HomeMy WebLinkAbout19-02 - ADMIN Resolution - Economic Development Authority - 2019/03/04St. Louis Park Economic Development Authority
EDA Resolution No. 19-02
Resolution approving an Assignment and Subordination of Purchase and
Redevelopment Contract and TIF Note between the Economic Development
Authority, 4800 Excelsior Apartments LLC, and Thrivent Financial for Lutherans
Be it resolved by the Board of Commissioners ("Board") of the St. Louis Park Economic
Development Authority ("Authority") as follows:
Section 1. Recitals.
1.01. The Authority is currently administering its Redevelopment Project No. 1
("Project") pursuant to Minnesota Statutes, Sections 469.001 to 469.047 ("HRA Act"), and
within the Project has established the 4900 Excelsior Tax Increment Financing District (“TIF
District”).
1.02. The Authority and 4900 Excelsior Apartments LLC (which subsequently
amended its articles of organization to become 4800 Excelsior Apartments LLC) (the
“Redeveloper”) entered into a Purchase and Redevelopment Contract dated as of December 7,
2015 (the “Contract”), regarding redevelopment of a portion of the property within the TIF
District (the “Redevelopment Property”) and issuance of a tax increment revenue note (the “TIF
Note”) to the Redeveloper to reimburse a portion of Redeveloper’s qualified costs related to
the redevelopment.
1.03. The Redeveloper proposes to close on its permanent mortgage financing
for the improvements constructed on the Redevelopment Property through its lender, Thrivent
Financial for Lutherans (the “Lender”), and has requested that the Authority approve an
Assignment and Subordination of Purchase and Redevelopment Contract and TIF Note (the
“Assignment”) as authorized pursuant to Section 7.2 of the Contract.
1.04. The Board has reviewed the Assignment and finds that the approval and
execution of the Assignment are in the best interest of the City and its residents.
Section 2. Authority Approval; Other Proceedings .
2.01. The Assignment as presented to the Board is hereby in all respects
approved, subject to modifications that do not alter the substance o f the transaction and that
are approved by the President and Executive Director, provided that execution of the
Assignment by such officials shall be conclusive evidence of approval.
2.02. The President and Executive Director are hereby authorized to execute on
behalf of the Authority the Assignment and any other documents requiring execution by the
Authority in order to carry out the transaction described in the Assignment.
2.03. Authority staff and consultants are authorized to take any actions
necessary to carry out the intent of this resolution.
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EDA Resolution No. 19-02 2
Reviewed for Administration: Adopted by the Economic Development
Authority March 4, 2019
Thomas K. Harmening, Executive Director Steve Hallfin, President
Attest:
Melissa Kennedy, Secretary
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EDA Resolution No. 19-02 3
ASSIGNMENT AND SUBORDINATION OF
PURCHASE AND REDEVELOPMENT CONTRACT AND TIF NOTE
THIS ASSIGNMENT AND SUBORDINATION AGREEMENT (this "Agreement") is made as of
this day of March, 2019, between THRIVENT FINANCIAL FOR LUTHERANS, a Wisconsin
corporation ("Lender"), whose address is at 625 Fourth Avenue South, Minneapolis, Minnesota
55415, Attention: Loan Administration – Mortgage and Real Estate Investments; 4800 EXCELSIOR
APARTMENTS LLC, a Minnesota limited liability company (“Redeveloper”), whose address is c/o
the Weidner Company, 9757 NE Juanita Drive, Suite 300, Kirkland, Washington 98034; and ST.
LOUIS PARK ECONOMIC DEVELOPMENT AUTHORITY, a public body corporate and politic under
the laws of the State of Minnesota ("Authority"), whose address is 5005 Minnetonka Boulevard,
St. Louis Park, MN 55416.
RECITALS
A. Redeveloper is the owner of certain real property situated in Hennepin County,
Minnesota and legally described in Exhibit A attached hereto and incorporated herei n
(the "Property").
B. Lender has made a mortgage loan to Redeveloper in the original principal amount of
$34,000,000.00 (the "Loan"). The Loan is evidenced and secured by the following
documents:
i. a certain promissory note (the "Note") made by Redeveloper d ated March
___, 2019, in the amount of $34,000,000.00; and
ii. a certain Mortgage and Security Agreement and Fixture Financing Statement (the
"Mortgage") made by Redeveloper dated March ___, 2019, filed March ___, 2019,
as Hennepin County Recorder/Registrar of Titles Doc. No.
encumbering the Property; and
iii. a certain Assignment of Leases and Rents (the "Assignment") made by
Redeveloper dated March ___, 2019, filed March _____, 2019, as Hennepin
County Recorder/Registrar of Titles Doc. No. encumbering the
Property.
The Note, the Mortgage, the Assignment, and all other documents and instruments
evidencing, securing and executed in connection with the Loan, are hereinafter
collectively referred to as the "Loan Documents."
C. Redeveloper and Authority are parties to that certain Purchase and Redevelopment
Contract (the "Contract") by and between Redeveloper and Authority dated December 7,
2015, filed December 30, 2015, as Hennepin County Recorder/Registrar of Titles Doc. No.
T05317448.
D. Redeveloper is entitled under the Contract to acquire a certain Tax Increment Tax
Revenue Note, Series 2019 in the maximum original principal amount of $2,800,000.00
(the "TIF Note").
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EDA Resolution No. 19-02 4
NOW, THEREFORE, in consideration of the foregoing and as an inducement to Lender to make
the Loan, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto represent, warrant and agree as follows:
1. Assignment. This Agreement constitutes a present and absolute assignment to
Lender of Redeveloper’s rights under the Contract and of the TIF Note; provided, however,
Lender confers on Redeveloper the right to enforce the terms of the Contract so long as no Event
of Default (as defined in the Mortgage) has occurred and is continuing under any of the Loan
Documents. Upon the occurrence of an Event of Default under any of the Loan Documents,
Lender may, in Lender’s sole discretion, give notice to the other parties to the Contract of its
intent to enforce the rights of Redeveloper under the Contract and may initiate or participate in
any legal proceedings respecting the enforcement of said rights. Redeveloper acknowledges that
by accepting this Assignment, Lender does not assume any of Redeveloper’s obligations under
the Contract. Nothing in this Assignment shall give Lender a greater right than Redeveloper to
enforce the Contract. Nothing in this Assignment shall be deemed an assignment by Redeveloper
or an assumption by Lender of Redeveloper’s obligations, duties, covenants or representations
under the Redevelopment Contract, and Redeveloper agrees that it is and will continue to be
solely responsible for such obligations, duties, covenants and representations.
2. Consent. The Authority acknowledges that the Lender is making the Loan to the
Redeveloper and consents to the same. The Authority also consents to and approves the
assignment of the Contract and TIF Note (when and if issued) by the Redeveloper to the Lender
as collateral for the Loan; provided, however, that this consent shall not deprive the Authority of
or otherwise limit any of the Authority's rights or remedies under the Contract and TIF Note and
shall not relieve the Redeveloper of any of its obligations und er the Contract and TIF Note;
provided further, however, the limitations to the Authority's consent contained in this Paragraph
1 are subject to the provisions of Paragraph 3 below.
3. Subordination. The Authority hereby agrees that the rights of the Authority under
the Contract are and shall remain subordinate and subject to liens, rights and security interests
created by the Loan Documents and to any and all amendments, modifications, extensions,
replacements or renewals of the Loan Documents; provided, however, that nothing herein shall
be construed as subordinating the requirement contained in the Contract that the Property be
used in accordance with the provisions of Section 10.3 of the Contract; as subordinating the
Authority's rights under the TIF Note to suspend, adjust, or terminate payments in accordance
with the TIF Note; or as subordinating the Authority’s rights under the Assessment Agreement as
provided in Section 6.3 of the Contract.
4. Notice to Authority. Lender agrees to use commercially reasonable efforts to
notify Authority of the occurrence of any Event of Default given to Redeveloper under the Loan
Documents, in accordance with Section 7.2 of the Contract. The Lender shall not be bound by the
other requirements in Section 7.2 of the Contract.
5. Statutory Exception. Nothing in this Agreement shall alter, remove or affect
Lender's obligation under Minnesota Statutes, § 469.029 to use the Property in conformity to
Section 10.3 of the Contract.
6. No Assumption. The Authority and Redeveloper acknowledge that the Lender is
not a party to the Contract and by executing this Agreement does not become a party to the
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EDA Resolution No. 19-02 5
Contract, and specifically does not assume and shall not be bound by any obligations of the
Redeveloper to the Authority under the Contract, and that the Lender shall incur no obligations
whatsoever to the Authority except as expressly provided herein.
7. Notice from Authority; Lender Cure Rights. So long as the Contract remains in
effect, the Authority agrees to give to the Lender copies of notices of any Event of Default given
to Redeveloper under the Contract and to afford Lender an opportunity to cure any such Event
of Default provided the Lender commences the cure within thirty (30) days after the expiration
of any cure period applicable to Redeveloper and thereafter diligently prosecutes such cure to
completion.
8. Governing Law. This Agreement is made in and shall be construed in accordance
with the laws of the State of Minnesota.
9. Successors. This Agreement and each and every covenant, agreement and other
provision hereof shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, including any person who acquires title to the Property
through the Lender of a foreclosure of the Mortgage.
10. Severability. The unenforceability or invalidity of any provision hereof shall not
render any other provision or provisions herein contained unenforceable or invalid.
11. Notice. Any notices and other communications permitted or required by the
provisions of this Agreement shall be in writing and shall be deemed to have been properly given
or served by depositing the same with the United States Postal Service, or any official successor
thereto, designated as registered or certified mail, return receipt requested, bearing adequate
postage, or delivery by reputable private carrier and addresses as set forth above.
12. Transfer of Title to Lender. The Authority agrees that in the event the Lender, a
transferee of Lender, or a purchaser at foreclosure sale, acquires title to the Property pursuant
to a foreclosure, or a deed in lieu thereof, the Lender, transferee, or purchaser shall not be bound
by the terms and conditions of the Contract except as expressly herein provided. Further the
Authority agrees that in the event the Lender, a transferee of Lender, or a purchaser at
foreclosure sale acquires title to the Property pursuant to a foreclosure sale or a deed in lieu
thereof, then the Lender, transferee, or purchaser shall be entitled to all rights conferred upon
the Redeveloper under the Contract, provided that no condition of default exists and remains
uncured beyond applicable cure periods in the obligations of the Redeveloper under the
Contract. Further, Lender shall have the right to treat the Contract as prior to the lien of the Loan
Documents and may further assign Redeveloper’s rights under the Contract to a purchaser of the
Property at the foreclosure or to any purchaser from Lender (or its affiliate) following the
acquisition of the Property at the foreclosure or to any purchaser from Lender (or its affiliate)
following the acquisition of the Property by a deed in lieu of foreclosure, provided that no
condition of default exists and remains uncured beyond applicable cure periods in th e obligations
of the Redeveloper under the Contract.
13. Estoppel. The Authority and Redeveloper hereby represent and warrant to
Lender, for the purpose of inducing Lender to make advances to Redeveloper under the Loan
Documents that:
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EDA Resolution No. 19-02 6
a. No default or event of default by Redeveloper exists under the terms of the
Contract on the date hereof; and
b. The Contract has not been amended or modified in any respect, nor has any
material provision thereof been waived by either the Authority or the
Redeveloper, and the Contract is in full force and effect.
14. Amendments. The Authority and Redeveloper hereby represent and warrant to
Lender for the purpose of inducing Lender to make advances to Redeveloper under the Loan
Documents that they will not agree to any amendment or modification to the or any TIF Note
issued under the Contract that materially affects the collection of Available Tax Increment (as
defined in the Contract) or that in any way affects the Property without the Lender's written
consent.
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EDA Resolution No. 19-02 7
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the day
and year first written above.
ST. LOUIS PARK ECONOMIC
DEVELOPMENT AUTHORITY
By:
Steve Hallfin
Its President
By:
Thomas K. Harmening
Its Executive Director
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this ____ day of March, 2019
by Steve Hallfin and Thomas K. Harmening, the President and Executive Director, respectively,
of the St. Louis Park Economic Development Authority, a public body corporate and politic
under the laws of the State of Minnesota, on behalf of such public body.
Notary Public
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EDA Resolution No. 19-02 8
4800 EXCELSIOR APARTMENTS LLC
By: _______________________________________
W. Dean Weidner, as Trustee of the
W. Dean Weidner Living Trust
Under Trust Agreement Dated October 23,
1998, as amended, its Member
STATE OF WASHINGTON )
) SS.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ___ day of _____________,
2019, by W. Dean Weidner, as Trustee of the W. Dean Weidner Living Trust under Trust Agreement
Dated October 23, 1998, as amended, the Member of 4800 Excelsior Apartments, LLC, a Minnesota
limited liability company, on behalf of the company.
________________________________
Notary Public
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EDA Resolution No. 19-02 9
LENDER
THRIVENT FINANCIAL FOR LUTHERANS,
a Wisconsin corporation
By:
Its:
STATE OF MINNESOTA )
) SS.
COUNTY OF __________)
The foregoing instrument was acknowledged before me this ____ day of March, 2019 by
____ the _________________, of the Thrivent Financial for Lutherans, a
Wisconsin corporation, on behalf of such entity.
Notary Public
This instrument was drafted by:
Todd J. Anlauf
Moss & Barnett
150 South Fifth Street, Suite 1200
Minneapolis, MN 55402
612-877-5000
Loan No. 10-0036560
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EDA Resolution No. 19-02 10
EXHIBIT A
LEGAL DESCRIPTION
The following-described property is situated in the City of St. Louis Park, County of Hennepin,
State of Minnesota:
Parcel A (Certificate of Title No. 1420201):
That part of Lot 1, Block 1, Park Commons West, embraced within Outlot H, Park Commons
East.
Parcel B (Abstract property):
Lot 1, Block 1, Park Commons West, except that part thereof embraced within Outlot H, Park
Commons East.
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