HomeMy WebLinkAboutResolution - 83-96 - Final Approval - MIDB's - Lake Ridge Associates - George Konik - $425,000 - 05/03/1983 Member _ Paul_ Redpath__ introduced the following
resolution and moved its adoption :
RESOLUTION NO . 1'� = -►
RESOLUTION RELATING TO $425 , 000 FIRST
MORTGAGE COM4ERCIAL DEVELOPMENT REVENUE
BO11D (LAKE RIDGE ASSOCIATES PROJECT )
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 .-he 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 Rents and Leases to be
given by the Partnership to the Lender ;
Bond: the $425 , 000 First Mortgage Commercial
Development Revenue Bond ( Lake Ridge Associates Project ) to
be issued by the City pursuant to this Resolution ;
City: the City of Eden Prairie , Minnesota , its
successors and assigns ;
Guaranty : the Guaranty Agreement to be given by
George S . Konik and William G . Lindsay 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 approximately 5 , 500 square foot
office building and related facilities and improvements to
be acquired and constructed on the Land ;
Land : the real estate located in the County of
Hennepin , State of Minnesota , and legally described in
E::hibit A to the Mortgage ;
Lender : First National Bank of Minneapolis , a
national banking association , its successors and assigns ;
Loan Agreement : the Loan Agreement to be entered into
between the City and the Partnership ;
Mortgage : the Mortgage and Security Agreement 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
establishing and organizing the Partnership .
( 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, the City and the Guarantors , enforceable
in accordance with their terms ;
Partnership : Lake Ridge Associates , a Minnesota
general partners_aip in which George S . Konik and William G .
Lindsay each own a 50% interest in capital and profits , and
its permitted successors and assigns under the Loan
Agreement ;
Pledge Agreement : the Pledge Agreement to be given by
the City to the Lender ;
Project : the Improvements and the Land which are to
be acquired and constructed by the Partnership in
accordance with the terms of the Loan Agreement ;
_Project Costs : those costs defined as Project Costs
in Section 1 . 01 of the Loan Agreement ; and
Resolution : this resolution of the City .
Section 2 . Finding-s . 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
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attraction , encouragement and development of economically
sound commerce so as to prevent the emergence of or to
rehabilitate , so fay as possible , blighted and marginal
lands and areas of chronic unemployment ; the retention of
commerce 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 Project is
located ;
( d ) the Project has been approved by the Department
of Commerce of the State of Minnesota ;
( e) the financing of the acquisition and construction
of the Project , the issuance and sale of the Bond , the
execution and delivery of the Loan Agreement and the Pledge
Agreement , and the performance of all covenants and
agreements of the City contained in the Bond , 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 Bond , the Loan Agreement and
the Pledge Agreement valid and binding obligations of the
City in accordance with their terms , are authorized by the
Act ;
( f ) it is desirable that the pond in the amount of
$425 , 000 be issued by the City upon the terns set forth
herein, and that the City pledge its interest in the Loan
Agreement and grant a security interest therein to the
Lender pursuant to the Pledge Agreement as security for the
payment of the principal of , premium , ta_Kes and late
charges , if any , and interest on the Bond ; and the City has
not heretofore pledged , assigned or otherwise encumbered
its interest in the Loan Agreement ;
( g ) the loan payments contained 4n -r,e Loan = creement
clre fi::ed. , and r'eQu1LGc Lcl De - r-v'_S& _ _ r: _I'me rG 'mP as
?161cessar'171 so O _Dr"Gt.L. �� i cc�'^t= C_enL
to provide -or prompt na mt'.,: rE':m,.1:m,
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taxes and late charges , if any, 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 Project 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
other than those rights and interests of the City under the
Loan Agreement which have been pledged to the Lender by the
Pledge Agreement ; the Bond shall not constitute a charge ,
lien or encumbrance , legal or equitable , upon any property
of the City other than those rights and interest s of the
City under the Loan Agreement which have been pledged to
the Lender by the Pledge Agreement ; 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 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 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 or
the Pledge 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;
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(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 and the Bond the
valid and binding obligations of the City in accordance
,^,ith their terms will have been done upon adoption of this
Resolution and execution of the Loan Agreement , the Pledge
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 or
the Bond by reason of the existence of any facts contrary
to this finding; and
( 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 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 November 16 , 1982 ,
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 ,
construction and equipping of the Project suitable and designed
for use as an office build3.ng 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 ;
(b) Loan Agreement ;
( c ) Mortgage ;
(d) Guaranty; and
( e ) Pledge Agreement .
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The forms of the documents listed in ( a) through ( e ) above are
approved , with such variations , insertions and additions as are
deemed appropriate by the parties and approved by the City
Attorney .
Section 4 . Author izations . Upon the completion of
the Loan Agreement and the Pledge 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 Section 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 certifications , 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
se-c for•::h 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
$425 , 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 exchange and
substitution for and upon cancellation of the mutilated Bond ,
or in lieu of and in substitution for such Bond destroyed or
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lost , upon payment by the Holder of the expenses and charges of
the City in connection therewith , and, in case the Bond is
destroyed or lost , filing by the Holder 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
assign-ment 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 $425 , 000 , together with a copy , duly
certified by the City Clerk , of this Resolution and such
closing certificates as are required by bond counsel and are
approved by the City Attorney .
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 Loan Agreement . The Partnership shall
provide the City with a full accounting of all funds disbursed
for Project Costs ,
Section 6 . Limitations of the City ' s_ O_b_li�ations .
Notwithstanding anything contained in the Bond, 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_ , or
to enforce payment thereof against any property of the City
other than those rights and interests of the City under the
Loan Agreement which have been pledged to the Lender by the
Pledge Agreement , and the Bond shall not constitute a charge ,
lien or encumbrance , legal or equitable , upon any property of
the City other than those rights and interests of the City
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under the Loan Agreement which have been pledged to the Lender
by the Pledge Agreement . The agreement of the City to perform
the covenants and other provisions contained in this Resolution
or the Bond , 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 other than as
stated above .
Adopted : May 3 , 1983 .
Mayor
Attest : r9' -
City Clerk
t
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The motion for the adoption of the foregoing
resolution was duly seconded by Member =.Q_ _��.��_I�,y , and ,
upon vote being taken thereon, -the following voted in favor
thereof : Pr.a.e�, sue,, U � , e_�
and the following voted against the same :
n Q-r\.g- .
whereupon said resolution was declared duly passed and adopted
and was signed by the Mayor , which signature was attested by
the City Clerk .
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E}:HIBIT A
UNITED STATES OF A.MERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
CITY OF EDEN PRAIRIE
First Mortgage Commercial Development Revenue Bond
( Lake Ridge Associates Project )
No . R-1 $425 , 000
The City of Eden Prairie , Minnesota , a municipal
corporation of the State of Minnesota ( the City) , for value
received hereby promises to pay to First National Bank of
Minneapolis , a national banking association , or its assigns
( the Holder ) , at the principal office of the First National
Bank of Minneapolis , in Minneapolis , Minnesota , or such other
place as the Holder may designate in writing , solely from the
source and in the manner hereinafter provided , the principal
sum of FOUR HUNDRED TWENTY-FIVE THOUSAND DOLLARS ( $ 425 , 000 ) ,
with interest on the unpaid principal balance at the rate of
eleven and one-half percent ( 11 1/20 ) per annum, in any coin or
currency which at the time or times of payment is legal tender
for the payment of public and private debts in the United
States of America . The principal of and interest on this Bond
are payable in installments due as follows :
( a ) On June 1 , 1983 , there shall be due and payable
an amount equal to the interest accrued on the unpaid
principal balance hereof .
(b) On July 1 , 1983 , and on the first day of each and
every calendar month thereafter to and including May 1 ,
1993 , principal and interest shall be due and payable in
equal monthly installments in an amount equal to Four
Thousand Three Hundred Twenty Dollars ( $4 , 320 ) , with a
final payment of all unpaid principal and interest hereon
on ,June 1 , 1993 .
The rate of interest per annum payable under this Bond
and the amount of the monthly installment payments of principal
and interest provided for in the foregoing paragraph are
subject to adjustment as hereinafter provided in this Bond .
All payments of principal and interest pursuant to the
foregoing paragraph shall be applied first to interest due on
the outstanding principal balance and thereafter in reduction,
of said principal balance . All interest hereon shall be
computed on the assumption that each year contains three
( hundred sixty ( 360) days and is composed of twelve ( 12 )
thirty-day months .
If any payment of principal or interest on this Bond
is not paid when due , each and every such delinquent payment ,
including the entire principal balance and accrued interest in
the event of an acceleration of this Bond, shall bear interest
to the extent permitted by law at the rate of interest per
annum then payable under this Bond , from its due date until
payment .
Adjustments to Interest Rate
If the Holder_ receives notice of a Determination of
Taxability ( as defined in Section 4 . 08 of the Loan Agreement
hereinafter referred to ) , the rate of interest then payable
under this Bond shall automatically be increased , effective as
of the Date of Taxability ( as defined in Section 4 . 08 of the
Loan Agreement ) , to a rate equal to 14 . 75% per annum ( the
Taxable Rate) , in which event the monthly installment payments
of principal and interest by the City required hereunder in
clause (b) of the first paragraph of this Bond from and after
the Date of Taxability shall be recomputed at such interest
rate , assuming the outstanding amortization of principal hereof
over an assumed term concluding June 1 , 2008 , and the City
shall ( 1 ) promptly pay to the Holder hereof and to any prior
Holder affected thereby, as their interests may appear , the
aggregate difference between ( a ) the amounts actually paid
hereunder between the Date of Taxability and the date of such
payment , and (b) the amounts which would have been due during
such period if the increased interest rate had been in effect ,
and ( 2 ) thereafter pay to the Holder hereof monthly payments of
principal and interest as so recomputed . The provisions of
this paragraph shall survive the payment of this Bond . The
Holder shall notify in writing the City and the Partnership
hereinafter referred to , as soon as practicable after the
receipt thereof , of its receipt of a Determination of
Taxability and of the consequent increase in interest rate and
monthly installment payments required hereunder .
In the event an investigation or audit is commenced by
the Internal Revenue Service questioning the federal income tax
exemption of the interest payable on this Bond , or in the event
the Holder , or the Partnership on behalf of the Holder , chooses
to contest any statutory notice of deficiency , ruling of the
Internal Revenue Service or judgment of a court of competent
jurisdiction, the Holder may , at its option , by written notice
to the City and the Partnership , increase the rate of interest
on this Bond to the Taxable Rate and require that the Citv mane
payments from the date of such notice based ur)cn such increased
rate . The additional funds collected as a resulr of the rate
increase and additional payment required by the preceding
sentence shall be placed in escrow by the Holder and shall bear
interest at the regular passbook rate for federal savings and
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loan associations . In the event the investigation , audit or
contest is finally resolved in favor of the Holder and the
interest on this Bond was , and continues to be , exempt from
federal income taxation , the funds held in such escrow account ,
including any interest earnings thereon , shall be paid to the
Partnership on behalf of the City , and the rate of interest
hereunder ( together with all payments hereunder ) thereafter
shall be adjusted to that which would have been in effect but
for the increase in interest rate pursuant to this paragraph .
In the event the investigation , audit or contest is finally
resolved against the Holder and the interest on this Bond is
held subject to federal income taxation, the amount on hand in
the escrow account shall be applied , to the extent necessary ,
to the additional payments then due by the City to the Holder
pursuant to clause ( 1 ) of the preceding paragraph , and the
balance , if any , returned to the Partnership on behalf of the
City . The Holder shall supply information to , and otherwise
fully cooperate with , the Partnership in any such contest by
the Partnership .
Holder ' s Right_ To Call Bond
Upon the occurrence of a Determination of Taxability ,
the Holder may, at its option , declare the unpaid principal
balance of this Bona , together with the applicable prepayment
premium hereinafter prescribed all. accrued and unpaid interest
hereon and any other indebtedness due hereunder , due and
payable in full as of any installment payment date , upon thirty
( 30 ) days ' prior written, notice to the Partnership and the City
unless the Partnership consents in writing to a shorter notice
period .
Cites Right To Prepay Bond
Upon the occurrence of a Determination of Taxability ,
the City shall have the right , at its option , to prepay on any
installment payment date the entire outstanding principal
amount of this Bond by paying to the Holder such outstanding
principal amount , with the applicable prepayment premium
hereinafter prescribed and all accrued and unpaid interest
hereon and any other sums due hereunder . In order to exercise
such right , the City shall give the Holder at least thirty ( 30 )
days ' written notice of prepayment , unless the Holder consents
in writing to a shorter notice period .
In addition , the City may from time to time , upon
thirty ( 30 ) days ' prior written notice to the Holder unless the
Holder consents in writing to a shorter notice period, prepay
the unpaid principal balance hereof , in whole or in part , and ,
if in part , in integral multiples of $ 100 , 000 , on any
installment payment date , with the applicable prepayment
premium hereinafter prescribed . Unless expressly provided to
the contrary herein, any payment of principal of this Note
before such principal is due and payable pursuant to
subparagraph (b) of the first paragraph hereof , whether at the
option of the Partnership , the City or the Holder , or by
acceleration of the maturity hereof upon an event of default ,
shall be accompanied by payment of a prepayment premium equal
to the present value on the date of prepayment ( applying the
Government Yield ( as hereafter defined) determined as of the
date of prepayment as the discount factor ) of the stream of
equal monthly payments , in number equal to the number of whole
months between the date of prepayment and June 1 , 1993 , in an
amount equal to the principal amount being prepaid multiplied
by the amount 12 3/4% exceeds the Government Yield determined
as of the prepayment date , multiplied by a fraction the
numerator of which equals the number of days from the date of
prepayment to June 1 , 1993 ( assuming a 360-day year of twelve
30-day months ) and the denominator of which equals 360 , all
divided by the number of whole months between the date of
prepayment and June 1 , 1993 ; provided that no prepayment
premium shall be payable if the Government Yield determined as
of the date of prepayment equals or exceeds 12 3/4o . The
Holder shall apply any such prepayment against the applicable
prepayment premium and then against the unpaid principal
amounts due hereunder , if the entire unpaid principal balance
and interest thereon is not paid in full , and no partial
prepayment shall postpone , defer or reduce the amount of the
monthly installment payments otherwise due hereunder .
In the event the Holder applies the net proceeds of
insurance or condemnation awards upon the occurrence of certain
events of damage , destruction or condemnation of the property
subject to the Mortgage ( as hereinafter defined ) to the payment
of this Bond , as provided in Sections 5-1 and 5-2 of said
Mortgage , such application_ shall , so long as no event of
default hereunder or under the Loan Agreernent , the Mortgage or
the Assignment ( as hereinafter defined) has occurred and is
continuing , be made without any prepayment penalty or premium .
As used herein , "Government Yield'' means , as of the
date of determination , the yield on actively traded United
States Treasury Securities ( as published by the Federal. Reserve
Bank of New York ) having a maturity date closest to June 1 ,
1993 , all as determined by the -:older in accordance with its
regular business practice consistently applied .
Purnose_and Security
This Bond is issued by the City for the purpose of
providing funds to be loaned to Lake Ridge Associates , a
Minnesota general partnership ( the Partnership) , pursuant to
the terms of a Loan Agri3ement , of even date herewith (the Loan
Agreement ) , to be used to pay the cost of a project , within the
meaning of Minnesota Statutes , Section 474 . 02 , Subdivision la,
consisting of the acquisition of certain land located in the
City and the acquisition , construction and equipping thereon of
an approximately 5 , 500 square foot office building and related
facilities and improvements ( the Project ) .
This Bond is secured by a Pledge Agreement , of even
date herewith ( the Pledge Agreement ) , by the City to First
National Bank of Minneapolis , a national banking association
( together with its successors and assigns , the Lender ) , by a
Mortgage and Security Agreement , of even date herewith ( the
Mortgage) , between the Partnership , as mortgagor , and the
Lender , as mortgagee , by an Assignment of Rents and Leases , of
even date herewith ( the Assignment ) , from the Partnership to
the Lender , and by a Guaranty Agreement , of even date herewith
( the Guaranty) , from George S . Konik and William G . Lindsay ,
residents of the State of Minnesota ( the Guarantors ) , to the
Lender . The disbursement of the proceeds of this Bond is
subject to the terms and conditions of the Loan Agreement .
This Bond is being issued contemporaneously with a
Second Mortgage Commercial Development Revenue Bond ( Lake Ridge
Associates Project ) , of even date herewith ( the Second Mortgage
Bond) , issued by the City in the principal amount of $84 , 940 to
finance a portion of the cost of acquisition and construction
of the Project . The Second Mortgage Bond is secured by a
mortgage lien on and security interest in the Project , as well
as an assignment of rents and leases with respect thereto ,
which are subordinate to the lien and interests granted by the
Mortgage and Assignment . The Second Mortgage Bond is further
secured by a Guaranty Agreement given by the Guarantors .
This Bond is issued pursuant to and in full compliance
with the Constitution and laws of the State of Minnesota ,
including Minnesota Statutes , Chapter 474 , and pursuant to a
resolution duly adopted by the City Council on May 3 , 1983 ( tile
Resolution) , and , together with interest hereon and any
premiums , taxes , penalties , late charges or other amounts
payable hereunder , however designated , is a special obligation
of the City payable solely from payments to be received by the
City pursuant ro the Loan Agreement and from disposition of the
property which secures payment of this Bond . This Bond , the
interest hereon and any premiums , taxes , penalties , late
charaes or other amounts pavable hereunder , however designated ,
shall never constitute a debt of the City within the meaning of
any constitutional provlslo-i, or Statutory llmii_at 'On •=tnd. shall
IIever constitute or jjiv 1S tc; a charge against _ tS genera_
credit or taxing powers , anc7 tL'r? :?ot p aVaCl fi'C?m Ivor a charge
apor. any funds of the City ether than the revenues pledged _o
the payment thereof . This Bond, the interest hereon and any
premiums , taxes , penalties , late charges or other amounts
payable hereunder , however designated , do not constitute a
charge , lien or encumbrance , legal or equitable , upon any
property of the City , except the revenues to be received by the
Citv under the Loan Agreement , and the agreement of the City to
perform or cause the performance of the covenants and other
provisions herein referred to shall be limited at all times to
the availability of revenues from the Loan Agreement , the
Assignment , the Mortgage and the Guaranty sufficient to pay all
costs of such performance or the enforcement thereof . The
provisions of this paragraph shall , for all purposes of this
Bond , be controlling and be given full force and effect ,
anything else to the contrary in this Bond notwithstarding .
All of the agreements , conditions , covenants ,
provisions and stipulations contained in the Mortgage , the
Resolution , the Loan Agreement , the Pledge Agreement , the
Assignment and the Guaranty 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 .
It is agreed ghat time is of the essence of this
Bond . I £ a default occurs in any payment due under this Bond
and is not cured within ten ( 10 ) days after the date such
+, payment is due , or if any Event of Default shall occur under
the Mortgage , the Loan Agreement or the Assignment then the
Holder may at its right and option declare immediately due and
payable without notice ( except as required by the terms of such
documents ) the principal balance of this Bond and interest
accrued thereon , and such sum together with any reasonable
attorneys ' fees incurred by the Holder in collecting, or
enforcing payment thereof , whether suit be brought or not , and
all other sums due hereunder , including applicable prepayment
premium, if any , or under the Mortgage , the Loan Agreement or
the Assignment , anything to the contrary therein
notwithstanding , and payment thereof may be enforced and
recovered in whole or in part , at any time , by one or more of
the remedies provided in this Bond , the Mortgage , the Loan
Agreement or the Assignment .
The remedies of the Holder , as provided herein and in
the Mortgage , the Loan Agreement , the Assignment and the
Guaranty , shall be cumulative and concurrent ; may be pursued
singly, successively or together and at the sole discretion of
the Holder ; and may be exercised as often as occasion therefor
shall occur . The failure to exercise any such Light or remedy
shall in no event be construed as a waiver or release thereof .
The City , for itself , its successors and assigns ,
!' subject to limitation of the Citv ' s liability , hereby
guarantees payment of this Bond and waives diligence , demand ,
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presentment , protest and notice of dishonor and suretyship
defenses generally, and agrees that without any notice , the
Holder hereof may from time to time forbear or otherwise delay
in enforcing its rights hereunder or under any other document
given to secure this Bond ; or , the Holder hereof may from time
to time release any part or parts of the property and interests
subject to the Mortgage or to any such other document from the
same , with or without consideration, without releasing any
party liable hereon or any guarantor or surety of payment
hereof ; provided that any material modification of the terms
and conditions of this Note shall not be effective without the
written consent of the City .
Negotiation and Re i s-r ar_ ion
.As provided in the Resolution, this Bond may be
assigned by the Holder , from time to time , by an endorsement
hereon or by other writing ; provided that notice of such
assignment shall be given in writing to the City and the
Partnership.
.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 attorney duly authorized in
writing . 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 this Bond is 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 , 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 . .
Severability
If any term of this Bond , or the application thereof
to any person or circumstances , shall , to any extent , be
invalid or unenforceable , the remainder of this Bond , or the
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application of such term to persons or circumstances other than
those as to which it is invalid or unenforceable , shall not be
affected thereby, and each. term of this Bond shall be valid and
enforceable to the fullest extent permitted by law .
Successors in interest
This Bond applies to , inures to the benefit of , and is
binding not only on the parties hereto , but on their successors
and assigns . The term "Holder " shall mean the holder and owner
of this Bond , whether or not named as Holder herein .
Modifications
This Bond may not be amended , modified or changed nor
shall any waiver of any provision hereof be effective , except
only by an instrument in writing and signed by the party
against whom enforcement of any waiver , amendment , change ,
modification or discharge is sought .
It is intended that this Bond is mGde with reference
to and shall be construed as a Minnesota contract and governed
by the laws thereof .
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 Bond do
exist , have happened and have been performed in regular and due
form, time and manner as required by law .
IN WITNESS WHEREOF, the City has caused this Bond to
be duly executed by its duly authorized officers and its
corporate seal to be affixed hereto , all as of this day of
May, 1983 .
CITY OF EDEN PRAIRIE ,
MINNESOTA
Y_
( SEAL ) �� ' Mayor
Attest ; Countersigned :
�ty Clerk City Manager
i
i
Certificate of Registration
It is hereby certified that , at the request of the
Holder of the within Bond , the City of Eden Paririe , Minnesota ,
has on the date noted below registered the principal of and
interest on this Bond , 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
First National Bank
of Minneapolis May 1983
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