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81-10 e CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA RESOLUTION Date: April 20, 1981 Motion by Councilman Neveaux Resolution No. 81-10 Seconded by -- Councilman Geving RESOLUTION NO. 81- 10 e RESOLUTION RELATING TO $1,200,000 INDUSTRIAL DEVELOPMENT REVENUE NOTE~ AUTHORIZING THE ISSUANCE THEREOF PURSUANT TO MINNESOTA STATUTES, CHAPTER 474 BE IT RESOLVED by the City Council of the City of Chanhassen, Minnesota (the Municipality) as follows: Section 1. Introduction. It is proposed that the Municipality issue and sell its Industrial Development Revenue Note (F1uoroware, Inc. Project) (the Note) in the principal amount of $1,200,000, or so much as is advanced thereunder, to American Family Mutual Insurance Company (the Lender), and that the Municipality loan the proceeds of the Note to F1uoroware, Inc. (the Borrower), pursuant to a Loan Agreement (the Loan Agreement) to be entered into between the Municipality and the Borrower, for the purpose of paying a portion of the costs of a project to which this Council has given preliminary approval by resolution No. 80-19 adopted on June 16, 1980. Unless the context hereof clearly requires otherwise, the terms defined in Section 1.1 of the Loan Agreement shall, when used with initial capital letters herein, have the meanings ascribed to them in said Section 1.1. Section 2. Findings. It is hereby found and declared tha t : e (a) The Project constitutes a "project" authorized by Section 474.02, subdivision la, of 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; the retention of industry to use the available resources of the community in order to retain the benefit of its existing investment in educational and e public service facilities; halting the movement of talented, educated personnel of mature age to other areas and thus preserving the economic and human resources needed as a base for providing governmental services and facilities; 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 Municipality, and will accordingly be of direct benefit to the taxpayers of the Municipality as well as those of the overlapping taxing diptricts in which the project is located. e (d) The Project has been approved by the Commissioner of Securities of the State of Minnesota as tending to further the purposes and policies of the Act. (e) The financing of the project, the issuance and sale of the Note, the execution and delivery of the Loan Agreement and the Pledge Agreement and the performance of all covenants and agreements of the Municipality contaIned in the Loan Agreement and the Pledge Agreement are authorized by the Act, and all other acts and things required under the Constitution and laws of the State of Minnesota to be done, to exist or to be performed to make the Note, the Loan Agreement and the Pledge Agreement, when executed and delivered as therein and herein provided, valid and binding obligations of the Municipality enforceable in accordance with their terms, have been done, do exist and have been performed as so required. (f) It is desirable that the Note in the maximum principal amount of $1,200,000 be issued by the Municipality upon the terms set forth herein, and that the Municipality assign its interest in the Loan 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. (g) The loan payments required by the Loan Agreement are fixed, and will 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 issued under this Resolution when due. e -2- e (h) Under the provisions of Minnesota Statutes, Section 474.10, and as to be provided in the Note, the Note is not to be payable from nor charged upon any funds of the Municipality other than the revenue under the Loan Agreement pledged to the payment thereof; the Municipality 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 Municipality to pay the Note or the interest thereon, nor to enforce payment thereof against any property of the Municipality except the Project, or portions thereof, mortgaged or otherwise encumbered by the Mortgage; the Note issued hereunder shall recite that the Note, including interest thereon, is payable solely from the revenue under the Loan Agreement pledged to the payment thereof; and the Note shall not constitute a debt of the Municipality within the meaning of any constitutional or statutory limitation. Section 3. Authorization and Sale. e 3.1. Authorization. The Municipality is authorized by the Act to issue revenue bonds and loan the proceeds thereof to business enterprises to finance the acquisition and construction of "projects" as defined in the Act, an6 to make all contracts, execute all instruments and do all things necessary or convenient in the exercise of such authority. 3.2. pre1iminarf A~prova1 by Municipality. By preliminary reso ut10n No. 80-19 duly adopted by the Council on June 16, 1980, this Council approved the sale of industrial development revenue bonds pursuant to the Act and the loan of the proceeds to the Borrower for the acquisition, construction and equipping of the Project and authorized the preparation of such documents as may be appropriate thereto. Said preliminary approval is hereby confirmed and reaffirmed. The Note constitutes an industrial development revenue bond in contemplation of the Act and said pTe1iminary resolution. 3.3. Approval of Documents. Pursuant tQ the above, there have been prepared and presented to this Council copies of the following documents, all of which are now, or shall be, placed on file in the office of the City Manager: (a) the Note (Exhibit A attached hereto); (b) the Loan Agreement; e (c) the Pledge Agreement; -3- e (d) the Mortgage; and (e) the Assignment. The forms of the documents listed in (a) through (e) above are approved, with such variations, insertions and additions as are deemed appropriate by the parties and approved by the City Attorney. e Section 4. Authorizations. Upon the completion of the Loan Agreement and the Pledge Agreement, approved in Section 3.3 hereof, and execution thereof by the Borrower and the Lender, as the case may be, the Mayor and the City Manager shall execute the same on behalf of the Municipality and shall execute the Note in substantially the form as set forth in Exhibit A attached hereto on behalf of the Municipality, 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 certificates, recitals and representations of the Municipality. Execution of any instrument or document by one or more appropriate officers of the Municipality shall constitute, and shall be deemed the conclusive evidence of, the approval and authorization by the Municipality and the City Council of the instrument or document so executed. In the absence or disability of the Mayor, any of the documents authorized by this resolution to be executed, shall be executed by the acting Mayor, and in the absence of the City Manager, by such officer of the Municipality who, 'in the opinion of the City Attorney, may execute such documents. Section 5. The Note. e 5.1. Form and Authorized Amount of Note. The Note shall be issued substantially in the form set forth in Exhibit A attached hereto and made a part hereof, with such appropriate variations, omissions and insertions as are permitted or required by this resolution, in the maximum principal amount of $1,200,000, or so much as is advanced thereunder. The terms of the Note are set forth in Exhibit A attached hereto, and such terms, including but not limited to interest rate, dates and amount of payment of principal and interest and redemption and prepayment privileges, are incorporated by reference herein. 5.2. Execution. The Note shall be executed on behalf of the Municipality by the signatures of the Mayor and the -4- e City Manager, and shall be sealed with its corporate seal, and shall be dated as of the date of its delivery. In case any officer whose signature shall appear on the Note shall cease to be such officer before the delivery thereof, such signatures shall nevertheless be valid and sufficient for all purposes. 5.3. Mutilated, Lost and Destroyed Note. In case the Note shall become mutilated or be destroyed or lost, the Municipality 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 the Holder's paying the reasonable expenses and charges of the Municipality in connection therewith, and in case the Note is destroyed or lost, its filing with the Municipality evidence satisfactory to it of such destruction or loss. e 5.4. Assignment. The Note may be assigned by the Holder thereof, 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 Municipality and the Borrower. 5.5. Delivery and Use of Proceeds. Prior to delivery of the Note, the documents referred to in Section 3.3 hereof shall be completed and executed in form and substance as approved by the City Attorney. The Municipality shall execute and deliver the Note to the Lender, together with a duly certified copy of this Resolution, original, executed counterparts of the Loan Agreement, the Pledge Agreement, and such closing certificates, opinions and related documents as are required by bond counsel. Upon delivery of the Note and the above items to the Lender, the Lender shall advance the proceeds of the Note to or on the order of the Borrower in payment or reimbursement of Project Costs pursuant to the provisions of the Loan Agreement, and the proceeds so advanced shall be deemed to have been advanced for the account of the Municipality. Passed Chanhassen this and adopted by the Council 20th day of April /~981. I / / '(~,/ I / ~:~ ~~/ \1 of the ,9'i ty J'f il/ _ ~1~"fr~~ Mayor ' e -5- e e e Attest: 4~L OL<IO Clty Manager (SEAL) . - Yes Mayor Thomas L. Hamilton Councilman Swenson Councilman Neveaux Councilman Clark L. Horn Councilman Geving -6- No e UNI.TED STATES OF AMERICA STATE OF MINNESOTA COUNTY OF CARVER CITY OF CHANHASSEN Industrial Development Revenue Note (F1uoroware, Inc. Project) $1,200,000 e The City of Chanhassen, Minnesota, a municipal corporation of the State of Minnesota (the Municipality), for value received, hereby promises to pay to the order of AMERICAN FAMILY MUTUAL INSURANCE COMPANY or assigns (the Holder), at its principal office in Madison, Wisconsin, or at such other place as the Holder may designate in writing, from the source and in the manner and with interest thereon as hereinafter provided, the principal sum of ONE MILLION TWO HUNDRED THOUSAND DOLLARS ($1,200,000), or so much as is advanced hereunder, with interest on the unpaid principal amount at the rate of eleven and one-half percent (11-1/2%) per annum from the date or dates of advance until fully paid, except as hereinafter provided upon a Determination of Taxability. Both principal and interest are payable in any coin or currency which at the time or times of payment is legal tender for the payment of public or private debts in the United States of America. This Note is payable in installments due on the first day of each month, as follows: (a) on May 1, 1981, an amount equal to the interest accrued on the outstanding principal balance of this Note1 and e (b) commencing June 1, 1981 and on the first day of each month thereafter through and including , 1996, a monthly amount equal to Fourteen Thousand Eighteen and 28/100ths Dollars ($14,018.28), including both principal and accrued interest, and the entire unpaid principal and accrued interest, if not sooner paid, to be due and payable on May 1, 1996, all payments to be applied first to interest and then to pr inc ipal. The principal of this Note is not subject to prepayment prior to the expiration of the fifth loan year. From and after the expiration of the fifth loan year the principal amount of this Note may be prepaid, e either in whole or in part, on 60 days prior written notice and upon payment of the price equal to the principal being so prepaid plus all accrued interest to the date of prepayment and subject to a premium expressed as a percentage of the principal so prepaid as follows: Loan Year Premium 6 7 8 9 10 11 and thereafter 6% 5% 4% 3% 2% 1% e Provided, however, beginning with the sixth loan year, the Municipality, upon direction of the Borrower, may prepay on a non-cumulative basis, upon 60 days prior written notice, 10% of the then outstanding principal balance in each year plus accrued interest without penalty or prepayment fees or premium. No prepayment shall reduce the amount or postpone the due dates of monthly installment payments due hereunder nor shall any such prepayment reduce or postpone any other payments due hereunder; such monthly installments and other payments of which shall continue until the entire principal balance has been paid. All prepayments, after deduction of interest and fees, shall be applied to reduce the principal balance of the Note. In the event interest on this Note becomes subject to Federal income taxation pursuant to a Determination of Taxability as defined in Section 1.1 of the Loan Agreement of even date herewith (the Loan Agreement) between the Municipality and F1uoroware, Inc., a Minnesota corporation (the Borrower), the Holder shall have the option to require purchase of the Note at 100% of the remaining principal amount outstanding, plus accrued interest to the date of purchase, plus an additional amount equal to the sum of the interest paid and payable on the Note during the period beginning on the earliest date from which interest is taxable and ending on the date of purchase of the Note. All interest hereon shall be computed on the basis of the actual number of days e1apsed'on the assumption that each year contains three hundred sixty (360) days. e -2- e This Note constitutes an issue in the maximum authorized face amount of $1,200,000. This Note is issued by the Municipality 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 Section 474.02, Subdivision la, of the Act, consisting of the acquisition, construction and equipping of an office and warehouse facility within the Municipality and paying necessary expenses incidental thereto, such funds to be loaned by the Municipality to the Borrower pursuant to a Resolution adopted by the Municipality on April 20, 1981 (the Resolution), the Loan Agreement and a Pledge Agreement dated the date hereof (the Pledge Agreement) between the Municipality and the Holder, thereby assisting activities in the public interest and for the public welfare of the Municipality. This Note is secured by a Mortgage and Security Agreement dated the date hereof (the Mortgage) between the Borrower and the Holder; by an Assignment of Rents and Leases,. dated the date hereof (the Assignment) between the Borrower and the Holder; by a Guarantee and Indemnification Agreement dated the date hereof (the Guarantee) from the Borrower to the Holder; and by the Pledge Agreement. e As provided in the Resolution, this Note may be assigned by the Holder, from time to time, by endorsement hereon or by other writing, provided that notice of such assignment shall be given in writing to the Municipality and the Borrower. e All of the agreements, conditions, covenants, provisions and stipulations contained in the Resolution, the Loan Agreement, the Mortgage 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. If a default occurs under this Note, or under the Loan Agreement or the Mortgage or the Guarantee or if any other event occurs which entitles the Holder to accelerate payment under the Mortgage, then the Holder may at its right and option declare immediately due and payable the principal balance of this Note and interest accrued thereon to the date of declaration of ~uch default, together with any attorney's 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 Loan Agreement or the Mortgage or the Guarantee. The Holder may extend the time of payment of interest or principal of this Note, without notice to or consent of any party liable hereon, and without releasing any such party. -3- e e e for attorneys' fees, in case any payment shall not be made at maturity, and all costs and expenses, including reasonable attorneys' fees, incurred in protecting the security for this Note or in preServihg the properties or interests or any part thereof described in the Mortgage and any such other document, whether suit be brought or not. 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. IN WITNESS WHEREOF, the Municipality has caused this Note to be duly executed by its duly authorized officers and its corporate seal affixed all as of the 28th day of April, 1981. _ _( SEAL) May r t,a (JrL gJd City Manager And , - - " -5-