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HomeMy WebLinkAboutResolution - 84-76 - Final Approval MIDB's - BBS - $1,750,000 - 04/18/1984 Councilmember introduced - the following resolution and , after the reading thereof was dispensed with by unanimous consent , moved its adoption : RESOLUTION NO . RESOLUTION RELATING TO $1 , 750 , 000 COMMERCIAL DEVELOPMENT REI ENTTE NOTE (BBS PARTNERS PROJECT) , SERIES 1984 ; 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; Agreement : the Loan Agreement to be executed by and between the City and the Obligor ; Assignment of Leases and Rents : the Assignment of ? Leases and Rents to be given by the Obligor to the Lender ; City: the City of Eden Prairie , Minnesota, or its successors ; Construction Note : the $1 , 750 , 000 Commercial j Development Revenue Note ( BBS Partners Project ) , issued by the a City on November 18 , 1983 , in order to provide interim financing for the Project during construction; Escrow Agreement : the Escrow Agreement to be executed by the Lender and the Obligor ; Guarantee : the Guarantee Agreement to be given by Bruce K . Hoyt , Steven - B . Hoyt , and ' Bradley A. Hoyt in favor of t the Lender ; t i Holder : the registered owner of the Note; e -2- q Land : the real estate described in Exhibit A to the Mortgage with all additions thereto and substitutions therefor ; i Lender : The First National Bank of Saint Paul , a national banking association, or its successors and assigns ; Loan Agreement Assignment : the Assignment of Loan Agreement to be executed by the City and accepted by the Lender ; Mortgage : the Combination Mortgage, Security Agreement and Fixture Financing Statement to be given by the Obligor , as mortgagor , to the Lender , as mortgagee , including any amendment thereof or supplement thereto in accordance with the provisions thereof; Note : the $1 , 750 , 000 Commercial Development Revenue Note ( BBS Partners Project ) , Series 1984 , to be issued by the City pursuant to this Resolution; E E Obligor : BES Partners , a Minnesota general partnership , or its permitted successors and assigns under the 4 Agreement; fProject : a multi-tenant office/warehouse building, j located on the Land, containing a net rentable building area of approximately 73 , 086 square feet ; Project Costs : those costs defined as such in Section 1 . 01 of the Agreement ; and Resolution : this resolution of the City Council , authorizing the issuance of the Note . Section 2 . Findings . It is hereby found and declared that . ( a) based upon representations of the Obligor as to the nature and use of the Project , the real and personal property and improvements 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 industry and commerce so as to prevent the emergence of or to rehabilitate , so far as possible , blighted and marginal lands and areas of chronic unemployment ; to promote the use of availab re resources of the community in order to retain the benefit of its existing investment in educational and public service facilities ; to halt the movement of talented, educated -3- t i ' personnel of mature age to other areas and thus preserve the economic and human resources needed as -a base for providing governmental services and facilities ; to develop more intensively 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 City has heretofore issued the Construction Note in order to provide interim financing during construction of the Project; the proceeds of the Note will be used to ' refund and retire approximately $1 , 613 , 342 . 65 in principal amount of the Construction Note, the amount advanced thereunder to date , and to pay approximately $136 , 657 . 35 in remaining costs of the Project ; (d) the Project has increased the tax base of the City , and accordingly is of direct benefit to the taxpayers of the City as well as those of the County and School District in which the City is located; (e) the Project has been approved by the Minnesota Energy and Economic Development Authority; ( f) the financing of the Project , the issuance and sale of the Note, the execution and delivery of the Agreement and the Loan Agreement Assignment , and the performance of all covenants and agreements of the City contained in the Agreement and the Loan Agreement Assignment and of all other acts and things required under the Constitution and laws of the State of Minnesota to make the Agreement , the Loan Agreement Assignment and the Note valid and binding obligations of the City in accordance with their terms , are authorized by the Act ; (g) it is desirable that the Note in the amount of $1 , 750 , 000 ' be issued by the City upon the terms set forth herein, and that the City assign certain of its interests in the Agreement and grant a security interest therein to the Lender as security for the payment of the principal of and interest and premium, if any, on the Note; (h) the loan payments contained in the 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 and interest on the Note when due, and the Agreement also provides that the Obligor 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 Agreement ; and -4- - ( i ) under the provisions of Minnesota Statutes , Section 474 . 10 , and as provided in the Agreement and the Mortgage , the Note is not to be payable from nor charged upon any funds of the City other than the revenues pledged to the payment thereof pursuant to the Loan Agreement Assignment ; 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 except the revenues pledged to the payment thereof pursuant to the Loan Agreement Assignment ; the Note shall not constitute a charge , lien or encumbrance, legal or equitable , upon any property of the City except the revenues pledged to the payment thereof pursuant to the Loan Agreement Assignment; the Note issued hereunder shall recite that the Note , including interest thereon , is payable solely from the revenues pledged to the payment thereof; and the Note shall not constitute a debt of the City within the meaning of any constitutional , charter or statutory limitation . Section 3 . Authorization and Sale . 3 . 01 . Authorization . The City is authorized by the Act to issue revenue notes and loan -the proceeds thereof to business enterprises to finance .the acquisition and construction 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 resolution adopted July 19 , 1983 , after a public hearing duly called, noticed and held on July 19 , 1983 , this Council approved the acquisition and construction of the Project and the financing thereof under the provisions of the Act . By resolution adopted November 15 , 1983 , this Council authorized the issuance of the Construction Note, the proceeds of which have been loaned to the Obligor in order to finance the acquisition and construction of the Project . Pursuant to Section 474 . 07 of the Fact , the City issued the Construction Note in anticipation of the issuance of definitive revenue bonds to provide permanent financing for the Project and to refund the Construction Note . The proceeds of the Note will be used to redeem and retire $1 , 750 , 000 in principal amount of the Construction Note . The Note is thus issued pursuant to a plan of financing within the € meaning of Section 103 (k) (2) ( c) of the Internal Revenue Code of 1954 , as amended . 3 . 03 . Approval of Documents . Pursuant to the above, copies of the following documents , all of which are now or shall be placed on file in the office of the Finance -5- r Director/Clerk , have been prepared and presented to this Council : ( a ) Agreement ; (b) Loan Agreement Assignment ; ( c) Mortgage; ( d) Assignment of Leases and Rents ; ( e) Guarantee; and ( f ) Escrow Agreement . The forms of the documents listed in ( a) and ( b) above are approved , with such variations , insertions and additions as are deemed appropriate by the parties and approved by the City Attorney . Documents ( c ) through ( f ) are not to be executed by the City . Section 4 . Authorization . Upon execution of the Agreement and the Loan .Agreement Assignment by the Obligor and the Lender , as the case may be , -the Mayor and City Manager shall execute the same , and the Mayor , City Manager and Finance Director/Clerk shall execute such other certifications , documents or instruments as bond counsel or counsel for the Lender shall require, on behalf of the City, subject to the approval of the City Attorney. All certifications , recitals and representations therein shall constitute 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 conclusive evidence of the approval and authorization by the City and this Council of the instrument or documents so executed . Section 5 . The Note . 5 . 01 . Form and Authorized Amount . The Note shall be issued substantially in the form set forth in Exhibit A hereto and made a part hereof , with such appropriate variations , omissions and insertions as are permitted or required by this Resolution , and in accordance with the further provisions of this Section 5 , in the total principal amount of $1 , 750 , 000 . € The terms of the Note are set forth in Exhibit A hereto and such terms , including but not limited to interest rate , dates and amounts of payment of principal and interest and preFpayment privileges , aAre incorporated by reference herein . 5 . 02 . Execution . The Note shall be executed on behalf cf the City by the signatures of the Mayor and City Manager and shall be sealed with its corporate seal and attested to by the Finance Director/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 reasonable 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 the City of said destruction or loss . 5 . 04 . Registration of Transfer . The City will cause to be kept at the office of the Finance Director/Clerk a Note Register in which , subject to such reasonable regulations as it may prescribe, the City shall provide for the registration of transfers of ownership of the Note . The Note shall be transferable upon the Note Register by the Holder thereof in person or by its attorney duly authorized in writing, upon surrender of the Note together with a written instrument of transfer satisfactory to the Finance Director/Clerk and the City Attorney, duly executed by the Holder or its duly authorized attorney. Upon such transfer the Finance Director/Clerk shall note the date of registration and the name and address of the new holder in the Note Register and on the j Note . The City may deem and treat the person in whose name the Note is last registered in the Note Register as the absolute owner thereof , whether or not the principal balance or any part thereof is overdue, for the purpose of receiving payment of or on account of the principal balance or interest and for all j other purposes . 5 . 05 . Delivery and Use of Proceeds . Prior to delivery of the Note, the documents referred to in Section 3 . 03 shall be completed and executed in form and substance as approved by the City Attorney. The City shall execute and deliver to the Lender the Note in the total principal amount of $ 1 , 750 , 000 , together with a copy, duly certified by the Finance Director/Clerk, of this Resolution, original executed counterparts of the Agreement and the Loan Agreement Assignment and such closing certificates as are requested by bond counsel . . -7- 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 Obligor or to its order for the purpose of prepaying and redeeming the principal amount of the Construction Note advanced to date and to pay remaining costs of the Project payable from proceeds of the Construction Note . Section 6 . Election . The City hereby elects that the provisions of Section 103 (b ) ( 6 ) (D) of the Code apply to the Note . The Mayor and City Manager are hereby authorized and directed to execute and file with the Internal Revenue Service a statement of election on behalf of the City that the $ 10 , 000 , 000 limitation of Section 103 (b) ( 6) ( D) applies to the Note . Section 7 . Pending Legislation. This Council is aware that legislation, including the Tax Reform Act of 1984 , HR 4170 , is pending before Congress that would restrict the terms and conditions upon which industrial development bonds may be issued after January 1 , 1384 and bear interest exempt from federal income taxation. In approving the issuance of the Note by this resolution, this Council does not intend to use , and specifically disclaims using , any portion of an allocation to issue private activity bonds or industrial development bonds that -may be granted or available to the City under such pending legislation . The Obligor has acknowledged in the Loan Agreement the pendency of such legislation and the provisions of this Section 7 . Section 8, Limitations of the City ' s -Obligations . Notwithstanding anything contained in the Note, the Agreement and the Loan Agreement Assignment or any other documents referred to in Section 3 . 03 , 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 , and 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 the 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 otter provisions contained in the Note , the Agreement , the Loan Agreement Assignment and other documents listed in Section 3 . 03 shall be subject at all times to the availability of revenues furnished by the Obligor sufficient to pay all costs of such pe-rformance or the enforcement thereof , 'and neither the City nor any of its officers shall be subject to any personal or pecuniary liability thereon . Section 9 . Effective Date . This resolution shall be off Active immediately upon its final adopt-ion . PASSED AND FINALLY ADOPTED by the City Council of the City of Eden Prairie , this 17th day of April , 1984 . Mayor Attest : Finance Director/Clerk This motion for the adoption of the foregoing resolution was duly seconded b,r Counci lmember P"le I , and upon vote being taken thereon, the following voted in favor thereof : Pe'2,4! Qc�4�'� 3�+44gi i and the following voted . against the same : f..A- whereupon said resolution was declared duly passed and adopted . i EXHIBIT A UNITED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF HENNEPIN CITY OF EDEN PRAIRIE Commercial Development Revenue Note (BBS Partners project ) Series 1984 R-1 $1 , 750 , 000 The City of Eden Prairie , a municipal corporation in the State of Minnesota ( the "City" ) , for value received hereby promises to pay to The First National Bank of Saint Paul , or its registered assigns ( the "Holder" ) , at the principal office of The First National Bank of Saint Paul, in St . Paul , Minnesota, or such other place as the Holder may designate in writing , solely from the source and ir: the manner hereinafter provided , the principal sum of ONE MILLION SEVEN HUNDRED FIFTY THOUSA14D DOLLARS ( $1 ,750 , 000 ) , with interest on the unpaid principal balance ( the "Principal Balance" ) at the T•ax-Exempt Rate ( as hereinafter defined ) , or at such other annual rate as is provided in paragraph l ( b) hereof , 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 , in accordance with the terms hereinafter set forth : i 1 . ( a ) ( i ) On May 1 , 1984 (or if such day is not a Business Day ( as defined in the Loan Agreement hereinafter referred to ) , on the next succeeding Business Day ) , interest only on the Principal Balance shall be due and payable at the Tax-Exempt Rate. ( a ) ( ii ) On June 1 , 1984 , and continuing on the first day of each month thereafter to and including May 1 , 1985 (or if such day is not a Business Day, on the next succeeding Business Day ) there shall be due and payable equal installments of principal and interest in the amount of $17, 670 . 01 , subject to paragraph l ( b ) hereof. (a ) ( iii ) On June 1 , 1985, and continuing on the first day of each month thereafter to and including April 1 , 1994 (or if such day is not a Business Day , on the next succeeding Business Day ) there shall be due and payable equal installments of principal and interest in the amount of $16 , 357. 21 , subject to paragraph l (b ) hereof. r i t ( a ) ( iv ) On May' 1 , 1994 , and continuing on the first day of each month thereafter ( or if such day is not a Business j Day , on the next succeeding Business Day ) until the payment payable pursuant to -. aragraph l ( a ) ( v) hereof is due , the Principal Balance , together with interest thereon at the Tax-Exempt Rate , shall be -due and payable in equal monthly installments of principal and interest sufficient to amortize fully the Principal Balance, together with interest at the applicable rate , in equal monthly installment payments of principal and interest , by April 1 , 2014 . ( a ) (v ) Payment of the entire unpaid Principal Balance hereof , together with all accrued but unpaid interest thereon, and all other indebtedness hereunder , shall be due and payable on April 1 , 2014 ( or if such day is not a Business may, on the next succeeding Business Day ) . ( b ) If a Determination of Taxability ( as hereinafter defined ) shall occur , the Holder shall , in its sole discretion , have the option either ( a ) to increase the interest rate on this Note immediately to sixteen percent ( 16% ) per annum ( the i "Taxable Rate" ) ,. with principal and interest payments adjusted accordingly so as to amortize fully the Principal Balance hereof , together with interest at the Taxable Rate , in equal { monthly payments of principal and interest concluding April 1, 2014 , or ( b ) to declare the entire remaining Principal Balance , and all other indebtedness due hereunder , due and payable upon six ( 6 ) months ' prior written nctice , during which six-month period the interest rate on this Note shall be increased to the Taxable Rate with the principal and interest payments increased accordingly as stated above . if within 30 days after receipt of notice of a Determination of Taxability the Holder has not elected the option granted it in the preceding sentence , the Holder shall be deemed to have elected the option contained in clause ( a ) therein . In either event the City shall , ( i ) within ninety ( 90 ) days after the exercise of such option by the Holder , pay to the Holder and any prior Holders affected thereby , the aggregate difference between ( x ) the amounts which would have been paid to such Holder between the Date of Taxability and the effective date of such rate increase if the Taxable Rate had been in effect, and (y) the amounts actually paid by the City hereunder during such period ; and ( ii )_ upon thirty ( 30 ) days ' written notice , pay to the Holder and any prior Holders affected thereby an amount equal to any interest , penalties or additions to federal income tax which such Holder or prior Holders estimates that it will be required to pay as a result of the Determination of Taxability . Thereafter, unless this Note is prepaid , interest shall continue to accrue at the Taxable Rate and shall be payable on the dates* specified in paragraph l( a ) hereof . The obligations of the City under this t paragraph shall -survive the payment in full of the principal amount of this Note . ( c ) All interest hereon shall be computed on the basis of the actual number of days elapsed and a year of three hundred sixty ( 360 ) days . - Payments received hereunder shall be applied first to interest accrued hereon and then in reduction of the Principal Balance . 2 . As used herein with initial capital letters , the following terms have the following meanings: "Assignment of Rents" means the Assignment of Rents and Leases , of even date herewith , from the Borrower to the Lender . "Borrower " means BBS Partners ,. a Minnesota general partnership, or its permitted successors and assigns under the Loan Agreement. "Date of Taxability" neans the "Date of Taxability" as defined . in the Loan Agreement. "Determination of Taxability" means a "Determination of Taxability" as defined in the Loan Agreement . "Escrow Agreement " means the Escrow Agreement , dated the date hereof , between the Borrower and the Lender . "Guarantee" means the Guarantee , dated the date hereof , executed by Bruce K . Hoyt, Steven B. Hoyt and i Bradley A. Hoyt , in favor of the Lender . ` "Lender " means The First National Bank of Saint Paul , of St . Paul , Minnesota, or its successors and assigns . "Loan Agreement " means the Loan Agreement, dated the date hereof , between the City and the Borrower . # "Loan Agreement Assignment" means the Assignment of Loan Agreement , dated the date hereof, between the City and the Lender . "Monthly Treasury Rate_ " means the Treasury Rate divided by 12. "Mortgage" means the Combination Mortgage , Security i Agreement and Fixture Financing Statement, dated the date hereof , between the Borrower , as mortgagor , and the Lender , as mortgagee . —3— A t " Prepayment Date " means any date on which all or a portion of the Principal Balance is to be prepaid . "Quotient" means the result obtained by multiplying ( i ) the difference between 16 . 00 % and the Treasury Rate , determined as of the Prepayment Date , by ( ii ) a fraction with a numerator equal to , the number of days between the Prepayment. Date and April 1 , 1994 and a denominator equal to the number of whole months between the Prepayment Date and April 1 , 1994 times 360 . "Tax-Exempt Rate" means the annual rate of interest, from the date hereof until May 1 , 1985 , equal to eleven and three quarters percent ( 11 . 75% ) , from and including May 1 , 1985 to April 1 , 1994 , equal to ten and three quarters percent ( 10 . 75% ) , and from and including April 1 , 1994 to April 1 , 2014 , equal to one hundred ten percent ( 110% ) of the average of the four most recent yields set forth in the Bond Buyer Index of Municipal Bond Average Yields ( 20 bond index ) , as published in The Laily Bond Buyer and determined as of January 26 , 1994 . "Treasury Rate" means the ,yield on United States Treasury Securities ( as most recently published by the Federal Reserve Bank of New York before a Prepayment Date ) having a maturity date closest to . April 1 , 1994 . 3 . The Note is subject to prepayment as follows : ( a ) Prepayment in whole or in part , by the City at the option and direction of the Borrower , on any installment payment date upon at least thirty (30 ) days ' written notice to the Holder ( or such lesser period of notice as may be acceptable to the Holder ) ; provided that in the event such prepayment occurs on or before March 1 , 1994 , such prepayment may be made only upon payment, in addition to the amount otherwise payable hereunder , of a premium equal to the present value on the Prepayment Date ( using the Monthly Treasury Rate calculated as of the Prepayment Date as the discount factor ) of the stream of equal monthly payments in amount equal to the product of the Principal Balance prepaid times the Quotient and in number equal to the number of whole months between the Prepayment Date and April 1 , 1994 , with the first such payment payable on the Prepayment Date ; and provided , further , that in the event such prepayment is made from and including May 1 , 1994 to and including March 1 , 1997, such prepayment may be made only upon payment , in addition to the amount otherwise payable hereunder , of a premium equal to three percent ( 3% ) of the Principal Balance prepaid . t -4- ( b ) Prepayment in whole following a Determination of Taxability , at the option of the Holder , upon the conditions described in paragraph l ( b ) hereof . ( c ) Prepayme•nt in whole following a Determination of Taxability, without penalty or premium but subject to payment of the amount specified in paragraph l (b) hereof, by the City, at the option and direction of the Obligor , on any installment payment date upon at least 30 days ' written notice to the Holder ( or such lesser period of notice as may be acceptable to the Holder ) . ( d ) Prepayment in part at the option of the Holder upon_ the occurrence of certain events of damage, destruction or condemnation as provided in Sections 1 . 8 and 2.1 of the Mortgage , subject to payment of a prepayment penalty in an amount equal to that prescribed in paragraph 3 (a ) hereof . ( e ) Prepayment in whole or in part following an event of default hereunder or under the documents securing this Note and acceleration of the maturity of the Principal Balance hereof by the Holder , subject to payment of a prepayment penalty in an amount equal to that prescribed in paragraph 3 ( a ) hereof . To effect any such prepayment , the City shall pay or cause to be paid to the Holder an amount equal to the principal amount being so prepaid ( using first for this purpose any amount then held in the Escrow Fund ) , plus interest accrued on this Note to the date of prepayment. If any partial prepayment is made hereunder , such . partial prepayment of principal shall be applied to installments of principal hereof last coming due and shall not reduce the amount of the monthly payments of principal or interest otherwise due hereunder . 4 . The Borrower shall purchase this Note from the Holder on April 1 , 1994 , at a price equal to the Principal Balance hereof and the interest accrued thereon, unless the Holder shall give at least sixty ( 60 ) days ' prior written notice to the Borrower and the City of its election to retain ownership of this Note . If the Holder has not given notice of its intention to retain this Note , the Holder shall surrender this Note to the Borrower on or before April 1 , 1994 against payment of the purchase price. 5 . This Note is issued by the City for the purpose of providing funds to be loaned to the Borrower , pursuant to the terms of the Loan Agreement , to be used to refund a commercial development note of the City issued to pay the cost of a Project, as defined in Minnesota Statutes , Section 474 . 02 , Subd . la , as amended , consisting of the acquisiti-on of certain —5— real estate in the City and the construction of certain improvements thereon , suitable for use as a commercial office/warehouse facility , and paying necessary expenses incidental .thereto , thereby assisting activities in the public interest and for the public welfare of the City and the State of Minnesota . This Note is secured by the Loan Agreement, the Loan Agreement Assignment , the Mortgage , the Assignment of Rents and the Guarantee . 6 . This Note is issued pursuant to and in full compliance with the Constitution and laws of the State of Minnesota, and pursuant to a resolution duly adopted by the City Council of the City on April 17 , 1984 ( the Resolution ) , and is a special obligation of the City payable solely from payments to be received by the City pursuant to the Loan Agreement and from the property which secures payment of this Note . This Note , the interest hereon and any premiums , penalties 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 the general credit- or taxing powers of the City , and is 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, penalties 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 as pledged pursuant to the Loan Agreement Assignment, 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 Guarantee sufficient to ' pay all costs of such performance or the enforcement thereof . f The provisions of this paragraph shall , for all purposes of this Note , be controlling and be given full force and effect, anything else to the contrary in this Note notwithstanding . i 7. All of the agreements, conditions , covenants , provisions and stipulations contained in the Mortgage , the Resolution, the Loan Agreement , the Loan Agreement Assignment , the Assignment of Rents , the Escrow Agreement and the Guarantee 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 . 8 . It is agreed that time is of the essence of this Note . it a default occurs in any payment due under this Note , or if any Event of Default shall occur under the Mortgage , the -6- Loan Agreement or the Escrow Agreement and is . not cured within any applicable grace period, then the Holder may at its right and option declare immediately due and payable without notice the Principal Balance of this Note and interest accrued thereon , 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 Loan Agreement, the Escrow 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 this Note , the Mortgage , the Loan Agreement, the Assignment of Rents or the Escrow Agreement. 9 . The remedies of the Holder , as provided herein and in the Mortgage , the Loan Agreement, the Assignment of Rents , the Escrow Agreement and the Guarantee 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 right or remedy shall in no event be construed as a waiver or release thereof. 10 . This Note shall be registered and shall be transferable upon the books of the City at the office of the Finance Director/Clerk , by the Holder hereof in person or by its attorney duly authorized in writing , upon surrender hereof together with a written instrument of transfer satisfactory to the Finance Director/Clerk , duly executed by the Folder or its duly authorized attorney . Upon such transfer the Finance Director/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 blanks 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 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 name 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 this 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 satisfy 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- i 11 . If any term of this Note , or the application thereof to any person or circumstances , shall , to any extent, be invalid or unenforceable , the remainder of this Note , or the 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 Note shall be valid and enforceable to the fullest extent permitted by law . 12. This Note 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; provided that any material modification of the terms and conditions of this Note shall not be effective without the prior written consent of the City . 13 . It is intended that this Note is made with reference to and shall be construed as a Minnesota contract and governed by 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, time and manner as required by law. IN WITNESS WHEREOF , the City has caused this Note to be duly executed by its duly authorized officers and its corporate seal to be affixed hereto, all this day of April , 1984 . CITY OF EDEN PRAIRIE," MINNESOT`A.. 0 or By- CitV dhager Attest : ,' ' Fi ance Director/Clerk l / ( SEAL) PRGVISIONS 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 appearing on the first page hereof or as last noted below: Date of Name and Address Signature of Registration of g Registered Holder Finance Director/Clerk j k -9