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HomeMy WebLinkAboutResolution - 81-38 - Final Approval MIDB for $970,000 for Richard Cohen - 02/17/1981 NOTE RESOLUTION CITY OF EDEN PRAIRIE INDUSTRIAL DEVELOPMENT REVENUE NOTE OF 1981 (RICHARD W. COHEN PROJECT) ADOPTED: FEBRUARY 17, 1981 (This table of contents is not a part of this Resolution, but is included for convenience only) TABLE OF CONTENTS Page ARTICLE ONE - DEFINITIONS, LEGAL AUTHORIZATION AND FINDINGS . . . . . . . . . . . . . . . . . . . . . : . . . . . 1 Section 1-1 . Def.initions. . . . . . . . . . . . . . . . . . . . . . 1 Section 1-2 . Findings. . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Section 1-3. Authorization and Ratification of Project. . . . . . . . . . . . . . . . . . . . . . . 5 ARTICLE TWO - NOTE. . . . . . . . . . . . . . . 6 Section 2-1 . Authorized Amount and Form of Note. . . . . . . . . . . . . . . . . . . . . . . . . . 6 Section 2-2 . The Note. . . . . . . . . . . . . . . . . . . . . . . . . 17 Section 2-3 . Execution. . . . . . . . . . . . . . . . . . . . . . . . 17 Section 2-4 . Delivery of Note. . . . . . . . . . . . 17 Section 2-5. Registration of Transfer. . . . . . . . . 18 Section 2-6 . Mutilated, Lost or Destroyed Note. . . . . . . . . . . . . . . . . . . . . . . . . a . . . 18 Section 2-7. Ownershio of Note. . . . . . . . . . 18 ARTICLS THREE - GENERAL COVENANTS. . . . . . . . . . . . . . . . . . . . 19 Section 3-1 . Authority for Covenants. . . . . . . . . . . . . 19 Section 3-2 . Nature of Security. . . . . . . . . 19 ARTICLE FOUR - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . , . 20 Section 4-1 . Severability . . . . . . 0 . 0 . . . 0 . 0 . . . . . . 20 Section 4-2 . Authentication of Transcript. . . . . 20 Section 4-3 . Registration of Resolution. . . . . . . 20 Section 4-4 . Authorization to Execute Agreements. . . . . . . . 20 SIGNATURES. o . . . . . . . . . . . . . . . . . . 21 NOTE RESOLUTION BE IT RESOLVED by the City Council of the City of Eden Prairie, Minnesota, as follows : ARTICLE ONE DEFINITIONS, LEGAL AUTHORIZATION AND FINDINGS 1-1 . Definitions . The terms used herein, shall have the following meanings, and any other terms defined in the Loan Agreement shall have the same meanings when used herein as assigned to them in the Loan Agreement unless the context or use thereof indicates another or different meaning or intent. Act: the Minnesota Municipal Industrial Development Act, Minnesota Statutes, Chapter 474 , as amended; Assignment: that certain Assignment to be executed by the City, wherein the City assigns all of its right, title and interest in the Loan Agreement to the Interim Lender, subject to certain exceptions specified in the Assignment; Bond Counsel : the firm of Briggs and Morgan, Professional Association, of St. Paul, Minnesota, and any opinion of Bone. Counsel shall be a written opinion signed by such Counsel ; Borrower: Richard W. Cohen, his heirs, legal representatives and assigns who may assume his obligations under the Loan Agreement; Buy-Sell Agreement: the agreement between the Borrower, the Interim Lender, the Correspondent and the Permanent Lender dated as of February 18, 1981 ; City: the City of Eden Prairie, Minnesota, its successors and assigns ; Construction Loan Agreement : the agreement to be executed by the City, the Borrower and the Interim Lender, relating to the construction and installation of the Improvements and payment of the Project Costs; Correspondent : Northland Mortgage Company in Minneapolis, Minnesota, its successors and assigns; Improvements : the structures and other improvements, including any tangible personal property to be constructed or installed by the Borrower on the Land in accordance with the Plans and Specifications ; Interim Lender: The First National Bank of Saint Paul , St. Paul, Minnesota, as agent for the Participants; Land : the real property and any other easements and rights described in Exhibit A attached to the Loan Agreement; Loan Agreement: the agreement to be executed by the City and the Borrower, providing for the loan of construction funds to the Borrower, including any amendments or supplements thereto made in accordance with its provisions; Mortgage: the Statutory Mortgage , Assignment of Leases and Rents, Security Agreement and Fixture Financing Statement to be executed by the Borrower and his wife , as mortgagor, to the Interim Lender, as mortgagee, securing payment of the Note Assignment of Leases and Rents, and interest thereon and the performance of the Borrower ' s obligations under the Loan Agreement; Note : $970,000 Industrial Development Revenue Note of 1981 (Richard W. Cohen Project) , to be issued by the City pursuant to this Resolution and the Loan Agreement; Note Register: the records kept by the City Clerk to provide for the registration of transfer of ownership of the Note; Participants : Roseville State Bank, Richfield Bank and Trust Company and Eastern Heights State Bank, their successors and assigns ; Permanent Lender: Provident Mutual Life Insurance Company of Philadelphia, Philadelphia, Pennsylvania, its successors and assigns ; Plans and Specifications: the plans and specifications for the construction and installation of the Improvements on the Land, which are approved by the Permanent Lender, together with such modifications thereof and additions thereto which are reasonably determined by the Borrower to be necessary or desirable for the completion of the Improvements and are approved by the Permanent Lender; Prime Rate: the announced Prime Rate of the Interim Lender charged on short-term, unsecured loans to commercial borrowers of the highest credit standing as that Prime Rate shall change from time to time . 2 Principal Balance: so much of the principal sum on the Note as from time to time may have been advanced to or for the benefit of the City and remains unpaid; Project : the Land and Improvements as they may at any time exist; Project Costs : the total of all "Construction Costs" and "Loan and Carrying Charges, " as those terms are defined in the Loan Agreement; Purchase Date : the date on which the Note is purchased by the Permanent Lender pursuant to the Buy-Sell Agreement ; Resolution: this Resolution of the City adopted February 17 , 1981, together with any supplement or amendment thereto. All references in this instrument to designated "Articles, " "Sections" and other subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally executed . The words "herein, " "hereof" and "hereunder" and other words of similar import refer to this Resolution as a i7hole not to any particular Article, Section or subdivision. 1-2. Findings. ( ( 1) The City is a political subdivision of the State of Minnesota and is authorized under the Act to initiate the revenue producing project herein referred to, and to issue and sell the Note for the purpose, in the manner and upon the terms and conditions set forth in the Act and in this Resolution. The City Council has heretofore determined, and does hereby determine, as follows: ( 2) the City is authorized by the Act to enter into a Loan. Agreement for the public purposes expressed in the Act; ( 3) the City has made the necessary arrangements wit;. the Borrower for the establishment within the City of a Project consisting of certain property all as more fully described in the Loan Agreement which will be of the character and accomplish the purposes provided by the Act, and the City has by this Resolution authorized the Project and execution of the Loan Agreement, the Assignment, the Financing Statement, the Note, and the Construction Loan Agreement, which documents specify the terms and conditions of the installation, construction and financing of the Improvements to be included in the Project; f 3 ( 4) in authorizing the Project the City ' s purpose is, and in its judgment 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, so far as possible, the emergence of blighted and marginal lands and areas of chronic unemployment; the development of revenueproducing enterprises to use the available resources of the community, in order to retain the benefit of the community' s existing investment in educational and public service facilities; the halting of the movement of talented, educated personnel of all ages to other areas and thus preserving the economic and human resources needed as a base for providing governmental services and facilities ; the provision of accessible employment opportunities for residents in the area; the expansion of an adequate tax base to finance the increase in the amount and cost of governmental services, including educational services for the school district serving the community in which the Project is situated; ( 5) the amount estimated to be necessary to finance the Project Costs, including the costs and estimated costs permitted by Section 474 . 05 of the Act, will require the issuance of the Note in the principal amount of $970, 000 as hereinafter provided; ( 6) it is desirable, feasible and consistent with the objects and purposes of the Act to issue the Note, for the purpose of partially financing the Project; ( 7) the Note and the interest accruing thereon do not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation and do not constitute or give rise to a pecuniary liability or a charge against the general credit or taxing powers of the City and neither the full faith and credit nor the taxing powers of the City is pledged for the payment of the Note or interest thereon; and ( 8) the Note is an industrial development bond within the meaning of Section 103 (b) of the Internal Revenue Code and is to be issued within the exemption provided under subparagraph (A) of. Section 1O3( b) ( 6 ) of the Code with respect to an issue of $1, 000 ,000 or less ; provided that nothing herein shall prevent the City from hereafter qualifying the Note under a different exemption if, and to the extent, such exemption is permitted by law and consistent with the objects and purposes of the Project . ( 9) no public official of the City has either a direct or indirect financial interest in this Agreement nor will any public official either directly or indireclty benefit financially from this Agreement within the meaning of Minnesota Statutes, Sections 412 . 311 and 471 .87; 4 1-3 . Authorization and Ratification of Project. The City has heretofore and does hereby authorize the Borrower, in accordance with the provisions of Section 474 .03 ( 7) of the Act and subject to the terms and conditions set forth in the Construction Loan Agreement, to provide for the construction and installation of the Improvements included in the Project under the Plans and Specifications by such means as shall be available to the Borrower and in the manner determined by the Borrower, and without advertisement for bids as may be required for the construction and acquisition of municipal facilities; such approval is hereby declared to be retroactive as to all actions heretofore taken by the Borrower consistent with and in 'anticipation of such authority and in compliance with the Plans and Specifications. { 5 ARTICLE TWO NOTE 2-1 . Authorized Amount and Form of Note. The Note issued pursuant to this Resolution shall ne in substantially the form set forth herein, with such appropriate variations, omissions and insertions as are permitted or required by this Resolution, and in accordance with the further provisions of this Article; and the total principal amount of the Note that may be outstanding hereunder is expressly limited to $ 970, 000.00 . The Note shall be in substantially the following forms 6 UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF HENNEPIN CITY OF EDEN PRAIRIE INDUSTRIAL DEVELOPMENT REVENUE NOTE OF 1981 ( RICHARD W. COHEN PROJECT) $970 , 000 . 00 FOR VALUE RECEIVED the City of Eden Prairie, Hennepin County, Minnesota, hereby promises to pay to the order of The First National Bank of Saint Paul , St . Paul , Minnesota, as agent for the Roseville State Bank, Richfield Bank & rrust Co . and Eastern Heights State Bank of Saint Paul , their successors and assigns, ( the " Interim Lender_" ) in any coin or currency which at the times of payment is legal tender for the payment of public or private debts, but solely from the revenues derived from the Loan Agreement, the principal sum of NINE HUNDRED SEVENTY THOUSAND AND NO/100 DOLLARS ($970 ,000 . 00) U.S . , or so much thereof as may be advanced for the account of the City pursuant to that certain Construction Loan Agreement ( the "Construction Loan Agreement" ) dated , 1981 between the Interim Lender, the City and Richard W. Cohen ( the " Borrower" ) and remains unpaid from time to time (the "Principal Balance" ) , with interest thereon, as follows : 1. From and after the date hereof, until the Purchase Date, ( as hereinafter defined ) , interest only on the unpaid Principal Balance, computed on the basis of a 360 day year, but charged for the actual number of days principal is unpaid, at an annual rate equal to seventy percent ( 70%) of the Prime Rate of The First National Bank of Saint Paul and that rate shall change when and as the Prime Rate shall change . As used herein, the term "Prime Rate" shall mean the publically announced Prime Rate of The First National Bank of Saint Paul for commercial borrowings as the same shall change from time to time. Said interest shall be payable monthly on that portion of the principal sum from time to time advanced for the account of the City pursuant to the Construction Loan Agreement. Interest payments shall commence on the first day of the calendar month next succeeding the date on which the first such advance is made and shall continue on the first day of each succeeding month thereafter, with a final payment of all accrued but unpaid interest on the Purchase Date. Provided however, that if the interest on this Note should become subject to federal income taxation pursuant to receipt by the Interim Lender of a notice of "Determination of 7 Taxability" ( as that term is defined in Section 3. 01 of that certain Loan Agreement dated , 1981 between the City and the Borrower ( the "Loan Agreement" ) prior to the Purchase Date, the interest rate shall be retroactively increased, effective as of the Date of Taxability to an annual rate ( computed on a basis cf actual days elapsed in a 360-day year) equal to two percent ( 2%) per annum in excess of the Prime Rate of the Interim Lender . In the event the interest rate on the Note is increased as _provided herein, the City shall forthwith pay to the Interim Lender, but solely from revenues derived from the Loan Agreement, an amount equal to any penalties and interest assessed against the Interim Lender by the Internal Revenue Service as a result of a Determination of Taxability plus an amount equal to the aggregate difference between ( i) the payments that would have been made to the Interim Lender on this Note from the Date of Taxability to the Purchase Date had the interest on this Note been at such increased rate and ( ii ) the payments actually made during such period. 2 . From and after the Purchase Date, the entire unpaid Principal Balance shall bear interest computed on the basis of a three hundred sixty day ( 360 ) year at the rate of eleven and three-eighths percent ( 11 3/8% ) per annum, and shall be paid as follows : on the first day of the f i rst calendar month next succeeding the Purchase Date, the City shall pay to the Holder ( as hereinafter defined) , interest accrued hereunder from the Purchase Dame through the end of the month in which the Purchase Date occurred and thereafter, the City shall pay principal and interest in one hundred seventy-nine ( 17 9) equal consecutive monthly installments of NINE THOUSAND FIVE HUNDRED FIFTEEN AND N0/100 DOLLARS ($9, 515 . 00 ) each, commencing on the first day of the second calendar month succeeding the Purchase Date, and continuing on the first day of each month thereafter, until the first day of the 180th month Next succeeding the Purchase Date, when the entire unpaid Principal Balance plus accrued interest, shall be due and payable in full . Each such installment of principal and interest shall be applied first to payment of interest then due and the remainder shall be applied to principal . Provided, however, that if the interest on this Note should become subject to federal income taxation pursuant to receipt by the Holder of a notice of Determination of Taxability the interest rate shall be retroactively increased, effective as of the later of the Purchase Date or the Date of Taxability, to fourteen and one-fourth percent ( 14h% ) per annum and the consecutive monthly installments of principal and interest and the final installment of principal and interest shall be increased , 8 beginning with the first day of the first month after receipt by the Holder of the notice of Determination of Taxability, to reflect the increased interest rate. In such event, the City shall forthwith pay to the Holder an amount equal to any penalties assessed against the Holder by the Internal Revenue Service as the result of a Determination of Taxability plus an amount equal to the aggregate difference between ( i ) the payments that would have been made to the Holder from the later of the Date of Taxability or the Purchase Date, to the date the Holder received notice of a Determination of Taxability had the interest on this Note been at such increased rate and ( ii ) the payments actually made during such period . Definitions . ( a) Purchase Date . As used herein, the term "Purchase Date" shall mean that date on which Provident Mutual Life Insurance Company of Philadelphia, Philadelphia, Pennsylvania ( the "Permanent Lender" ) or such other financial institution as may be substituted for the Permanent Lender shall purchase this Note pursuant to the Buy-Sell Agreement of even date herewith between the Borrower, the Interim Lender, the Permanent Lender and Northland Mortgage Company ( the "Correspondent" ) ( the "Buy-Sell Agreement" ) . (b) Definition of Holder. As used herein, the term "Holder" shall mean the registered holder of this Note, who before the Purchase Date shall be the Interim Lender, its successors and assigns, and after the Purchase Date shall be the Permanent Lender, its successors and assigns. Place of Payment. Principal and interest and any premium due hereunder shall be payable before the Purchase Date at the principal off ice of The First National Bank of Saint Paul and after the Purchase Date, at the principal office of the Holder, or at such other place as The First National Bank of Saint Paul or the Holder, as the case may be, may designate in writing. Purpose . This Note is issued by the City to provide funds for a Project, as defined in Section 474 .02, Subdivision 1, Minnesota Statutes, consisting of the acquisition of land and the construction thereon and installation of equipment in an office/warehouse facility, pursuant to a Loan Agreement, as defined herein, and this Note is further issued pursuant to and in full compliance with the Constitution and laws of the State of Minnesota, particularly Chapter 474, Minnesota Statutes, and pursuant to resolution of the City Council duly adopted on February 3 , 1981 ( the "Resolution" ) . 9 Security. This Note is secured by an Assignment of the Loan Agreement by the City to the Interim Lender ( the "Assignment" ) , a Statutory Mortgage , Assignment of Leases and Rents, Security Agreement, and Fixture Financing Statement, of even date herewith from the Borrower and Diane W. Cohen, husband and wife, as mortgagors, to the Interim Lender, as mortgagee ( the "Mortgage" ) , concerning real property situate in the County of Hennepin, State of Minnesota ( the "Land" ) , and an assignment of a life insurance policy in the face amount of $150, 000 on the life of the Borrower ( the "Policy Assignment" ) . On the Purchase Date, the interest of the Interim Lender in such securing documents will be assigned to the Permanent Lender pursuant to the Buy-Sell Agreement. The disbursement of the proceeds of this Note by the Interim Lender is subject to the terms and conditions of the Construction Loan Agreement. Provided , however, that notwithstanding any provisions to the contrary contained in this Note, the Construction. Loan Agreement shall no longer constitute a part of this Note from and after endorsement or assignment of this Note by the Interim Lender to the Permanent Lender, or its successors and assigns, and no defenses, offsets or counterclaims available to the Interim Lender or the Borrower arising out of the Construction Loan Agreement shall be valid or effective as against the indebtedness evidenced by this Note, all of said defenses, offsets and counterclaims being then waived insofar as the Correspondent, the Permanent Lender, or its successors and assigns, are concerned . No warranties, representations, undertakings or agreements on the part of the Interim Lender contained in the Construction Loan ( Agreement shall ( i) be a part of or run with this Note ; or ( i i ) be binding upon the Permanent Lender, its successors or assigns, after endorsement or assignment of this Note to the Permanent Lender, its successors and assigns . Prepayment. This Note may not be prepaid, either in whole or in part, prior to the Purchase Date or during the first seven ( 7) Loan Years (as hereinafter defined ) after the Purchase Date. Beginning with the eighth ( 8 th) Loan Year and thereafter, this Note may be prepaid in whole, but riot in part, on a monthly installment payment date, provided the Holder has received sixty ( 60) days' prior written notice of such intention to prepay and upon payment of a premium of five percent ( 5%) of the then outstanding Principal Balance for a prepayment occurring in the eighth Loan Year . Commencing with the ninth Loan Year, the premium for prepayment shall decrease annually by one percent (1%) to a minimum prepayment premium of 1% for any prepayment occurring in the twelfth Loan Year and any Loan Year thereafter. The Holder shall apply any such prepayment first against the applicable prepayment premium, next to any interest due and owing on the Note and then against the Principal Balance . The term "Loan Year" as 10 used herein shall mean a twelve ( 12 ) month period commencing on the first day of the first month succeeding the Purchase Date and on each anniversary thereof. Extraordinary Prepayment. ( a) Upon the occurrence of an event of damage, destruction or condemnation, wherein the Holder chooses to exercise its option to require this Note to be prepaid pursuant to the terms of this Note the Holder, at its option may apply the net proceeds of any insurance or condemnation award in prepayment, without premium, of the amounts outstanding under the Note . All such proceeds shall be applied first to accrued interest, and thereafter to the monthly principal installments in inverse order of their maturity. If all amounts outstanding under the Note are not thereby paid in full , such prepayment shall not reduce the monthly payments required hereunder . (b) From and after the Purchase Date in the event that interest on this Note becomes subject to federal income taxation pursuant to a "Determination of Taxability" as defined in the Loan Agreement the Holder :nay, by written notice of election given to the City and the Borrower within 90 days after it .receives notice of suc:i "Determination of Taxability" , elect to call this Note for redemption and prepayment in full, in which case the City shall , not later than 180 days after receiving written notice of such call, pay to such Holder the Principal Balance , without premium, together with accrued interest from the date the Holder gave notice of such call to the City and the Borrower to the date the Note is prepaid by the City in full at a rate equal to fourteen and one-fourth percent ( 14�% ) per annum, and shall also pay those additional amounts to the Holder of the Note under Paragraph 2 hereof, in the event the interest rate is increased as provided in such Paragraph. ( c ) The Holder shall also have the option, upon written notice to the City and the Borrower, to call the Note for redemption and prepayment in full if, as a result of changes in the Constitution of the State of Minnesota or the United States or of legislative or administrative action ( whether state or federal) or of a final decree, judgment or order of any court or administrative body (whether state or federal) , the Loan Agreement shall have become void or unenforceable or impossible of performance in accordance with the intent and purpose of the parties expressed therein. In such case, the City shall, not later than 60 days after receiving written notice of such call for redemption and prepayment, pay to the Holder the Principal Balance of this Note, without premium, together with accrued interest thereon to the date of such prepayment. 11 Special Call Provisions . The Note may also be called for prepayment in Lull , without premium, for the then outstanding y Principal Balance and all accrued interest thereon as follows: ( a) If the Permanent Lender does not purchase this Note on or before March 15, 1982, the entire unpaid Principal Balance together with accrued interest thereon, shall , at the option of the Interim Lender, become due and payable immediately on demand . ( b) This Note may be called for prepayment in full on the terms and conditions specified in this paragraph at any time during the 90-day period commencing with and immediately following the first day of the the ninth Loan Year; provided, however, that one hundred eighty ( 180) days prior to the date such prepayment is due, the Holder shall have first given written notice to the City and the Borrower at the addresses and in the manner set forth in Section 7 . 01 of the Loan Agreement, of its intention to exercise its option. In the event of such call , and subject to the restrictions on transfer of this Note contained herein, the Holder shall, upon written request given by the Borrower to the Holder prior to the date set for redemption of the Note, transfer the Note without recourse and assign the Loan Agreement and all documents given as security for the Note, without warranties, on the condition that the Holder shall be paid, as consideration for such transfer and assignment an amount ( equal to the outstanding Principal Balance of the Note, plus all accrued interest to the date of such transfer and all other sums due to the Holder and secured by the Mortgage. The Holder shall further execute and deliver to such purchaser or purchasers, all endorsements , assignments and other documents required to effect such transfer and assignment. Transfer: This Note has been issued without registration under state or other securities laws, pursuant to an exemption for such issuance; and accordingly the Note may not be assigned or transferred in whole or part, nor may a participation interest in the Note be given pursuant to any participation agreement, except in accordance with applicable registration requirements or an applicable exemption from such registration requirements. Registration . As provided in the Resolution, this Note is transferable upon the books of the City at the office of the City Clerk , by the Holder in person or by his agent duly authorized in writing, at the Holder' s expense, upon surrender hereof together with a written instrument of transfer satisfactory to the City Clerk and attorney for the City, duly executed by the Holder or his duly authorized agent. Upon such transfer, the City Clerk will note the date of registration and the name and address of the 12 new Holder in the registration blank appearing below. The City may deem and treat the person in whose name the Note is last registered upon the books of the City , with such registration noted on the Note, as the absolute owner hereof, whether or not overdue, for the purpose of receiving payment of or on account of the Principal Balance, accrued interest and any prepayment premiums and for all other purposes, and all such payments so made to the registered holder or upon his order shall be valid and effective to satisfy and discharge the liability upon the Note to the extent of the sum or sums so paid , and the City shall not be affected by any notice to the contrary . Limitation of the Citv° s Liability. This Note, interest thereon, any penalty, premium, late charges, processing fees or any other payments required hereunder, however designated, are payable solely from the revenues and proceeds derived from the Loan Agreement, the Construction Loan Agreement, and the Mortgage and the Assignment of Leases and Rents, and do not constitute a debt of the City within the meaning of any constitutional or statutory limitation, are not payable from or a charge upon any funds other than the revenues and proceeds pledged to the payment thereof, and do not give rise to a pecuniary liability of the City or to the extent permitted by law, of any of its officers , agents or employees, and no holder of this Note shall ever have the right to compel any exercise of the taxing power of the City to pay this Note or the interest thereon, or to enforce payment thereof against any property of the City, and this Note does not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City, and the agreement of the City to perform or cause the performance of the covenants and other provisions herein referred to shall be subject at all times to the availablity of revenues or other funds furnished for such purpose in accordance with the Loan Agreement, sufficient to pay all costs of such performance or the enforcement thereof. The provisions of this paragraph are controlling and shall not be construed as being limited by any other provision of this Note. Acceleration . It is agreed that time is of the essence of this Note . If the City fails to pay when due any monthly installment of principal or interest, or any premium or penalty due hereunder, or if an Event of Default shall occur, as set forth in the Mortgage, the Construction Loan Agreement, ( if prior to the Purchase Date ) , or the Loan Agreement, then the Holder shall have the right and option to declare the entire unpaid Principal Balance and all accrued interest thereon immediately due and payable . Failure to exercise such option at any time shall not constitute a waiver of the right to exercise the same at any subsequent time . The occurrence of an Event of Default aft-er_ the Purchase Date will be ' considercd an evasion of the prepayment provisions hereof . If this Note is accelerated by the Holder upon 13 the occurrence of an Event of Default after the Purchase Date, the- City will pay to the Holder on demand, in addition to the Principal Balance and interest thereon to the date of payment ( i) if this Note is accelerated during the 8th or subsequent Loan Year, an amount equal to the prepayment premium then applicable under this Note ; and ( ii ) if this Note is accelerated prior to the 8th Loan Year, an amount calculated at a rate equal to one percent (1% ) per annum of the Principal Balance accruing , on such Principal Balance during the period commencing on the date this Note is accelerated and ending on the date of payment in full . Remedies . The remedies of the Holder as provided herein and in the Mortgage, the Loan Agreement, the Construction Loan Agreement, Policy Assignment and the Buy--Sell Ageement are not exclusive and shall be cumulative and concurrent and may be pursued singly, successively or together, at the sole discretion of the Holder and may be exercised as often as occasion therefor shall occur. The failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof, nor as a waiver or release of such right or remedy as to a subsequent event. Forbearance. The Holder shall not be deemed, by any act of omission or commission, to have waived any of its rights or remedies hereunder (unless such waiver is in writing and signed by the holder of the Note and then only to the extent specifically set forth in the writing . ) A waiver with reference to one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event. Waiver. The City, for itself , its successors and assigns, hereby waives demand, presentment, notice of nonpayment, protest, notice of protest, notice of dishonor, and diligence in collection and agrees that without any notice the Holder may take and/or release additional security hereon, or the Holder may from time to time release any part or parts of the property and interests subject to the Mortgage with or without consideration, and that in any such case the City shall continue liable to pay the unpaid balance of the indebtedness evidenced hereby as so additionally secured, notwithstanding any such release. Applicable Law. All terms of this Note shall be construed by the laws of the State of Minnesota . IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts and things required to exist, happen and be performed precedent to or in the issuance of this Note do exist, have happened and have been performed in regular and due form as required by law . 14 IN WITNESS WHEREOF , the City has caused this Note to be duly executed in its name by the manual signatures of the Mayor and the Acting City Manager and has caused the corporate seal to be affixed hereto, and has caused this Note to be dated 1980 . CITY OF EDEN PR RIE, MINNESOTA BBC Y Ma r Countersigned - fing--C!tv Manager (SEAL) 15 PROVISIONS AS TO REGISTRATION The ownership of the unpaid Principal Balance of this Note and the interest accruing thereon is registered on the books of the City of Eder. Prairie in the name of the holder last noted below. Date of Name and Addresses Signature of Registration of Registered Owner City Clerk The First National Bank of Saint Paul, as agent for the Roseville State Bank, and Richfield Bank & Trust Co. and Eastern Heights State Bank of Saint Paul 332 Minnesota Street February , 1981 St. Paul, Minnesota 55101 t 16 2-2 . The Note. The Note shall be payable at the times and in the manner, shall bear interest at the rate or rates, and shall be subject to such other terms and conditions as are set forth therein . 2-3 . Execution. The Note shall be executed on behalf of the City by the signatures of its Mayor and Manager and shall be sealed with the seal of the City. In case any officer whose signature shall appear on the Note shall cease to be such officer before the delivery of the Note, such signature shall nevertheless be valid and sufficient for all purposes, the same as if he or she had remained in office until delivery. 2--4 . Delivery of Note. Before delivery of the Note by the City to the Interim Lender, there shall be filed with Bond Counsel the following items: ( 1 ) an executed copy of each of the following documents: (A) the Loan Agreement; ( B) the Mortgage ; ( C ) the Construction Loan AXgreement ; ( D) the Buy—Sell Agreement; ( E) the Permanent Commitment ; and ( F ) the Policy Assignment; ( 2) an opinion of Counsel for the Borrower in scope and substance satisfactory to Bond Counsel ; (3 ) the opinion of Bond Counsel satisfactory in scope and substance to the City Attorney as to the validity and tax exempt status of the Note, and compliance with applicable federal and state securities laws ; ( 4 ) such other documents and opinions as Bond Counsel may reasonably require for purposes of rendering its opinion required in subsection ( 3 ) above or that the Interim Lender and Permanent Lenders may require for the closing . 17 Upon delivery of the Note, the Interim Lender shall, cn behalf of the City, acivance funds for payment of Project Costs upon compliance with the provisions of the Construction Loan Agree- ment. The Borrower shall provide the City with a full accounting of all funds disbursed for Project Costs. 2-5. Registration of Transfer. The City will cause to be kept at the office of the City Clerk a Note Register in which, subject to such reasonable regulations as it may prescribe, the City shall provide for the registration of transfers of ownership of the Note. The Note shall be transferable upon the Note Register by a holder in person or by its attorney duly authorized in writing , upon surrender of the Note together with a written instrument of transfer_ satisfactory to the City Clerk , duly executed by the holder or its duly authorized agent. Upon such transfer the City Clerk shall note the date of registration and the name and address of the new holder in the Note Register and in the registration blank appearing on the Note. 2-6 . Mutilated, Lost or Destroyed Note . In case any Note issued hereunder shall become mutilated or be destroyed or lost, the City shall, if not then prohibited by law, cause to be executed and delivered, a new Note of like outstanding principal amount, number and tenor in exchange and j substitution for and upon cancellation of such mutilated Note, or in lieu of and in substitution for such Note destroyed or lost, upon the holder' s paying the reasonable expenses and charges of the City in connection therewith, and in the case of a Note destroyed or lost, the filing with the City of evidence satisfactory to the City that such Note was destroyed or lost, and furnishing the City with indemnity satisfactory to it. If the mutilated , destroyed or lost Note has already matured or been called for redemption in accordance with its terms it shall not be necessary to issue a new Note prior to payment. 2-7. Ownership of Note . The City may deem and treat the person in whose name each Note is last registered in the Note Register and by notation on the Note whether or not such Note shall be overdue, as the absolute owner of such Nate for the purpose of receiving payment of or on account of the Principal Balance, redemption price or interest and for all other purposes whatsoever, and the City shall not be affected by any notice to the contrary. i, 18 ARTICLE THREE GENERAL, COVENA14TS i 3-1 . Authority for Covenants . All acts and things required under the constitution and laws of the State of Minnesota to make the Note, the Loan Agree- ment, Assignment of Loan Agreement and the Construction Loan Agreement valid and binding obligations of the City in accordance with their terms have been done ; provided, however, that this f inding is made solely for the purpose of estopping the City from denying the validity of the Note, or of any of the documents referred to in this paragraph, by reason of the existence of any facts contrary to this finding . 3-2 . Nature of Security. Notwithstanding anything contained in the Note, the Mortgage, the Loan Agreement, the Assignment, the Construction Loan Agreement, and the Buy-Sell Agreement, or any other document referred herein to the contrary, under the provisions of the Act, the Note may not be payable from or be a charge upon any funds of the City other than the revenues and proceeds pledged to the payment thereof, nor shall the City be subject to any liability thereon, nor shall the Note otherwise contribute or give rise to a pecuniary liability of the City or, to the extent permitted by law, any of the City' s officers, employees and agents. No holder ( of the Note shall ever have the right to compel any exercise of taxing power of the City to pay the Note or the interest thereon, or to enforce payment thereof_ against any property of the City; and the Note shall not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City; and the Note shall not constitute a debt of the City within the meaning of any constitutional or statutory limitation. By authority of the Act the City has made the covenants and agreements herein for the benefit of the Lender; provided that in any event, the agreement of the City to perform the covenants of the City contained in the Note, the Loan Agreement, the Assignment and the Construction Loan Agreement shall be subject at all times to the availability of revenues under the Loan Agreement sufficient to pay all costs of such performance, and neither the City nor its officers or agents shall not be subject to any personal or pecuniary liability thereon. 19 ARTICLE FOUR MISCELLANEOUS 4-1 . S everability. If any provision of this Resolution shall be held or deemed to be or shall, in fact, be inoperative or unenforceable as applied in any particular case in any jurisdiction or juris- dictions or in all jurisdictions or in all cases because it conflicts with any provisions or any constitution or statute or rule or public policy, or for any other reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other case or circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to any extent whatever. The invalidity of any one or more phrases, sentences, clauses or paragraphs in this Resolution contained shall not affect the remaining portions of this Resolution or any part thereof. 4-2 . Authentication of Transcript. The officers of the City are directed to furnish to Bond Counsel certified copies of this Resolution and all documents referred to herein, and affidavits or certificates as to all other matters which are reasonably necessary to evidence the validity of the Note. All such certified copies, certificates and affidavits, including any, heretofore furnished , shall constitite recitals of the City as to the correctness of all statements contained therein. 4-3 . Registration of Resolution. The City Clerk is authorized and directed to cause a copy of this Resolution to be filed with the County Auditor- of Hennepin County, and to obtain from said County Auditor a certificate that the Note as a bond of the City has been duly entered upon his bond register . 4--4 . Authorization to Execute Agreements. The forms of the proposed Loan Agreement, the Assign- ment, the Construction Loan Agreement and the Financing Statement are hereby approved in substantially the form heretofore presented to the City Council with such changes as the City Attorney may approve; and the Mayor and City Manager are authorized to execute the same in the name of and on behalf of the City and to so execute such other documents, subject to the approval of the City .Attorney as Bond Counsel considers appropriate in connection with the issuance of the Noce . In the event of the absence or disability of the Mayor or City Manager such officers of the City 20 as, in the opinion of the City Attorney, may act in their behalf, shall without further act or authorization of the City Council do all things and execute all instruments and documents required to be done or executed by such absent or disabled officers. Adopted: �� tiu� , 19 Mayor--of e City of Eden Prairie Attest,,.., ' /Cit e r k 21 STATE OF MINNESOTA. ) ss . COUNTY OF HENNEPIN ) I, the undersigned, being the duly qualified and acting City Clerk of the City of Eden Prairie, Minnesota, do hereby certify that the attached extract of minutes of a regular meeting of the City Council of the City held February 17, 1981 , is a full, true and correct transcript therefrom insofar as such minutes relate to the authorization of issuance of $970 , 000 Industrial Development Revenue Note of 1981 ( Richard W . Cohen Project) . WITNESS my hand officially and seal officially as said rr, -_ City Clerk this day of February, 1981 . f City Clerk (SEAL) 22