Imp. Proj. #513TO: Broadway LaNel /Golfe Holmes, a Minnesota Limited Partnership,
(hereinafter referred to as the "Borrower"):
The Economic Development Authority in and for the City of New
Hope (hereinafter referred to as the "EDA ") hereby approves
Borrower's loan request (hereinafter referred to as the "Loan ") for
the community center rehabilitation and expansion and street
lighting improvement (hereinafter referred to as the "Project ").
The proceeds of the Loan are to be used exclusively to successfully
complete the Project.
This Commitment is subject to the following terms and
conditions:
1. Principal Amount of Loan. The amount advanced pursuant
to the Loan and Promissory Note evidencing the Loan shall not
exceed One Hundred Forty -Two Thousand Five Hundred and 00 /100
Dollars ($142,500.00).
2. Loan Interest Rate. The Loan shall be made as a deferred
repayment loan, and therefore there shall be no interest paid on
said Loan unless Borrower defaults on any of the terms of this
Commitment, the Building Loan /Grant Agreement or the Promissory
Note. In the event of default by Borrower, the interest shall be
eight per cent per annum computed from the date of default.
3. Repayment of Loan. The Loan shall be immediately due and
payable, in accordance with the repayment terms contained in the
Promissory Note referred to in Section 4.A, herein, upon the
occurrence of any of the following events within a ten (10) year
time period from the date hereof.
A. If, without the written consent of the EDA, the
Property, as more fully described on Exhibit A attached hereto
and made a part hereof, ceases to be used as a "for profit"
apartment complex with community center for benefit of the
complex residents and public per the License Agreement and
strip shopping center upon which the street lighting
improvements are intended to be made.
B. If, without the written consent of the EDA, which
consent will not be unreasonably withheld, Borrower
voluntarily sells, transfers, or otherwise conveys, in any way
or manner, its fee interest in the Real Property unless Buyer
accepts all of herein terms and conditions, will be bound by
same, and the EDA consents to the conveyance.
C. If any Event of Default occurs under the Promissory
Note, Building Loan/Grant Agreement, or License Agreement
referred to in Sections 4.A-C herein.
If none of the events specified in this Section 3 occurs
within ten (10) years from the date the Loan is closed, then the
Loan will no longer need to be repaid, and will be extinguished and
FA
canceled and the Promissory Note shall be deemed paid in full and
returned to Borrower.
4. Loan Closing. As a condition precedent to the
disbursement of the Loan, each of the following shall be delivered
to the EDA in form and substance satisfactory to the EDA:
A. A fully executed Promissory Note (hereinafter
referred to as the "Note"), in substantially the same form as
the document attached hereto as Exhibit A.
B. A fully executed Building Loan/Grant Agreement
(hereinafter referred to as the "Building Loan/Grant
Agreement"), in substantially the same form as the document
attached hereto as Exhibit B, which controls the disbursement
of the proceeds of the Loan.
C. A fully executed License Agreement attached hereto as
Exhibit C, which grants the City of New Hope and the EDA a
non-exclusive right to use Borrower's community center for
public meetings and civic functions, as provided in the
License Agreement.
D. Evidence of Title establishing Borrower has fee
title to the property in a form satisfactory to the EDA.
E. Evidence that Borrower has obtained fire and extended
coverage insurance, in an amount equal to the lesser of the
amount of the Loan or the full insurable value of the Project,
with the EDA named as loss payee therein.
M
F. All such other documents, instruments and/or items
which the EDA may reasonably require.
5. Financial Requirements. Prior to, or concurrently with,
the disbursement by the EDA of any of the proceeds of the Loan, the
Borrower shall deliver to Commonwealth Land Title Company as
disbursing agent an amount of One Hundred Forty-Two Thousand Five
Hundred ($142,500.00), which is the estimated amount of funds it
will take to complete the Project over and above the amount of the
Loan. The parties may elect to fund on a pro-rata basis as needed.
6. Changes in Conditions. Any substantial changes in the
plans and specifications upon which this Loan/Grant Commitment is
based which shall occur after the date hereof must have the written
approval of the EDA prior to the closing of the Loan, which written
approval shall be subject to such conditions as the EDA may deem to
be appropriate.
7. Term of Commitment. This Loan/Grant Commitment shall
terminate May 1, 1994 unless the closing of the Loan/Grant shall
have occurred prior to such date, or unless this Loan/Grant
Commitment is renewed or extended by the EDA. Subsequent to the
closing of the Loan, the termination date for this Loan/Grant
Commitment shall be as provided in the Building Loan/Grant
Agreement.
8. Effectiveness of Commitment. This Loan/Grant Commitment
shall not become effective unless the accompanying three (3)
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duplicate copies hereto are returned to the EDA, with acceptance
endorsed thereon by the signature of the party or parties indicated
below, or their authorized agent, on or before May 1, 1994.
9. Mutual Enforceability of Loan/Grant Commitment. This
Loan/Grant Commitment shall be mutually enforceable by either
party, and either party hereto may apply to any court, State or
Federal, for specific performance of the agreements and
requirements contained herein, and for such other relief as may be
appropriate, since the injury to the EDA arising from any failure
to 'comply with the requirements contained herein would be
irreparable and the amount of damage would be difficult to
ascertain.
10. Assignment or Transfer of Loan/Grant Commitment. This
Loan/Grant Commitment shall not be assigned or transferred without
the prior written consent of the EDA.
11. Additional or Special Conditions. This Loan/Grant
Commitment is subject to the following or special conditions, which
are hereby made a part hereof: Non recourse to all of the partners
of Borrower.
Dated: ECONOMIC DEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF NEW HOPE
M-
M-
61
Accepted: ADWAY LANEL/GOf LE H6'WJE, A
MIN ESOTA LIMInDIPARTNEN , IP
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PROMISSORY NOTE
$142,500.00 New Hope,..Minnesota
FOR VALUE RECEIVED, the undersigned, Broadway LaNel /Golle
Holmes, a Minnesota Limited Partnership, ( "Borrower "), promises to
pay to the order of ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE
CITY OF NEW HOPE ( "Lender "), at its business address, 4401 Xylon
Avenue North, New Hope, Minnesota 55428, or at such other place as
may be designated in writing by the holder hereof, the principal
sum of up to One Hundred Forty -Two Thousand Five Hundred Dollars
($142,500.00); or so much thereof that is advanced from time to
time together with interest thereon at the rate of eight (8 %)
percent per annum computed on the unpaid principal balance pursuant
to the terms as set out in the Loan /Grant Commitment executed by
Borrower simultaneously with the herein Note and made a part
hereof.
Any and all payments received hereunder shall first be applied
to the payment of accrued interest and the balance of each payment
shall be applied on the account of principal. This Note may be
prepaid in full or in part at any time without penalty.
Borrower agrees that any voluntary sale, conveyance, or other
transfer of title to the property described in the Building
Loan /Grant Agreement and Loan /Grant Commitment (hereinafter
Property), or any interest therein except for the License Agreement
to the Lender, without the prior written consent of Lender or a
subsequent holder of this Note, shall be an Event of Default on
1
this Note, Building Loan /Grant Agreement and Loan /Grant Commitment.
Lender's consent will not be unreasonably withheld. For the
purpose hereof, and without limiting the generality of the
foregoing, the occurrence at any time of any of the following
events, without such prior written consent, shall be deemed to be
an unpermitted transfer of title to the subject Property and
therefore an Event of Default hereunder: (a) any sale, conveyance,
assignment or other transfer of all or any part of the legal and /or
equitable title to the Property; (b) any sale, conveyance,
assignment or other transfer of, or the grant of a security
interest in, more than 49% of the interest of Broadway LaNei /Golle
Holmes. In the event Borrower's ownership interest in the
partnership interest of Broadway LaNel /Golle Holmes is reduced to
less than 51 %, the outstanding principal and accrued interest shall
be immediately due and payable upon demand by Lender. A transfer
by a limited partner of that partner's limited partnership interest
shall not be a violation of this provision. The general partners
shall be allowed to transfer their interest to family members for
estate purposes. Borrower further agrees to make full disclosure
to Lender of any sale, conveyance, assignment or transfer of any
and all partnership interest of Broadway LaNel /Golle Holmes owned
by Borrower. The failure to make said disclosure and /or make the
accelerated payment required by this paragraph shall also
constitute an Event of Default; (c) any violation of the terms and
conditions set out in the Building Loan /Grant Agreement and
Loan /Grant Commitment. Any such written consent, or any waiver of
2
an Event of Default, by Lender, or a subsequent holder of this
Note, shall not constitute m consent to or waiver of any right,
remedy or power accruing to the holder hereof upon any subsequent
Event of Default.
In the event a court of competent jurisdiction renders a final
judgment wherein it is determined that the payments, or any part
thereof, provided for in this Note constitute usurious interest for
which Borrower has a defense, and any such excess interest has
actually been accepted, then such excess shall not be considered
interest but shall apply to reduce the principal balance of this
Note by the amount of such excess.
Upon the occurrence of an Event of Default in the payment of
any sum due hereunder or in the performance of any of the terms,
covenants or conditions of this Note, the Building Loan/Grant
Agreement or Loan/Grant Commitment, then or at any time thereof at
the option of the holder hereof, the entire principal balance of
this Note and accrued interest thereon shall become due and payable
without notice and without demand or presentment. Failure of
Lender to exercise such option or any other right to which the
holder may be entitled shall not constitute a waiver of the right
to exercise said option or any other right in the event of any
subsequent Event of Default.
If, in the opinion of the holder, it becomes necessary to
employ counsel to collect or enforce this Note, Building Loan/Grant
Agreement or Loan/Grant Commitment, Borrower agrees to pay, to the
extent permitted by law, all costs, charges, disbursements and
3
reasonable attorneys' fees incurred by Lender in collecting or
enforcing this Note.
The makers and endorsers of this Note severally waive
presentment, protest and demand, notice of protest, demand and
notice of dishonor and nonpayment of this Note and expressly agree
that any extension of time for the payment required by this Note
may be made from time to time without in any way affecting the
liability of the makers and endorsers hereof and that they shall
severally, as well as jointly, be liable for all payments required
hereby.
Notwithstanding the teCms_ herein, the partner non- recourse
provision of the Loan /Grant Comm t`fkent shay apply to this Note.
This Note shall be ,`construed in`',ac6ordance with the laws of
the State of Minnesota, without giving'` to those provisions
of law relating to choice of law. '
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BRO W LAN /�OLLE
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THIS AGREEMENT is made and entered into on V
1991, by and between Broadway LaNel/Golle Holmes, a Minnesota
Limited Partnership (hereinafter referred to as "Borrower"), with
its principal place of business located at Suite 601, 4601
Excelsior Blvd., Minneapolis, MN 55416, and the Economic
Development Authority in and for the City of New Hope, a Minnesota
Municipal Corporation (hereinafter referred to as "Lender"), with
its place of business located at 4401 Xylon Avenue North, New Hope,
MN 55428.
ARTICLE I
Definitions
Section 1.01 Defined Terms. As used in this Agreement, the
following terms shall have the meanings set out respectively after
each (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
(a) "Advance" - An advance made or to be made by the
Lender to the Borrower pursuant to Article II hereof.
(b) "Architect", if any - Lenard Lampert, which will
administer the Construction Contract Documents.
(c) "Borrower" - Broadway LaNel/Golle Holmes.
(d) "Compl et ion Date" - December 31, 1994 (provided that
if the Lender shall extend such date in writing, then the
I
Completion Date shall be such later date), being the date of
required completion of the Project, subject, however, to force
majeure in which case Lender consent to extend shall not be
required.
(e) "Contractor" - Any person who shall be engaged to
work on or to furnish materials and supplies for, the Project,
if applicable, a general contractor.
M "Construction Contract Documents" - The document or
documents, including but not limited to any construction plans
and specifications, which, together with the exhibits thereto,
collectively form the contract between the Borrower and
Contractor or Contractors concerning construction and/or
rehabilitation of the Project.
(9) "Disbursing Agent" - Commonwealth Land Title
Insurance Company.
(h) "Disbursing Agreement" - The disbursement agreement
by and between Lender, Borrower and Disbursing Agent which
controls the disbursement of the loan proceeds, which such
document is incorporated herein by reference as if it were
attached hereto as a separate exhibit.
(i) "Draw Requisition" - The form, substantially in the
form of Exhibit B attached hereto, which is to be submitted to
the Disbursing Agent when an Advance is requested, and which
is referred to in Section 2.02 hereof.
2
( i ) "Event of Default" - One of the events of default
specified in Section 6.01 hereof.
(k) "Inspecting Engineer", if any - Bonestroo, Rosene,
Anderlik & Associates.
( 1 ) "Lender" - The Economic Development Authority in and
for the City of New Hope.
(m) "Loan Commitment" - The commitment of the Lender
hereunder to make loan to the Borrower in an aggregate
principal amount of up to and including One Hundred Forty-Two
Thousand Five Hundred Dollars ($142,500.00), which such
document is incorporated herein by reference as if it were
attached hereto as a separate exhibit.
(n) "Commitment Termination Date" - The completion date
or the date of the termination of the Loan Commitment pursuant
to Section 6.02 hereof, whichever date occurs earlier.
(o) "Loan" - A loan/grant of monies from Lender to
Borrower in an amount not to exceed One Hundred Forty-Two
Thousand Five Hundred Dollars ($142,500.00).
(p) "Note" - The Promissory Note evidencing the Advances
to be made hereunder for the Loan which such document is
incorporated herein by reference as if it were attached hereto
as a separate exhibit.
(q) "Project" - The buildings and structures to which
the improvements described in the Construction Contract
Documents are to be made.
3
(r) "Real Estate" - The land upon which the Project is
located, described on Exhibit A attached hereto.
ARTICLE II
Commitment to Make Advances
Terms of Advances and Draw Requests
Section 2.01 The Advances. The Lender agrees, on the terms
and subject to the conditions hereinafter set forth, to approve
Advances from the Loan/Grant to the Borrower from time to time
during the period from the date hereof to the Commitment
Termination Date in an aggregate principal amount of up to and
including One Hundred Forty-Two Thousand Five Hundred Dollars
($142,500.00). The obligation, if required, of the Borrower to
repay the Advances from the Loan shall be evidenced by the Note and
Loan/Grant Commitment.
Section 2.02 Draw Requisitions® Whenever the Borrower
desires to borrow hereunder, which shall be no more often than
monthly, the Borrower shall submit to the Disbursing Agent and
Lender a Draw Requisition, duly executed on behalf of the Borrower,
setting- forth the information requested therein. Each draw
requisition shall be certified as true and accurate by Borrower's
construction control manager relative to the percentage of work
completed on which payment is requested. Each Draw Requisition
with respect to construction items shall be limited to amounts
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equal to (i ) the total value of the work by percentage of
completion as approved by Borrower and Lender, plus ( i i ) the value
of materials and equipment not incorporated in the Project, but
delivered and suitably stored on or off the Project site in a
manner acceptable to Lender, less (iii) five percent (5%), and less
prior Advances.
Notwithstanding anything herein to the contrary, no Advances
for materials stored on or off the Project site will be made by
Lender unless Borrower shall advise Lender of its intention to so
store materials prior to their delivery. It is specifically agreed
that the propriety of Advances for materials stored on or off the
Project site shall be determined in the Lender's sole discretion.
At the time of submission of each Draw Requisition, other than
the final Draw Requisition, the Borrower shall submit to the Lender
and Disbursing Agent the following:
(a) A written lien waiver from each Contractor for work
done and materials supplied by it in accordance with the terms
of the Disbursement Agreement.
(b) Such other supporting evidence as may be requested
by the Lender or the Disbursing Agent to substantiate all
payments which are to be made out of the relevant Draw
Requisition and/or to substantiate all payments then made with
respect to the Project.
(c) A written lien waiver from each Contractor for all
0
work done and all materials furnished by it for the Project.
(d) Such other supporting evidence as may be requested
by the Lender or the Disbursing Agent to substantiate all
payments which are to be made out of the final Draw
Requisition and/or to substantiate all payments then made with
respect to the Project.
(e) Satisfactory evidence that all work requiring
inspection by municipal or other governmental authorities
having jurisdiction has been duly inspected and approved by
such jurisdiction, and that all requisite certificates of
occupancy and other approvals have been issued.
If on the date an Advance is desired, the Borrower has
performed all of its agreements and complied with all requirements
therefore to be performed or complied with hereunder, and the
Lender approves the relevant Draw Requisition, the Lender shall
authorize the Disbursing Agent to pay the amount of the requested
Advance, which agent will disburse such funds pursuant to and in
accordance with the terms of the Disbursing Agreement. Provided,
however, the final Advance to Borrower hereunder shall be payable
fifteen (15) days after final completion of the Project and
sat i sf act i on of the conditions for final payment as provided in the
Construction Contract Documents.
Section 2.03 Disbursement of Borrower's Funds. If the Lender
shall at any time in good faith determine that the undisbursed
0
amount of the Advances, plus the amount of all other funds
committed to the completion of the Project, is less than the amount
required to pay all costs and expenses of any kind which reasonably
may be anticipated in connection with the completion of the
Project, and shall thereupon send written notice thereof to
Borrower specifying the amount required to be deposited by Borrower
with the Disbursing Agent to provide sufficient funds to complete
the Project, then the Borrower agrees that it will, within ten (10)
calendar days of receipt of any such notice, deposit with the
Disbursing Agent the amount of funds specified in the Lender's
notice. Borrower agrees that any such funds deposited with the
Disbursing Agent may be disbursed by the Disbursing Agent before
any further disbursement of loan proceeds from the Lender, to pay
any and all costs and expenses of any kind in connection with
completion of the Project.
Section 2.04 Advances Without Receipt of Draw Requisition.
Notwithstanding anything herein to the contrary, the Lender shall
have the irrevocable right at any time and from time to time, to
apply funds which it agrees to advance hereunder to pay any and all
of the expenses referred to in Section 7.04 hereof, all without
receipt of a Draw Requisition for funds from the Borrower.
Conditions of Lending
Section 3.01 Condition Precedent to Any Advance. The
h
obligation of the Lender to approve Advances hereunder (including
the initial funding) shall be subject to the condition precedent
that it shall have received the following on or before the date of
the initial funding hereunder (or in the case of items to be
furnished to the Lender on or before the date of a later Advance,
on or before the date of the relevant Advance):
(a) The Note duly executed by the Borrower.
(b) Evidence, in form and substance satisfactory to
Lender, that the Disbursing Agent is holding sufficient funds,
including the proceeds of the Loan, to complete the Project as
contemplated by the Construction Contract Documents.
(c) A copy of the fully executed Construction Contract
Documents, with such contracts being reasonably acceptable to
the Lender.
(d) A sworn construction statement duly executed on
behalf of the Borrower, in form and substance reasonably
satisfactory to the Lender, showing all costs and expenses of
any incurred and to be incurred in constructing the Project.
(e) Title evidence, in form and substance reasonably
satisfactory to the Lender.
(f) Evidence reasonably satisfactory to the Lender that
all required permits and other permits have been obtained as
required.
(g) Copies of or binders for the delivery of the policy
F -01
of fire and extended coverage and comprehensive general
liability insurance required under Section 5.01 (c) hereof,
with all such insurance in full force and effect and approved
by the Lender.
(h) Where applicable, a copy of the partnership
agreement or corporate documents of the Borrower.
(i) The License Agreement duly executed by Borrower
granting the City of New Hope and Lender a non-exclusive right
to use Borrower's community center for public meetings and
civil functions.
(j) Any and all such other documents and agreements
which Lender deems reasonably necessary to establish the
organization to repay the Loan, and to secure such repayment.
(k) Any and all such other documents and agreements
which Lender deems reasonably necessary to establish that
there is sufficient additional funds, other than the proceeds
of the Loan, to pay for the work to be performed under the
Construction Contract Documents.
Section 3.02 Further Conditions Precedent to Any Advance.
The obligation of the Lender to make any Advance hereunder
(including the initial binder) shall also be subject to the
following conditions precedent:
(a) No Event of Default hereunder, or event which would
constitute such an Event of Default but for the requirement that
41
notice be given or that a period of grace or time elapse, shall
have occurred and be continuing.
(b) No determination shall have been made by the Lender
that the undisbursed amount of the Advances plus the amount of
all other funds committed to the completion of the Project is
less than the amount required to pay all costs and expenses of
any kind which reasonably may be anticipated in connection
with the completion of the Project, or if such a determination
has been made and notice thereof sent to Borrower, Borrower
has deposited the necessary funds with the Disbursing Agent in
accordance with Section 2.03 hereof.
(c) The requirements of the Disbursing Agent set forth
in the Disbursing Agreement has been satisfied.
Representations and Warranties
Section 4.01 Representations and Warranties. The Borrower
represents and warrants as follows:
(a) The execution of this Agreement, the Note, the
License Agreement, Loan\Grant Commitment, and any and all
other documents referred to herein are, where applicable,
within the powers of Borrower, and do not violate any
provision of law.
(b) The Note, when duly executed and delivered for
value, will constitute the legal, valid and binding obligation
of the Borrower enforceable in accordance with its terms.
in
(c) This Agreement, the Note, and any and all other
documents referred to herein are the legal, valid and binding
obligations of the Borrower enforceable against the Borrower
in accordance with their respective terms.
(d) The Borrower has title to the Real Estate and
Project.
(e) The Project will be constructed substantially in
accordance with the Construction Contract Documents, will be
constructed entirely on the Real Estate, and will not encroach
upon or overhang any easement right-of-way of land not
constituting part of the Real Estate.
(f) The Project and the contemplated use thereof, both
during construction and at the time of completion, will not
violate any applicable zoning or use statute, ordinance,
building code, rule or regulation, or any covenant or
agreement of record.
(g) The Borrower agrees that it will furnish from time
to time such satisfactory evidence regarding the
representations and warranties described herein as may be
required by the Lender.
ARTICLE V
Additional Covenants of Borrower
Section 5.01 Affirmative Covenants. The Borrower agrees
that :
11
(a) Borrower will cause construction of the Project to
commence, and thereafter will cause the Contractor or
Contractors to diligently proceed with construction of the
Project according to the Construction Contract Documents, so
that the Project can be completed by the Completion Date.
Borrower further agrees to provide all funds required over and
above the proceeds of the Loan plus the amount of all other
funds committed to the completion of the Project if such
additional funds should be necessary to complete the
construction of the Project.
(b) Borrower will require its construction contract
manager to comply with the Uniform Municipal Contracting Law
in letting contracts and expending public funds on this
project. Also Borrower will require the Contractor or
Contractors to comply with all rules, regulations, ordinances
and laws bearing on its conduct of work on the Project.
(c) The Borrower will provide and maintain, or will
cause the Contractor or Contractors to provide and maintain,
at all times during the process of building the Project, and,
from time to time at the request of the Lender, furnish the
Lender with proof of payment of premiums on, the following
insurance:
( 1 ) Borrower to maintain fire and extended
coverage, in an amount equal to the lesser of the amount
12
of the Loan or the full insurable value of the Project,
with the Lender named as loss payee, and to include an
overlap endorsement or rider covering the risk of any
rehabilitation work;
(2) Borrower or Contractor(s) to provide
comprehensive general liability insurance, including the
Lender as a named insured, including operations,
contingent liability, operations of subcontractors,
completed operations and contractual liability insurance
with limits (i) against bodily injury of not less than
$1,000,000, and (ii) against property damage of not less
than $250,000 (to accomplish the above-required limits,
an umbrella excess liability policy may be used); and
(3) Contractor(s) to provide workmen's compensation
insurance, with statutory coverage. The policies of
insurance required pursuant to Sections 5.01 (c)(1) and
(2) hereinabove shall be in form and content satisfactory to
the Lender, and shall be placed with financially sound and
reputable insurers licensed to transact business in the State
of Minnesota. The policy of insurance delivered pursuant to
Section 5.01 (c)(1) hereinabove shall contain an agreement of
the insurer to give not less than ten
(10) days advance written notice to the Lender in the event of
cancellation of such policy or change affecting the coverage
13
thereunder. Acceptance of insurance policies delivered
pursuant to Sect ions 5.01 (c) ( 1 ) and ( 2 ) herei nabove shat I not
bar the Lender from requiring additional insurance which it
reasonably deems necessary.
(d) Borrower will pay all taxes and assessments levied
or assessed against the Real Estate prior to the date on which
penalties attach thereto; provided, however, that the Borrower
may pay assessments in installments so long as no fine or
penalty is added to any installment for the nonpayment
thereof.
(e) Borrower will permit the Lender, acting by and
through its officers, employees and agents, to examine all
books, records, contracts, plans, drawings, permits, bills and
statements of account pertaining to the Project and to make
extracts therefrom and copies thereof.
(f) The Borrower will furnish to the Lender as soon as
possible and in any event within seven (7) days after the
Borrower has obtained knowledge of the occurrence of each
Event of Default, or each event which with the giving of
notice or lapse of time or both would constitute an Event of
Default, which is continuing on the date of such statement,
the statement of the Borrower setting forth details of such
Event of Default or event and the action which the Borrower
proposes to take with respect thereto.
W
Section 5.02 Negative Covenants. The Borrower agrees that,
without the prior written consent of the Lender, it will not agree
or consent to any changes in the Construction Contract Documents,
to any change orders, or to any of the terms and provisions of the
Construction Contract Documents without the consent of Lender which
will not be unreasonably withheld.
ARTICLE VI
Events of Default and Rights and Remedies
Section 6.01 Events of Default. The following shall
constitute events of default:
(a) The Borrower shall fail to duly observe or perform
any of the terms, conditions, covenants, or agreements
required to be observed or performed by the Borrower
hereunder, under the Note, Loan/Grant Commitment, or under the
License Agreement.
(b) Any representation or warranty made by the Borrower
herein, in the Note, or in any financial statement,
certificate, report or Draw Requisition furnished pursuant to
this Agreement or the Disbursing Agreement, or in order to
induce the Lender to approve any Advance hereunder, shall
prove to have been untrue in any material respect or
materially misleading as of the time such representation or
warranty was made.
H61
(c) The Borrower shall be in default under or in breach
of any of the terms of the Note, and such default or breach
shall not be cured or waived by the Lender within the period
or periods of grace, if any, applicable thereto.
(d) At the time any Advance is requested by the Borrower
the title to the Real Estate is not reasonably satisfactory to
the Lender, regardless of whether the lien, encumbrance or
other question existed at the time of any prior Advance.
(e) The Project is materially damaged or destroyed by
fire or other casualty and the loss, in the reasonable
judgment of the Lender, is not adequately covered by insurance
actually collected or in the process of collection.
(f) The Borrower shall make an assignment for the
benefits of its creditors, or shall be dissolved, or shall
commit an act of bankruptcy under the United States Bankruptcy
Act (as now or hereafter amended) or shall admit in writing
its inability to pay its debts as they become due, or shall
file a petition in bankruptcy, or shall become or be
adjudicated bankrupt or insolvent, however defined, or shall
file a petition seeking any reorganization, dissolution,
liquidation, arrangement, composition, readjustment or similar
relief under any present or future bankruptcy or insolvency
statute, law or regulation or shall file an answer admitting
to or not contesting the material allegations of a petition
il NO
filed against it in such proceedings, or shall not, within
thirty (30) days after the filing of such a petition against
it, have the same dismissed or vacated, or shall seek or
consent to or acquiesce in the appointment of any trustee,
receiver or liquidator of a material part of its properties,
or shall not, within thirty (30) days after the appointment
(without its consent or acquiescence) of a trustee, receiver
or liquidator of any material part of its properties, have
such appointment vacated.
(g) Execution shall have been levied against the Real
Estate or any lien creditor's suit to enforce a judgment
against the Real Estate or such other property shall have been
brought, and (in either case) shall continue unstayed and in
effect for a period of more than ten consecutive calendar
days.
(h) The construction of the Project is abandoned or
shall be unreasonably delayed or be discontinued for a period
of twenty ( 20 ) consecutive calendar days, in each instance for
reasons other than acts of God, fire, storm, strikes,
blackouts, labor difficulties, riots, inability to obtain
materials, equipment or labor, governmental restrictions or
any similar cause over which the Borrower is unable to
exercise control.
(i) The Project is not substantially completed to the
17
satisfaction of the Lender in accordance with the Construction
Contract Documents by the Completion Date, subject to such
extensions as may be permitted in accordance with the
Construction Contract Documents.
(j) When applicable, upon completion of the Project, the
Borrower fails to obtain a certificate of occupancy, or such
other equivalent document from the municipality in which the
Project is located.
(k) Lender shall, in good faith, ascertain that the cost
of completing the Project in substantial accordance with the
Const ruct i on Cont ract Document s i s great er t han t he sum of ( i
the then undisbursed portion of the Advances; and (ii) the
amount of Borrower's funds on deposit with the Disbursing
Agent.
Section 6.02 Rights and Remedies. Upon the occurrence of an
Event of Default and at any time thereafter until such Event of
Default is cured to the satisfaction of the Lender, the Lender may,
at its option, exercise any and all of the following rights and
remedies, along with any other rights and remedies available to it:
(a) The Lender may, by notice in writing to the
Borrower, refrain from approving Advances hereunder (but
Lender may make Advances after the occurrence of an Event of
Default without thereby waiving its rights and remedies
hereunder), or terminate the Commitment.
M
(b) The Lender shall have the right, in addition to any
other rights provided by law, to enforce its rights and
remedies under the Note, Loan/Grant Commitment and License
Agreement.
ARTICLE VII
Miscellaneous
Section 7.01 Inspections. The Borrower, the Architect, if
any, and the Construction Manager, shall be responsible for making
inspections of the Project during the course of construction, and
shall determine to their own satisfaction that the work done or
materials supplied by the Contractors to whom payment is to be made
out of each Advance has been properly done or supplied in
accordance with the applicable contracts with such Contractors. If
any work done or materials supplied by a Contractor are not
satisfactory to Borrower and/or the Architect, if any, or if a
Contractor does not comply with the Construction Contract Documents
in any respect, the Borrower will immediately notify the Lender in
writing of such fact. It is expressly understood and agreed that
the Lender and the Inspecting Engineer may conduct such inspections
of the Project as either may deem necessary for the protection of
the Lender's interest, and that any inspections which may be made
of the Project by the Lender or the Inspecting Engineer are made,
and all certificates issued by the Inspecting Engineer will be
issued, solely for the benefit and protection of the Lender, and
that the Borrower will not rely thereon.
001
Section 7.02 Indemnification by Borrower. The Borrower shall
bear all loss, expense (including attorney's fees) and damage in
connection with, and agrees to indemnify and hold harmless the
Lender, its agents, servants and employees from all claims, demands
and judgments made or recovered against the Lender, its agents,
servants and employees, because of bodily injuries, including death
at any time resulting therefrom, and/or because of damages to
property of the Lender or others (including loss of use) from any
cause whatsoever, arising out of, incidental to, or in connection
with the construction of the Project, whether or not due to any act
of omission or commission, including negligence of the Borrower or
any Contractor or his or their employees, servants or agents, and
whether or not due to any act of omission or commission (excluding
however, negligence or breach of statutory duty) of the Lender, its
employees, servants or agents. The Borrower's liability hereunder
shall not be limited to the extent of insurance carried by or
provided by the Borrower, or subject to any exclusions from
coverage in any insurance policy. The obligation of the Borrower
under this Section shall survive the payment of the Loan.
Section 7.03 Additional Security Interest. In the event any
Advance is to be made for materials then being fabricated or
stored, or both, for later use in the completion of the Project,
but which are not then stored upon the Real Estate or installed or
incorporated into the Project, then such Advance shall be made only
20
after the Borrower has given to the Lender such security
instruments and insurance on such materials as the Lender may
reasonably request.
Section 7.04 Fees. Whether or not any Advance shall be made
hereunder, the Borrower agrees to pay all fees of the Disbursing
Agent, inspection fees, appraisal fees, survey fees, recording
fees, license and permit fees and title insurance and other
insurance premiums, and agrees to reimburse the Lender upon demand
for all reasonable out-of-pocket expenses actually incurred by the
Lender in connection with this Agreement or in connection with the
transactions contemplated by this Agreement, including, but not
limited to any and all reasonable legal expenses and attorneys'
fees sustained by the Lender in the exercise of any right or remedy
available to it under this Agreement or otherwise by law or equity.
Section 7.05 Addresses for Notices. All notices to be given
by either party to the other hereunder shall be in writing and
deemed to have been given when delivered personally or when
deposited in the United States Mail, registered or certified
postage prepaid, addressed as follows:
To the Borrower at:
Broadway LaNel/Golle Holmes
c/o Francis W. Lang
Suite 650
4601 Excelsior Blvd.
Minneapolis, MN 55416
cc: Stephen Davis
1601 West 22nd Street
Minneapolis, MN 55405-2407
21
To the Lender at:
Economic Development Authority in and
for the City of New Hope
4401 Xylon Avenue North
New Hope, MN 55428
or addressed to such party at such other address as such party
shall hereafter furnish by notice to the other party. Any notice
delivered personally to Borrower shall be delivered to a general
partner of Borrower and any notice delivered personally to Lender
shall be delivered to an officer of Lender.
Section 7.06 Termination of this Agreement. The obligations
of Borrower under this Agreement, but not under the Note,
Loan /Grant Commitment or License Agreement or any other
agreement(s) attached hereto or incorporated herein by reference,
shall cease upon Lender's certification that the construction of
the Project has been completed in accordance with the Construction
Contract Documents.
Section 7.07 Time of Essence. Time is of the essence in the
performance of this Agreement.
Section 7.08 Binding Effect and Assignment. This Agreement
shall be binding upon and inure to the benefit of the Borrower and
the Lender and their respective successors and assigns, except that
the Borrower may not transfer or assign its rights hereunder
without the prior written consent of the Lender.
Section 7.09 Waivers. No waiver by the Lender of any default
hereunder shall operate as a waiver of any other default or of the
M
same default on a future occasion. No delay on the part of the
Lender in exercising any right or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any
right or remedy preclude other or further exercise thereof or the
exercise of any other right or remedy.
Section 7.10 The Lender's Remedies Cumulative. The rights
and remedies herein specified are cumulative and not exclusive of
any rights or remedies which the Lender would otherwise have.
Section 7.11 Governing Law and Entire Agreement. This
Agreement and the Mortgage issued hereunder and all security
therefor shall be governed by the laws of the State of Minnesota.
This Agreement contains the entire agreement of the parties on the
matters covered herein. No other agreement, statement or promise
made by any party or by any employee, officer, or agent of any
party that is not in writing and signed by all the parties to this
Agreement shall be binding. Notwithstanding this provision, Lender
agrees the partner non-recourse provision of the Loan/Grant
Commitment is applicable herein.
Section 7.12 Counterparts. This Agreement may be executed in
any number of counterparts, each of which, when so executed and
delivered, shall be an original, but such counterparts shall
together constitute one and the same instrument.
(THE REMAINING PORTION OF THIS PAGE WAS INTENTIONALLY LEFT BLANK)
23
- IM WITNESS WHEREOF, the parties hereto have executed this
^
Agreement, or caused it to be executed by their duly authorized
officers or partners, as of the date first above written.
ECONOMIC DEVELOPMENT AUTHORITY
IN AN[�FOR THECITY OF NEW HOPE
Its
COUNTY OF HENNEPIN
) ms.
ve Director
he foregoing was acknowledged before me this A""', - day of
" 1984, by Edw. J. Erickson and Daniel J.
Donahue, the President and Executive Director, respectively, of the
Economic Development Authority in and for the City of New Hope, a
Minnesota municipal corporation, on behalf of said municipal
corporation.
Notar
STATE OF MINNESOTA } HENNEPIN COUNTY
) Sa. �� CommbwNnExpires Jan. 31 2000
COUNTY OF HENNEPIN ) K
The foregoing was acknowledged before me this day of
respectively, of Broadway LaNel/Golle Holmes, a Minnesota Limited
Partnership, on behalf of said limited partnership.
Notary Public
By
f tb 14:56 FROM STEPHEN J. DAVIS, ESQ. TO LANG NELSON P.62
COMMONWEALTH LAND
TITLE INSURANCE COMPANY
APRYwKt CMWNoWi p Conve"r
File No. C20248
Policy No. 404- 211469
Schedule A-4 -A
Par 1: That part of-the Northeast Quarter of the Northwest Quarter, Section 5,
Township 118, Range 21, described as commencing at the Northeast corner of the
Northwest Quarter of.said Section 5; thence East along the North line of the
Northeast Quarter of said Section 5 a distance of 644.5 feet; thence
Southwesterly, deflecting to the right 104 degrees 40 minutes, a distance of
289.6 feet; thence West to the East line of said Northwest Quarter along a line
Which intersects the center line of Osseo Road (County Road No. 8) as said
center line is shown in Registered Land Survey No. 21, Files of the Registrar of
Titles, County of Hennepin, at a point 275.61 feet Southerly along said center
line from the North line of said Northwest Quarter, said line being hereinafter
referred to as line "A "; thence South along the East line of said Northwest
Quarter a distance of 150 feet to the actual point of beginning; thence West
parallel with said line "A" a'distance of 200 feet; thence North parallel with
the East line of said Northwest Quarter a distance of 150 feet to said line "A ";
-thence Westerly along said line "A" a distance of 605.68 feet; thence South at
right angles 95 feet; thence East at right angles 31.4 feet; thence South at
right'angles.95 feet; thence West to a point on the center line of said Osseo
Road distant 475.61 feet Southeasterly along said center line from the North
line of said Northwest Quarter; thence Southeasterly along said center line a
distance of 354.92 feet; thence East to the West line-of Registered Land Survey
No. 326, Files of the Registrar of Titles, County of Hennepin, along a line
which intersects the East line of said Northwest-Quarter at a'point 783.2 feet
South from the Northeast corner of said Northwest Quarter; thence North to the
Northwest corner of said Registered'Land Survey No. 326; thence Easterly to a
point on the East line of said Northwest Quarter distant 783.2 feet South from
the Northeast corner of said.Northwast Quarter; thence North along said East
line to the actual point of beginning, according to the Government Survey
thereof.
Par 2: That part of the Northeast Quarter of the Northwest Quarter, Section 5,
Township 118, Range•21, described as commencing at a point on the East line of
said Northeast Quarter of the Northwest Quarter distant 783.2 feet South from
the Northeast corner of said Northeast Quarter of the Northwest Quarter; thence
West.398.6 feet to the point of beginning, along a line 'Which Intersects the
center line of Osseo Road (County Road No. 8) as said center line is shown in
Registered Land Survey No. 21, Files of the Registrar of Titles, County of
Hennepin, at a point 830.53 feet southerly along said center line from the North
line of said Northeast Quarter of the Northwest Quarter; thence continuing West
along said described line a distance of 330.4 feet; thence South at a right
angle 176.5 feet; thence East at a right angle 25.4 feet; thence South at a
right angle 80 feet; thence West at a right angle,.to an intersection With the
center line of said road; thence Southeasterly along said center line to the
South ;Line of said Northeast Quarter of the Northwest Quarter; thence East along
said South line to a point thereon 401 feet West from the Southeast corner of
said Northeast Quarter of the Northwest Quarter; thence North to the point of
beginning, according to the Government Survey thereof.
• � r
.l
FEB -17 -1994 14:57 FROM STEPHEN J. DAVIS, ESQ. TO LANG NELSON P.03
COM MONWEALTH LAM .
MlE IkWkANCE COMPANY
.. Apt .. ... '
File No. C20248
Policy No. 404 - 211469
Page No. 2
Schedule 4-4 -g
(Continued)
Together With a nonexclusive easement' for driveway and parking purposes over
lands as described in Document No. 16171.57, Files of the Registrar of Titles, as
amended by Document No. 1591211, Files of the Registrar of Titles, as determined
by Court Order, Document No. 1670320.
Together with a nonexclusive easement for walkway and garage purposes over
adjoining lands as described in Document No. 1591213, Files of the Registrar of
Titles, as determined by Court Order, Document No. 1670320.
.t
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LICENSE AGREEMENT
THIS AGREEMENT is entered into this R-9 day of
199; by and between the City of New Hope, Minnesota, a Minnesota
municipal corporation, (hereinafter the "City"), and Broadway
LaNel/Golle Holmes, a Minnesota Limited Partnership (hereinafter
"Partnership ").
WHEREAS, the Partnership is the fee owner of certain real
property known as Broadway Village, located at 6046 West Broadway
in Hennepin County, Minnesota and legally described in the attached
Exhibit A (hereinafter "the Premises"); and
WHEREAS, the Premises -,- improved with a community center
located in a building with a common address of 6046 West Broadway;
Me
WHEREAS, the Economic Development Authority in and for the
City of New Hope as consideration for the Partnership's execution
of this Agreement has made a $142,500.00 no-interest deferred
payment loan to the Partnership to assist in the rehabilitation and
expansion of the community center; and
WHEREAS, the City wishes to use the community center on a non-
exclusive basis for public meetings and civic functions mutually
agreeable to the parties hereto; and
WHEREAS, the City and the Partnership wish to reach an
agreement by which the Partnership licenses the City to use the
community center on the Premises for public meetings and civic
functions.
it
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Use of the Premises. The Partnership agrees to license
and allow the City to use the community center on the Premises for
public meetings and civic functions mutually agreeable to the
parties. The City's right to use the community center shall be on
an as-needed non-exclusive basis subject to the following
conditions:
(a) The City may schedule 24 meetings or functions per
year but not to exceed 2 monthly.
(b) Hours of operation shall be between 8:00 a.m. and
10:00 P.M.
(c) The Partnership shall provide the City quarterly
with a schedule of dates and times when the community center
will be available for City use.
(d) The parties contemplate that meetings or functions
will be primarily geared toward senior citizen's issues and
activities, however, other appropriate groups, meetings or
functions will be permitted by the Partnership if proposed by
the City.
(e) The City shall provide the Partnership with seven
(7) days notice, either verbal or written, of its intent to
use the community center. Said notice shall include the date
and time of the intended use, the approximate number of
participants and the nature of the use.
0
(f) The City agrees to return the community center after
completion of a meeting, function or event to a condition
equivalent to its pre-use condition.
(g) The Partnership agrees to permit the EDA to use the
property in excess of 24 times annually if the EDA's use
request is reasonable, geared toward senior citizens issues
and activities and does not interfere with the use of the
community center by the residents of Broadway Village or the
Partnership. Said determination will be made solely by the
Partnership, but its permission will not be unreasonably
withheld.
2. Insurance. During the term of this Agreement, the City
shall maintain public liability insurance in the amount of
$200,000.00 per person, $600,000.00 per occurrence for personal
damage, and $100,000.00 for property damage. The City shall
provide the Partnership with a Certificate of Insurance listing the
Partnership as an insured party on said policy and providing for 10
days written notice to the Partnership in the event of non-renewal
or cancellation of the insurance coverage.
3. Indemnification. The City will indemnify the Partnership
and its agents and employees against, and hold the Partnership, its
agents and employees harmless from, any and all demands, claims,
causes of action, fines, penalties, damages (including
consequential damages), losses, liabilities, liens, mechanic's
3
liens, judgments and expenses (including, without limitation,
attorney's fees and court costs) incurred in connection with or
arising from:
a. The use or occupancy of the Premises by the City or
any person claiming under the City;
b. Any acts, omissions or negligence of the City or any
person claiming under the City, or the contractors, agents,
employees, invitees or visitors of the City or any such
person;
c. Any breach, violation, or non-performance by the
City or any person claiming under the City or the employees,
agents, contractors, invitees or visitors of the City, or any
such person of any term, covenant, or provision of this
Agreement or any law, ordinance, or governmental requirement
of any kind; or
d. This indemnification shall not apply to any loss,
injury or damage proximately caused by or resulting from the
negligent acts or omissions of the Partnership, including but
not limited to, any injury or damage to the person, property,
or business of the City, it employees, agents, contractors,
invitees, visitors or any other person entering upon the
Premises under the express or implied invitation of the City.
4. Assignment. The City's interest in this Agreement shall
not be assigned, mortgaged, or otherwise encumbered or transferred
In
without the written consent of the Partnership which shall not be
unreasonably withheld.
5. Term/Removal . This Agreement shall run for a term of ten
years beginning upon the date of this Agreement, and upon the end
of initial ten year term, the City may renew this Agreement for one
additional ten-year period if the following conditions are met:
a. Notice. The City delivers to the Partnership in
writing notice of its intent to renew the term of this
Agreement by the additional ten year period, which notice must
be received by the Partnership prior to the expiration of the
then existing Agreement term.
b. Default. The City is not in default under any of
the terms of this Agreement.
6. Condemnation. In the event of a complete taking of the
Premises by eminent domain, this Agreement and any options to renew
shall terminate upon the commencement of the condemnation action,
and the City shall not be entitled to any part of the condemnation
award of damages. Upon the taking of a part of the Premises by
eminent domain, this Agreement shall continue for that portion of
the Premises not taken as a result of the condemnation and the City
shall not be entitled to any part of the condemnation award of
damages.
In the event of a loss or damage to the community center
located on the Premises (the "Facility") by reason of fire or other
5
event insured against by Partnership in its f i r e and extended
coverage insurance policy, the parties agree as follows:
a. Partnership shall be allowed a reasonable period of
time following the loss or damage to adjust the loss with the
insurance carrier and receive the proceeds therefrom.
b. Within a reasonable time following receipt of said
proceeds, Partnership shall either (i) repair or rebuild the
Facility to substantially the same condition that existed
prior to such occurrence and this License shall continue for
the remaining term hereof or (ii) terminate this License in
which event Partnership shall pay City, in full satisfaction
of the deferred payment loan herein referred to, an amount of
money equal to the product obtained by multiplying $142,500.00
by a fraction, the numerator of which is the number of
complete calendar months remaining following the date of
damage or loss in the initial term of this License and the
denominator of which is 120.
7. Defaul If the City is
in default
under any of
the
terms of this Agreement and has not
cured said
default within
30
days after written notice of the existence of the
default by
the
City, this Agreement shall terminate
and the City
shall forfeit
all
right and interest in this Agreement
to the Partnership
and shall
return the Promissory Note marked
satisfied.
Failure of
the
Partnership to immediately notify the
City of a
condition of
R
default does not waive the right of the Partnership to notify the
City of said condition of default at a later date and to require
curing of the default. Additionally, failure of the Partnership to
notify the City of a condition of default shall not in any way
reduce the City's liability for the condition of default.
Termination of this Agreement shall not waive or release the City
f rom any of its obligations under this Agreement prior to
termination.
8. Surrender of Premises. Upon the expiration or
termination of this Agreement, the City shall quietly yield and
surrender the Premises to the Partnership.
9. Addresses. For the purpose of notice, the following
shall be addresses for the parties:
a. City of New Hope
4401 Xylon Avenue North
New Hope, MN 55428
b. Broadway LaNel/Golle Holmes
c/o Francis W. Lang
4601 Excelsior Blvd.
Minneapolis, MN 55416
cc: Stephen Davis
1601 West 22nd St.
Minneapolis, MN 55405-2402
10. The terms and condition of this Agreement shall be non
recourse to the partners of Borrower.
CITY 0 NEW HOPl�
By
Its Ma r
7
By
Its City Manager
STATE OF MINNESOTA
COUNTY OF HENNEPIN
Donahue, the Mayor and
New Hope, a Minnesota
municipal corporation.
STATE OF MINNESOTA
COUNTY OF HENNEPIM
) sa.
D�AY LANEL/GOLL
KAI TA LIMITED P
No
Its
/w�� �
�°�- day of
and Daniel J.
of the City of
behalf of said
S. A
�
acknowledged before me this
1984 by Edw. J. Erickson
City Manager, respectively,
municipal corporation, on
The foregoing was acknowledge
, 1894 by ��A
the 4
respectively, of
Minnesota Limited Partnership,
partnership.
c:\wp51\cnh\brnadway.la
����
d before me this ~-"~` day of
and
and
Broadway LaNel/Golle Holmes, a
on behalf of said limited
, 17-1994 14:56 FROM STEPHEN J. DAVISo ESQ. TO LANG NELSON P.02
COMMONV&ALTH LAM
TrrLE IWJRANiCE COMPANY
AR fivKeGraspWoW0PC=r0rV
File No. C20248
Policy No. 404 - 211469
Schedule A-4 -A
Pa_. 1: That part of the Northeast Quarter of the Northwest Quarter, Section 5,
Township 118, Range 21, described as commencing at the Northeast corner of the
Northwest Quarter of.said Section 5; thence East along the North line of the
Northeast Quarter of said Section 5 a distance of 644.5 feet; thence
Southwesterly, deflecting to the right 104 degrees 40 minutes, a distance of
289.6 feet; thence West to the East line of said Northwest Quarter along a line
which intersects the center line of Osseo Road (County Road No. 8) as said
canter line is shown in Registered Land Survey No. 21, Files of the Registrar of
Titles, County of Hennepin, at a point 275.61 feet Southerly along said center
line from the North line of said Northwest Quarter, said line being hereinafter
referred to as line "A "; thence South along the East line of said Northwest
Quarter a distance of 150 feet to the actual point of beginning; thence West
parallel with said line "A" a'distance of 200 feet; thence North parallel with
the East line of said Northwest Quarter a distance of 150 feet to said line "A ";
thence Westerly along said line "A" a distance of 605.68 feet; thence South at
right angles 95 feet; thence East at right angles 31.4 feet; thence South at
right•angles.95 feet; thence hest to a point on the center line of said Osseo
Road distant 475.61 Peet Southeasterly along said center line from the North
line of said Northwest Quarter; thence Southeasterly along said center line a
distance of 354.92 feet; thence East to the West line of Registered Land Survey
No. 326, Files of the Registrar of Titles, County of Hennepin, along a line
which intersects the East line of said Northwest-Quarter at a'point 783.2 feet
South from the Northeast corner of said Northwest Quarter; thence North to the
'Northwest corner of said Registered•Land Survey No. 326; thence Easterly to a
point on the East line of said Northwest Quarter distant 783.2 feet South from
the Northeast corner of said.Northwest Quarter; thence North along said East
line to the actual point of beginning, according to the Government Survey
thereof.
Par 2: That part of the Northeast Quarter of the Northwest Quarter, Section 5,
Township 118, Range-21, described as commencing at a point on the East line of
said Northeast Quarter of the Northwest Quarter distant 783.2 feet South from
the Northeast corner of said Northeast Quarter of the Northwest Quarter; thence
West-398.6 feet to the point of beginning, along a line which intersects the
center line of Osseo Road (County Read No. 8) as said center line is shown in
Registered Land Survey No. 21, Files of the Registrar of Titles, County of
Hennepin, at a point 830.53 feet southerly along said center line from the North
line of said Northeast Quarter of the Northwest Quarter; thence continuing West
along said described line a distance of 330.4 feet; thence South at a right
angle 176.5 feet; thence East at a right angle 25.4 feet; thence South at a
right angle 80 feet; thence West at a right angle,.to an intersection with the
center line of said road; thence Southeasterly along said center line to the
South line of said Northeast Quarter of the Northwest Quarter; thence East along
said South line to a point thereon 401 feet West from the Southeast corner of
said Northeast Quarter of the Northwest Quarter; thence North to the point of
beginning, according to the Government Survey thereof.
t
+II
•17 -1994 14:57 FROM STEPHEN J. DAVIS, ESQ. TO
COMMONWEALTH LAIC
TITLE fNA7RANCE COMPANY
' • , A►Pelia►ceG�otwtickYngstorrprn� ..
File No. 020246
Policy No. 404 - 211469
Page No. 2
Schedule JJ-4 -®
LANG NELSON P.03
(Continued)
Together With a nonexclusive easement' for driveway and parking purposes over
lands as described in Document No. 1617157, Files of the Registrar of Titles, as
amended by Document No. 1591211, Files of the Registrar of Titles, as determined
by Court Order, Document No. 1670320.
Together with a nonexclusive easement for walkway and garage purposes over
adjoining lands as described in Document No. 1591213, Files of the Registrar of
Titles, as determined by Court Order, Document No. 1670320.
9
r
DISBURSEMENT AGREEMENT
THIS AGREEMENT is made and entered into as of the day
of , 1993, by and between Broadway
LaNel /Golle Holmes, a Minnesota Limited Partnership (the
"Borrower "), the New Hope Economic Development Authority (the
"Lender "), and Commonwealth Land Title Insurance Company (the
"Title Company ") for the following reasons:
A. Borrower and Lender have entered into a Loan /Grant
Commitment, Promissory Note and Building Loan /Grant Agreement for
rehabilitation and expansion of Borrower's community center at its
property known as Broadway Village and street l i g h t i n g improvements
at the Broadway Village Shopping Center. Both properties are
legally described by the Building Loan /Grant Agreement. The
Borrower and Lender desire that the Title Company disburse the
monies advanced during the construction phases of the community
center and street lighting project (collectively the "Project ") to
the contractors and materialmen and the Title Company is willing to
do so on the terms and subject to the conditions herein set forth;
�,s
B. The parties hereto contemplate that approximately 4
disbursements will be made from the Capital Contributions of the
Borrower and the loan proceeds of Lender and the total
disbursements will not exceed the total amount of Two Hundred
Eighty -Five Thousand Dollars ($285,000.00) and that such
disbursements shall occur no more frequently than once each month.
1
NOW, THEREFORE, in consideration of the covenants and
commitments herein contained, the parties agree as follows:
1. All proceeds will be disbursed pursuant to a draw request
to the Title Company as provided in Section 2.02 of the Building
Loan /Grant Agreement.
2. At the time of the Loan /Grant closing, or shortly
thereafter, the Borrower and Lender will each deposit One Hundred
Forty -Two Thousand Five Hundred Dollars ($142,500.00) with the
Title Company which:
(a) shall invest the money in instruments in which the
City of New Hope, Minnesota may legally invest in accordance
with Minnesota Statutes Section 475.66;
(b) shall disburse the funds so deposited in accordance
with the terms of this Agreement and the Building Loan /Grant
Agreement to pay the costs of the Project on the premises
located i n the County of Hennepin, State of Minnesota, and
described in the Agreement as approved by the Lender; and
(c) shall obtain partial and /or final lien waivers and
releases and satisfactions of liens and other encumbrances, if
any, pursuant to the Construction Manager's draw request for
amounts due and approved by the Lender.
3. Prior to the deposit of funds with the Title Company:
(a) the Title Company shall furnish to the Lender a
marked-up" Title Binder in the maximum amount of One Hundred
Pa
Forty -Two Thousand Five Hundred Dollars ($142.,500.00), which
policy shall set forth the condition of title to the Premises;
and
(b) The Borrower shall furnish to the Title Company:
(i) a sworn statement of the Borrower disclosing
the sources and uses of the Capital Contributions and
loan proceeds in connection with the Project.
4. Prior to each request for payment by the Construction
Manager, the Borrower shall cause to be delivered to the Title
Company and Lender:
(a) A copy of the Construction Manager's draw request
for disbursement of funds approved by the Lender including:
(i) all change orders;
(i i ) the amount due to date on 'all subcontracts; and
(iii) all payments for project costs made in excess
of those set for the construction cost budget for each
line item and any payments for project costs made less
than those estimated in the construction cost budget for
each line item; and
(b) Statements, partial or final lien waivers, and
affidavits, as required by the construction contracts,
supporting waivers and releases of liens, if necessary, in
form and content satisfactory to the Title Company.
Not later than three (3) business days following receipt of
3
the documents delivered pursuant to sections 4(a) and (b),
the Title Company will orally notify the Lender, Borrower and the
Construction Manager whether it has received all such required
documents. As soon as the Title Company has received such required
documents and the Borrower transmits to the Title Company the
amount of the requested payment, the Title Company shall disburse
the payment in accordance with this section.
It is hereby agreed by and between the parties hereto that
simultaneously with the disbursement of funds so deposited by the
Lender and Borrower for disbursement by the Title Company, the
Title Company shall issue to the Borrower its endorsement to the
ALTA Title Insurance Policy, which endorsement shall increase the
coverage of said policy to the aggregate amount of the funds then
on deposit to be disbursed hereunder and any funds previously
disbursed.
It is understood by and between the parties that the Title
Company shall not be required to make any disbursement until all of
the foregoing requirements have been satisfied and that when all of
the foregoing requirements have been so satisfied the Title Company
shall disburse the funds.
5. Disbursements for construction purposes will be made by
the Title Company directly to the contractors set forth on the draw
request or to the subcontractors and /or materialmen as the Title
Company elects. Each disbursement to said subcontractors and /or
4
materialmen is considered to be a separate disbursement and a
payment to any subcontractor and /or materialman and shall not
obligate the Title Company to make disbursements to any other
subcontractor and /or materialman.
6. In no event shall the final disbursement be made until
all conditions are satisfied to enable the Title Company to issue
a final endorsement to the ALTA Title Insurance Policy.
7. The Title Company will keep and maintain at all times
true and correct books and records, in sufficient detail to reflect
the payments made by it. The Lender and Borrower may at any
reasonable time and from time to time examine all books and records
of the Title Company pertaining to the disbursements made by it and
make extracts and copies from the books and records examined.
8. The parties covenant and agree with each other as
follows:
(a) Any capitalized term used in this Disbursement
Agreement and not otherwise defined shall have the meaning
ascribed to it in the Building Loan /Grant Agreement;
(b) In the event that the Title Company discovers a
misstatement in any affidavit, statement or certificate
furnished pursuant to this Disbursement Agreement, it shall
make no further disbursements until such misstatement has been
corrected;
(c) The functions and duties of the Title Company
61
include only those set forth in this Disbursement Agreement
and Building Loan /Grant Agreement and the Title Company is not
required to act and shall not act, except in accordance with
the terms and conditions of this Disbursement Agreement and
Building Loan /Grant Agreement;
(d) The Title Company does not insure that the Project
will be completed or that when completed the Project will be
accordance with the plans and specifications or that
sufficient funds will be available for completion; and
(e) If at any time during the course of construction the
total of the unpaid disclosed cost of construction, as
indicated by the Borrower's sworn statements exceeds the
amount of undisbursed proceeds as calculated by the Title
Company, the Title Company shall not make further
disbursements under the terms of this Disbursement Agreement
until the Borrower has provided evidence satisfactory to the
Title Company that sufficient funds are available to pay for
the unpaid disclosed costs of construction.
(f) The partner non - recourse provision of the Loan /Grant
Commitment shall be applicable herein.
9. This Disbursement Agreement shall be attached to the
Building Loan /Grant Agreement and made a part thereof as Exhibit B.
IN WITNESS WHEREOF, the Disbursement Agreement has been
executed as of the day, month and year first written above.
COMMONWEALTH LAND TITLE
INSURANCE COMPANY
1 0
Its
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing was acknowledged before me this day of
199_, by
the of Commonwealth Land Title Insurance Company,
on behalf of the partnerships.
Notary Public
BROADWAY LANEL /GOLLE HOLMES,
A MINNESOTA LIMITED PARTNERSHIP
2M
Its
STATE OF MINNESOTA )
COUNTY OF HENNEPIN ) '
The foregoing was acknowledged before me this day of
199_, by-
the of Broadway LaNel /Golle Holmes, a Minnesota
limited partnership, on behalf "of said limited partnership.
VA
THE ECONOMIC DEVELOPMENT
AUTHORITY IN AND FOR THE
CITY OF NEW HOPE
By
Its
By
Its
STATE OF MINNESOTA
) ss.
COUNTY OF HENNEPIN
The foregoing was acknowledged before me this day of
, 199_, by Edw. J. Erickson and Daniel J.
Donahue, the President and Executive Director, respectively, of the
Economic Development Authority in and for the City of New Hope, a
Minnesota municipal corporation, on behalf of said municipal
corporation.
Notary Public
c: \wp51 \cnh \broadway.da
14
CORRICK & SONDRALL, P.A.
STEVEN A. SONDRALL ATTORNEYS AT LAW LEGAL ASSISTANTS
MICHAEL R. LAFLEUR
MARTIN P. MALECHA Edinburgh Executive Office Plaza LAVONNE E. KESKE
WILLIAM C. STRAIT 8525 Edinbrook Crossing SHARON D. DERBY
Suite #203
Brooklyn Park, Minnesota 55443
TELEPHONE (612) 425-5671
FAX (612) 425-5867
March 13, 1995
Valerie Leone
City Clerk
City of New Hope
4401 Xylon Avenue North
New Hope, MN 55428
RE: Loan/Grant for Broadway Village Community Center Expansion
City Project No. 513
Our File No: 99.11115
Dear Valerie:
Enclosed for your file please find the following documents in
connection with the above:
1. Copy of Declaration of Covenants as filed with the
Registrar of Titles, Hennepin County. The recording
information is on the back of the last page.
2. Amendment of Community Center Loan Documents (fully
signed original).
3. Second Promissory Note (this is the only signed original
we have).
Please keep these documents in a safe place, particulary the
Promissory Note.
Please contact me if you have any questions.
Sincerely
Martin P. Mal echa
s3m
Enclosures
cc: Daniel J. Donahue, Executive Director
Kirk McDonald, Management Asst.
Steven A. Sondrall, City Attorney
DECLARATION OF COVENANTS
This declaration is made this 22A1 day of ,5��i� 1994,
by Broadway LaNel /Golle Holmes, a Minnesota Limited Partnership,
(hereinafter "the Declarant ").
WHEREAS, the Declarant is the fee owner of the following
described real estate located in the County of Hennepin, State of
Minnesota, (hereinafter "the Property "):
See attached Exhibit A,
F1T1
WHEREAS, the Declarant is constructing a community center on
the Property, and
WHEREAS, there exists under the surface of the Property a 48"
storm sewer pipe, and
WHEREAS, the improvements contemplated for the Property will
involve the construction of a bridge or walkway above the surface
of the ground over the location of the sewer pipe, and
WHEREAS, construction of the improvements will involve
footings and foundations in close proximity to the sewer pipe, and
WHEREAS, such improvements will cause additional expense if
and when the City of New Hope finds it necessary or advisable to
repair or maintain the sewer pipe, and
WHEREAS, Declarant wishes to proceed with its construction
project and the City of New Hope wishes to be protected from
additional costs of repair or construction of the sewer pipe due to
the improvements contemplated by Declarant.
2. Duration The covenants set forth herein shall run with
the land and shall be binding on all persons claiming ownership
thereunder for a period of thirty (30) years from the date this
Declaration is recorded. Thereafter, the covenant shall be
automatically extended for successive periods of ten years.
3. Amendment or Dissolution No amendment or dissolution of
this Covenant shall be effective without the written consent of the
City.
4. Enforcement In the event the Declarant, its successors
or assigns, violates any terms or conditions set forth herein, the
City may proceed to enforce this covenant by appropriate legal or
equitable Court proceedings and the Declarant, its successors or
assigns, agrees to pay all costs of such enforcement, including
reasonable attorney's fees, costs and expenses of any kind in
connection with the enforcement of these cotenants.
IN WITNESS WHEREOKand he Dec ran hereto h s executed this
declaration on the day year ind'ca below.
is
By
Its
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing was acknowledged before me, a Notary Public
within and for said County, this z2,✓0 day of
h i (y►yll S /`/L'
1994, by
and _ the 1,RAJg �9 q -1L_ and
a Minnesota
partnership.
PAUL G. BREWER
NOTARY PUSUC - MINNESOTA
WINONA COUNTY
My commiss1w expires 114&863
, respectively, of Broadway LaNel /Golle Holmes,
Limited Partnership, on behalf of said limited
Notary Public
The foregoing Declaration of Covenants is hereby accepted as
of the date hereof.
CITY OF NEW HOPE, MINNESOTA
0
STATE OF MINNESOTA
COUNTY OF HENNEPIN
-The foregoing was
Donahue, the Mayor an
New Hope, a Minnesota
municipal corporation.
ss.
}
ack9�+1 edged before me this _
199x, by Edw. J. Erickson
City Manager, respectively,
municipal corporation, on
day of
and Daniel J.
of the City of
behalf of said
Notary Public
x Is
S STEVEN A. SONDRALL
NOTARY PUBLIC INNESOTA
HENNEPIN COUNTY
My Commission Expires Jan. 31, 2000
W x
THIS INSTRUMENT DRAFTED BY:
CORRICK & SONDRALL, P.A.
8525 Edinbrook Crossing, #203
Brooklyn Park, MN 55443
(612) 425-5671
c:\ w p51 \cnh\broad way. dec
Schedule 1-4 -A
Par 1: That part of the Northeast Quarter of the Northwest Quarter, Section 5,
Township 118, Range 21, described as commencing at the Northeast corner of the
Northwest Quarter of—said Section 5; thence East along the North line of the
Northeast Quarter of said Section 5 a distance of 644.5 feet; thence
Southwesterly, deflecting to the right 104 degrees 40 minutes, a distance of
289.8 feet; thence West to the East line of said Northwest Quarter along a line
Which intersects the center line of Osseo Road (County Road No. 8) as said
canter line is shown in Registered Land Survey No. 21, Files of the Registrar of
Titles, County of Hennepin, at a point 275.61 feet Southerly along said center
line from the North line of said Northwest Quarter, said line being hereinafter
referred to as line "A "; thence South along the East line bf said Northwest
Quarter a distance of 150 feet to the actual point of beginning; thence West
parallel with said line "A" a distance of 200 feet; thence North parallel with
the East line of said Northwest Quarter a distance of 150 feet to said line "A ";
-thence Westerly along said line "A" a distance of 605.68 feet; thence South at
right angles 95 feet; thence East at right angles 31.4 feet; thence South at
right angles .95 feet; thence West to a point on the center line of said Osseo
Road distant 475.61 feet Southeasterly along said center line from the North
line of said Northwest Quarter; thence Southeasterly along said center line a
distance of 354.92 feet; thence East to the West line of Registered Land Survey
No. 326, Files of the Registrar of Titles, County of Hennepin, along a line
wThieb intersects the East line of said Northwest Quarter at a'point 783.2 feet
South from the Northeast corner of said Northwest Quarter; thence North to the
Northwest corner of said Registered Land Survey No. 326; thence Easterly to a
point on the East line of said Northwest Quarter distant 783.2 feet South from
the Northeast corner of said .Northwest Quarter; thence North along said East
line to the actual point of beginning, according to the Government Survey
thereof.
Par 21 That part of the Northeast Quarter of the Northwest Quarter, Section 5,
Township 118, Range -21, described as commencing at a point on the East line of
said Northeast Quarter of the Northwest Quarter distant 783.2 feet South from
the Northeast corner of said Northeast Quarter of the Northwest Quarter; thence
West .398.6 feet to the point of beginning, along a line which intersects the
center line of Osseo Road (County Road No. 8) as said center line is shown in
Registered Land Survey No. 21, Files of the Registrar of Titles, County of
Hennepin, at a point 830.53 feet southerly along said center line from the North
line of said Northeast Quarter of the Northwest Quarter; thence continuing West
along saifl described line a distance of 330.4 feet; thence South at a right
angle 176.5 feet; thence East at a right angle 25.4 feet; thence South at a
right angle 80 feet; thence West at a right angle, to an intersection with the
center line of said road; thence Southeasterly along said center line to the
South line of said Northeast Quarter of the Northwest Quarter; thence East along
said South line to a point thereon 401 feet West from the Southeast corner of
sald Northeast Quarter of the Northwest Quarter; thence North to the point of e
beginning, according to the Government Survey thereof. .l
-CONTINUED-
Exhibit A
� Sch @dale
(Continued)
Together With a nonexclusive easement'for driveway and p
].ands as described in Document Ito. 16971 7, Files of tht Registrar�fes over
amended by Document So. 1591219, Files of the Regiatr�r of Titles iiles, '
by Court Order, Document Ito. 16 ?0320. ' � det ed
Together with a nonexclusive easement for aallar
adsoining 'lands as described in Document Ito. 1549213, F�e of
Titles, as determined by Court Order, Document Noe 1670320.
0
�
j .
AMENDMENT OF
COMMUNITY CENTER LOAN DOCUMENTS
THIS AGREEMENT is dated the day of
1994, by and between Broadway LaNel/Golle Holmes, a Minnesota
Limited Partnership (the "Borrower "), the New Hope Economic
Development Authority (the "Lender"), and Commonwealth Land Title
Insurance Company (the "Title Company") (collectively "the
Parties") and is entered into for the following reasons:
A. Borrower and Lender have previously entered into various
agreements relating to a loan of money for the rehabilitation and
expansion of Borrower's community center at its property known, as
Broadway Village and for street lighting improvements at the
Broadway Village Shopping Center (collectively "the Project"),
namely that certain Loan/Grant Commitment between Borrower and
Lender dated March 14, 1994 for Lender and March 8, 1994 for
Borrower (the "Loan/Grant Commitment"), that certain Building
Loan/Grant Agreement dated March 8, 1994 between Borrower and
Lender (the "Loan/Grant Agreement") , that certain License
Agreement dated March 8, 1994 between Borrower and Lender (the
"License Agreement"), and that certain Disbursement Agreement dated
March 8, 1994, between Borrower, Lender and Title Company (the
"Disbursement Agreement") (collectively the "Project Documents").
The Project Documents affect property legally described in the
attached Exhibit A.
B. Due to unforeseen construction circumstances, the Project
will cost an additional $28,000.00 to complete, above and beyond
the amounts set forth in the Project Documents. Lender and
Borrower have agreed to each pay an additional $14,000.00 toward
the cost of the Project, above and beyond their initial $142,500.00
commitments as set forth in the Project Documents.
C. It is the intent of this Agreement to increase the Loan
amount by $14,000.00 to $156,500.00, and to increase the Borrower
capital contribution by $14,000.00 to $156,500.00.
NOW, THEREFORE, in consideration of the covenants and
commitments herein contained, the parties agree as follows:
1. This Amendment shall amend the Project Documents, and any
conflicts between the terms of this Amendment and the Project
Documents shall be resolved in favor of this Amendment.
2. The principal amount of the Loan, which amount Lender
shall deliver to Title Company as disbursing agent shall be
increased by $14,000.00 to a total of $156,500.00.
3. The capital contribution of Borrower, which Borrower
shall deliver to Title Company as disbursing agent, shall be
increased by $14,000.00 to a total of $156,500.00.
4. The total disbursements by Title Company pursuant to the
Disbursement Agreement of the combined capital contributions of
Borrower and Loan proceeds of Lender, shall not exceed $313,000.00.
5. Borrower and Lender shall not deposit their entire
capital contribution and loan amount, respectively, with Title
2
Company at the time of the Loan/Grant closing, but instead shall
use the following procedure. Prior to each requested payment a
meeting will be held involving a representative of each of
Borrower, Lender, and the contractors making the request, to
determine whether the work for which payment is requested has in
fact been properly completed. After said meeting, Borrower and
Lender shall each sign to indicate consent to the payment request,
and shall deposit with Title Company their respective one-half
share of the approved payment request.
6. All references in the Project Documents to the Promissory
Note which refer to that certain Promissory Note dated March 8,
1994 in the amount of $142,500.00 and signed by Borrower in favor
of Lender (the "Promissory Note") shall refer to the Promissory
Note plus a Second Promissory Note in the amount of $14,000.00
dated -YA-'411-1
1994 and signed by Borrower in favor of
Lender (the "Second Note") , a copy of which Second Note is attached
hereto and incorporated by reference. All references to the Loan
amount of $142,500.00 in any of the Project Documents other than
the Promissory Note and Second Note shall read $156,500.00 rather
than $142,500.00.
7. The Building Loan/Grant Agreement dated March 8, 1994
shall be amended by the addition to Article Five, Additional
Covenants of Borrower, Section 5.01, of the following:
(g) If repair or maintenance of the existing 48 inch storm
sewer pipe located on the property (the "Pipe") is ever
necessary or advisable, Borrower shall pay to the City of
9
New Hope all additional costs associated with
maintaining, reconstructing or repairing the Pipe in a
conventional construction manner which are incurred
because of the existence of any improvements to the
Property constructed by Borrower or at Borrower's
direction (the "Additional Costs"). The Additional Costs
shall be determined by the City Engineer with
verification to Borrower, and shall include, but are not
limited to, the costs of removing any existing walkway or
bridge and constructing sheeting to protect the existing
buildings on both sides of the Pipe. Borrower will
execute a covenant running with the Property to give
permanent effect to this paragraph (g).
(h) Prior to commencing construction of any bridge or walkway
on the Property, Borrower shall supply the City with
plans for any such bridge or walkway in a form acceptable
to the City Engineer.
8. Title insurance provided by Title Company to Lender and
paid for by Borrower shall not be required.
9. All terms and conditions of the Project Documents other
than those modified herein shall remain in full force and effect.
10. The Parties waive any defenses or objections they may
have to the enforcement of the rights of other Parties contained in
the Contract Documents, which defenses or objections arise from the
fact that this Amendment was made.
rd
COMMONWEALTH LAND TITLE
INSURANCE COMPANY/
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN >
M C
STATE OF MINNESOTA
COUNTY OF HENNEPIN
) ss~
ItS
Its
~
-
The f9regoing was acknowledged f this V7-w1 t d a y of
respectively, of Broadway LaNel/GVlle Holmes, o Minnesota limited
partnership, on behalf of said limited partnership.
5
Nota'ry Public
PM_�L G, BREWER
§� W_2" a,
NOT
WINONA COUNTY
my commission expires 11
THE ECONOMIC
AUTHORITY IN
CITY OF NEW
��
��
��
��
STATE OF MINNESOTA )
\ ss.
COUNTY OF HENNEPIM )
DEVELOPMENT
AND FOR THE
HOPE
^�
The foregoing acknopledged before me this day of
1984; by Edw. J. Erickson and Daniel J.
Donahue, ƒhe President and Executive Director" respectively, of the
Economic Development Authority in and for the City of New Hope, a
Minnesota municipal corporation, on behalf of said municipal
corporation.
:"'
Notary Public
c:\wp51\cnh\broadway.arne STEVEN A. SON kLL
NOTARY PUBLIC-MIN
(9 HENNEPIN COUNTY
MY Commission Expires Jan. 31,2WO
9
Par 1: That part of the Northeast Quarter of the Northwest Quarter, Section 5,
Township 118, Range 21, described as commencing at the Northeast corner of the
Northwest Quarter of.said Section 5; thence East along the North line of the
Northeast Quarter of said Section 5 a distance of 644.5 feet; thence
Southwesterly, deflecting to the right 104 degrees 40 minutes, a distance of
289.8 feet; thence West to the East line of said Northwest Quarter along a line
which intersects the center line of Osseo Road (County Road No. 8) as said
center line is shown in Registered Land Survey No. 21, Files of the Registrar of
Titles, County of Hennepin, at a point 275.61 feet Southerly along said center
line from the North line of said Northwest Quarter, said line being hereinafter
referred to as line "A "; thence South along the East line bf said Northwest
Quarter a distance of 150 feet to the actual point of beginning; thence West
parallel with said line "A" a distance of 200 feet; thence North parallel with
the East line of said Northwest Quarter a distance of 150 feet to said line "A ";
thence Westerly along said line "A" a distance of 605.68 feet; thence South at
right angles 95 feet; thence East at right angles 31.4 feet; thence South at
right angles .95 feet; thence West to a point on the center line of said Osseo
Road distant 475.61 feet Southeasterly along said center line from the North
line of said Northwest Quarter; thence Southeasterly along said center line a
distance of 354.92 feet; thence East to the West line of Registered Land Survey
No. 326, Files of the Registrar of Titles, County of Hennepin, along a line
which intersects the East line of said Northwest-Quarter at a'point 783.2 feet
South from the Northeast corner of said Northwest Quarter; thence North to the
Northwest corner of said Registered Land Survey No. 326; thence Easterly to a
point on the East line of said Northwest Quarter distant 783.2 feet South from
the Northeast corner of said .Northwest Quarter; thence North along said East
line to the actual point of beginning, according to the Government Survey
thereof.
Par 2: That part of the Northeast Quarter of the Northwest Quarter, Section 5,
Township 118, Range .21, described as commencing at a point on the East line of
said Northeast Quarter of the Northwest Quarter distant 7$3.2 feet South from
the Northeast corner of said Northeast Quarter of the Northwest Quarter; thence
West .398.6 feet to the point of beginning, along a line which intersects the
center line of Osseo Road (County Road No. 8) as said center line is shown in
Registered Land Survey No. 21, Files of the Registrar of Titles, County of
Hennepin, at a point 830.53 feet southerly along said center line from the North
line of said Northeast Quarter of the Northwest Quarter; thence continuing West
along said described line a distance of 330.4 feet; thence South at a right
angle 176.5 feet; thence East at a right angle 25.4 feet; thence South at a
right angle 80 feet; thence West at a right angle,to an intersection with the
center line of said road; thence Southeasterly along said center line to the
South line of said Northeast Quarter of the Northwest Quarter; thence East along
said South line to a point thereon 401 feet West from the Southeast corner of
said Northeast Quarter of the Northwest Quarter; thence North to the point of
beginning, according to the Government Survey thereof. ,(
-CONTINUED-
Exhibit A
OTIMAIM
' C
t
OTIMAIM
y 7
SECOND PROMISSORY NOTE
$14,000.00 New Hope, Minnesota
3k/2- z 1994
FOR VALUE RECEIVED, the undersigned, Broadway LaNel /Golfe
Holmes, a Minnesota Limited Partnership, ( "Borrower "), promises to
pay to the order of ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE
CITY OF NEW HOPE ( "Lender "), at its business address, 4401 Xylon
Avenue North, New Hope, Minnesota 55428, or at such other place as
may be designated in writing by the holder hereof, the principal
sum of up to Fourteen Thousand Dollars ($14,000.00); or so much
thereof that is advanced from time to time together with interest
thereon at the rate of eight (8 %) percent per annum computed on the
unpaid principal balance pursuant to the terms as set out in the
Loan /Grant-C Cmmitment executed by Borrower March 8, 1994 and made
a part hereof. All references in the herein Note to the Loan /Grant
Commitment, the Building Loan /Grant Agreement, and License
Agreement shall refer to the same documents as amended by that
Amendment of Community Center Loan Documents executed by Borrower
simultaneously with the herein Note.
Any and all payments received hereunder shall first be applied
to the payment of accrued interest and the balance of each payment
shall be applied on the account of principal. This Note may be
Prepaid in full or in part at any time without penalty.
Borrower agrees that any voluntary sale, conveyance, or other
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transfer of title to the property described in the Building
Loan /Grant Agreement and Loan /Grant Commitment (hereinafter
Property), or any interest therein except for the License Agreement
to the Lender, without the prior written consent of Lender or a
subsequent holder of this Note, shall be an Event of Default on
this Note, Building Loan /Grant Agreement and Loan /Grant Commitment.
Lender's consent will not be unreasonably withheld. For the
purpose hereof, and without limiting the generality of the
foregoing, the occurrence at any time of any of the following
events, without such prior written consent, shall be deemed to be
an unpermitted transfer of title to the subject Property and
therefore an Event of Default hereunder: (a) any sale, conveyance,
assignment or other transfer of all or any part of the legal and /or
equitable title to the Property; (b) any sale, conveyance,
assignment or other transfer of, or the grant of a security
interest in, more than 49% of the interest of Broadway LaNel /Golle
Holmes. In the event Borrower's ownership interest in the
partnership interest of Broadway LaNel /Golle Holmes is reduced to
less than 51 %, the outstanding principal and accrued interest shall
be immediately due and payable upon demand by Lender. A transfer
by a limited partner of that partner's limited partnership interest
shall not be a violation of this provision. The general partners
shall be allowed to transfer their interest to family members for
estate purposes. Borrower further agrees to make full disclosure
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to Lender of any sale, conveyance, assignment or transfer of any
and all partnership interest of Broadway LaNel /Golle Holmes owned
by Borrower. The failure to make said disclosure and /or make the
accelerated payment required by this paragraph shall also
constitute an Event of Default; (c) any violation of the terms and
conditions set out in the Building Loan /Grant Agreement and
Loan /Grant Commitment. Any such written consent, or any waiver of
an Event of Default, by Lender, or a subsequent holder of this
Note, shall not constitute a consent to or waiver of any right,
remedy or power accruing to the holder hereof upon any subsequent
Event of Default.
In the event a court of competent jurisdiction renders a final
judgment wherein it is determined that the payments, or any part
thereof, provided for in this Note constitute usurious interest for
which Borrower has a defense, and any such excess interest has
actually been accepted, then such excess shall not be considered
interest but shall apply to reduce the principal balance of this
Note by the amount of such excess.
Upon the occurrence of an Event of Default in the payment of
any sum due hereunder or in the performance of any of the terms,
covenants or conditions of this Note, the Building Loan /Grant
Agreement or Loan /Grant Commitment, then or at any time thereof at
the option of the holder hereof, the entire principal balance of
this Note and accrued interest thereon shall become due and payable
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without notice and without demand or presentment. Failure of
Lender to exercise such option or any other right to which the
holder may be entitled shall not constitute a waiver of the right
to exercise said option or any other right in the event of any
subsequent Event of Default.
If, in the opinion of the holder, it becomes necessary to
employ counsel to collect or enforce this Note, Building Loan /Grant
Agreement or Loan /Grant Commitment, Borrower agrees to pay, to the
extent permitted by law, all costs, charges, disbursements and
reasonable attorneys' fees incurred by Lender in collecting or
enforcing this Note.
The makers and endorsers of this Note severally waive
presentment, protest and demand, notice of protest, demand and
notice of dishonor and nonpayment of this Note and expressly agree
that any extension of time for the payment required by this Note
may be made from t i m e to t i m e without in any way affecting the
liability of the makers and endorsers hereof and that they shall
severally, as well as jointly, be liable for all payments required
hereby.
Notwithstanding the terms herein, the partner non - recourse
Provision of the Loan /Grant Commitment shall apply to this Note.
This Note shall be construed in accordance with the laws of
the State of Minnesota, without giving effect to those provisions
Of law relating to choice of law.
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