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HomeMy WebLinkAboutResolution - 82-276 - Providing for Approval of Amendment - Donald C. Russ Project - MIDB's - 12/07/1982 /?J G Gl " RESOLUTION OF THE CITY OF EDEN PRAIRIE PROVIDING FOR THE APPROVAL OF AMENDMENT OF CERTAIN TERMS AND CONDITIONS OF COMMERCIAL DEVELOPMENT REVENUE BOND, SERIES 1980 (DONALD C. RUSS PROJECT) AND COLLATERAL DOCUMENTS AND APPROVAL OF TRANSFER OF THE PROJECT RESOLVED, BY THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE: I. Statutory Powers. Pursuant to Chapter 474, Minnesota Statutes, as amended ("Act"), the City of Eden Prairie ("City") is authorized to issue and sell its revenue bonds ("Commercial Development Revenue Bond") in anticipation of the collection of revenues for authorized projects, to finance in whole or in part, the cost of construction of authorized projects and to enter into such contracts and agreements which it may deern proper and feasible for or concerning the construction and financing of an authorized project. The City is also authorized to issue its revenue bonds to refund, in whole or in part, revenue bonds previously issued by City under authority of the Act. 2. Issuance of Commercial Development Revenue Bond, Series 1980 (Donald C. Russ Project). The City has issued and sold its Commercial Development Revenue Bond, Series 1990 (Donald C. Russ Project) ("dote") in the form attached hereto as Exhibit "A" and made a part hereof pursuant to Resolution No. 80-46 adopted by the City Council of the City of Eden Prairie on March 4, 15,80 ("Final Resolution"), a copy of which is attached hereto as Exhibit "B" and made a part hereof, which Note was issued to pay the costs of construction and installation of an office building facility on certain real property described in the Final Resolution (said improvements and real property are hereinafter referred to as the "Project"). Preliminary approval of the Project was given by the City Council of Eden Prairie pursuant to Resolution No. 79-72 adopted by the City Council on July 17, 1979, a copy of which is attached hereto as Exhibit "C" and made a part hereof. 3. Transfer of the Project. Donald C. Russ, owner of the Project (hereinafter "Seller"), desires to sell and convey the Project to Crosstown I Office Building Limited Partnership, a Minnesota limited partnership (hereinafter "Purchaser"). Investors Syndicate of America, Inc., a Delaware corporation ("Lender"), holder of the Note, has consented to the transfer of the Project from Seller to Purchaser pursuant 'to certain conditions including amendment of the Note and certain of the Collateral Documents (more fully defined herein) to provide for an initial right of the holder of the Note to call the entire balance thereof due and payable on March 1, 1987, and if the Note is not called on March 1, 1987, to increase the interest rate payable on the unpaid principal balance thereof to eleven and one-fourth percent (11Y4 ) per annum together with an additional option to call the entire balance of the Note due and payable on March 1, 1992. A •-I_ further condition of approval by Lender is that Donald C. Russ remain personally obligated under the Loan Agreement (more fully described herein) to repay the reloan by the City to Seller of the proceeds of the Note by making repayments directly to Lender or other holder of the Bond for the account of the City at the times and in the amounts necessary to pay in full the principal of, interest on and prepayment premium, if any, on the Note when due, at maturity or upon acceleration of maturity under the Note, the Mortgage (more fully described herein), or the Loan Agreement, together with any additional sums which may become due under the terms of the Note and Collateral Documents. 4. Documents Presented. The following proposed documents relative to the Note and the Project have been submitted to the City: (a) First Amendment to Commercial Development Revenue Mote, Series 1980 (Donald C. Russ Project)("First Amendment to Note") in the form on file in The Office of the City Clerk, whereby the City and Lender agree to certain amendments to the Note; (b) First Amendment to Loan Agreement ("First Amendment to Loan Agreement") between the City, Seller and Lender, in the form on file in the Office of the City Clerk, whereby certain amendments are made to the Loan Agreement (as defined in the Final Resolution) consistent with the amendments made to the Note described above; (c) First Amendment to Mortgage and Security Agreement and Fixture Financing Statement ("First Amendment to Mortgage") in the form on file in the Office of the City Clerk, between Seller and Lender, providing for certain amendments to the Mortgage and Security Agreement and Fixture Financing Statement (as defined in the Final Resolution) consistent with the amendments to the Note and Loan Agreement described above; (d) First Amendment to Pledge Agreement ("First Amendment to Pledge Agreement") in the form on file in the Office of the City Clerk, providing for certain amendments to the Pledge Agreement (as defined in the Final Resolution), whereby the City pledges and assigns its interest in the Loan Agreement, as amended, to Lender. The First Amendment to Loan Agreement, First Amendment to Mortgage, and First Amendment to Pledge Agreement shall be included in the category of "Collateral Documents", as that term is defined in paragraph 4 of the Final Resolution. Any subsequent reference in this Resolution to "Note" shall mean the Note as amended by the First Amendment to Note. 5. Findings. It is hereby found, determined and declared that: (a) The Findings of the City Council set forth in Paragraphs 3(a) and 3(b) of the Final Resolution are hereby reaffirmed. (b) Under the terms of the Note, ;Mortgage and Loan Agreement (as each has been amended as described above), the Note shall not be payable from nor -2- charged upon any funds other than sums payable by the Borrower under and pursuant to the Loan Agreement which are pledged to the payment of the Note, and the City is not subject to any liability thereon. No holder or holders of the Note shall ever have the right to compel any exercise of the power of the City to pay the principal, interest and premium, if any, on the Note, nor to enforce payment thereof against any property of the City. The Note shall not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City. The Note shall recite in substance that the Note, including interest thereon, is payable from the revenue of the Loan Agreement pledged to the payment thereof. The Note shall further recite that it shall not constitute a debt of the City within the meaning of any constitutional or statutory limitation, and that it is issued for a project defined in Section 474.02, Subd. IA. 6. Approval and Execution of Documents. The forms of the First Amendment to Note, First Amendment to Mortgage, First Amendment to Loan Agreement and First Amendment to Pledge Agreement, are hereby approved. The transfer of the Project by Donald C. Fuss to Crosstown I Office Building Limited Partnership according to the terms and conditions described above is hereby approved. The City shall execute a First Amendment to Note, First Amendment to Loan Agreement and First Amendment to Pledge Agreement, each of which shall be executed in the name and on behalf of the City by the Mayor and City Manager and attested to by the City Clerk, but only upon execution thereof by the other parties thereto. The First Amendment to Note and First Amendment to Loan Agreement and First Amendment to Pledge Agreement, shall be substantially in the form on file in the Office of the City Clerk, with all such changes therein, not inconsistent with the Act or other law, as may be approved by the officers executing the same on behalf of the City, which approval shall be conclusively evidenced by their execution thereof. Copies of the First Amendment to Note, First Amendment to Loan Agreement, First Amendment to Mortgage and First Amendment to Pledge Agreement shall be delivered and filed or recorded as may be required. The First Amendment to Mortgage and other documentation which does not require execution by the City may be revised as approved by the Seller. 7. First Amendment to Pledge Agreement. The City shall assign and pledge its rights under the Loan Agreement, as amended, to Investors Syndicate of America., Inc. through execution of the First Amendment to Pledge Agreement described above. The City does hereby consent to the reassignment of such rights to any subsequent holder of the Note, as amended; provided, however, such assignment and consent shall not operate to limit or otherwise affect the City's right to payment under the following sections of the Loan Agreement, as amended; Sections 2.2; 3.4; 4.1; 4.2; 4.4; 4.8; 5.4 and 6.8. 8. Execution of First Amendment to Note. The City shall issue and execute the First Amendment to Note. The First Amendment to Note shall be executed by the Mayor and City Manager, and attested to by the City Clerk, and the official seal of the City shall be affixed thereto. When executed, the First Amendment to Note shall be delivered to Investors Syndicate of America, Inc., but only upon receipt of the signed legal opinion of Thompson, Nielsen, Klaverkamp do James, P.A., as to the validity and enforcement of the First Amendment to Note, First Amendment to Loan Agreement and First Amendment to Pledge Agreement, -3- and that the City has no liability thereon and upon receipt of the original counterparts of all documents to which it is a party. The Note shall contain a recital that it was issued pursuant to the Act, and such recital shall be conclusive evidence of the validity and regularity of the issuance. 9. Certified Copies. The Mayor, City Manager and City Clerk and other City officers are authorized and directed to prepare and furnish Investors Syndicate of America, Inc., Seller, and any subsequent holder of the Note, certified copies of the City proceedings and records relative to the Note, and such affidavits or certificates as may be required to show the facts appearing from the City records, and all such certified copies, certificates and affidavits, including any previously furnished, shall constitute representations of the City as to the truth and accuracy of all statements contained therein. 10. Registration of Note. The City Clerk, as Note Register, shall provide for the registration of transfer or exchange of the Note. Principal and interest due on the Note shall be payable to the registered holder or registered assigns thereof. 11. Statement of Election . The City has filed and shall maintain the filing of a Statement of Election To Issue Industrial Development Notes In An Aggregate Amount Exceeding $1,000,000 But Not Exceeding $10,000,000 with the Internal Revenue Service pursuant to Section 103(b)(6)(D) of the Internal Revenue Code of 1954 ("Code"), electing to apply paragraph (D) of Section 103(b)(6) of the Code to the issue of the Note. 12. City Representative. Carl J. Jullie, the City Manager, or in his absence, John Frane, City Clerk, is appointed and designated as the representative on behalf of the City, to act on behalf of the City, and shall execute all documents as required or provided herein and in the Loan Agreement, as amended. 13. No Litigation. No litigation of any nature has been commenced against the City by service of process upon the City regarding the issuance, sale and making of the Note, nor contesting the statutory powers granted by Minnesota Statutes, Chapter 474, in connection with the issuance of the Note, nor regarding the organizational and boundaries of the City or the right of the City Councilmen or officers to their respective offices. To the best of the City's knowledge, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body pending or threatened against the City wherein an unfavorable decision, ruling or finding would adversely affect the transactions contemplated by or the validity of the Note, this Resolution, the Loan Agreement, as amended, or Pledge Agreement, as amended. 14. Authority. The execution and delivery and performance of the First Amendment to Loan Agreement, and the First Amendment to Pledge Agreement and the issuance of the First Amendment to Note do not violate any law, regulation or agreement or any court order of judgment in any litigation to which the City is a party or by which it is bound. 157. No Conflict of Interest. To the best of the City's knowledge and belief, no Council member of the City, and no other elected or appointed official -4- who is authorized to take part in the entering into of the First Amendment to Loan Agreement, and the First Amendment to Pledge Agreement or the issuance of the First Amendment to Mote, is directly or indirectly interested therein, the Project, or any contract, agreement or job contemplated to be entered into or undertaken with respect to the Project. 16. City Expense. All costs and expenses incurred by or on behalf of the City in connection with the review and execution of the documents described herein shall be the sole obligation and responsibility of the Seller and Purchaser, including but not limited to legal fees. SIGNATURE AP :,ROVED: C MAYOR ATTEST: 9 CITY CLERK �r -5-