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HomeMy WebLinkAbout85-034/213/ t MD 536 RESOLUTION 85 -34 FINAL :NOTE RESOLUTION ,. CITY OF PRIO LAKE, " ",MINNESOTA, ` $500,000 COMMERCIAL .DLVLLOPMZNT° :v 'ZEVENUE NOTE OF 19 r ' P— RI6RDALE MALL INVESTORS LIMITED PARTNERSHIP PROJECT) t .,- AD6PTZD: December 9, 1985 t i . � . {a �4MrlfTtr «VIMrWPY'.iw+n.Mwir+^ n...x«.x.micn:x:n'rW '� ia.. YWtS4ili4s:/si4 :y{. . e i'�tlIMbRMMtM" MVO= tiKwHVMW4+nMn ++Sit1.Mw.riM'1 pia „n +'�Mf t. ti.e: o»+�.«a. a.. rwr evt�•aw:gp.+r. .v,,, -- t p - h ; FINAL NOTE RESOLUTION TABLE OF COMENTS (This Table of Contents is not a part of the ! Resolution, but is included for convenience ` of rofarence only.) ARTICLE ONE - DEFINITIONS, LEGAL AUTHORIZATION Pa e AND FINDINGS Section 1 -1. .................................... Definitions .....................• 1 f Section 1 -2. Legal Authorization .............. 1 i Section 1 -3, Findi s.... Findings 3 :Section 1-4. ».r .................. Authorisation And Ratification 3 f Of Project. . ............. «....... 5 x ARTICLE TWO - THE Section 2 NOTE ............................... 6 -1. Authorised Amount and Pbrm ' s. Section 2 -2, of Note .......................... Date And Terms of Note........... Suction 2 -3. Execution. 15 Section, 2 -4. Delivery of Initial Note......... 1S Section 2-5. Section Die osi tion of Note Proceeds ..... 15 16 2 -6. Registration of Transfer......... 16 `. Section 2 -7. Mutilated, Lost or Destroyed r « ! Section 2-8. Note ... .......... Ownership of Note ................ 17 } Section "2 -8. Limitation on Note Transfers..... 18 18 ��w P Section 2 -10. iosuance of New Notes............ l8 M ART IC LS THREE - aENERi1L COVENANTS Section 3 -1. ...... ... • ... . ....... Payment of Principal and Interest. 19 19 Section 3 - Performance of and Authority Section 3 -3. for Covenants ..................... Enforcement and Performance of 19 { d`' r "., Section 3 -4. Covenants ...4., ........... «..... Nature of Security 19 ......... «, «.... 20 ARTICLE FOUR - MISCELLRNLOU8 PROVISIONS............... 21 Section 4 -1. Sevsrability ... Section 4 -2. ...... ............. Authentication of Transcript....... 21 21 i` Section 4 -3. Registration of Rreolution........ 21 Section 4-4. Authorisatio n to, Execute , Section 4-5. Agroaments •...:., ..........:..::.. Headings... :... 21 ............... «. 22 r SIGNATURES... 22 RESOLUTION 8 5 -34 FINAL NOTE RESOLUTION BE IT RESOLVED by the City Council of the City of Prior Lake, Minnesota, as follows: ARTICLE ONE DEFINITIONS, LEGAL AUTHORIZATION AND FINDINGS 1 -1. Definitions Unless the context requires otherwise, the terms used herein shall have the following meanings, and any other terms ;.1 defined in the Loan Agreement (as hereinafter defined) shall have the same meanings when used herein as assigned to them in �- the Loan Agreement unless the context or use thereof indicates another or different meaning or intents Act the Minnesota Municipal Industrial Development Act, Minnesota Statutes, Chapter 474, as amended; i Assignment of Rents an d Leases the agreement to be executed by the Borrower ass qng to the, Lender all the leases, rents, issues and profits derived from the Improvements to secure the repayment of the Note and interest thereon; including any amendment thereof or supplement thereto,- Bond Counsels �` ! firm of Briggs and Morgan, Professional �s au and Minneapolis, Minnesota; Borrowers Priortale Mall lnvestors Limitsd Partnership, a Minnesota mited Partnership, its successors, its assigns, and any surviving, resulting or transferee business entity which may assume its obligations in accordance with the provisions of the Loan Agreement; !' Cit : the City of Prior Lake, Minnesota, its successors 1 and ase gnat Code or Internal Revenue Codes the internal Revenue Code Of 193T amen an the—temporary, final or proposed regulations promulgated thereunder; Construction Funds the fund recognized by the Construc on n greement and authorized by Section 2 -5 of this Rs solution; into which the proceeds 'of the sale of the Note shall be deposited; Construction Loan A reements the agreement to be executed by an among a y., mower' and Lender, relating to the disbursement and payment of Project teats for the refurbishing and rehabilitation of the Improvements, Improvements the approximately 94,000 square foot shopp ng mall and all other structures and other improvements, j including any equipment and tangible personal pr;�wperty, located on the Land; ,l Intern Reve Cod or Code the Internal Revenue Code „ of 195 4, as ame ned, and the temporary, final or proposed regulations promulgated thereunder; J/ Lands the real property and any other easements and rights in Exhibit A attached to the Loan Agreement; l ,w Leases all leases now or hereafter affecting,the Land; Lender Farmers and Merchants Stets Bank of New Ulm, its successors and assigns,, Loan A re`ements the agreement to be executed by and b etween t and t, e C ty Borrower, providing for the issuance of the Note and the loan of the 4, proceeds thereof to the Borrower, as such agreement may from time to time be amended or supple - f merited as provided therein, � + " rt MH o2 a e s th• Cb fibnation Mort Security Agraament' w ° and F xti ure Financing Statement to be executed by the Borrower, th me tgagor to the Lender, as mortgagee, securing e payment of Note and interest ;thereon; including any amendment thereof dk supplement thereto; 1 Notes the $500,000 Commercial Development Revenue Note of 1885 Prfordale Mall Investors Limited Partnership Project), to be issued by the City pursuant to this Resolution and the Loan Agreement 3 w� w Note Registers the records kept p by the City of Prior Lake to provide o the registration of transfer of ownership of °the Note; ; 'I Plans and S scificationss those plans and specifications for tsfe re , V + , ur s , nq ,, an re a ilitation of the Improvem ntis, ch are a rovW pp by whi � the Lender, together with such modifica- ' tiona, thereof a6� additions thereto as are reasonably deter- ninid by the Borrower be to necessary or desirable for the ecmpletion of the Project and are approved by the Lendert ' Pledge Acreement the ledge agreement to be executed by and between the -City Lender and pledging and assigning the City's interest in the Loan Agreement to the Lender to the <<r extent provided therein; -2- *��+ rat+.»% ahawµa�u� ,w;macnxrawwN,anwin�,«�ev N,r,•,�d�, Principal Balance so much of the principal sum of the Note as from t e to time has been advanced to or°for the benefit of the City and remains unpaid; Proj the refurbishing of the exterior of the Improvements; Pro ect Costs: the total of all "Construction Cost "Loan and and Carrying Charges," as those terms are defined in the Loan Agreement; and Resolutions this Resolution of the City adopted December 9, 19 85, together with any supplement or amendment hereto. All references in this instrument to designated "Arti cles," "Sections and other subdivisions are to the designated Articles, Sections and subdivisions of this resolution as originally adopted. The words "herein," "hereof" and "here- under" and other words of similar import refer to this Resolu- Lion as a whole, not'tp any particular Article, Section or subdivision. 1 -2. Legal Author ization. The City is a political subdivision of the State of Minnesota and is authorized under the Act to initiate the revenue producing project referred to herein, and to issue and sell the Note for the purpose, in the manner and upon the terms and conditions set forth in the Act and in this Resolution. 1 -3. Findings The City Council has heretofore determinsd,"and does hereby determine, as follows, (1) The City is authorized by the Act to enter into a Loan Agreement for ths'publie purposes expressed in the Actt' (2 ) The City has made the necessary arrangements with the Borrower for the refurbishing and rehabilitation of the ImPr9'Vsiments which will accomplish the purposes provided by the Act, and the City has by this Resolution authorized the project and th execution of th e Loan Agreement, Pledge Agreement, Note and Construction Loan Agreement, which documents specify the terms and conditions of the refurbishing and .rehabilitation of the Improvements s (3 ) in authorising the Project the City's purpose its, and in its judgment the effect thereof will be, to promote the Public welfare bye the attraction, encouragement and develop ment of economically sound industry and 'conmere• so as to -3 - :a'.ee., ="ti ^d+?N'St: 4 - '- ".SS:P'�.'.WC 7:".w4�`R•... ....m,n;�.xra -; - r... ^a^s ,-�;�n ,: -, �xu prevent, so far as possible, the emergence of blighted and marginal lands and areas of chronic unemployment;. the develop - ment'of revenue- producing enterprises to use the available resources of the community, in order to retain the benefit of the community's existing, investment in educational and public service facilities; the halting of the movement of talented, educated personnel of all ages to other areas, thus preserving the economic and human resources needed as a base for providing governntr�ntal services and facilities; the provision of acces- sibls employment opportunities for residents in the area v and the expansion of an adequate tax base to finance the cost of governmental services, including educational services for the school district serving the community in which the Improvements are situatedi „ (4 ) $500,,000 of the allocation to ,.the City of authority to issue private activity bonds, as suc2;'term is defined in z Section 103(n) of th* Code, shaly:,``be allocated to, and used by, c, the issuance of the Noe; " (5) the amount estimated to be necessary to partially finance the Project Costs, including the costs and estimated ti�� costs permitted by Section`474.05 of the Act,` will require the issuance of the Note in the principal amount of $500,000 a$ f� hereinafter provided; it is desirable, feasible and consistent with the l ! objects and'purposes of the Act to issue the Note, for the purpose of partially financing the refurbishing and rehabilita- tion of the Improvements; (7) the Note and the interest accruing°therepn do not constitute an indebtedness of the City within the meaning of any constitutional or statutory limitation and do not constitute or give rise to a pecuniary liability or a charge against the general credit or taxing powers of the City, and neither the full faith and credit nor the taxing powers of the City are pledged 'for the payment of the Note or interest; thereont` (8) the Note is an industrial development bond within the meaning of Section 103(b) of the Code and is to be issued within the exemption provided under subparagraph (A) of Section 103(b)(6) of the Code with respect to an i "sue of $1,000,000 or less; provided that nothing herein shall prevent the City from hereafter qualifying the Note under a different exemption if and to the extent,'such exemption is permitted by law and consistent with the objects and purposes of the Project; and (9) this Project would not be undertaken but for the availability''of industrial development bond financing. a 1 -4. Authorisation and Ra tification of Projec ^ . The City has heretofore and does "hereby authorize.the Borrower, in accordance with the provisions of Section 474.03, Subdivision 8, of the Act and subject to the term • and condi- tions "set forth in the Construction Loan Agreementtoiprovide for the refurbishing and rehabilitation of the Improvements pursuant to the Plans and Specifications by such means `as *hall be available to the Borrower in the and manner determinti by the Borrower, and without advertisement for bids as may be required for the construction and acquisition of municipal facilities; and the City hereby ratifies, affirms, and approves all actions heretofore taken by the Borrower consistent - with and in anticipation of such authority and in compliance with the Plans and Specifications. 41' III " _ t 0 C—P r Y t.• �V.1>✓ """*^,•W�+'«�+,w,+ww ,;_ w�ANw.w.r+�4.iF;i,�w«.n«»..F .., «- ,.,,.... , yL'^!'kwYlklq'11- 4 - 4kiR"n,'if r an..n"n }} / - «".u1wr:+tK AM rrKR}IrrFa M «+cFM, ,. YI II ARTICLE TWO THE NOTE 2 -1. Authorized A mount and Form of Note. U The Note issued pursuant to this Resolution shall be in substantially the form set forth herein, with such a ate;:variations, omissions and insertions as are Permitted ror i required by this Resolution, and in accordance with the further, Provisions hereof; and the total principal amount of the Note- that may be outstanding hereunder is expressly limited to $ 500,000 unless a duplicate Note is issued pursuant to Section 2-7• The Note, together with the provisions for Registration' and form of Assignment, shall be in substantially the following form! Q I P. i ri r_ o -6 2 . I S. f„ 1a�." .. J+ kI SY. NM7�liM1aMIMMS: F�i1G$ �'+ Y4ft,�6lsJlt:'M;i1aE.-txac7rxgw ta.: �: ;e- x r:.m;acw.++:.,n +.- �.,��e f UNITED STATES OF AMERICA STATE ,OF MINNESOTA COUNTY OF SCOTT CITY OF PRIOR LAKE Commercial Development Revenue Note of 1985 (Priordale „Mall Investors Limited Partnership Project) $500,000 4 FOR VALUE RECEIVED the CITY OF Prior 'Lake, -Scott County, Minnesota (the "City "), he reby promises to pay Farmers and Merchants State Bank of New Ulm, in New Ulm, Minnesota, its successor* or registered assign* (the "Lender "), solely from the source and in the manner hereinafter provided, the princi- pal sum of Five Hundred Thousand and N01100 DOLLARS ($500,000), (the "Principal Balance "), with interest thereon at the rate per annum of twelve percent (121) or at such higher rate as hereinafter provided in paragraph 1(c) hereof, 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 Pa`ym`ents . (,a) Interest shall accrue from and after the, date hereof and 's hall be payable on July 1, 1986 any! semi - annually thereafter on January 1 and July 1 of each year. ,(b) The Principal Balance shall be paid in one installment of ,$500,000, payable on July 1, 1997, (the "Final Maturity Date ");i at which time the Principal Balance and accrued interest,thereon shall be paid in full. I � y Payments shall bi'i applied first to interest due on the Prink" Pal Balance and ! .hereafter to reduction of the Principal Balance. If the ate for payment of the principal of, premium, if any, or interest on this Note shall be a:'8aturday, Sundry, legal holiday or a day on which banking institutions in th+i city where the principal office of the Lender is located rare authorized by law or executive order to close, then the date for such payment shall be the next succeeding day,which not A Saturday, Sunday, legal holiday or a day on which such4 banking institutions are authorized to close, and )a%e,rit on such date shall have the same force and effect as if mails on the nominal date of payment. M If the interest on this Note should become subject to federal income taxation pursuant to a "Determination of Taxability" as that term is defined in Section 4.07(11) of the Loan Agreement (the "Loan Agreement ") of even date herewith by and between the City and Priordale Mail Investors Limited Partnership (the "Borrower "), and the Lender delivers to the Borrower a copy of the notice of the "Determination of Taxability ", the interest rate shall be immediately adjusted to be fifteen percent (15 %) per annum and each payment thereafter payable shall be accordingly adjusted; and in addition the Lender shall be entitled to receive upon demand an amount equal to the aggregate difference between (i) the payments theretofore made try the Lender on this tote between the "Date of Taxability ", as that term is defined in Section 4.07(ll) of the Loan Agreement, and the date on Which the rate is adjusted as_,above, and'(ii) the payments which would have been made during such period if the adjusted rate had been in effect throughout such period. (i) The terms "Determination of Taxability," "Date of Taxability" and "Notice of Taxability" as used herein shall have the meanings ascribed to such terms in Section 4.07 of the Loan Agreement. (ii) The Lender shall give notice as soon as practicable, but in any event before the right to,,.appeal such ` Notice of Taxability has expired, to the Borrower, the City and �- any prior holder of this Note of its receipt of any Notice of Ij Taxability, and permit the Borrower to contest, litigate or appeal the same at its sole expense. 1I 2. Sufficiency; Year. In any event, the payments hereunder shall be suffi cient to pay all principal and interest due, as such principal and interest becomes due, and to pay any premium or service charge, at maturity, upon redemption, or otherwise. Interest shall be computed on the basis of the actual number of days elapsed in an assumed 360 day year. 3. Service Charge. If the Lender should not receive on any semi - annum payment date all of the principal and interest then due on this Note, and ii= the Ci ty should continue to be in arrears through the fifteenth day after the due date of said payment, then, in addition to all other sums due hereunder, the Lender shall be entitled to receive on the sixteenth day a service charge equal to four percent (41) of the delinquent principal and interest. 4. Place of Payment. Principal and interest and premium or service charge duo hereunder shall be payable at the principal office of the Lender, or at such other place as the Lender may designate in writing. -8- I i 5. Purpose This Note is issued by the' - City to provide funds for a project, as defined in Minnesota Statutes, Section 474.02, Subdivision 1, consisting of the refurbishing and rehabilitation of the exterior of a shopping center, pursuant to the Loan Agreement, and this Note is further issued pursuant to and in full compliance with the Constitution and laws of the State of Minnesota, particularly Minnesota Statutes, Chapter 474,.,and pursuant to a resolution of the City Council duly adopted on December 9,.,1 (the "Resolution ")., 6. Security The Borrower has agreed under the Loan Agreement to repay the Loan, together with interest thereon,'in amounts and at times sufficient to pay the principal of, premium, if any, and interest on the Bonds as the same shall become clue and payable (the "Payments "). The obligation of the Borrower to make the Payments, however, is a non - recourse obligation which implies no personal pecuniary liability on the Borrower or any of its partners. pursuant to the Pledge Agreement, the City has assigned and pledged to the Trustee, for the equal and ratable benefit of the Lender, the Payments due under said Loan Agreement. The obligations of the Borrower under the Loan Agreement art secured by a Combination Mortgage, Security Agreement and Fixture Financing Statement of even date herewith from the Borrower, as mortgagor, to the'Lender,`an mortgagee (the "Mortgage ")', and an Assignment of Rents and Leases of even date herewith from the Borrower to the Lender (the "Assignment of Rents and Leases "). However, the Borrower's obligations under the Mortgage and Assignment of Rents and Leases are also non- recourse and involve no personal pecuniary liability on the company or any of its partners. The Mortgage'and Assignment of Rents and Leases are subordinate to the vendor's interest under a Contract for Deed and to th4'rights of a mortgagee under a, prior mortgage given by the vendor of the shopping center as security for indebtedness owed to said mortgagee. The proceeds Of the Note shall be placed in the Construction Fund estab- lished pursuant to the Resolution. The disbursement of the px,coeds of this Note from the Construction Fund is subject to tie terms and conditions of a Construction Loan Agreement of riven date herewith by and among ths,Lender, City and aorrower (the "Construction Loan Agreement "). 7. wai Extension The City, for itself, its successors and assigns, hereby waives demand presentment, protest and notice of dishonors and the Lender may, �d the extent permitted by law, extend the time of the payments of interest and /or principal of, or any service charge or. premium due on, this Note, including the Final Maturity Date, or release any „part or parts of the property and interest subject to the Mortgage or to any other security document from the -9- 11. Regiit Resolution and su o therein, this Note 1 City at the office o ` person or,by its age Lender's ,expanse, ``i'p irstrumoet, of transl •duly ez by the CJ su6`h- transfer the registration and the Lender in + regist j deem and treat, the p u registered upon the noted on this Note,, not overdue, for the account of, the Prin and for all other pu 1 ' the Lender or upon !: satisfy and dischsI extent of the sung or affected by any notl participates any in. l participation(s') inf oarticioant(s). r i, 9. Other Preg�ayment This Note is also subject to, props, yment to the extent that there are any surplus sums held in the Construction land as provided in the Construction Loan Agreement. 10. Cons Su*n�ces o Prepayment :In the event of prepsyment''of tai mote, the Lender shall apply any such prepayment again :h; t the applicable prepayment premium, it any, then againit a�'crued interest on the Principal Balance and finally against final Principal Balance on the Note. ration of Transfer. As provided in the at to certain limitations set forth s only transferable upon the books of the f its City Mangy er , by the Lender in nt duly authorised in writing, at the � �n surrender hereof together with a written ►r satisfactory to the City Man er , , )Lender or its duly autWo agent. Upon `C it�Ma nage_ r will note the date of lame and address of the new registered ration blank appearing below. The City may arson in whose name this Note is last, books of the City with ,, such registration, 4, a ,l the',, absolute owner hereof, whether or cN purpose of receiving payment of, or on the al Balance, redemption price or interest r �sas, and all such payments so made to to order shall be valid and effective to e Lhe liability upon this Note to the s =s so paid, and the'; City shall not be = e to the contrary. if the Under er at in this/Note, it shall reflect suc>(t a record of ownership that identifies the -10- II same, all without notice to or consent of any party liable hereon or thereon and without releasing any such party from such liability �, no event, however, may the Final Maturity Date be extended beyond thirty (30) years from the date hereof. 8. Prepayment,. This Note may not be prepaid prior to January 1, 11. Thereafter, this Note may be prepaid in Whole or in part on any interest payment date subject to the payment of prepayment premiums (expressed as percentages of principal) set forth in the table below plus accrued interest to the prepayment date: January 1, 1991, and July 1, 1991 31 January 1, 1992, and July 1, 1992 21 January 1, 1993, and July 1, 1993 1• ct January 1, 1994, and thereafter no premium 11. Regiit Resolution and su o therein, this Note 1 City at the office o ` person or,by its age Lender's ,expanse, ``i'p irstrumoet, of transl •duly ez by the CJ su6`h- transfer the registration and the Lender in + regist j deem and treat, the p u registered upon the noted on this Note,, not overdue, for the account of, the Prin and for all other pu 1 ' the Lender or upon !: satisfy and dischsI extent of the sung or affected by any notl participates any in. l participation(s') inf oarticioant(s). r i, 9. Other Preg�ayment This Note is also subject to, props, yment to the extent that there are any surplus sums held in the Construction land as provided in the Construction Loan Agreement. 10. Cons Su*n�ces o Prepayment :In the event of prepsyment''of tai mote, the Lender shall apply any such prepayment again :h; t the applicable prepayment premium, it any, then againit a�'crued interest on the Principal Balance and finally against final Principal Balance on the Note. ration of Transfer. As provided in the at to certain limitations set forth s only transferable upon the books of the f its City Mangy er , by the Lender in nt duly authorised in writing, at the � �n surrender hereof together with a written ►r satisfactory to the City Man er , , )Lender or its duly autWo agent. Upon `C it�Ma nage_ r will note the date of lame and address of the new registered ration blank appearing below. The City may arson in whose name this Note is last, books of the City with ,, such registration, 4, a ,l the',, absolute owner hereof, whether or cN purpose of receiving payment of, or on the al Balance, redemption price or interest r �sas, and all such payments so made to to order shall be valid and effective to e Lhe liability upon this Note to the s =s so paid, and the'; City shall not be = e to the contrary. if the Under er at in this/Note, it shall reflect suc>(t a record of ownership that identifies the -10- II 12. Incorporation. All of the agreements, condi- tions, covenants, provisions and stipulati'nns contained in the Resolution, Mortgage, Assignment of Rents and Leases, Loan Agreement, Pledge Agreement and Construction Loan Agreement 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. 13. Limitation This mote and interest hereon and any service charge or premium due hereunder are payable solely from the revenues and proceeds derived from the Loan Agreement, Mortgage, Construction Loan Agreement and Assignment of Rents and Leases, and do not constitute a debt of the City within the meaning of any constitutional or statutory limitation, are not payable from or a charge upon any funds other than the revenues and proceeds pledged to the payment thereof, and do not give rise to a pecuniary liability of the City or, to the extent permitted by law, of any of its officers, agents or employees, and no holder of this Note shall ever have the right to compel any exercise of the taxing power of the City to pay this Note or the interest hereon, or to enforce payment thereof against any property of the City,J, and this Note does not constitute a charge, lion or encumbrance, legal,or equitable, upon any property of the City, and the agreement of the City to perform or cause the performance of the covenants and other provisions herein referred to shall J *e subject at all - times to the availability of revenues i,)r other funds furnished for such purpose in accordance with the Loan Agreement, sufficient to pay all costs of such perf=ormance or the enforcement thereof.. 14. Time of Essnc it is agreed that t mei it Event of Default (as that �:e Agreement) shall occur, thec and option to declare the Pt interest thereon, inmediatimi same, plus any premiums or �I payable, but solely from sus Agreement, Const ruct ion Loar Leases and Mortgage• railux time shall not constitute a same at any subsequent time. 15. Remedies Not Ex6li Lender, as provraidEarei an Rents and Leases, Loan Agreeme`n Construction Loan Agreement, ap cumulative and concurrent and tit successiVely or together, at tl4 and may be exercised as often a" and the failure to exercise any no event be construed t4 a wai,v, the essence of tnss Note. if an rm is defined in the Loan the Lender shall have the right incipal Balance and accrued y due and payable, whersup6n the ervice charges, shall be due and s made available under the Loan Agreement, Assignment of Rs;nts, and I, to exercise such option at any %�aiver of the right to exercise the sive. The remedies of the n Mortgage, Assignment of Pledge Agreement and not exclusive and shall be y be pursued singly, sole discretion of the Lender, . occasion therefor shall occur i sukh right or romady shall in r or release theratif.. 1 ` - , .w"- Vi:N.tkh13�;`c� ,�'%;4'ni5.'Af.1�Y.149Yr. NCaH �_tx 1v...v .:j,... \•;. \\ ,. \.., :'� ra '� -: �kfcp9•e'k.'��= �.-- �h. Ada. 16. Written Waivers. The Lender 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 Lender and, then only to the extent specifically not forth in writing. A waiver with reference to one event shall not be construed an continuing or as a bar to or waiver of any right or remedy as to a subsequent *von+. 17. Registration of Security. This Note has been issued without r egistration under state or federal or other securities laws, pursuant to an exemption for such issuance; and accordingly this Note may not be assigned or transferred in whole or part, nor may a participation interest in this Note be given pursuant to any participation agreement, except in accordance with an applicable exemption from such registration requirements. 01 18. Non-Recourse. it is recognized that the obligations of the Borrower are non-recourse obligations to the extent provided in Section 6.08 of the Loan Agreement. , 19. Severabilityi Headings. The invalidity or unor�orcoikbility of any one or more phrases, sentences, clause* or piragraphs in this Note shall not affect the remaining ,,portions of this Not* or any pa7t hereof. Headings of paragraphs in this Note are for convenience only and are not a part hereof. IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts and things required to exist, to happen and to be performed precedent to or in the issuance of tbJ,,s 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 thisNote to be duly executed in its name by the manual signatures of its ftyorh, and City XRnager has caused its corporatei, to be affixed Earoto, and has caused this Note to be dited December 9 1985. CITY OF PRIOR LAKE, MINNESOTA I F6yor Attest: Ci Y Manner (SEAL) -12- PROVISIONS AS TO REGISTRATION d The ownership of the unpaid Principal Balance of this Note and the interest accruing thereon is registered on the books of the City of Prior 'Lake, Minnesota, in the name of the holder last noted below. Date of Name and Address of Signature of R egistration Registered Owner k; I q � G c,y I n (� C: i -te ASSIGNMENT For value received hereby sells, assigns and transfers unto the within Note of the City of Prior MXe, Min ne ota, and does hereby irrevocably constitute and appoint attorney to transfer sad (I Nate on the books of said City with full power of subet 'tuticn in the -i promises. The undersigned certifies that this i transfer complies with the'provisions of para- graph 17 of the Note. Dated: qg L .ri are ) Owner , .f 4 it I l i 4 y i � -14- a a il 2 Date and Terms of Note. The Note shall be dated as of the date"of its delivery, shall be payable at the times and in the manner, shall bear interest from time to time at the,;,rates, and shall be subject to such other terms and.conditione'as are set forth therein. The Note may be prepaid in accordance with its provisions. 2-3. Execution. The Note shall bey executed on behalf of the City by the signatures of its Mayor and City Manager and shall be sealed with the seal'of °the City. In care any officer whose signature shall ap p ear on,the Note shall cease to be ``-'` g PP such officer before the delivery of the Note, such signature shall nevertheless be valid and sufficient for ail purposes, the same as if he or site, had remained in office until delivery's 'In the event of the absence or disability of the Mayor or ;City Man r, such officers of the City as, in the opininn,of the ;qty Attorney, may act in'- their behalf shall without further act or authorization of this City Council execute -and deliver the . Note. 2-4. Delivery of Initial Note The offer of the Lender to purchase the Note, upon the ;berms recited herein and „ in the Loan Agreement, it a price equal to the total,principal amount of the Note, is found to be reasonable , and advantageous to the y ` g C it y and is hereby accepteA. Before delivery of the Note there shaii be filed with the Lender (except to the extent waived by ti Lender) the following- itemse . { an executed ' ed copy, of each of the following d ocuments: I a ; (A) the Loan Agreement; .r (B) the Pledge Agreement; .� .. (C) the Mortgagee " (D) the AisignWent of Rents and Leases? (L) the Construction Loan Agreement; and (F) a Cori Certificate signed by the Borrower certifying the vse of the proceeds of the Note?r (2) a n opinion,of Counsel for th Borrower as prescribod :_. by Bond Counsel? „ "+ �.. ww. nnt+ �jiYuYN4+` il+A��if86t*tir��an�hMaS'w.�d ., • - -, .....:.._rT.'3?7d ' %i:� •. ; ttrfAK' M;br"rix+tsYt;a'�ma.;.a,... . 1 I (3) the opinion of Bond Counsel an to the validity and tax exempt status of the Note; and (e) such other,dotuments and opinions as Bond Counsel may reasonably require for purposes of rendering its opinion required in subsection (1') above or that the Lender may reason- ably require for the closing. 2 -5. Disposition of Note Proceeds Upon delivery of the Note, the Lender shall, on behalf of the City, disburse funds for payment Project Costs upon receipt of such supporting documentation as the Lender may deem reasonably necessa includin cam liace n with the r M .,�._ 2 -6. Registration of Tr ansfer. " The City will `cause to be kept at p the. office o! the Citr Msnater a Ndte Register in Which, sub jeet „to such -16- M�•hMt'tll?8�'iS C4fiBY,tS� i �:+� -7�c rua c u > � ... t. p o- visions of the Construction Loan Agreement. (1) There is hereby established Frith the Lender a Construction Fund to be held by the Lender 6n behalf of the City as a separate account of`the City as provided in the Construction Loan Agreement.: Upon delivery of the Note to Lender, the proceeds of the Note shall be credited to such Construction Fund, at which time the entire principal amount of the.Note shall be deem advanced, and the Lender shall, on behalf of the City, disburse ,funds from the Construction Fund rf'm for payment of Project Costs upon receipt of such supporting t,> documentation as the Lender, may doom reasonably necessary, including compliance with the provisions of the Construction Loan Agreement. The Lender or Borrower shall provide the City with a full accounting of all- funds disbursed for Project. Costs. The Borrower or Lender shall maintain records of the y� interest borne by the Note and investments of the Construction k'X' Fund`and earnings thereon in adequate detail to enable the Borrowe to !alculate the amount any rebate required to be ' t U madis to sited States in accordance with Section 103(c)(6) of the Code. x (2) Any surplus in the Construction Fund shall.be applied towards the prepayment of the Mote as provided'in Section 5.11 of the Construction Loan Agreement and shall not be.invested to produce a yield greater than the yield on the t Note, as required by-Internal Revenue Service Revenue Proc&dure 79 -5, Revenue Procedure,81 -22 and 26 CPR 601.201 (and any subs uent amendments, modifications or replacements.thereof)_r eeqq provided, that, if the Lender receives an opinion of Bond Couneii, that the exemption from federal i -�com e taxation of interesi on the Note will not be jeopardised „the surplus funds may be invested at a yield greater than the,yield on the Note. M .,�._ 2 -6. Registration of Tr ansfer. " The City will `cause to be kept at p the. office o! the Citr Msnater a Ndte Register in Which, sub jeet „to such -16- M�•hMt'tll?8�'iS C4fiBY,tS� i �:+� -7�c rua c u > � ... Pbr value received 1- hereby sells, assigns and transfers unto the within Note of the City of Prior Lake Minnesota, and does hereby irrevocably constitute and appoint Note on tVi s, books of to transfer said _, said City with full power of substitution on in the promises. The undersigned certifies that this transfer ccr►plies with the provisions of paragraph 17 0"! t Note Dated: reasonable regulations as it may prescribe, the City shall provide for the registration of transfers of ownership of the Note. The i4ote shall'be initially registered in the name of the Lander and shall be transferable upon the Note Register by the Lender in person or by its agent duly authorized in writing, upon surrender of the Note together with a written instrument of transfer satisfactory to the City Manager duly executed by the Lender or its duly autEo agent. following form of assignment -shall be sufficient for said purpose. Upon such regiattat Note Regi Registeril own nefor the City Manager shall note the date of �� and the name and address of the now Lander in the 'and in the registration blank appearing on the •� r Note • 2 ��7 Mutilated, Lost or Destroyed Not in', case any Note issued hereunder shall be"C'Me mutilated orbe destroyed or lost., the City shall, if not then prohibited b � law', cause,to be executed and delivered a now no of liko. principal amount, number and tenor in exchange ai;�Jubstituti6n for and upon cancellation "of such mutilated No s, or in lieu of and in substitution 4cir such,Notw destroyed or4osti upon the Lender's paying the reasonable iixpanses nd charges of the CLtk in connection therewith and, in the case , charges Note de or lost, the filing with the City o f satisfactory to the CLty with indemnity ds 4 a , factory to t. If the mutilated, destroyed or lost to ! a already mat44ed or been called for rodemptiowin accor d anc e with its term It shall not be necessary to issue a now Note prior ,th, payment. 2 - t°' - 8 Ownership of No te. r The City may deem ;!and treat the person in whose name the Note is last registered in the Note Register and by notation on the Note, whether or not such Note shall be overdue, as the absolute owner of such Note for the purpose of 9 receiving payment of or on "account of the Principal Balance, redemption price or interest and for "all other purposes whatsoever, and the City shall not be affected by any notice to the contrary. 2 -9. Limitation on Note Transfers p" The Note has been issued without registration under state or other securities laws, pursuant to an exemption for such issuance;, and accordingly the Note may not be assigned or! transferred In whole or part, nor my a participation interest' a, in the No be given pursuant to any participation agreement, except in accordance with an applicable exemption from such registration requirements. ` 2 -10. Issuance of New Notes. ' ('. Subject the provisions of Section 2 - -9, the City shall, at the request and ex of the Lender, issue new notes, in aggregate outstanding principal amount equal to that r� of the Note surrendered, and,,of like tenor except as to number, principal amount, and the amount of the monthly installments w payable thereunder, and registered in the name of the Lender or such transferee as may be designated by the Lender. �y i t 3' ,. -18- "!* .« iM1MriMlHwgtApWMI�.' dlk�: �II1Y} �A�{ eMiMY1WPINMIM '1iWlkgYpf4NIWW°'MYf+snue . :: =r»t .air ,, . c..;re. �i - 1pvYOVYCe'a -. ,, .,..•,», . ti41Y1,�. l: r nfjl�p':1i"J.4',.� _'W+KYk'�'S' rrc..,•.M• •. ... . -. -,.. ARTICLE THREE GENERAL COVENANTS 3 -1. Payment of Principal and Interest The City covenants that it will promptly pay or cause to be paid the principal of and interest on the Note at the place, on the dates, solely from the source and in the manner provided herein and in the Note. The principal and interest are payable solely from and secured by revenues and proceeds derived from the Loan Agreement, Pledge Agreement, Mortgage, Construction Loan Agreement, and Assignment of Rents and Leases, which revenues and proceeds are hereby specifically pledged to the payment thereof in the manner and to the extent specified in the Note, Loan Agreement, Pledge Agreement, Mortgage, Construction Loan Agreement, and Assignment of Rents and Leases. Nothing in the Note or in this Resolution shall be considered as assigning, pledging or otherwise encumbering any other funds or assets of the City. 3 - Performance of and Authority for Covenants The City covenants that it will faithfully perform at all times any and all its covenants, undertakings, stipulations f �Y and provisions contained in this Resolution, in the Note I executed and delivered hereunder and in All proceedings of the City Council pertaining thereto; that it is duly authorized under the``Constitution and laws of the State of Minnesota, including particularly and without limitation the Act, to issue I the Note authorized hereby, pledge the revenues and assign the Loan Agreement in the manner and to the extent set forth in this Resolution, the 'Note, the Loan Agreement and the Pledge Agreement; that all action on its part for the issuance of Note and for the execution and delivery thereof has been duly and effectively taken; and that the Note in the hands of the Lender is will be a valid and enforceable special limited obligation of the City according to the terms thereof. 3 -3. Enforcement and Performance of Covenants !' The City agrees to enforce all covenants and obligations of the Borrower un der the Loan Agreement and Construction Loan Agreement, upon request of the Lender And upon being indemnified to the satisfaction of the City for all expenses and claims arising therefrom, and to perform all covenants and other provisions pertaining,to the City contained in the Note, Loan Agreement, Pledge Agreement and Construction Loan Agreement, all subject to Section 3-4. t' -19- 3 -4. Nature of Security Notwithstanding anything to the contrary contained in the Note, Mortgage, Assignment of Rents and Leases, Loan Agreement, Pledge Agreement or any other document referred to in Section 2 -4, under the provisions of the Act the Note may not be payable from or be a charge upon any funds of the' other than the revenues and proceeds pledged to the payment thereof, nor shall the City be subject to any liability thereon, nor shall the Note otherwise contribute or give rise to a pecuniary liability of the City or, to the extent permitted by law, any of the City's officers, employees and agents. 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 rIft`yment thereof against any property of the City other than the revenues pledged under the Pledge Agreement. The Note shall not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the City. The Note shall not constitute a debt of the City within the meaning of any constitutional or statutory limitation, but nothing in the Act impairs the rights of the Lender to enforce the covenants made for the security thereof as provided in this Resolution, the Loan Agreement, the Pledge Agreement, the Mortgage, t,ie Assignment of Rents and Leases, and the Construction Loan Agreement, and in the Act, and by authority of the ° Act the City has made the covenants and agreements herein for the benefit of the Lender, provided that, -- in any event, the agreement of the City to perform or enforce the covenantz,and other provisions contained in Loan Agreement. and Construction '-oan Agreement shall be subject at all timer ;to the availability of revenues under the Loan Agreement sufli ,cient 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. NIy� �;( FIY. i�Yk '�MY'4ria±, \:1tC'.VtX':"�itsrti x.: �5 :i.f';`,pYM'4....- =.�Ix:rc r, o , -20- II , ARTICLE FOUR MISCELLANEOUS PROVISION',, 4 -1. Severability If any provision of this Resolution shall be held or deemed to be or shall, in fact, be inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions or in all jurisdictions or in all cases because it conflicts with any provisions of any constitution or statute or rule or public policy, or for any other reason, such circumstances shall not have the effect of rendering the provision in question inoperative or unenforceable in any other _ caso or circumstance, or of rendering any other provision or '-� provisions herein contained invalid, inoperative, or unenforceable to any extent wtatever. The invalidity of any one or more phrases, sentences, "clauses or paragraphs in this Resolution contained shall not affect the remaining portions bf this Resolution or any part hereof. 4 -2. Authentication of Transcript The officers of the City are directed to furnish to Bond Counsel certified copies of this Resolution and all documents referred i:o herein, and affidivits certificates as to all others matters which are reasonably necessary to evidence the validity of the Note. All such certified copies, certificates and affidavit's, including any heretofore furnished, shall constitute recitals of the City as to the correctness of all statements contained therein. A -3. Registr of Resolution The Cit Mina er is authorized and directed to cause a `copy of this Resolution to be )filed with the CouXity Auditor of Scott t C a certificate t County, and to obtain from said County'i�udi entered upon e n his or her bond an aibond of the City has been duly register. 4-4. Authorization to Execute Agreements The forms of the proposed Loan Agreementi, Pledge Agroemeat,,Construction Loan Agreement, Mortgage and Assignment of Rents and Leases are hereby approved in substantially the form heretofore presented to the,Ci ty Council, together with such additional details therein as may be necessary and appropriate and such modifications thereof, deletions therefrom and additions thereto as may be necessary and appropriate and approved by Mond Counsel prior to the execution of the;, documents, and the Mayor and City Manager of the City are -21- „�1 STATE OF MINNESOTA COUNTY OF SCOTT CITY OF PRIOR LAKE iw I, the undersigned, being the duly qualified and acting Clerk of the City of Prior Lake, Minnesota, DO HEREBY CERTIFY that I have compared the attached and foregoing extract of minutes with the original thereof on file in my office, and that the same is a full, true and complete transcript of the minutes of a meeting of the City Council of said City duly called and held on the date therein indicated, insofar as ouch ' minutes relate to the City''a $500,000 Commercial Development I I Revenue Note of 1985 (Priordale Mall Investors Limited Partnership Project). f WITNESS my hand and the seal of said City this .. day of , 1985. City Manigot (SEAL) r .,... ..w.$YC1i�NN?f3xm' - ' Wlif7if:"u4,4i11.. n �'rx. it .�'r err... _. ,. n A •., _.. _ _.