RES 1981-131 - 000063750-S
11ESWnION 10. 131 - 1981
R&90MON GIVING FINAL APPROVAL FOR $1,250,000
niDUSTRTAL DEVELOPMENT REVENUE NOTE OF 1981 (WWH
PROPERT ES P1t4AM
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Fridley,
as follows:
ARTICLE ONE
DEFINITIONS, LEGAL AUTHORIZATION AND FINDINGS
1 -1. Definitions.
The terms used herein, unless the context hereof shall require otherwise
shall have the following meanings, and any other terms defined in the Loan
Agreement 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 intent.
Act: The Minnesota Municipal Industrial Development Act, Minnesota
Statutes, Chapter 474, as amended;
Assignment of Leases and Rents: The agreement to be executed by the
Borrower assigning all the rents, issues and profits derived from the
Project to the Lender to secure the repayment of the Note and Interest
thereon;
' Bond Counsel: The firm of Briggs and Morgan, Professional Association, of
St. Paul and Minneapolis, Minnesota, and any opinion of Bond Counsel shall
be a written opinion signed by such Counsel;
Borrower: WWH Properties, a Minnesota general partnership consisting of
Gale F. Weishalla, Gerald Whalen and Robert Hughs, its successors,
assigns, and any surviving, resulting or transferee business entity which
nay assume its obligations under the Loan Agreement;
City: The City of Fridley, Minnesota, its successors and assigns;
Construction Loan Agreement: The agreement to be executed by the City,
the Borrower and the Lender, relating to the disbursement and payment of
Project Costs for the acquisition of the Land and the construction and
installation of the Improvements;
Guaranty: The personal guaranty to be executed by Gale F. Weishalla,
Gerald Whalen and Robert Hughs in favor of the Lender;
Improvements: The structures and other improvements, including any
tangible personal property, to be constructed or installed by the Borrower
on the Land in accordance with the Plans and Specifications;
Land: The real property and any other easements and rights described in
' Exhibit A attached to the Loan Agreement;
Lender: The Midway National Bank of St. Paul, St. Paul, Minnesota, its
successors and assigns;
Loan Agreement: The agreement to be executed by the City and the
Borrower, providing for the issuance of the Note and the loan of the
proceeds thereof to the Borrower, including any amendments or supplements
thereto made in accordance with its provisions;
Mortgage: The Mortgage, Security Agreement and Fixture Financing
Statement to be executed by the Borrower as mortgagor, to the Lender, as
mortgagee, securing payment of the Note and interest thereon;
Note: The $1,250,000 Industrial Development Revenue Note of 1981 (WWH
Properties Project), to be issued by the City pursuant to this Resolution
and the Loan Agreement;
Note Register: The records kept by the City Clerk to provide for the
registration of transfer of ownership of the Note;
Plans and Specifications: The plans and specifications for the
construction and installation of the Improvements on the Land, which are
approved by the Lender, together with such modifications thereof and
additions thereto as are reasonably determined by the Borrower to be
necessary or desirable for the completion of the Improvements and are
approved by the Lender;
Pledge Agreement: The agreement to be executed by the City and the Lender
assigning the Loan Agreement to the Lender;
Principal Balance: So much of the principal sum on the Note as from time
to time may have been advanced to or for the benefit of the City and
remains unpaid at any time;
Project: The Land and Improvements as they may at any time exist;
Project Costs -: The total of all "Construction Costs" and "Loan and
Carrying Charges," as those terms are defined in the Loan Agreement;
Resolutions: This Resolution of the City adopted November 23 , 19811
together with any supplement or amendment thereto.
1
All references in this instrument to designated "Articles," "Sections" and
other subdivisions are to the designated Articles, Sections and '
subdivisions of this instrument as originally executed. The words
"herein," "hereof" and "hereunder" and other words of similar import refer
to this Resolution as a whole not to any particular Article, Section or
subdivision.
1 -2. regal Authorization
The City is a political subdivision of the State of Minnesota and is
authorized under the Act to initiate the revenue producing project herein
referred to, 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 determined, and does hereby determine, as
follows:
1. The City is authorized by the Act to enter into a Loan AgreeLnent
for the public purposes expressed in the Act;
2. The City has made the necessary arrangements with the Borrower
for the establishment within the City of a Project consisting of
certain property all as more fully described in the Loan Agreement
and which will be of the character and accomplish the purposes '
provided by the Act, and the City has by this Resolution authorized
the Project and execution of the Loan Agreement, Pledge Agreement,
the Note and the Construction Loan Agreement, which documents specify
the terms and conditions of the acquisition and financing of the
Improvements to be included in the Project;
3. In authorizing the Project the City's purpose is to assist the
Borrower to construct and equip a light industrial building for use
in machining and manufacturing of specialized machinery, thereby
inducing Borrower to locate the facility in the City, and in its
judgment the effect thereof will be, to promote the public welfare
by: the attraction, encouragement and development of economically
a-S3
sound industry and commerce so as to prevent, so far as possible, the
emergence of blighted and marginal lands and areas of chronic
unemployment; the development 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
governmental services and facilities; the provision of accessible
employment opportunities for residents in the area; the expansion of
an adequate tax base to finance the increase in the amount and cost
of governmental services, including educational services for the
school district serving the community in which the Project is
situated;
4. The amount estimated to be necessary to partially finance the
Project Costs, including the costs and estimated costs permitted by
Section 474.05 of the Act, will require the issuance of the Note in
the principal amount of $11250,000 as hereinafter provided;
5. It is desirable, feasible, and consistent with the objects and
purposes of the Act to issue the Note, for the purpose of partially
financing the Project;
6. The Note and the interest accruing thereon do not constitute an
indebtedness of the City within the meaning of any consitutional 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 is pledged for the payment of the Note or
interest thereon; and
7. The Note is an industrial development bond within the meaning of
Section 103 (b) of the Internal Revenue Code and is to be issued
within the exemption provided under subparagraph (D) of Section
103(b)(6) of the Code with respect to an issue of $10,000,000 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.
1 -4. Authorization and Ratification of Project.
The City has heretofore and does hereby authorize the Borrower, in
accordance with the provisions of Section 474.03 (7) of the Act and
subject to the terms and conditions set forth in the Construction Loan
Agreement, to provide for the construction and installation of the Project
pursuant to the Plans and Specifications by such means as shall be
available to the Borrower and in the manner determined by the Borrower,
and without advertisement for bids as may be required for the construction
and acquistion 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.
ARTICLE TPA
N(nE
2 -1. Authorized Amount and Form of Note.
The Note issued pursuant to this Resolution shall be in substantially the
form set forth, with such appropriate variations, omissions and insertions
as are permitted or 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 $1,250,000
unless a duplicate Note is issued pursuant to Section 2-6.
PROVISIONS AS TO REGISTRATION
d
The ownership of the unpaid Principal Balance of this Note and the
interest accruing theron is registered on the books of the City of Fridley
in the name of the holder last noted below.
Date of Name and address signature of
Registration Registered Owner Clerk
The Midway National Bank of
St. Paul
1578 University Aveenue
St. Paul, MN 55104
2 -2, The Note.
The Note shall be dated as of the date of delivery shall be payable at the
times and in the manner, shall bear interest at the rate, and shall be
subject to such other terms and conditions as are set forth therein.
2 -3. Execution.
The Note shall be executed on behalf of the City by the signatures of its
Mayor and City Clerk and shall be sealed with the seal of the City. In
case any officer whose signature the delivery of the Note, such signature
shall nevertheless be valid and sufficient for all purposes, the same as
if bad remained in office until delivery.
2 -4. Delivery of Note.
Before delivery of the Note there shall be filed with the Lender (except
to the extent waived by the Lender) the following items:
1. an execu
(A)
(B)
(C)
(D)
(E)
(F)
(G)
ted copy of each of the following documents:
the Loan Agreement;
the Pledge Agreenent;
the Mortgage;
the Assignment of Leases and Rents;
the Construction Loan Agreement;
the Guaranty;
a Sworn Construction Statenent.
2. an opinion of Counsel for the Borrower in scope and substance
satisfactory to Bond Counsel as to the authority of the Borrower to
enter into the transaction and other related matters;
3. the opinion of Bond Counsel as to the validity and tax exempt status
of the Note;
4. such other documents and opinions as Bond Counsel may reasonably
require for purposes of rendering its opinion required in subsection
(3) above or that the Lender may reasonably require for the closing.
Upon delivery of the Note, the Lender shall, on behalf of the City,
advance funds for payment of Project Costs upon receipt of such supporting
documentation as the Lender may deem reasonably necessary, including
compliance with the provisions of the Construction Loan Agreement. The
Lender or the Borrower shall provide the City with a full accounting of
all funds disbursed for Project Costs.
1
1
1
as�5-
2 -5. Registration of Transfer.
The City will cause to be kept at the office of the City 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
t 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 Clerk, duly executed by the Lender or
its duly authorized agent. Upon such transfer the City Clerk shall note
the date of registration and the name and address of the new Lender in the
Note Register and in the registration blank appearing on the Note.
2-6. Mutilated, Lost or Destroyed Note.
In case any Note issued hereunder shall become mutilated or be destroyed
or lost, the City shall, if not then prohibited by law, cause to be
executed and delivered a new Note of like outstanding principal amount,
number and tenor in exchange and substitution for and upon cancellation of
such mutilated Note, or in lieu of and in substitution for such Note
destroyed or lost, upon the Lender's paying the reasonable expenses and
charges of the City in connection therewith, and in case of a Note
destroyed or lost, the filing with the City of evidence satisfactory to
the City that such Note was destroyed or lost, and furnishing the City
with indemnity satisfactory to it. If the mutilated, destroyed or lost
Note has already matured or been called for redemption in accordance with
its terms it shall not be necessary to issue a new Note prior to payment.
2 -7. Ownership of Note.
' The City may dean 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 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 -6. Limitation on Note Transfers.
The Note has been issued without registration under state or other
securities laws, pursuant to an exemption under such issuance; and
accordingly the Note may not be assigned or transferred in whole or part,
nor may a participation interest in the Note be given pursuant to any
participation agreement, except in accordance with an applicable exemption
from such registration requirements.
::r h.r x•
a x• • •� a •
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, soley
' 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, the Mortgage, the Guaranty, and
the Assignment of Leases and Rents, which revenues and proceeds are hereby
specifically pledged to the payment thereof in the manner and to the
extent specified in the Note, the Loan Agreement, the Guaranty, the
Mortgage and the Assignment of Leases and Rents; and nothing in the Note
or in this Resolution shall be considered as assigning, pledging or
otherewise encumbering any other funds or assets of the City.
o�-
3-2. Performance of and Authority for Covenants.
The City covenants that it will faithfully perform at all times any and
all covenants, undertakings, stipulations and provisions contained in this
Resolution, in the Note executed, authenticated 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 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 and
the Loan Agreement and Assignment of Loan Agreement; that all action on
its part for the issuance of the Note and for the execution and delivery
thereof has been duly and effectly taken; and that the Note in the hands
of the Lender is and 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
under the Loan Agreement and Construction Agreement, and to perform all
covenants and other provisions pertaining to the City contained in the
Note, the Loan Agreement and the Construction Loan Agreement subject to
Section 3 -4.
3-4. Nature of Security.
Notwithstanding anything contained in the Note, the Mortgage, the
Assignment of Leases and Rents, the Loan Agreement or any other document
referred to in Section 2 -4 to the contrary, under the provisions of the
Act the Note may not be payable from or be a charge upon any funds of the
City 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. Not holder of the Note shall ever have the right to compel any
exercise of the taxing power of the City to pay the Note or the interest
thereon, or to enforce payment thereof against any property of the City;
and the Note shall not constitute a charge, lien or encombrance, legal or
equitable, upon any property of the City; and the Note shall not
constitute a debt of the City within the meaning of any constitutional or
statutory limititation; 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 Mortgage, the Assignment of
Leases and Rents, the Construction Loan Agreement, the Guaranty 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 covenants and
other provisions to perform or enforce the covenants and other provisions
contained in the Note, the Loan Agreement and the Construction Loan
Agreement shall be subject at all times to the availability of revenues
under the Loan Agreement sufficient to pay all costs of such performance
or the enforcement thereof, and the City shall not be subject to any
personal or pecuniary liability thereon.
ARTICLE FOUR
MISCELLANEOUS
4 -1. Severability.
If any provisions 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 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 case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or
unenforceable to any extent whatever. The invalidity of any one or more
phrases, sentences, clauses or paragraphs in this Resolution contained
shall not affect the remaining portions of this Resolution or any part
thereof.
J
1
1
1
1
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 to herein, and
affidavits or certificates as to all other matters which are reasonably
necessary to evidence the validity of the Note. All such certified
copies, certificates and affidavits, including any heretofore furnished,
shall constitute recitals of the City as to the correctness of all
statements contained therein.
4 -3. Registration of Resolution.
The City Clerk is authorized and directed to cause a copy of this
Resolution to be filed with the County Auditor of Anoka County, and to
obtain from said County Auditor a certificate that the Note as a bond of
the City has been duly entered upon his bond register.
4 -4. Authorization to Execute Agreements.
The forms of the proposed Loan Agreement, the Pledge Agreement and the
Construction Loan Agreement are hereby approved in substantially the form
heretofore presented to the City Council; and the Mayor and City Clerk of
the City are authorized to execute the Loan Agreement, the Pledge
Agreement, and the Construction Loan Agreement in the name of and on
behalf of the City and such other documents as Bond Counsel consider
appropriate in-connection with the issuance of the Note. In the event of
the absence or disability of the Mayor or the City Clerk such officers of
the City as, in the opinion of the City Attorney, may act in their behalf,
shall without further act or authorization of the City Council do all
things and execute all instruments and documents required to be done or
executed by such absent or disabled officers.
PASSED AND ADOPTED BY THE CITY AIL OF THE CITY OF FRIDLEY THIS 23RD
DAY OF NOVEMBER, 1981.
ATTEST:
SIDNEY C. CITY CLERK
c
WILLIAM J. E - MAYOR
;P5