HomeMy WebLinkAboutResolution - 83-241 - Final Approval for MIDB's - City West Business Center - $3, 785, 000 - 10/04/1983 RESOLUTION NO .
RESOLUTION RELATING TO A $3 , 785 , 000 COMMERCIAL
DEVELOPMENT REVENUE NOTE (CITY WEST BUSINESS CENTER
DEVELOPMENT COMPANY PROJECT) ; AUTHORIZING THE ISSUANCE
THEREOF PURSUANT TO MINNESOTA STATUTES , CHAPTER 474 .
BE IT RESOLVED by the Citv Council of the City of Eden
Prairie , Minnesota ( the City) , as follows :
Section 1 . Definitions .
1 .01 . In this Resolution the following terms have the
following respective meanings unless the context hereof or use
herein clearly requires otherwise :
Act : the Minnesota Municipal Industrial Development
Act , Minnesota Statutes , Chapter 474 , as amended ;
Assignment of Rents : the Assignment of Rents and
Leases to be executed by the Partnership to the Lender ;
Buildin�c : the approximately 83 ,492 square foot
office/warehouse building and related tacilities and
improvements to be constructed on the Land by the Partnership
in accordance with the terms of the Loan Agreement;
Buy and Sell Agreement: the Buy and Sell Agreement
among the Lender , the Partnership and the Permanent Lender ;
Cif: the City of Eden Prairie , Minnesota , its
successors and assigns ;
Construction Loan Agreement : the Construction Loan
Agreement among the City, Lender and Partnership;
Holder. : the Lender or any other person to whom the
Note has been assigned ;
Land : the real estate described in Exhibit 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 executed by
and between the City and the Partnership;
Loan Assignment : the Assignment of Loan Agreement, to
be executed by the City in favor of the Lender ;
( Mortgage : the Mortgage and Security Agreement ,
between the Partnership , as mortgagor , and the Lender , as
mortgagee ;
Note : the Commercial Development Revenue Note ( City
West Business Center Development Company Project ) in the total
authorized principal amount of $3 , 785 , 000 , to be issued by the
City pursuant to this Resolution ;
Partnership: City West Business Center Development
Company, a Minnesota limited partnership , its successors and
assigns , which may assume its obligations in accordance with
the Loan Agreement ;
Permanent Lender : Northwestern National. Life Insurance
Company, its successors and assigns ;
Project : the Land and the Building, as they may at
any time exist ;
Project Costs : those costs defined as Project Costs
in Section 1 . 01 of the Loan Agreement ; and
Resolution : this resolution of the City authorizing
the issuance of the Note .
Section 2 . Authorization and Sale .
2 . 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, construction,
and equipping 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.
2 . 02 . Preliminary City Approval. By preliminary
resolution adcpted by the Council on August 16, 1983 , this
Council anrr• ..^Y^ved the Fale of a revenue note or notes pursuant
to the Act and the loan of the proceeds to the Partnership for
the acquisition of land and construction of 2 office/warehouse
facilities . The Partnership now proposes to proceed with
phase I of the total development , as specified in said
preliminary resolution.
2 . 03 . Receipt of Documents. Pursuant to the above ,
there have been prepared and presented to this Council copies
of the following documents , which are now, or shall be , placed
on file in the office of the City Clerk :
( a ) Assignment of Rents ;
( b ) Loan Agreement;
(c ) Loan Assignment ;
(d ) Mortgage;
( e ) Construction Loan Agreement ; and
( f ) Note .
2 . 04 . Findings of Fact . It is hereby found and
determined that :
(a ) There is no litigation of any nature now pending
or to the best of the City ' s knowledge , threatened against the
City, seeking to restrain or enjoin the issuance , sale ,
execution or delivery of the Note or any of the documents
referred to in Section 2 . 03 , or questioning the authority or
proceedings pursuant to which the Note is being issued, the
validity of the Note or any of said documents, or the power of
the City to assist in financing the Project as defined in said
documents .
( b ) Neither the existence of the City nor the right
i of the present officials of the City to their respective
offices is being contested.
( c ) To the best of the City ' s knowledge , the
execution and delivery of the documents referred to in Section
2 . 03 will not conflict with or constitute a breach of any
resolution , ordinance , agreement 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 estopp±ng the City from denying the validity of the
Loan Agreement, the Construction Loan Agreement or the
Bond by reason of the existence of any facts contrary to
this f inding.
Section 3 . Authorizations . The documents referred to
in Section 2 .03 hereof are hereby approved . The Mayor and City
Manager are hereby authorized and directed to execute the Loan
Agreement , Loan Assignment and Construction Loan Agreement on
behalf of the City , together with the Note in substantially the
form attached hereto as Exhibit A, and such other
certifications , documents or instruments as bond counsel or
counsel for the Lender shall require , subject to the approval
of the City Attorney. 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 .
i Section 4 . The Note .
a
4 . 01 . Form and Authorized Amount . The Note shall be
issued substantially in the form set forth in Exhibit A
attached hereto and made a part hereof, with such appropriate
variations , omissions and insertions as are permitted or
required by this Resolution , in the total authorized principal
amount of $ 3 ,785 , 000 . The terms of the Note are set forth
therein , and such terms , including but not limited to
provisions as to interest rate , dates and amounts of payment of
principal and interest and prepayment privileges, are
incorporated by reference herein.
4 . 02. Execution. The Note 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 . In case
any officer whose signature shall appear on the Note shall
cease to be such officer before the delivery thereof , such
signature shall nevertheless be valid and sufficient for all
purposes .
4 . 03. Mutilated , Lost and Destroyed Note . In case
the Note shall become mutilated or be destroyed or lost , the
City shall cause to be executed and delivered a new note of
like outstanding principal amount and tenor in exchange anc
substitution for and upon cancellation of the 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 case the
Note is destroyed or lost , upon filing with the City evidence
satisfactory to it of such loss or destruction.
4 . 04 . Assignment and Exchange . The Note may be
assigned by the Holder , from time to time , by endorsement
thereon or by separate written instrument , or surrendered for
exchange, all upon the terms set forth in the Note.
4. 05 . Delivery and Use of Proceeds . Prior to
delivery of the Note , the documents referred to in Section 2. 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 . The City shall thereupon deliver to the Lender the
Note , together with a copy , duly certified by the City Clerk ,
of this Resolution and such closing certificates as are
required by bond counsel .
Upon delivery of the Note and the above items to the
Lender , the Lender shall , on behalf of. the City , disburse the
proceeds of the Note to the Partnership in payment and
reimbursement of Project Costs pursuant to the provisions of
the Loan Agreement and the Construction Loan Agreement .
Section 5. Limitations of the City ' s obligations.
Notwithstanding anything contained in the Mote or any other
document referred to in Section 2 . 03 hereof , the Note shall not
constitute a debt of the City within the meaning of any
constitutional or statutory limitation and shall not be payable
from or charged upon any funds other than the revenue pledged
to the payment thereof; the City shall not be subject to any
liability thereon, no holder of such Note shall ever have the
right to compel any exercise of the 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 Mhe Note shall not
constitute a charge , lien or encumbrance , legal or equitable ,
upon any property of the City. The agreement of the City to
perform the covenants and other: provisions contained in this
Resolution or the Note, or the other documents listed in
Section 2 . 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 , and the City
shall never be subject to any personal or pecuniary liability.
Adopted : October 4 , 1983 .
Mayor
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Attest ;
ty Clerk
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UNITED STATES OF AMERICA
STATE OF MINNESOTA
COUNTY OF HENNEPIN
CITY OF EDEN PRAIRIE
Commercial Development Revenue Note
(City West Business Center Development Company Project )
$3 , 785 , 000
FOR VALUE RECEIVED, The CITY OF EDEN PRAIRIE ,
MINNESOTA, a municipal corporation and political subdivision of
the State of Minnesota ( the City) , hereby promises to pay to
the order of FIRST NATIONAL BANK OF MINNEAPOLIS , a national
banking association , or assign ( the Holder ) , at its principal
office in Minneapolis , Minnesota , or at such other place as the
Holder may designate in writing , solely from the source and in
the manner hereinafter provided , the principal sum of THREE
MILLION SEVEN HUNDRED EIGHTY FIVE THOUSAND DOLLARS
( S3 , 785 , 000) , together with interest on the unpaid principal
t; balance thereof at the annual rate set forth below, in any coin
or currency which at the time or times of payment is legal
tender for the payment of public or private debts in the United
States of America . This Note is payable in installments due as
follows :
(a ) From and after the date hereof until the
Assignment Date (as hereinafter defined ) , the City shall pay
interest only on the outstanding principal balance hereof ,
computed at the initial rate of
percent per annum . Said interest rate shall
thereafter be adjusted on each January , April , July
and October to an annual rate equal to ninety-two percent
( 92% ) of the most recent weekly average certificate of deposit
rate ( resale 90 day) , as compiled by the Federal. Reserve Bank
and reported in the Wall Street Journal , of 10 weekly reporting
member banks in New York City. Interest shall accrue from and
after the date hereof and payments of accrued interest shall be
clue on the first day of each and every month , and on the
Assignment Date .
( b ) On the first day of the month following the
Assignment Date , the City shall pay interest only on the
outstanding principal balance, computed at the rate of ten
percent ( 10% ) per annum.
(c ) Commencing on the date which is the first day of
the second month following the Assignment Date ( the
Amortization Date ) and continuing on the first day of each
month thereafter until the payment payable pursuant to
paragraph (d ) hereof is due , the principal balance hereof ,
together with interest thereon , shall be due- and payable in
monthly installments , each in the amount of
Dollars ( $ ) ( said
payment being calculated on an assumed 30 year amortization
with interest at the rate of 10% per annum ) .
(d ) Payment of the entire unpaid principal balance
hereof , together with all accrued but unpaid interest thereon,
and all other indebtedness due hereunder , shall be due on
September 1 , 2013 .
All. interest hereon shall be computed on the basis of
the actual number of days elapsed and on the assumption that
each month contains thirty ( 30 ) days . All payments hereunder
shall be applied first to interest due on the unpaid principal
balance and the balance to reduction of principal .
As used herein the term "Assignment Date " shall mean
the Gate on which Northwestern National Life Insurance Company,
or its permitted assigns , becomes the holder hereof_ . If the
Assignment Date has not occurred on or before 1984 ,
( the entire unpaid principal balance hereof together with
interest accrued thereon shall , at the option of the Holder ,
become due and payable immediately upon demand .
Notwithstanding the foregoing , in the event at any
time of a Determination of Taxability , as defined in Section
4 . 07 of that certain Loan Agreement of even date herewith ( the
Loan Agreement ) between City West Business Center Development
Company, a Minnesota limited partnership ( the Partnership ) , and
the City , the rate of interest hereon shall be automatically
increased , effective as of the Date of Taxability , as defined
in Section 4 . 07 of the Loan Agreement , to twelve percent ( 12% )
per annum ( the " increased permanent interest rate " ) and the
payments required under paragraphs ( b ) , (c ) and (d ) above shall
be increased accordingly . If the Date of Taxability is deemed
to have occurred prior to the Assignment Date , the interest
rate on the Note shall , for the period prior to the Assignment
Date , be increased to two percent ( 2% ) over the prime rate of
interest charged by First National Bank of Minneapolis , which
annual rate ( the " increased interim interest rate " ) will change
when and as such prime rate shall change , and the payments
required pursuant to paragraph ( a ) hereof shall be increased
accordingly. In the event of such Determination of Taxability ,
the City shall , within thirty ( 30 ) days after such
Determination of Taxability , pay to the appropriate Holder ( s )
the difference between ( i ) the amounts actually paid hereunder
between the Date of Taxability and the effective date of the
rate increase (s ) and ( ii ) the amounts which would have been
paid during such period ( s ) if the increased permanent interest
rate and increased interim interest rate , as the case may be ,
had been in effect , together with any interest and penalties
incurred by the Holder ( s ) hereof as a result of such
Determination of Taxability .
At the option of the Citv , the outstanding principal
balance of this Note may be prepaid , in whole or in part ,
without penalty , on any monthly payment date upon ten ( 10 ) days
written notice to the Holder . Any partial prepayment shall be
applied to final principal installments due hereunder and shall
not reduce the amount of the monthly installments otherwise
pavable.
At the option of the Holder , this Note shall be
purchased , upon surrender hereof to the City or its designee ,
on 1 , 1994 at a price equal to the outstanding
principal balance thereof plus accrued interest, provided the
Holder has given not _less than 90 days written notice to the
City and Partnership of its intention to exercise this option.
The proceeds of this Note are to be disbursed in part
r pursuant to the terms and conditions of that certain
Construction Loan Agreement of even date herewith ( the
"Construction Loan Agreement" ) by and among the City, the
Partnership and First National Bank of Minneapolis . Provisions
to the contrary, if any, contained in this Note
notwithstanding, the Construction Loan Agreement shall no
longer constitute a part of this Note from and after the date
on which Northwestern National Life Insurance Company, or its
permitted assigns , becomes the Holder hereof, and no defenses,
offsets or counterclaims available to the Partnership arising
out of said Construction Load Agreement shall be valid or
effective as against the indebtedness evidenced by this Note or
against Northwestern National Life Insurance Company or its
successors or assigns , all of such defenses, offsets and
counterclaims being then waived by the Partnership insofar as
said indebtedness and Northwestern National Life Insurance
Company and its successors and assigns are concerned .
This Note constitutes an issue in the total authorized
face amount of $3 , 785 , 000 , or so much thereof as may be
advanced hereunder . This Note is issued by the City pursuant
to the authority granted by Minnesota Statutes , Chapter 474 , as
amended ( the Act ) , for the purpose of providing funds for a
Project, as defined in Minnesota Statutes , Section 474 . 02,
Subdivision la , consisting of acquisition of certain real
estate and construction and equipping of improvements thereon,
and paying necessary expenses incidental thereto , such funds tc
be loaned by the City to the Partnership pursuant to a
Resolution , adopted October 4 , 1983 , by the City ( the
Resolution ) , the Loan Agreement and the Construction Loan
Agreement , thereby assisting activities in the public interest
and for the public welfare of the City of Eden Prairie .
This Note is secured by a Mortgage and Security
Agreement and Future Financing Statement , of even date
herewith , between the Partnership, as Mortgagor , and the
Holder , as Mortgagee ( the Mortgage ) , and by an Assignment of
Rents and Leases , of even date herewith, from the Partnership
to the Holder ( the Assignment ) .
All of the agreements , conditions , covenants ,
provisions and stipulations contained in the Mortgage , the Loan
Agreement , the Construction Loan Agreement , the Assignment and
any other loan or security document collateral hereto are
hereby made a part of this Note to the same extent and with the
same force and effect as if they were fully set forth herein.
Time is of the essence hereof. In the event of any default in
the payment of any principal , interest or other indebtedness
due hereunder , or if an Event of Default (as defined in the
Mortgage , the Loan Agreement , the Construction Loan Agreement,
( the Assignment or any other loan or security document
collateral hereto ) occurs, then the Holder may at its right and
option declare immediately due and payable the princip-al
balance of this Note and interest accrued thereon to the date
of declaration, together with any attorneys ' fees incurred by
the Holder in collecting or enforcing payment thereof , whether
suit be brought or not , and all other sums due hereunder or
under the Mortgage, the Assignment, the Construction Loan
Agreement or the Loan Agreement , 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 the Mortgage , in the Note , in the
Assignment , in the Construction Loan Agreement or in the Loan
Agreement . The Holder may extend the time of payment of
interest- and/or principal of this Note , without notice to or
consent of any party liable hereon , and without releasing such
party .
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
hereof may take and/or release additional security herefor , or
the Holder hereof may from time to time release any part or
�r
parts of the property and interests subject to said 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 ,
extended , renewed or modified and notwithstanding any such
release , subject to the limitations of the City ' s liability as
set forth herein ; provided that no material modification in the
terms of this Note shall be effective without the written
consent of the City.
This Note and the interest thereon shall never
constitute a debt of the City within the meaning of any
constitutional provision or statutory limitation and shall
never constitute or give rise to a pecuniary liability of the
City or a charge against its general credit or taxing powers .
This Note , together with interest hereon and any premiums ,
taxes , penalties , late charges or other amounts payable
hereunder , however designated, does not constitute a charge ,
lien or encumbrance, legal or equitable, upon any property of
the City, except revenues 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 or the Mortgage, sufficient to
pay all costs of such performance or the enforcement thereof .
No Holder of any Note shall ever have the right to compel any
exercise of the taxing power of the City to pay the Note or
interest thereon, nor to enforce payment thereof against any
property of the City. The provisions of this paragraph shall ,
for all purposes of this Note , be controlling and by given full
force and effect, anything else to the contrary in this Note
notwithstanding .
The remedies of the Holder , as provided herein and in
the documents hereinabove referenced , 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.
The Holder may, in its discretion , waive any default
hereunder and its consequences and rescind any declaration of
acceleration of principal ; provided , however , that no action or
inaction by the Holder shall be deemed a waiver of any of the
Holder ' s rights or remedies unless the Holder specifically
agrees in writing that such action or inaction will constitute
a waiver of its rights or remedies . Any waiver shall only
apply to the particular instance for which it was agreed . No
delay in exercising and no failure in exercising any right or
remedy hereunder or afforded by law stall be a waiver of or
preclude the exercise of any right or remedy hereunder or
provided by law whether on such occasion or any future
occasion , nor shall such delay be construed as a waiver of any
default or acquiescence therein. The exercise or the beginning
of the exercise of one right or remedy shall not be deemed a
waiver of the right to exercise at the same time or thereafter
any other right or remedy .
As provided in the Resolution of the City authorizing
the issuance of this Note , this Note is transferable upon the
books of the City at the office of the City Clerk by the Holder
hereof in person or by its attorney duly authorized in writing ,
upon presentation hereof together with a written instrument of
transfer satisfactory to the City Clerk , duly executed by the
Holder or its duly authorized attorney . upon such transfer the
City Clerk will note the date of registration and the name and
address of the new registered Holder in the registration blank
appearing below. The City may deem and treat the party in
whose name this Note is last registered upon the books of the
City, with such registration noted on this Note , as the
absolute owner hereof , whether or not overdue, for the purposes
of receiving payment of or on account of the principal balance,
prepayment premiums or interest and for all other purposes , and
all such payments so made to the registered Holder or upon its
order shall be valid and effectual to satisfy and discharge the
liability of the City upon this Note to the extent of the sum
or sums so paid , and the City shall not be affected by any
notice to the contrary.
It is intended that this Note is made with reference
to and shall be governed by and construed in accordance with
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.
IN WITNESS WHEREOF, the City has caused this Note to
be duly executed by its authorized officers and its corporate
seal to be hereunto affixed , all on October 1983 .
CITY OF E PRAIRIE , ESO
B Y_
<_� Mayor
Attest
(SEAL) City Manager
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 Eden Prairie in the name of the Holder
last noted below :
Date of Name of Signature of
Registration Registered Owner City Clerk
October , 1983 First National Bank
of Minneapolis
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