance Agreement to be entered into among Western Petroleum Company, a Minnesota corporation, the Lender and the Partnership. Section 2. Findings. It is hereby found and declared that: (a) based upon representations made to the City by representatives of the Partnership as to the nature of the Project, the real property and improvements described in the Loan Agreement and the Mortgage comprising the Project constitute a project authorized by the Act; • (b) the purpose of the Project is, and the effect thereof will be, to promote the public welfare by the attraction, encouragement and development of economically sound industry and commerce so as to prevent the emergence of or to rehabilitate, so far as possible, blighted and marginal lands and areas of chronic unemployment; the retention of industry to use the available resources of the community in order to retain the benefit of its existing investment in educational and public service facilities; halting the movement of talented, educated personnel of mature age to other areas and thus preserving the economic and human resources needed as a base for providing governmental services and facilities ; and more intensive development of land available in the community to provide an adequate and better balanced tax base to finance the increase in the amount and cost of governmental services; (c) the Project when completed will add to the tax base of the City, and will accordingly be of direct benefit to the taxpayers of the City as well as those of the County of Hennepin and the school district in which the City is located; • -4- 3 1 (d) the Project has been approved by the Commissioner of Securities of the State of Minnesota as tending to further the purposes and policies of the Act; (e) the financing of the Project, the issuance and sale of the Bond, the execution and delivery of the Construction Loan Agreement, the Loan Agreement and the Pledge Agreement, and the performance of all covenants and agreements of the City contained in the Bond, the Construction Loan Agreement, the Loan Agreement and the Pledge Agreement and of all other acts and things required under- the Constitution and laws of the State of Minnesota to make the Construction Loan Agreement, the Loan Agreement, the Pledge Agreement and the Bond valid and binding obligations of the City in accordance with their terms, are authorized by the Act; (f) it is desirable that the Bond in the amount of $2,975, 000 be issued by the City upon the terms set forth herein, and that the City pledge its interest in the Loan Agreement and grant a security interest therein to the Lender as security for the payment of the principal of, premium, if any, and interest on the Bond; • (g) the loan payments contained in the Loan Agreement are fixed, and required to be revised from time to time as necessary, so as to produce income and revenue sufficient to provide for prompt payment of principal of and interest on the Bond when due, and the Loan Agreement also provides that the - Partnership is required to pay all expenses of the operation and maintenance of the Project, including, but without limitation, adequate insurance thereon and all taxes and special assessments levied upon or with respect to the Land and payable during the term of the Loan Agreement; (h) under the provisions of Minnesota Statutes, Section 474.10 , the Bond is not to be payable from nor charged upon any funds of the City other than the revenue pledged to the payment thereof; the City is not subject to any liability thereon; .no Holder of the Bond shall ever have the right to compel any exercise of the taxing power of the City to pay the Bond or the interest thereon, nor to enforce payment thereof against any property of the City; the Bond shall not constitute a charge, lien or encumbrance, legal or -5- ` equitable, upon any property of the City; and the Bond shall recite that the Bond, including interest thereon, is payable solely from the revenue pledged to the payment thereof and shall not constitute a debt of the City within the meaning of any constitutional or statutory limitation; (i) the execution and delivery of the Loan Agreement, the Pledge Agreement, the Construction Loan Agreement and the Bond will not conflict with, or constitute on the part of the City a breach of or a default under, any existing agreement, indenture, mortgage, lease or other instrument to which the City is subject or is a party or by which it is bound, provided that this finding is made solely for the purpose of estopping the City from denying the validity of the Loan Agreement, the Pledge Agreement, the Construction Loan Agreement or the Bond by reason of the existence of any facts contrary to this finding; (j) no litigation is pending or, to the best knowledge of the members of this Council, threatened against the City questioning the organization or boundaries of the City or the right of any officer of the City to hold his or her office, or in any manner questioning the right and power of the City to execute and deliver the Bond, or otherwise questioning the validity of the Bond or the execution, delivery or validity of the Loan Agreement, the Pledge Agreement or the Construction Loan Agreement, or questioning the appropriation of revenues to payment of the Bond or the right of the City to loan the proceeds of the Bond to the Partnership; (k) all acts and things required under the Constitution and the laws of the State of Minnesota to make the Loan Agreement, the Pledge Agreement, the Construction Loan Agreement and the Bond the valid and binding obligations of the City in accordance with their terms will have been done upon adoption of this Resolution and execution of the Loan Agreement, the Pledge Agreement, the Construction Loan Agreement and the Bond, provided that this finding is made solely for the purpose of estopping the City from denying the validity of the Loan Agreement, the Pledge Agreement, the Construction Loan Agreement or the Bond by reason of the existence of any facts contrary to this finding; and -6- i t 1 • (1) the City is duly organized and existing under the Constitution and the laws of the State of Minnesota and is authorized to issue the Bond in accordance with the Act. Section 3. Authorization and Sale. 3. 01. Authorization. The City is authorized by the Act to issue revenue bonds and loan the proceeds thereof to business enterprises to finance the acquisition and construction of "projects" , as defined in the Act, and to make all contracts, execute all instruments and do all things necessary or convenient in the exercise of such authority. 3.02. Preliminary City Approval. By preliminary resolution duly adopted by the Council on September 18, 1979, after a public hearing held on that date, this Council approved the sale of a revenue obligation pursuant to the Act and the loan of the proceeds to the Partnership for the acquisition and construction of the Project suitable and designed for use as an office building and authorized the preparation of such .documents as may be appropriate to the Project. 3. 03. Approval of Documents. Pursuant to the • foregoing, there have been prepared and presented to the Council copies of the following documents, all of which are now, or shall be, placed on file in the office of the City Clerk: (a) Assignment; j (b) Buy and Sell Agreement; (c) Construction Loan Agreement; (d) Construction Loan Guaranty; (e) Loan Agreement; (f) Mortgage; (g) Permanent Loan Guaranty; (h) Pledge Agreement; and (i) Subordination Agreements. -7- s • The forms of the documents listed in (a) through (i) above are approved, with such variations, insertions and additions as are deemed appropriate by the parties and approved by the City Attorney. Section 4. Authorizations. Upon the completion of the Loan Agreement, the Pledge Agreement and the Construction Loan Agreement approved in Section 3. 03 hereof and the execution thereof by the Partnership and the Lender , as the case may be, the Mayor and the City Manager shall execute the same on- behalf of the City and, together with the City Clerk, shall execute the Bond in substantially the form approved in paragraph 5. 01 hereof on behalf of the City, and shall execute such other certifications, documents or instruments as bond counsel or counsel for the Lender shall require, subject to the approval of the City Attorney, and all certifications, recitals and representations therein shall constitute the certificates, recitals and representations of the City. Execution of any instrument or document by one or more appropriate officers of the City shall constitute, and shall be deemed the conclusive evidence of, the approval and authorization by the City and the Council of the instrument or document so executed. Section 5. The Bond. • 5. 01. Form and Authorized Amount. The Bond shall be issued substantially in the form presented to the Council and set forth as Exhibit A to this Resolution with such appropriate variations, omissions and insertions as are permitted or required by this Resolution, in the total principal amount of $2,975,000. The terms of the Bond are set forth therein, and such terms, including but not limited to provisions as to interest rate, dates and amount of payment of principal and interest and prepayment privileges, are incorporated by reference herein. 5. 02. Execution. The Bond shall be executed on behalf of the City by the signatures of the Mayor and the City Manager and shall be sealed with its corporate seal and attested by the City Clerk. In case any officer whose signature shall appear on the Bond shall cease to be such officer before the delivery thereof, such signature shall nevertheless be valid and sufficient for all purposes. 5. 03. Mutilated, Lost and Destroyed Bond. In case the Bond shall become mutilated or be destroyed or lost, the City shall cause to be executed and delivered a new Bond of like outstanding principal amount and tenor in • -8- . . exchange and substitution for and upon cancellation of the mutilated Bond, or in lieu of and in substitution for such Bond destroyed or lost, upon the Holder ' s paying the reasonable expenses and charges of the City in connection therewith, and, in case the Bond is destroyed or lost, its filing with the City evidence satisfactory to it of such loss or destruction. 5. 04. Assignment. The Bond may be assigned by the Holder, from time to time, by endorsement thereon or by separate written instrument; provided that notice of any such assignment shall be given in writing to the City and the Partnership. At the request of the Holder , the Bond shall be registered on the books of the City, subject to the conditions set forth in the form of the Bond attached hereto as Exhibit A. 5. 05. Delivery and Use of Proceeds. Prior to delivery of the Bond, the documents referred to in Section 3. 03 hereof shall be completed and executed in form and substance as -approved by- the City Attorney and an original, executed counterpart of each such document shall be delivered to the Lender, together with the Organizational Documents. The City shall thereupon deliver to the Lender the Bond in the total principal amount of $2,975, 000, together with a copy, duly certified by the City Clerk, of this Resolution and such closing certificates as are required by bond counsel. Upon delivery of the Bond and the above items to the Lender, the Lender shall, on behalf of the City, disburse the proceeds of the Bond to the Partnership. in reimbursement of, or to its order for payment of, Project Costs pursuant to the provisions of the Construction Loan Agreement. The Lender or the Partnership shall provide the City with a full accounting of all funds disbursed for Project Costs. Section 6. Limitations of the City's Obligations. Notwithstanding anything contained in the Bond, the Construction Loan Agreement, the Loan Agreement or the Pledge Agreement or any other documents referred to in Section 3. 03 hereof, the Bond shall not constitute a debt of the City within the meaning of any constitutional or statutory limitation, and shall not be payable from nor charged upon any funds other than the revenue pledged to the payment thereof, and the City shall not be subject to any liability thereon, and no Holder of the Bond shall ever have the right to compel any exercise of the taxing power of the City to pay the Bond or the interest thereon, -9- a 9 or to enforce payment thereof against any property of the City, and the Bond shall not constitute a charge , lien or encumbrance, legal or equitable, upon any property of the City. The agreement of the City to perform the covenants and other provisions contained in this Resolution or the Bond, the Construction Loan Agreement, the Loan Agreement or the Pledge Agreement and the other documents listed in Section 3. 03 hereof shall be subject at all times to the availability of revenues furnished by the Partnership sufficient to pay all costs of such performance or the enforcement thereof, and the City shall not be subject to any personal or pecuniary liability thereon. Adopted: February 19, 1980 , Mayor Attest)41y LClerk -10- Cp#,,r 0, S'o ~3 EXHIBIT A UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF HENNEPIN CITY OF EDEN PRAIRIE No. R-1 $2, 975,000.00 Commercial Development Revenue Bond (Anderson Lakes Associates Project) The City of Eden Prairie, Minnesota, a municipal corporation in the County of Hennepin and State of Minnesota (the "City") , for value received, hereby promises to pay to the order of NATIONAL CITY BANK OF MINNEAPOLIS , a national banking association, or assigns (the "Holder" ) , at its principal office at 75 South Fifth Street, Minneapolis, Minnesota 55402, or such other place as the Holder may from time to time designate in writing, from the source and in the manner and with interest thereon as hereinafter provided, the principal sum of TWO MILLION NINE HUNDRED SEVENTY-FIVE THOUSAND .AND NO/100 DOLLARS ($2, 975, 000. 00) , or such portion thereof as may be advanced hereon from time to time in accordance with the Construction Loan Agreement hereinafter referred to (the "Principal Balance") , and to pay interest thereon from the date hereof until this Bond is fully paid at the rates of interest hereafter set forth. The Principal Balance and interest thereon shall be payable as follows : 1. Prior to the Assignment Date, as defined in the Loan Agreement hereinafter referred to, the City shall pay interest only at the rate of nine and one-half percent (9 1/2%) per annum on the Principal Balance hereof that shall from time to time be advanced pursuant to the Construction Loan Agreement. Interest shall accrue from and after the date of each and every advance so made by National City Bank of Minneapolis (the "Lender" ) and shall be payable on the first day of the month next succeeding the date 00 upon which the first advance is made, and on the first day of each and every month thereafter, and on the Assignment Date, provided that in the event that the Assignment Date does not occur on or before the expiration of the Permanent Loan Commitment, as defined in the Loan Agreement, the entire unpaid Principal Balance hereof, together with interest accrued thereon, shall, at the option of the Holder, become due and payable on demand. 2. Commencing on the Assignment Date, the unpaid Principal Balance hereof shall bear interest at the rate of eight and one-half percent (8 1/2%) per annum, and such principal and interest shall be repayable in installments as follows: a. on the first day of the month next succeeding the Assignment Date (unless the Assignment Date occurs on the first day of a month) , there shall be paid an interest only payment equal to accrued interest between the Assignment Date and said first day of the month; and . b. on the first day of each and every month thereafter (or after the Assignment Date if such date occurs on the first day of a month) , principal and interest shall be payable in three hundred forty-seven (347) consecutive monthly installments of TWENTY-THREE THOUSAND FIFTY-SIX DOLLARS AND TWENTY-FIVE CENTS ($23, 056. 25) each, with a final payment of all unpaid principal and interest twenty-nine (29) years from the first day of the month next succeeding the Assignment Date (or from the Assignment Date if such date occurs on the first day of a month) . In the event of a Determination of Taxability, as defined in the Loan Agreement, the rate of interest hereon shall automatically be increased to ten and one-half percent (10 1/2%) per annum effective as of the Date of Taxability, as defined in the Loan Agreement, unless the Date of Taxability occurs before the Assignment Date, in which event the rate of interest hereon from the Date of Taxability to the Assignment Date shall automatically be -2- increased to two and one-quarter (2 1/4) percentage points over the prime rate of interest charged by National City Bank of Minneapolis on ninety-day unsecured loans to its commercial borrowers of the highest credit rating in effect on the Date of Taxability, and thereafter the interest rate shall be ten and one-half percent (10 1/2%) per annum. In the event of a Determination of Taxability, monthly payments of principal and interest from and after the Date of Taxability shall be recomputed at-the applicable interest rate or rates set forth above using the amortization period used in the original computation of the payments due hereunder, and the City shall (a) promptly pay to the Holder hereof and to any prior Holder affected thereby, as their interests may appear, the aggregate difference between (i) the amounts actually paid hereunder between the Date of Taxability and the date of such payment and (ii) the amounts which would have been paid during such period if the increased interest rate or rates had been in effect, and (b) thereafter pay to the Holder hereof monthly payments of principal and interest as so recomputed. All interest hereon shall be computed on the basis of the actual number of days elapsed on the assumptions that each month contains thirty (30) days and • each year contains three hundred sixty (360) days. All payments made under this Bond shall be applied first to interest and then to principal, except that if any advances made by the Holder hereof under the terms of any instruments securing this Bond are not repaid, any moneys received, at the option of the Holder, may first be applied to repay such advances, plus interest thereon, at the interest rate then in effect hereunder, and the- balance, if any, shall be applied on account of any installments of principal and interest hereon then due. This Bond is issued pursuant to the Minnesota Municipal Industrial Development Act, Chapter 474, Minnesota Statutes, as amended (the "Act") , and in conformity with the provisions, restrictions and limitations thereof. This Bond does not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation and does not constitute or give rise to a pecuniary liability of the City or charge against its general credit or taxing powers. This Bond, the interest hereon and any premium, penalties, late charges, processing fees and other payments required herein, however designated, are payable solely out of the moneys payable or received under the -3- • Loan Agreement or realized from the enforcement of the security hereinafter described. The liability of the City hereunder is further restricted in all respects as set forth in Section 474. 10 of the Act. This Bond is issued and sold pursuant to a resolution adopted by the City Council of the City on February 19, 1980 (the "Bond Resolution") , in order to provide funds to be loaned to Anderson Lake Associates, a Minnesota general partnership (the "Partnership") , pursuant to a Loan Agreement, of even date herewith (the "Loan Agreement") , between the City and the Partnership, for the purpose of financing the acquisition, construction and equipping of an office building and related facilities and improvements (the "Improvements") , all locateca on real property situated in Hennepin County, Minnesota (the "Land" , which, together with the Improvements, are herein collectively referred to as the "Project") . Under the Loan Agreement, the Partnership has agreed to acquire, construct and equip the Project and has agreed to make loan repayments in amounts and at times sufficient to pay the principal of, premium, if any, and interest on this Bond when due. Pursuant to a Pledge Agreement, of even date herewith (the "Pledge Agreement") , given by the City in favor of the Lender, the City has pledged and granted a security interest in its interest in the Loan Agreement (except its rights to indemnification and payment of certain expenses) to the Lender. This Bond is further secured by (i) a Mortgage and Security Agreement and Fixture Financing Statement, of even date herewith (the "Mortgage") , by which the Partnership has grantea to the Lender a first mortaaae lien on and security interest in the Project, (ii) an Assignment of Leases, of even date herewith (the "Assignment") , by which the Partnership has assioned to the Lender its interest in all rents and leases of the Project, (iii) a Guaranty, of even date herewith (the "Construction Loan Guaranty") , given by James E. Sutherlin, Cornelia Emison, James Emison, Joyce Jaskowiak and Leonard Jaskowiak, individuals residina in the State of Minnesota, to the Lender, and (iv) a Guaranty, of even date herewith (the "Permanent Loan Guaranty") , given by James E. Sutherlin, James Emison and Leonard Jaskowiak to the Lender. Advances of the proceeds of this Bond to pay the cost of acquiring, constructing and equipping the Project are being made pursuant to a Construction Loan Agreement, of even date herewith (the "Construction Loan Agreement") , among the City, the Lender and the Partnership. Reference is hereby made to the Bond Resolution, Loan Agreement, Pledge Agreement, Construction Loan Agreement, Mortgage, -4- iAssignment, Construction Loan Guaranty and Permanent Loan Guaranty for a complete description of the covenants and agreements therein contained, the nature and extent of the security thereby created and the rights, duties and immunities of the City thereunder. The principal of this Bond is not subject to prepayment at the option of the City prior to the expiration of the tenth loan year, as hereinafter referred to. From and after the expiration of the tenth loan year, at the direction of the Partnership, the principal of this Bond may be prepaid, in whole but not in part, on any monthly installment payment date, upon payment of a price equal to the principal amount being so prepaid plus accrued interest to the date of prepayment and a premium, expressed as a percentage of the principal being so prepaid, as follows: Loan Year Premium 11 5% 12 4-1/2% 13 4% 14 3-1/2% 15 3% • 16 2-1/2% 17 2% 18 1-1/2% 19 and thereafter 1% The first loan year is defined as the twelve-month period commencing on the date the first full monthly installment of principal and interest is due under this Bond. Subsequent loan years shall run consecutively, each commencing on the anniversary of the commencement of the first loan year.. The Partnership shall give the Holder of this Bond at least ninety (90) days written notice of any such prepayment and such notice shall not suspend or reduce required monthly installment payments hereunder. Notwithstanding anything to the contrary contained in this Bond, the Holder hereof shall have the right to call the entire balance of the outstanding principal hereof and accrued interest thereon due and payable upon the expiration of the fifteenth loan year by giving written notice thereof to the City and the Partnership at least ninety (90) days prior thereto. No prepayment premium shall be due in the event the Holder hereof exerises its right hereunder. -5- • In the event that any installment required hereunder is not paid within ten (10) days after its due date, the City agrees to pay a late charge of five percent (50) of the unpaid installment payment to defray the costs of the Holder incident to collecting such late payment from the revenues derived by the City pursuant to the Loan Agreement. This provision shall not be deemed to excuse a late payment or be deemed a waiver of any other rights the Holder may have, including the right to declare the entire unpaid principal hereof and interest accrued thereon immediately due and payable. This Bond is made pursuant to and shall be construed in accordance with the laws of the State of Minnesota. The Holder hereof may make a reasonable charge to cover the expense of changing its record of ownership, or the giving of information relating to the unpaid balance of this indebtedness, in connection with any conveyance of the Land covered by the Mortgage in accordance with the terms thereof and of this Bond. The Holder hereof may extend the times of payments of principal of and/or interest on this Bond • without notice to or consent of any party liable, hereon without releasing any such party. The City hereby waives presentment for payment, demand, dishonor or protest, and notice of nonpayment, dishonor or protest. Subject to the conditions set forth herein, the City will, upon request of the Holder,- register this Bond upon its books. Upon such registration, this Bond shall be transferable only by the Holder hereof. in person or by its attorney duly authorized in writing by registration hereon and on the books of the City kept for that purpose at the office of the City Clerk and upon surrender hereof together with a written instrument of transfer satisfactory to the City Clerk, duly executed by the Holder or its duly authorized attorney. Upon such transfer, the City Clerk will note the date of registration and the name and address of the new Holder upon the books of the City and in the registration blank appearing below. The City may deem and treat the person in whose name this Bond is last registered upon the books of the City, with such registration also noted on this Bond, as the absolute owner hereof, whether or not overdue, for the purpose of receiving payment of or on account of the principal hereof, interest hereon or any other sums payable hereunder, and for all other purposes, -6- and all such payments so made to the Holder or upon its order shall be valid and effectual to satisfy and discharge the liability on this Bond to the extent of the sum or sums so paid, and the City shall not be affected by any notice to the contrary. By acceptance of this Bond, the Holder agrees to provide to the City Clerk, at the City Clerk' s request, a verified statement of the dates and amounts of all payments of principal, premium and interest received in respect to this Bond. All of the agreements, conditions, covenants, stipulations of the City and provisions contained in the Bond Resolution, the Loan Agreement, the Mortgage, the Assignment, the Construction Loan Guaranty, the Permanent Loan Guaranty, the Pledge Agreement and the Construction Loan Agreement are hereby made a part of this Bond to the same extent and with the same force and effect as if they were fully set forth herein. If an event of default occurs and is subsisting under this Bond, the Loan Agreement, the Mortgage, the Assignment, the Construction Loan Guaranty, the Permanent Loan Guaranty, the Pledge Agreement or the Construction Loan Agreement, or if any other event occurs and subsists which entitles the Holder hereof to accelerate payment under the Loan Agreement or Mortgage, then the Holder hereof shall have the right and option to declare immediately due and payable without ' notice the unpaid principal of this Bond and interest accrued thereon to the date of declaration of such acceleration, together with any attorneys' fees incurred by the Holder in collecting or enforcing payment thereof, whether suit be brought or not, and all other sums due hereunder or under the Loan Agreement, the Mortgage, the Assignment, the Construction Loan Guaranty, the Permanent Loan Guaranty, the Pledge Agreement and the Construction Loan Agreement. It is agreed that time is of the essence in the performance of the terms of this Bond. In the event the Partnership sells, conveys, transfers, further mortgages or encumbers or disposes of the Premises, as defined in the Mortgage, or any part thereof or interest therein, or agrees so to do, or a partnership interest in the Partnership is sold, conveyed, pledged or transferred, or any corporate interest in James E. Sutherlin, Inc. , a Minnesota corporation (one of the two partners of the Partnership) , is sold, conveyed, pledged or transferred, in each case without the written consent of the Holder of this Bond being first obtained, then, at the sole option of the Holder, the Holder may declare the entire amount of unpaid principal hereof and accrued interest thereon due and payable in full and call -7- for payment of the same in full at once. In the event the Partnership shall request the consent of the Holder in accordance with this paragraph, the Partnership shall deliver a written request to the Holder, together with complete information regarding such a conveyance or encumbrance, and shall allow the Holder thirty (30) days for evaluation of such request. If such a conveyance or encumbrance is approved, the Partnership shall pay a processing fee in an amount to be determined by the Holder, but not less than Two Thousand and 00/100 Dollars ($2, 000.00) , to compensate the Holder for processing the request. Such approval may be subject to such modifications of the loan terms as may be deemed necessary by the Holder. In no event shall the Partnership request such consent prior to the expiration of the first loan year. Consent as to any one transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. Upon the declaration of acceleration of maturity of this Bond by the Holder hereof, a tender of payment of the amount necessary to satisfy the entire unpaid principal balance declared due and payable shall be deemed to constitute an attempted evasion of aforesaid restrictions on the right of prepayment and shall be • deemed a voluntary prepayment hereunder, and such payment must therefore include the prepayment premium as described above, and, if payment is tendered prior to the earliest date on which prepayment may be made, then such premium shall be computed as if tender had been made on the earliest date allowed for prepayment. No delay or omission on the part of the Holder hereof in exercising any right hereunder shall operate as a waiver of such right or of any other remedy under this Bond. A waiver on any one occasion shall not be construed as a bar to or waiver of any such right or remedy on a future occasion. The Construction Loan Agreement and Construction Loan Guaranty shall no longer constitute a part of this Bond from and after the Assignment Date, and no defenses, offsets or counterclaims available to the Partnership arising out of the Construction Loan Agreement shall be valid or effective as against the indebtedness evidenced by this Bond or against the Holder hereof, all of said defenses, offsets and counterclaims being then waived insofar as said indebtedness and said Holder are concerned. Nothing herein shall affect or impair the obligation of the City to pay, and any prior Holder of -8- this Bond to collect, any additional interest which may have accrued hereunder prior to the Assignment Date as a result of a Determination of Taxability as provided for herein; however, any such prior Holder shall have no rights or remedies under the Mortgage, Loan Agreement, Assignment or Permanent Loan Guaranty nor with respect to the Project. It is hereby certified and recited that all acts, conditions and things required to exist, happen and be performed precedent to and in the issuance of this Bond do exist, have happened and have been performed in regular and due time, form and manner as required by law. IN WITNESS WHEREOF, the CITY OF EDEN PRAIRIE, MINNESOTA, has caused this Bond to be signed in its behalf by the signatures of the Mayor, the City Manager and the City Clerk and sealed with the official seal of the City, all as of the 19 day of February, 1980. CITY OF EDEN RAIRIE, MINNESOT s By Mayor -X By City Manager (SEAL) Attest : City erk -9- Certificate of Registration It is hereby certified that, at the request of the Holder of the within Bond, the City of Eden Prairie, Minnesota, has this day registered it as to principal and interest, in the name of such Holder, as indicated in the registration blank below, on the books kept by the undersigned for such purpose: Name of Authorized Registered Date of Signature Owner - Registration of City Clerk National City Bank of Minneapolis -10-