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HomeMy WebLinkAboutResolution - 83-309 - Final Approval of MIDB's for S & S Land - $1,100,000 - 12/20/1983 3. Member introduced the following resolution and moved its adoption : RESOLUT I ON NO. l _� _" �I RESOLUTION RELATING TO $1 , 100 , 000 COMMERCIAL DEVELOPMENT REVENUE NOTE (S & S LAND COMPANY 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 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 : the Assignment of Leases and Rents to be given by the Partnership to the Lender; City: the City of Eden Prairie, Minnesota , its successors and assigns ; Disbursing Agreement : the Escrow and Disbursing Agreement to be made and entered into among the City, the Partnership and the Lender and Title Insurance Company of Minnesota, as Disbursing Agent . Guaranty: the Guaranty Agreement to be given by Lloyd S . Sorem and William B . Sherman to the Lender ; Holder : the Lender or any person to whom the Note has been assigned pursuant to Section 5 . 04 of this Resolution; Improvements : the approximately 24 , 000 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 Exhibit A to the Mortgage ; 9 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 Combination Mortgage, Security Agreement and Fixture Financing Statement to be entered into between the Partnership, as mortgagor , and the Lender, as mortgagee; Note : the $1 , 100 , 000 Commercial Development Revenue Note ( S & S Land Company Project ) to be issued by the City pursuant to this Resolution; Partnership : S & S Land Company, a Minnesota general partnership 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; Project Costs : those costs defined as Project Costs in the Loan Agreement; and Resolution : this resolution of the City : Section 2 . Findings . It is hereby found and declared 'that : ( a) based upon representations made to the City by representatives of the Partnerhhip as to the nature of the Project , the real property and improvements described in the Loan Agreement , Disbursing 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 attraction, encouragement and development of economically sound commerce so as to prevent the emergence of or to rehabilitate , so far 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 r -2- resources needed as a base for providing goverrunental 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 Minnesota Department of Energy and Economic Development ; (e) the financing of the acquisition and construction of the Project , the issuance and sale of the Note , the execution and delivery of the Loan Agreement , the Disbursing Agreement and the Pledge Agreement , and the performance of all covenants and agreements of the City contained in the Note, the Loan Agreement , the Disbursing 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 Note, the Loan Agreement , the Disbursing 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 Note in the amount of $1 , 100 , 000 be issued by the City upon the terms 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, taxes and late charges , if any, and interest on the Note; and the City has not heretofore pledged, assigned or otherwise encumbered its interest in the Loan Agreement; (g) the loan payments contained in the Loan Agreement are fixed, and required to be revised from time to time as necessary, so as to produce income and revenue sufficient to provide for prompt payment of principal of , premium, taxes and late charges , if any, and interest on the Note 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 ; } A -3- 3 (h) under the provisions of Minnesota Statutes , Section 474 . 10, the Note 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 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, 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 Note 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 under the Loan Agreement which have been pledged to the Lender by the Pledge Agreement ; and the Note shall recite that the Note, 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 Disbursing Agreement the Pledge Agreement and the Note 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 Note by reason of the existence of any facts contrary to this f inding; ( 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 Note, or otherwise questioning the validity of the Note or the execution , delivery or validity of the Loan Agreement , the Disbursing Agreement or the Pledge Agreement , or questioning the appropriation of revenues to payment of the Note or the right of the City to loan the proceeds of the Note to the Partnership; (k) all acts and things required under the Constitution and the laws of the State of Minnesota to make the Loan Agreement , the Disbursing Agreement, the Pledge Agreement and the Note the valid and binding obligations of the City in accordance with their terms will. have been done -4- upon adoption of this Resolution and execution of the Loan Agreement , the Pledge Agreement and the Note; provided that this finding is made solely for the purpose of estopping the City from denying the validity of the Loan Agreement , the Disbursing Agreement, the Pledge Agreement or the Note 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 Note 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 December 19 , 1981 , 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 building and authorized the preparation of such documents as may be appropriate •to the Project . A public hearing on- the proposal to undertake and finance the Project was duly noticed and held in accordance with the Act on November 15 , 1983 . 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; ( e) Pledge Agreement ; and ( f) Disbursing Agreement . -5- The forms of the documents listed in ( a) through ( f ) above are approved, with such variations , insertions and additions as are deemed appropriate by the parties and approved by the City Attorney. Section 4 . Authorizations_. Upon the completion of the Loan Agreement , the Disbursing 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 Note 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 Note . 5 . 01 . Form and Authorized Amount . The Note shall be issued substantially in the form presented to the Council and set forth 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 $1 , 100 , 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 amount of payment of principal and interest and prepayment privileges , are incorporated by reference herein. It is acknowledged that the interest rate is not completed in the Note set forth as Exhibit A to this Resolution. The City Manager is hereby authorized to approve the Tax Exempt Rate , as defined in the Note , provided that such rate does not exceed 13% per annum, to approve the Taxable Rate , as defined in tale Note , provided that such rate does not exceed 20% per annum and to approve the percentages in Paragraph 4 of the Note , provided that neither of such percentages exceeds 20% . The approval of the City Manager shall be conclusively presumed by the execution of the Note by the officers of the City. 5 . 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 and attested by the City Clerk . 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 . 5 . 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 and substitution for and upon cancellation of the mutilated Note , or in lieu of and in substitution for such Note destroyed or lost , upon payment by the Holder of the expenses and charges of the City in connection therewith, and, in case the Note is destroyed or lost , filing by the Holder with the City evidence satisfactory to it of such loss or destruction . 5 . 04 . Assignment . The Note may be assigned by the Holder , from time to time, by endorsement thereon or by separate written instrument ; provided that notice of any such assignment shall be given in writing to the City and the Partnership . At the request of the Holder , the Note shall be registered on the books of the City, subject to the conditions set forth in the form of the Note attached hereto as Exhibit A. 5 . 05 . Delivery and Use of Proceeds . Prior to delivery of the Note , 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 . The City shall thereupon deliver to the Lender the Note in the total principal amount of $1 , 100 , 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 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 reimbursement of , or to its order for payment of , Project Costs pursuant to the provisions of the Disbursing 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 Obligations . Notwithstanding anything contained in the Note , the Loan Agreement , the Disbursing Agreement or the Pledge Agreement or any other documents referred to in Section 3 . 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 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 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 7- 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 Note 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 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 Note, the Loan Agreement, the Disbursing 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 . Section 7 . Statement of Election . The principal amount of the Note being in excess of $1 , 000 , 000 , the City Manager is hereby authorized and directed on behalf of the City to execute and file with the Internal Revenue Service a statement of election to issue its obligations in excess of $1 , 000 , 000 as provided by Section 103(b) ( 6) (D) of the Internal Revenue Code of 1954 , as amended, and Section 1 . 103 (b) (2) (vi) of the Regulations promulgated thereunder . Adopted : December 20 , 1983 . dMayor Attest : Clerk -8- The motion for the adoption of the foregoing resolution was duly seconded by Member , and, upon vote being taken thereon, the following voted in favor thereof : and the following voted against the same : whereupon said resolution was declared duly passed and adopted and was signed by the Mayor , which signature was attested by the City Clerk . -9- EXHIBIT A UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF HENNEPIN CITY OF EDEN PRAIRIE Commercial Development Revenue Note (S & S Land Company Project ) $1 , 100 , 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 or its registered assigns ( the " Lender" ; the Lender and any suh�seguent holder of this Note being also hereinafter referred to as 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 ONE MILLION ONE HUNDRED THOUSAND DOLLARS ( $ 1 , 100 , 000 ) , with interest on the unpaid principal amourit at the rates set forth in paragraph 1 ( a ) ( i ) hereof ( the "Tax-Exempt hates" ) or at the higher rate specified in paragraph 1 (b) hereof ( the "Taxable Rate" ) upon a Determination of Taxability, as hereinafter defined , 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 , in accordance with the terms hereinafter set forth : 1 . This Note shall bear interest and be payable as follows : ( a ) ( i ) Interest shall accrue on the unpaid principal balance of. this Note from and after the date hereof until the first Call Date at the rate of _ percent ( %) per annum and interest shall accrue on the unpaid principal balance of this Note from and after each Call Date (commencing with the first Call Date ) to and including the next succeeding Call Date , or the Final Maturity Date in the case of the final Call Date, at a Tax Exempt Rate equal to the Adjusted Rate (as hereinafter defined ) determined as of the Call Date which begins each such period (the "Tax Exempt Rate" ) . ( ii ) Interest only shall be payable on the first day of the month following the date hereof and on the first day of each and every month thereafter to and including the first day of the thirty-sixth ( 36th) month Following the date hereof . ( iii ) Commencing the first day of the thirty-seventh (37th) mouth following the date hereof , and continuing on the first day of each month thereafter until the payment payable pursuant to paragraph 1 ( a ) (iv) hereof is due , the principal of this Note shall be payable in monthly principal installments in the amounts sufficient to fully amortize the principal of this Note in equal monthly payment: of principal and interest on the Final Maturity Date using an assumed interest rate of eleven percent ( 11% ) per annLun, together_ with interest on the unpaid principal balance of this Note at the interest rate then applicable under the provisions of this Note . ( iv) 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 December L. , 2013 ( the "Final Maturity Date" ) . ( b) ( i) In the event that the interest on this Note shall become subject to federal income taxation pursuant to a Determination of Taxability ( as hereinafter defined ) , the interest rate on this Note shall be increased , retroactively effective from and after the Date of Taxability ( as hereinafter defined) to _ percent ( ,_ per annum until the first Call Date send after the first Call Date to a rate per annum which exceeds the then applicable Tax Exempt Rate determined under paragraph 1 ( a) ( i ) hereof by three percent # ( 3 % ) ( the "Taxable Rate" ) The City shall .immediately upon demand pay to the Holder and to each prior Holder affected by such Determination of Taxability an amount equal to the amount by which the interest accrued retroactively at the Taxable Rate from the Date of Taxability to the date of payment exceeds the amount of interest actually accrued and paid to the Holder and any such prior Holder during said period . Such obligation of the City shall survive the payment in full of the principal amount of this Note . Thereafter (unless the Holder shall require prepayment of this Note pursuant to paragraph 3 (b) hereof ) , the monthly installments of interest payable on this Note under paragraph 1 ( a) shall be calculated by substituting the Taxable Rate for the Tax Exempt Rate which would have otherwise have been applicable from time to time , with a final payment of the entire unpaid principal balance and all interest thereon and all other indebtedness due hereunder to be due and payable on the Final Maturity Date . ( ii ) The Holder shall permit the Borrower ( a.s hereinafter defined) to contest , litigate or appeal any Determination of Taxability at the Borrower ' s sole expense, provided that any such contest , litigation or appeal is , in the reasonable opinion of the Holder. , being undertaken and carried forward in good faith , diligently and with reasonable dispatch . In the event any such contest , litigation or appeal a -2- is undertaken , the increased interest provided in paragraph 1( b) ( i ) hereof shall , nevertheless , be payable to the Holder and shall be held by the Holder in escrow ( without paying interest thereon ) pending final disposition of such contest , iitigationn or appeai , provided that the Borrower shall indemnify and hold harmless the Holder and each prior Holder from any and all penalties , interest or other liabilities which they may incur on account of such contest , litigation or appeal . ( c ) As used herein, the following terms have the following meanings : ( i ) "Adjusted Rate" means , as of the date of reference, a rate per annum which exceeds by one percent ( 1% ) the average yield to maturity stated in the "20-Bond (G . O . Bond) Index" appearing in The Bond Buyer for each of the four weeks prior to such date of reference ( rounded to the nearest one-tenth of one percent ) or if The Bond Bier or the " 20-Bond (G . O . Bond) Index" is no longer published , a rate which exceeds by one percent ( 1 . 00% ) the closing yield to maturity on such date of reference of United States Treasury Bonds maturing on the earlier of the next succeeding Call Date, or the Final Maturity Date in the case of the final Call Date . ( ii ) "Call Dates " means the first day of the one hundred twenty-first ( 121st ) , one-hundred eighty-first ( 181st ) , two hundred forty-first ( 241st ) and three hundred and first ( 3O1st ) calendar months following the date of this Note . ( iii ) The terms "Determination of Taxability" and "Date of Taxability" as used herein shall have the meanings ascribed to such terms in the Loan Agreement , dated the date hereof ( the " Loan Agreement " ) , between the City and S & S Land Company, a Minnesota general partnership (the "Borrower " ) . 2 . �­.11. interesr hereon shall be computed on the assumptions that each month contains thirty (30 ) days and each year three hundred sixty ( 360 ) dabs , except that the payments required under paragraph 1 ( a) ( i ) hereof shall be made on the basis of the actual number of days elapsed and a year of three hundred sixty ( 360 ) days . 3 . This Note is subject to prepayment as follows : ( a ) Prepayment in whole or in part in increments of $ 100 , 000 at the option of the Borrower , on the first day of any month upon at least thirty ( 30 ) days ' written notice to the Holder ( or such lesser period of notice as may be acceptable to the Holder ) . -3- (b ) Prepayment in whole , at the option of the Holder , on any date following a Determination of Taxability ( subject to the Borrower ' s right to contest , litigate or appeal any Determination of Taxability under paragraph 1 (b ) ( ii ) hereof ) upon at least thirty ( 30 ) days ' writzien notice to the borrower ( or such lesser period of notice as may be acceptable to the Borrower ) . (c ) Prepayment in whole, at the option of the Holder , on any date upon the occurrence of certain "Events of Default" under the Loan Agreement and/or the Disbursing Agreement , as hereinafter defined , and/or the Mortgage , as hereinafter defined. (d) Mandatory prepayment pursuant to the Disbursing Agreement in the event that there shall be any amount in the Escrow Fund under the Disbursing Agreement on the Completion Date after payment of all Project Costs , as those terms are defined in the Disbursing Agreement . (e) Prepayment in whole or in part , at the option of the Holder , upon the occurrence of certain events of damage, destruction or condemnation as provided in the Mortgage . ( f ) Prepayment in whole, at the option of the Holder on any Call Date or on any date within the 180-day period following such Call Date , upon at least ninety ( 90 ) days ' written notice to the Borrower ( or such shorter period as the Borrower may approve) . To effect any such prepayment , the City shall pay or cause to be paid to the Holder an amount equal to ( i ) the principal amount being so prepaid ( applying first to such prepayment any amount then held in the Escrow Fund under the Disbursing Agreement ) , ( ii ) accrued interest on this Note to the date of such prepayment and ( iii ) the premium , _ _` any , which is applicable under paragraph 4 hereof . =.ry parta il prepayment shall be applied in inverse order of principal installments payable under paragraphi 1 ( a) ( i i i ) hereof . 4 . If at the time of any prepayment of this Note made pursuant to paragraph 3 hereof prior to the first Call Date, the yield on actively traded U . S . Treasury securities ( as published by the Federal Reserve Bank of New York ) having a maturity date closest to the Final Maturity Date , as determined by the Holder as of the date of prepayment in accordance with its regular business practice consistently applied ( the "Government Yield" ) , is less than percent { _o ) , a prepayment premium shall be payable ( in addition to any premium payable under clause (b) of this -4- paragraph 4 ) , calculated as follows : the principal amount so prepaid shall be multiplied by ( a) the amount by which _ _ percent ( _ _% ) exceeds the Government Yield, times (b) a fraction , the numerator of which is the number of days remaining to the Final Maturity Date and the denominator of which is 360 . The resulting product shall then be divided by the number of whole months then remaining to the Final Maturity Date, yielding a quotient ( the "Quotient " ) . The amount of the prepayment premium payable under this paragraph 4 shall be the present value on the date of prepayment (using the Goverrunent Yield as the discount factor ) of a stream of equal monthly payments in number equal to the number of whole months remaining to the Final Maturity Date , with the amount of each such hypothetical monthly payment equal to the Quotient and •with the first payment payable on the date of prepayment . Notwithstanding the foregoing, the prepayment premium specified in this paragraph 4 shall not be applied in the case of a prepayment made at the option of the Holder pursuant to subparagraphs (e) or (f ) of paragraph 3 hereof , provided that with respect to any prepayment pursuant to paragraph 3 ( e) no Event of Default has occurred and is continuing under the Loan Agreement , the Disbursing Agreement or the Mortgage at the time of such prepayment . 5 . This Note constitutes an issue in the maximum f authorized face amount of $1 , 100 , 000 . 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 , Subdivisicn la , consisting of the acquisition and construction of an office building and paving necessary expenses incidental thereto, such funds to be loaned by the City to the Borrower pursuant to a resolution adopted by the City on December 20 , 1983 , the Loan Agreement and an Escrow and Disbursing Agreement , dated the date hereof ( the "Disbursing Agreement" ) , among the City, the Borrower , the Lender and Title Insurance Company of Minnesota , as Disbursing Agent , thereby assisting activities in the public interest and for the public welfare of the City . This Note is secured by a Combination Mortgage, Security Agreement and Fixture Financing Statement ( the "Mortgage" ) and an Assignment of Leases and Rents ( the "Assignment " ) , both between Borrower and the Lender , a Pledge Agreement between the City and the Lender , and a Guaranty Agreement ( the "Guaranty Agreement" ) , between Lloyd S . Sorem , William B . Sherman and the Lender , all of even date herewith . 6 . This Note shall be registered and shall be transferable upon the books of the City at the office of the City Clerk , by the Holder hereof in person or by its attorney -5- duly authorized in writing, upon surrender 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 r_egistraticn and the name and address of the new Hoider upon the books of the City and in the registration blank appearing below . Alternatively, the City will at the request and expense of the Holder issue a new note or notes in an aggregate principal amount equal to -the unpaid principal balance of this Note , and of like tenor except as -to number , principal amount and the number and amount of the installments payable thereunder , and registered in the narr_e of the Holder or such transferee as may be designated by the Holder . The City may deem and treat the person in whose name this Note is last registered upon the books of the City with such registration also 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 , prepayment price or interest and for all other purposes , and all such payments so made to the Holder or upon its order shall be valid and effectual to sati.sfv and discharge the liability 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. 7 . If default occurs under this Note , or an Event of Default occurs under the Loan Agreement , the Disbursing Agreement or the Mortgage or under any other "Collateral Document , '' as defined in the Loan Agreement , or if any other event occurs which entitles the Holder to accelerate payment under the Loan Agreement , the Mortgage and/or the Disbursing Agreement , then the Holder may at its right and option ( subject , however , to such notice as may be required under the Loan Agreement , the Mortgage and/or the Disbursing Agreement ) declare immediately due and payable the principal balance of this dote , the premium , if any , due thereon and interest accrued t_i:ereon to the date of declaration of such default , tope*:i-ier %,-fth any, attorneys ' fees incurred by the Holder in collecting or enforcing payment thereof , whether suit be brought or 110L , and all other sums due hereunder , in which event this Note shall be prepaid in accordance with paragraph 3 ( c ) hereof . 8 . This Note together with interest hereon and any premiums , taxes , penalties , late charges or other amounts payable hereunder , however designated, are special obligations of the City payable solely from payments to be received by the City pursuant to the Loan Agreement , from any amounts payable under the Guaranty Agreement and from disposition of the property which secures payment of this Note . This Note, the interest hereon and any premiums , taxes , penalties , late -6- charges or other amounts payable hereunder , however designated , 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 charge against its general credit or taxing powers , and are not payable from nor a charge upon any funds of the City other than the revenues pledged to the payment thereof . This Note , 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 City under the Loan Agreement , and the agreement of the City to perform or cause the performance of the covenants and olther provisions herein referred to shall be limited at all times to the availability of revenues from the Loan Agreement , the Guaranty Agreement , the Assignment and the Mortgage, sufficient to pay all costs of such performance or the enforcement thereof . The provisions of this paragraph shall , for all purposes of this Mote with respect to the liability of the City hereunder , be controlling and be given full force and effect , anything else to the contrary in this Note notwithstanding . 9 . 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 and then only to the extent specifically set forth in the writing . A waiver with reference to one evert shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent evert . 10 . It is intended that this Note is made 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 Note do exist , have happened and have been performed in regular and due form as required by law . -7- IN WITNESS WHEREOF, the City has caused this Note to be duly executed by its duly authorized officers and its corporate seal affixed all as of the day of December, 1983 . CITY OF EDEN PRAIRIE, MINNESOTA By / Mayor � . ( SEAL) Countersigned : City ager Attest: ,'City Clerk Ar -7- 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, Minnesota in the name of the registered holder last noted below . Date of Name and Address of Signature of Registration Registered Holder City Clerk First National Bank of Minneapolis First Bank Place Minneapolis, Minnesota 55480 -9-