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HomeMy WebLinkAboutResolution - 82-286 - Amending Final Resolution for MIDB's - Braun/Kaiser (80-235) - 12/21/1982 1ZESOLUTION OF THE CVI'y' OF EDENN 131"Ali%U PROVIDING FOt'Z 1`11E APPROVAL OF A%1ENDMENT OF CERTAIN TEIZ.MS AND CONDITIONS OF INDUSTRIAL DEVELOPMENT 1ZEVENUE NOTE, SERIES 1980 (BRAUN-KAISER .AND COkIPA:NY, LESSOR/ BRAUN'S FASHIONS, INC., LESSEE PROJECT') AND COLLATERAL DOCCJXMENTS RESOLVED, BY THE CITY COUNCIL OF THE CITY OF EDEN PRAIRIE: 1. Statutory Powers. Pursuant to Chapter 474, Minnesota Statutes, as armerided (".Act"j, the City of Eden Prairie ("City") is authorized to issue and sell its revenue bonds in anticipation of the collection of revenue for authorized projects, to finance in whole or in part, the cost of construction of authorized projects and to enter into such contracts and agreernents which it may deers 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 :ponds previously issued by City under authority of the Act. 2. Issuance of Industrial Development Revenue. Votes Series 1980 (Braun-Kaiser and Company, _Lessor/3raun's Fashions, Inc., Lessee Project . The City has issued and sold its $2,300,000.00 Industrial Development Revenue Note, Series 1980 (Braun-Kaiser and Company, Lessor/Braun's Fashions, Inc., Lessee, Project)("Note") pursuant to Resolution No. 80-235 adopted by the City Council of the City of Eden Prairie on December 2, 1980 ("Final Resolution"), a copy of which is attached hereto as Exhibit "A" and made a part hereof, which Note was issued to pay the costs of construction and installation of an office and warehouse building facility on certain real property described in the Final Resolution (said improvements and real prow.rty are hereinafter referred to as the "Project"). Pursuant to Paragraph 3(d) of the Final Resolution, amendment of the Note through implementation of alternative interest rates is considered as part of the over 11 plan of financing for the Project. Preliminary approval of the Project was given by the City Council of Eden Prairie pursuant to Resolution No. SO- 133 adopted by the City Council on July 15, 1980. 3. Amendment to Note and Collateral Documents. Braun-Kaiser and Company, a i.iinneso*.a general partnership, owner of the Project (hereinafter "Borrower") and First National Bank of Minneapolis, a national banking association, holder of the Note ("Holder") desire to amend the 'Vote and certain of the collateral documents to provide for certain rnodifications including without limitation implementation of alternative interest rates, revised call provisions, and revised prepayment conditions. Borrower will remain personally obligated under the Loan ,Agreement (rnore fully described herein) to repay the reloan by the City to Borrower of the proceeds of the Note by making repayments directly to Holder or other holder of the Not for the account of the City at the times and in the _1_. amounts necessary to pay in full thu principal of, interest on and prepayment prernium, if any, on the Note when due, at maturity or upon acceleration of maturity under- the Note, the Mortgage (more fully described hc_rein), or- the Loan Agreement, together with any additional swiss which may become due under the terms of thc' 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 Amendn--cent to Industrial Development Revenue Note, Series 1980 (Braun-Kaiser and Company, Less or/Braun's Fashions, Inc., Lessee Project)("First Amendment to Note") in the form on file in the office o[ the City Clerk, whereby the City and Lender agree to certain amendments to the Note; (b) First Arnendment to Loan Agreement ("First Amendment to Loan Agreement") between the City arid Borrower, in the .Form on file in the office of the City Clerk, whereby certain amendments are made to the Loan Agreement (as dcafined in the Final Resolution) consistent with the arnendments made to the Note described above; (c) First Arnendment 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 Borrower and Holder, providing for certain arnendments to the :vlortgage and Security Agreement and Fixture Financing Statement (as defined in the Final Resolution) consistent with the amendments to the :Vote and Loan Agreement described above; (d) First Amendment to Assignment and Pledge of Loan Agreement ("First Arnendment to Pledge Agreement") in the form on file in tlhe 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; (e) First Arnendment to Assignment of Lease ("First Amendment to Assignment") in the form on file in the office of the City Clerk, providing for certain amendments to the Assignment of Lease (as defined in the Final Resolution) consistent with the amendments made to the Note described above. The Loan Agreement, vlortgage, Pledge Agreement and Assignment of Lease, as arnended by the First Arnendment to Loan Agreement, First Arnendment to 'Mortgage, First Amendment to Pledge Agreement and First Arnendment to Assignment as described above, constitute "Collateral Documents" as that term is defined in Paragraph 4 of. the Final Resolution, and as that ter*rn is utilized in this Resolution. Any subsequent reference in this resolution to "Note" shall mean the :'dote as amended by the First Arnendrent to Note. -2- 5. Finclinl;s. It is hereby found, determined and declared that the Findings of the City Council set forth in Paragraph 3(a), 3(b) and 3(c) of the Final Resolution are hereby reaffirmed, and reference therein to tilt Note and Collateral Documents shall refer to the Note and Collaterai Documents, as amended, as more fully described in Paragraph 4 hereof. 5. Approval and Execution of Documents. The forrns of the First Amendment to Note, First Amendment to 'Mortgage, First Amendment to Loan Agreement, First Arnendrnent to Pledge Agreement and First Amendment to Assignment are hereby approved. The City shall execute a First Amendment to Note, First Amendment to Loan Agreement and First Arnendinent to Pledge Agreement, each of which shall be executed in the naive 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 Arnendrnent to Note and First Amendment to Loan Agreement and First Amendment to Pledge Agreement, shall be substantially in the form on file in the Of[ice of the City Clerk, with all such changes therein, not inconsistent with the Art 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 (Vote, First Amendment to Loan Agreement, First Amendment to 'Mortgage, First Amendment to Pledge Agreement and First Amendment to Assignment shall be delivered and filed or recorded as may be required. The First Amendrrient to Mortgage and other documentation which does not require execution by the City may be revised as approved by the Borrower. 7. First Amendment to Pledge Agreement. The City shall assign and pledge its rights under the Loan Agreement, as amended, to Holder 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 lirnit or otherwise affect the City's right to payment under the following sections of the Loan Agreement, as --mended: Sections 3.4, 4.1, 4.4, 4.7, 5.4 and 6.8. 8. lExecution of First Amendment to Note. The City shall issue and execute the First Arnendrnent to Mote. The First Arnendrnent 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 First National Bank of Minneapolis, but only upon receipt of the signed legal opinion of Thompson, Nielsen, Klaverkamp & James, P.A., as to the validity and enforcement of the First Amendment to Note, First Amendment to Loan Agreement and First Amendment to fledge Agreement, 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 continue to 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 :%layor, City Manac,er and City Clerk and other City officers are authorized and directed to prepare and furnish Thompson, Nielsen, K.laverkainp & Jarnes, P.A. (bond counsel) and Holder certified copies of the City proceedings and records relative to the Note, and such affidavits or certificates as inay be required to show the facts appearing from the City records, and all such -3- ' z certified copies, C-e:rtificates 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 'Vote. Principal and interest due on the Note shall be payable to the registered holder or registered assigns thereof. 11. Statement of Electit:n . The City has filed and shall maintain the filing of a Statement of Election To Issue Industrial Development Notes In An Aggregate Arnount Exceeding $1,000,000 13ut Not Exceeding $10,000,000 with tl:e Internal Revenue Service pursuant to Section 103(b)(6)(1)) 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. Juliie, 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 Litioation. 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 Amendrnent 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 or judgment in any litigation to which the City is a party or by which it is bound provided this finding is made solely for the purpose of estopping City frorn denying the validity of the Note or any of the documents referred to in this paragraph by reason of any facts contrary to this finding. 15. No Conflict of Interest. To the best of the City's knowledge and belief, no Council rrieinber of the City, and no other elected or appointed official 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 Amendrnent to Note, 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 Borrower, including but not limited to legal fees. -4- SIGNATURE tjPPROVED: N1 O IZ ATTEST: I CITY, I< i � -5-