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Resolution 3555 - Authorizes $10,000,000 Industrial Development NoteCERTIFICATE OF MINUTES RELATING TO 355 $10,000,000 INDUSTRIAL DEVELOPMENT REVENUE NOTE (KALISPELL CENTER LIMITED PARTNERSHIP PROJECT) Issuer: City of Kalispell., Montana GoVerning Body: City Council of City of Kalispell$ Montana Kind, date, time and place of meeting: a I regular meeti . ng held on December 3, 1983, at 7:30. o'clock p.m., M.T., at, the Council Chambers in Kalispell, Montana. Members present: Louis B. Ruiz, Jr., Sandy Schindler, Howaxd Grainger, Paul R. Palmer, Gary W. Nystul, Patrick M. Springer, Wayne P. Saverud, Charles J. Manning Members absent: none �Documents attached: Minutes of said meeting (pages): 266 through 269 RESOLUTION NO. 3555 -RESOLUTION AUTHORIZING A PROJECT UNDER MONTANA CODE ANNOTATED, TITLE 90, CHAPTER 5- PART 1, THE FINANCING THEREOF AND THE ISSUANCE AND SALE OF A $10?000#000 INDUSTRIAT, DEVELOPMENT REVENUE NOTE (KALISPELL CENTER LIMITED PARTNERSHIP PROJECT): APPROVINU THE PREPARATION OF DOCUMENTATION IN CONNECTION THEREWITH; AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE NOTE AND DOCUMENTATION I, the undersigned, being the duly qualified and -acti ' ng recording 'officer of the public corporation irstling the obligations re'ferred to in the title of this certificate, certify that the documents attached hereto, as .described above, --have been carefully compared with the original records of said corporation in my legal (.ustody, from which they have been transcribed; that said documents ,are a correct and comglete transcript of -the minutes. 'of'a .meeting of the governing body of said corporation, and .correct and complete copies of all resolutions and other .actions taken' and of all documents approved by the governing .body at said meeting, . so.far as they relate to said obligations; and that said ' meeting was duly held by the .governing body at the time and place and was attended throughout by the members indicated above, pursuant to c��11 and notice of such meeting'given as required by law. WITNESS my hand officially as such recording of f icer this 3rd day of December, 1984. I, the lunders'igaed, City Clerk of the City -of Kalispell certify that the foregoing is a true copy of the Resolution passed by -the City 0 1 of the City of Kalispell, Montana at a regular maeting held )qkl n Member Wayne P. Saverud introduc ed the followin �56, 9 Resolution and moved its adoption: RESOLUTION 3555 RESOLUTION AUTHORIZING A PROJECT UNDER MONTANA CODE ANNOTATED, TITLE .90, CHAPTER 5, PART le THE FINANCING THEREOF AND THE 14 ISSUANCE AND SALE OF $10,000,000 INDUSTRIAL DEVELOPMENT REVENUE NOTE KALISPELL CENTER LIMITED PARTNERSHIP PROJECT); APPROVING THE PREPARATION OF DOCUMENTATION IN CONNECTION THEREWITH; AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE NOTE AND DOCUMENTATION BE IT RESOLVED by the City Council of the City of 9-1 Kalispell, Montana,.as follows: Section li Definitions.—. 1.01. In this Resolution the following terms have the following'respective meanings unless the context hereof or use herein clearly requires otherwise: Act: Montana -Code Annotated, Title 90, Chapter 5, 'Part 1; Agreement: the Loan Agreement, including any amendments thereof.or supplements to be entered into and executed by and among the Municipality, the Lender and the Borrower thereto; Amortization Date: means the first day of the month first occurring more —than sixty days after the Completion Date, provided that in no event shall.the Amortization Date occur later than October 1, 1986; Assignment: the Assignment of Loan Agreement, to be given by the Municipality to the Mortgagee, including any amendments thereof or supplements thereto entered into in ..accordance with the Loan Agreement; Borrower: Kalispell Center Limited Partner -ship, a Washington limited partnership, any successor and assign, and any surviving, resulting or transferee entity which may assume its obligations in accordance with the provisions of the Agreement, the Loan.Agreement and the Mortgage; Commitment: the commitment letter of the Lender to the Borrower, dated May 9, 1984 as amended by letter dated Aucust 28 1984 nursuant to which i4- = -ro=a 4-e% 0 _J purchise the Note on certain terms and conditions; Completion Date: the date of completion of the acquisition, construction and equipping of the Project as determined pursuant to Section 4.03 of the Disbursing Agreement, which shall be no later than October 1, 1986,_ unless extended in writing by the Lender; DisbursingAgreement: the Disbursing Agreemen t to bdl"entered into among the Lender, the Borrower and the 'Municipality; Final Maturity Date: the date that is. the twenty-fifth anniversary of the first day of the month immediately preceding the Amortization Date, but in no event later than October 1, 2011; Guaranty: The Guaranty to be executed by Barbieri Hospitality, Inc-, a Washington corporation in favor of the Lender, including any amendments thereof or supplements thereto; Lender: Washington Trust Bank, a banking corporation of the State of Washington, its successors and assigns; I Loan Repayments: the payments . required to be made by the Borrower pursuant to the Agreement; Mortgage: the Combination Mortgage, Security Agreement and Fixture Financing Statement to be executed by and between the Borrower and the Lender, including any instruments supplemental thereto;- !Lunicipality: the City of Kalispell, Montana, its successors and assigns; Note: the Industrial Development Revenue Note for (Kalispell Center Limited Partnership Project) in the -principal amount of $10,000,000 to be issued by the Municipality pursuant to this Resolution; Note Resolution: this resolution of the Municipality adopted December 3, 1984, authorizing the issuance of the Note; Payment Date: any date on which principal of or interest on -this Note is payable; Prime Rate: the annual rate of interest publicly announced from time to time.by Rainier National Bank of Seattle, Washington or its successors as its "prime rate". It is understood and acknowledged that said bank may make loans at rates above, equal to or below the prime rate; Princi2al Balance: as of the date of determination, the aggregate original principal amount of the Note, less the aggregate amount of installments thereon theretofore paid in accordance with the terms of the Note and of this Note Resolution which are attributable to j payment of principal; Project: the Land, the Improvements, the Fix�ures and the Equipment as they may at any time exist; Project Costs: has the meaning given that term in the Agreement; Tax Exempt Rate: means, as of the date of determination, the annual rate of interest set forth opposite the respective Loan Year as follows: Loan Year Rate 1, 2, 3, 4 75% of the Prime Rate 5, 6 80% of the Prime Rate 7, 8 85% of the Prime Rate 9 and thereafter 90% of the Prime Rate 1.02. General Authority. The Municipality is authorized and empowered by Montana Code Annotated, Title 90, Chapter 5, Part 1 (the Act), to issue revenue bonds (which may be designated notes) for the purpose of defraying the costs of acquiring or improving projects for use for commercial enterprises and to enter into loan agreements with others upon such terms and conditions as the governing body of the Municipality shall deem advisable and as shall not conflict with the provisions of the Act for the purpose of financing the costs of such projects. 2.02. Proposed Project and Note. The Borrower has proposed that the Municipality acting under and pursuant to the Act, issue and sell to the Lender the Note for the purpose of financing part of the cost of the acquisition, construction, equipping and furnishing of a retail shopping mall, motor hotel, restaurant, cocktail lounge and related facilities (the Project) located in the Municipality and suitable for use as a commercial facility. Pursuant to the proposal, the Borrower ' and Municipality will enter into a Loan Agreement pursuant to which the Borrower will make Loan Repayments sufficient to pay the principal of and interest on the Note; the Municipality will assign its interest in the Loan Agreement and the Loan Repayments therefrom to the Lender as security for the Note; pursuant to the Disbursing Agreement between the Municipality, the Borrower and the Lender, the Lender will advance amounts under the Note to the Borrower as construction of the Project progresses; the Borrower will be obligated to pay all costs of construction 35-7, and equipment of the Project in excess of Note proceeds.3Se available therefor from its own funds or from' the proceeds of an Urban Development Action Grant received by the Municipality and make available to the Borrower pursuant to the UDAG Loan Agreement; the Borrower will grant, mortgage, convey and assign its interest in the Project to the Lender, as security for the Note, and the Note W/111 be payable .,,7-601ely from the revenues derived by the,Mu , nicipality from the Project and will not constitute a pecuniary liability of the Municipality or a charge against its general credit or taxing power. Also, pursuant tp the proposal, the Guarantor will guarantee to the Lender the payment of the principal and interest owing on the Note until the Completion Date. 2.03. Actions Previously Taken. Public hearings on the Project.,and -the issuance of the Note in the amount of $10,000,000 were held by the City Council of the City of Kalispell, Montana (the Council) on . September 19, .1 1983, January 91 1984 and -December 3, 1.984,..-respectively,- after notice thereof had been published once a week for three consecutive weeks prior thereto in "The Daily Interlake". Subsequent to each said hearing the Council determined that the issuance of the Note and -undertaking of the Project were in the public interest and on September.19, 1983, January 9, 1984 and December 3, 1984 adopted resolutions approving the Project and authorizing the issuance of the Note. 2.04. Documentation. Forms for the following documents relating to the Project have been prepared and submitted to this Council, and when executed in final.form. are hereby directed to be filed with the City Clerk -Treasurer: (a) the Loan Agreement; (b) the Assignment; (c) the Disbursing Agreement; (d) -the Mortgage; (e) the Note; .-(f)- the Guaranty; and (g) "the Commitment. Section 3. Findings. it is hereby found, determined and declared that: .(a) the Project comprises real and personal ' properties which shall be suitable for use for commercial enterprises as contemplated by the Act; .. (b) in authorizing the acquisition, construction and equipment of the Project, and the financing thereof by the issuance and sale of the Note and the loaning of the .�.',�roceeds thereof to the Borrower, the Municipality's purpose is and in its judgment the effect thereof will be to promote the public welfare by encouraging the location and development of commercial enterprises in the Municipality thereby improving employment opportunities of present and future residents, increasing and balancing the tax base of the Municipality and underlying taxing jurisdictions and promoting and stimulating economic activity within the Municipality; (c) the financing of the Project, the issuance and sale of the Note, the execution and delivery oft -the Agreement, the Disbursing Agreement and the Assignment and the performance of all covenants and agreements of the Municipality contained in' the Agreement, the Loan Agreement and the Assignment and all other acts and things required under the Constitution and laws of the State of Montana to make the Agreement, the Disbursing Agreement, the Assignment and the Note valid and binding obligations of the Municipality in accordance with their terms, are authorized by the Act; I - I I (d) it is desirable that the Note be issued by the municipality upon the terms set forth in thAs. Resolution, and the Municipality assign its interest in the Agreement and grant a security interest therein to the Lender as security for the payment of principal of, and interest on the Note; (e) the Loan Repayments and other amounts required to be paid by the Borrower under the Loan Agreement are sufficient (1) to pay the total principal of and interest on the Note and the annual principal of and interest when due on the Note in each of the years during which the Note is payable; and (2) to pay the taxes on the Project, if any, which the Project during the term of the Loan Agreement shall be subject to taxation to the same extent, in the same manner, and under the same procedures as privately -owned property in similar circumstances; and the Loan Agreement also provides that the Borrower is required to pay all expenses of the operation and maintenance of the Project including, but without limitation, adequate insurance thereon and insurance against all liability for injury to persons or property arising from the operation thereof, and special assessments levied upon o:� with respect to the premises and payable during the term of the Agreement and that upon-retiremen�t or discharge of the Note in accordance with its terms, the Municipality and Lender shall have no further interest in the Project, except whatever interest the City may have under the terms of the UDAG Loan Agreement; t (f) it is not necessary or advisable to establ ish a x*iserve'fund in connection with the retirement of the Note, the maintenance of the Project or the payment of taxes; and (g) under the provisions of Montana Code Annotated, Section-90-5-102, and as provided in thp Agreement, the Disbursing Agreement and as stated on the face of the Note, the Note is a limited obligation of the Municipality payable solely from the Loan Repayments and. other revenues derived from the Project (except to the - extent payable from proceeds of the -Note'.ox the sale.."'OV- condemna ' tion of the Project or insurance -proceeds therefrom) and does not constitute a'pecuniary liability of the Municipality or a charge against its general credit or taxing powers. Section 4. Authorization and Approval of the Project, Loan Agreement, Note, Agreement, Guaranty, MqELaage and Assignment. The Municipality is hereby authorized to provide for the financing of the construction and equipment of the Project and to pledge and assign the Repayments and revenues therefrom and its interest in the Agreement, all as provided in the Agreement, the Disbursing Agreement and the Assignment.. The forms of the Agreement, the Disbursing Agreement, the Mortgage, the Guaranty, the Assignment and the Note referred to in Section 2.04 are approved subject to such modifications as are deemed appropriate and approved by all interested parties' therein, including the City Attorney and the Mayor which approval shall be conclusively evidenced by the execution of the Agreement, the Assignment, the Disbursing Agreement and the Note by the Mayor and the City Clerk -Treasurer. The Agreement, the Disbursing Agreement and the Assignment are directed to be executed in the name and on behalf of the Municipality by the Mayor and the City Clerk -Treasurer. Section S. The, Note: Terms, Execution and Delivery. 5.01. issuance. In . anticipation of the collection of revenues of the Project, the Municipality shall proceed forthwith to -issue the Note in substantially the form attached to and by this reference made a part of this Resolution and upon the terms set forth in said form and this Resolution. r� . -7 . . -_. '360 5.02. Form and Authorized Amount. The Note shall be issued substantially in the ?arm presented to this Council and set forth as Exhibit A to this, resolution with such appropriate variations, omissions andinsertions as are pe'rmitted or required by this resolution,.11hthe principal amount of $1,000,000. The terms of the Note are set forth therein, and such terms, including but not limited to provisions as to interest rate, dates and amount of payment of principal and interest and prepayment privileges, are incorporated by reference herein. 5.03. Delivery and Use of Proceeds. Prior to delivery of the Note, the documents referred to in Section 1.05 hereof shall be,completed and executed in form and substance as approved by the City Attorney and an original, :executed couraterpart-of each such document shall be,--�-- !delivered to the Lender. The City shall thereupon deliver to the Lender. The City shall thereupon deliver to the Lender the Note in the principal amount of $1,000,000 together with A copy, duly certified by the City Clerk -Treasurer, of this resolution and such closing certificates as are required by bond counsel anO approved I-,y the City Attorney. Upon delivery of the Note and the above items to the Lender, the Lender shall, on behalf of the City, disburse the proceeds of the Note to the Borrower in reimbursement of, or to its order for payment of Project Costs pursuant to the provisions of the Loan Agreement and the Disbursing Agreement. 5.04. Prepayment. The Principal Balance shall be subject to prepayment from funds supplied by the Borrower at the times and in the manner set forth.in the Note. 5.05. Mutilated, Lost and Destroyed Note. In case the Note shall become mutilated or be destroyed or lost, the municipality shall cause to be executed and delivered a new Note of like outstanding principalamount, number and tenor in exchange and substitution forac&d upon cancellation of the mutilated Note,. or -in lieu of and in substitution for such Note destroyed or lost, upon the Holder's paying -the reasonable expenses and charges of the Municipality in connection therewith, and, in case the Note is destroyed or lost, its filing with the Municipality ..evidence satisfactory to i� that such Note was destroyed or lost, and furnishing the Municipality with indemnity satisfactory to it. If the mutilated, destroyed or lost Note has already_patured or been called __ for ... r ' edemption in accordance with its terms, it shall not be necessary to issue a new Note prior to payment. 5.06. Registration on Transfer. The Municipality will cause to be pt at the office of the City i Clerk-Trdasurer a Note Register in which, subject to such reasonable regulations as it may prescribo, the Municipality shw1l provide for the registration of transfers of ownership of the Note. The Note shall be transferable upon the Note 'Register by the Holder thereof in person or by its attorney duly authorized in writing, upon surrender of the Note together with a written instrument of transfer satisfactory to the City Clerk -Treasurer duly executed by the Holder or its duly authorized attorney. Upon such transfer the City Clerk -Treasurer shall note the date of and the name and address of the new Holder in the Note Register in the registration blank appearing on the Note. Alternatively, .the Municipality shall, at the request and expense of the Holder issue new notesi in an aggregate outstanding - " principal amount equal to that of the Note surrendered, and of like tenor except as to number and principal amount,,and .registered in the name of the holder or such transferee as may be designated by the holder. The Municipality may deem and treat the person in whose name each Note is last registered in the Note Register and any notation on the Note as the absolute owner thereof, whether or not the Principal Balance or any part thereof is overdue, for the purpose of receiving payment of or on account of the Principal Balance, - ,.redemption price or interest and for all other pur�oses. I a 5.07. Limitation of Municil2ality Liability. Notwithstanding anything —contained in the Note, the Mortgage, the Agreement, the Disbursing Agreement, the Assignment, the Note and the interest thereon do not constitute a debt of the municipality, within the meaning of any constitutional or statutory limitation, and do not .constitute or give rise to a pecuniary liability of the Municipality or a charge against its general credit or taxing powers. The Note and the interest thereon are payable solely from the revenues pledged to the payment thereof pursuant to the Agreement and Mortgage and the Holder of the Note shall never have the right to enforce payment thereof against any property of the Municipality, and the Note does not constitute a charge, lien or encumbrance, legal or equitable, upon any property of the Municipality except the Project, and the agreement of the Municipality to perform or cause the performance of the covenants and other provisions herein referred to shall be subject at all times to the availability of revenues of the Project or other funds furnished to the Municipality in accordance with the Agreement, sufficient to pay all costs of such performance.or the enforcement thereof. 5.08. Execution of Note and Other Instruments. The Mayor and the City Clerk -Treasurer and other appropriate officers of the Municipality are authorized and directed to execute the Note and such other documents, instruments and certificates as may be necessary or appropriate to effect� the transactions contemplated by this Resolution, provided that the form of each such document, instrument or c��tificate is first reviewed and appgoved by the City Attorney.. In case any officer whose signature shall appear on the Note shall cease'to be such officer before delivery thereof, such signature shall nevertheless be valid and sufficient for'all purposes. 4,5oO9. Effective Date. This Resolution is adopted pursuant to previous authorization and -approval of the Project and Note by Resolutions of this Council and Sftall .become effective immediately upon it.s passage and ado ption 5.10. Election Under -Section -10 3 (b) (6) (D), t - The Municipality hereby elects to have the Note treated -as an "industrial development bond" in the aggregate principal amount exceeding $1,000,000 but not exceeding $10,000,000 in accordance with Section 103(b)'(6)(D) of the Internal Revenue .Code of 1954 as amended. Passed by the City Council and approved by the Mayor of the City of Kalispell, Montana, this day of December, 1984. Approved: Mayd' Attest: . . . CitydClerk-Treasurer (SEAL) "Final Maturity Date" means the date that is the twenty-fifth anniversary of--Te first day.of the month t immediately preceding the Amortization Date, but in no event shall be later than October 1, 2011. "Guarantor" means Barbieri Hospit�iity, Inc., a Washington corporation, or any permitted su';6cessors or assigns under the Guaranty. "Guaranty" means the Guaranty Agreement dated the date hereof executed by the Guarantor in favor of.the lender. Loan AgreementP means the Loan Agreement, dated the date hereof, between the Municipality and the Borrower,. "Loan Year" means a period consisting of one calendar year; the first Loan Year commences on the.date ��hereof and concludes the day before the first anniversary of ;the date hereof; successive Loan Years commence on the day following the expiration of the preceding Loan Year; provided that the final Loan Year concludes on the Final Maturity Date. "Mortgage" means'the Combination Mortgage, Security Agreem ent and Fixture Financing.Statement, dated the date hereof, from the Borrower, as mortgagor, to the Lender,'as mortgagee. hich principal ul.,M2aL,_�e".means any date on W is payable. of or in t_ereSt on this Note itprime Rate" means the annual rate of interest 'by Rainier National, z time to time publicly allin;o-unced--rom its successorp as its Bank, of Seattle, Washingtont or of It is understood and acknowledged that said prime rate". equal to or below the� bank may make loans at rates above, ..ing a "prime that if said bank stops announc prime rate; es an equivalent interest rate rate" but publicly aftnounc I to such index, the prime Rate shall be the annual rate equa ublicly announced from time to time index as p s of a the date of Tax Exempt Ra�eg means t forth the annual rate of interest se determinati7n�, n Year as follows: opposite the respective Loa Rate r :Loan Yea 7 51 of the primeL*F .11 .21 3, 4' Rate 80% of the Prime 5, 6 - he Prime Rate 7, 85% of t 90% of the Prime Rate 9 and thereafter -Exe mpt . Rate shall be adjusted on each Payment Date The'tax r to the respective percentage set forth during any Loan Yea said Payment Date, above of the Prime Rate in effect on adjusted shall remain in effect until the which rate as so The Tax-ExeMpt Rate shall never excee . d next Payment Date per annum. sixty-three percent (63%) s follows: 3. This Note is subject to prepayment a (a) Prepayment in whole Or in part, by the on nd direction of the Borrower, Municipality at the option a (30) days' written any , Payment Date upon at least thirty . d of notice as the notice to the Holder (or such lesser perio ayment if t); provided that such prep ly upon Holder. may accep h Loan Year shall occur on occurring before the fift aual to two percent (2%) of ayment penalty el payment of a prep be prepaid. If such prepayment is the principal balance to rmination of TaxabilitYt no due to receipt Of a Dete ed, provided, however, that prepayment penalty will be assess uired to Borrower shall be responsible for the payments req tion l(b) hereof. be made pursuant to Sec ent without premium pursuant (b) Mandatory prepaym ent in the event and to the extent to the Disbursing.Agreem . n nt remaining in the ConstructIO.- that there shall be any amou Fund on the Completion Date after payment of all Project Costs (as defined in the Disbursing Agreement).' (c) Prepayment in whole or in part without premium at the option of the Holder upon the occurrence of certain events of damage, destruction or coAdemnation as p- rovided in Section 5-1 of the Trust IndentP�Vt'e. 4. On April 1, 1985, if the Borrower has not delivered to the Lender a fully executed lease from J. C. Penneys, Inc., as described in the Disbursing Agreement and on January 1, 1995, January 1, 2000, and January 1, 2005, (or the next succeeding Business Day if such day is hot a Business Day), the Borrower shall purchase this Note from the Holder at a price equal to the Principal Balance plus interest accrued thereon to the date of purchase, unless the Holder shall, not less than 180 days before said purchase ..date (or such lesser -period as the Borrower may accep:t), �inform the Borrower and the Municipality in writing that it intends to retain ownership of this-Vote'and waives�kts- right to require the Borrower to purchase the Note as aforesaid. If said notice is not received, and the Borrower pays said purchase price to the Holder on said purchase date and provides the Municipality evidence satisfactory to it of such payment, then the Municipality shall, whether or not this Note is in fact then presented for notation, transfer ownership of this Note in the Note Register (as defined in the Loan Agreement) to the Borrower or its designee, and the prior Holder hereof shall no longer have any interest - herein, but shall be deemed to have surrendered this Note to the Municipality for transfer with an assignment of its interests herein to the Borrower.. Alternatively, tha Issuer will, at the request of the Holder, issue one or more new notes in an aggregate principal amount equal to the unpaid principal balance of this Note, and of like tenor except as to principal amount, and.registered in the name of the Borrower or its designee. 5. This Note is issued by the Manicipality for the purpose of providing funds to be loaned to the Borrower, pursuant to the terms of the Loan Agreement Montana Code Annotated, Title 90, Chapter 5, Part 1, as amended (the Act), to be used to pay the cost of a Project, consisting of the acquisition of land located within the Municipality and the acquisition, construction and equipping thereon of a commercial shopping mall, a motor hotel, restaurant, cocktail lounge and related facilities, thereby assisting activities in the public interest and for the public welfare of the Municipality and the State of Montana. 6. This Note is secured by the Assignment of Loan Agreement, the Mortgage, and until the Completion Date by the Guaranty, of even date herewith (the Guaranty), from Barbieri Hospitality, Inc., a Washington corporation to the Lender. The disbursement of the proceeds of this Note is subject to the terms and conditions of the Disbursing Agreement. 7. This Note is issued pursuant to and in f - ull compliance with the Constitution and laws the of State of including the Act, and pursuant to a resolution .,Montana, duly adopted by the City Council of the Municipality on-, December 3, 1984 (the Resolution), and is a special obligation of the Municipality payable solely from payments to be received by the Municipality pursuant to the Loan Agreement and from the property which secures payment of this Note. This Note and the interest thereon shall never constitute a'debt of the Municipality within the meaning of any constitutional provision or statutory limitation and shall never constitute or give rise to a charge against its general credit or taxing powers. This Note and interest �hereon are not payable from, nor do they constitute a charge, lien or encumbrance, legal br eqtitable, uponf a'n"y funds or property of the Municipality other than the revenues pledged to the Payment thereof pursuant to the. Assignment of Loan Agreement. The agreement of the Municipality to perform or cause the performance of the covenants and other provisions herein referred to shall be limited at all times to the availability of revenues from the Loan Agreement and the Mortgage sufficient to pay all costs of.. such performance or the enforcement thereof. 366., . 8. All of the agreements, conditions, covenants, provisions and stipulations contained in the Mortgage, the Resolution, the Loan Agreement, the Guaranty and the Disbursing Agreement are hereby made a part of this Note to the same extent and with the same force and effect as if they were fully set forth herein. 9.. It is agreed that time is of the essence of this Note. If a default occurs.in any payment due under this Note or if any default shall occur under the Mortgage, the Loan Agreement or -the Disbursing Agreement as defined therein, then the Holder may at its right and option declare immediately due and payable without notice the Principal Balance of this Note and interest accrued thereon., together with any attorneys' fees incurred by the Holder in collecting or enforcing payment thereof, whether suit be brought or not, and all other sums due hereunder or under the Mortgage, the Loan Agreement, the Disbursing Agreement, anything to the contrary therein notwithstanding, and payment thereof -may be enforced and recovered in whole or in part, at any time, by one or more of the remedies provided in this Note, the Mortgage, the Loan Agreement, the Disbursing Agreement, and the Guaranty, except as such may be specifically limited therein. 10. The remedies of the Holder, as provided. herein and in,the Mortgage, the Loan Agreement, the Guaranty and the Disbursing Agreement shall be cumulative and. concurrent; may be pursued singly, successively or concurrently and at the sole discretion of the Holder,- and may be exercised as often as occasion therefor shall occur. The failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. -i j .11. Notwithstanding any other provisiorl of the Agreement, the Disbursing Agreement or the Mortgage to the contrary, none of the partners in the Borrower, general or .limited, shall have any.personal liability with re-Vect to the Borrower's liability under this Note, the Loan Agreement or any other collateral document; provided that t1re Guarantor shall remain liable under -' the.Guaranty to the - extent provided in the Guaranty; provided further that this provision shall not limit the right of.the Lender and -its assigns to enforce and realize upon the mortgage and security interest granted to the Lender under"tbe Mortgage; provided further, that the Lender shall have full right of recourse against other assets of the Borrower in connection with the enforceability of the Borrower's obligation hereunder. 12. This Note shall be registered and shall be transferable upon the books of the Municipality at the office of the City Treasurer, by the Holder hereof in person or by its attorney duly authorized in writing, upon surrender hereof together with a written instrument of transfer satisfactory to the City Treasurer, duly executed by the Holder or its duly authorized attorney. Upon such transfer, the City Treasurer will note the date of registration and the name and address of the new Holder upon the books of the Municipality and in the registration. blanks appearing below. Alternatively, the Municipality will at the request and expense of the Holder issue a new Note in a principal amount equal to the Principal Balance of this Note, and of like tenor except as to number, principal amount and the number and amount of the installments payable thereunder, and registered in the name of the Holder or such transferee as may be designated by the Holder. The Municipality may deem and treat the person in whose name this Note is last registered upon the books of the Municipality with such registration also noted on this Note, as the absolute owner hereof, whether or not overdue, for the purpose of receiving payment of or on account of the Principal Balance, prepayment price or interest and for all other purposes, and all such payments so made to the Holder or upon its order shall be valid and effectual to satisfy and discharge the liability upon this Note to the extent of the sum or sums so paid, and the Municipality shall not be affected by any notice to the contrary. I- I. I I 13. If any term of this Note, or the application thereof to any person or circumstances, shall,,to any extent, be invalid or unenforceable, the remainder of this Note, or the application of such term to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereb , and each terin of this Note shall be valid and enforceabl Tto the fullest extent permitted by law. 14. This Note may not be amended, modified or' changed nor shall any waiver of any provision hereof be .effective, except only by an instrument in writing and signed by the party against whom enforcement of any waiver, amendment, change, modification or discharge is sought; provided that any material modification of the terms and conditions of this Note shall not be effective without the prior written consent of the Municipality-- 15. It is intended that this Note is made with :reference to and shall be construed'as a'Montana conttact and governed by the.laws of the State of Montana. IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts and things required to exist, happen and be performed precedent to or in the issuance of this Note do exist, have happened and have been performed in regular and .due form, time and manner as required by-law. IN WITNESS WHEREOF, the Municipality has caused this Note to be duly executed by its duly authorized officers and.its corporate seal to be affixed hereto, all this day of December, 1984. CITY OF KALISPELL, MONTANA City Clerk Treasurer (SEAL) PROVISIONS AS TO REGISTRATION The ownership of the unpaid Principal Balance of this Note and the interest accruing thereon is registered on the books of the City of Kalispell, Montana in the name of the registered holder appearing on the first page hereof or as last noted below: Date of Name and Address Signature of �Ity Registration of Registered Holder Clerk Treasurer 367.