HomeMy WebLinkAbout4.F.5. Authorization of Grant Agreement and Loan Documents related to the Minnesota Investment Fund Forgivable Loan for Rosemount, Inc. - Res. No. 7410 WtA Consent Business 4. F. 5.
SHAKOPEE
TO: Mayor and City Council
Mark McNeill, City Administrator
FROM: Samantha DiMaggio, Economic Development Coordinator
DATE: 01/21/2014
SUBJECT: Authorization of Grant Agreement and Loan Documents related to the Minnesota
Investment Fund Forgivable Loan for Rosemount, Inc. - Res. No. 7410 (D)
Action Sought
Adopt Resolution No. 7410, A Resolution authorizing staff and other appropriate officials to enter
into a Grant Agreement and Loan Documents with the Department of Employment and Economic
Development (DEED) and Rosemount, Inc. for a Minnesota Investment Fund(MIF) Forgivable
Loan.
Background
A public hearing was held on June 18, 2013 and Resolution No. 7313 was approved. This
resolution authorized staff to make application to DEED for a MIF Loan for Rosemount,
Inc. DEED has awarded $500,000 to the City of Shakopee and Rosemount, Inc. The funding for
this forgivable loan will flow from DEED to the City of Shakopee. The City will then issue these
funds to Rosemount, Inc. as a forgivable loan. Staff is now requesting permission for the
appropriate parties to enter into a Grant Agreement with DEED and accompanying Loan
Agreements with Rosemount, Inc.
Recommendation
Staff recommends that the Council authorize staff and other appropriate officials to enter into the
attached grant agreement with DEED and accompanying loan agreements with Rosemount, Inc.
which allows the issuance of a forgivable loan to Rosemount, Inc.
Budget Impact
As these are state funds, there is no direct financial impact on the City as a result of the MIF loan.
Relationship to Vision
This supports Goal D, "Maintain, improve, or create strong partnerships with other public or
private sector entities."
Requested Action
If the Council concurs, it should offer Resolution No. 7410, a resolution authorizing and
approving the loan of a Minnesota Investment Fund Grant to Rosemount, Inc. and Related
Documents, and move its adoption.
Attachments: Res No 7410
Grant Agreement
Security Agreement
Loan Agreement
Promissory Note
CITY OF SHAKOPEE,MINNESOTA
RESOLUTION NO.7410
RESOLUTION APPROVING THE LOAN OF A MINNESOTA
INVESTMENT FUND GRANT TO ROSEMOUNT INC. AND
RELATED DOCUMENTS
WHEREAS, Rosemount Inc., a Minnesota corporation (the `Borrower") has acquired and
renovated a facility within the City which will be used by the Borrower for manufacturing,a research and
development lab,office space and warehouse space(the"Facility"); and
WHEREAS, pursuant to a resolution adopted on June 18, 2013, the City Council (the "City
Council")of the City of Shakopee(the"City")approved the submission of an application for a grant from the
Minnesota Investment Fund Program administered by the Minnesota Department of Employment and
Economic Development("DEED');and
WHEREAS, the City has received the form of a Grant Agreement with DEED (the "Grant
Agreement"),to obtain grant funds in the amount of$500,000 and loan such grant funds to the Borrower for
the purpose of purchasing equipment for the Facility;and
WHEREAS, the City Council has received and reviewed an Agreement for Loan of Minnesota
Investment Fund—Forgivable Loan(the"Loan Agreement"),between the City and the Borrower,providing
for the loan of the grant funds in the amount of$500,000 to the Borrower (the "Loan'), which agreement
includes a"business subsidy agreement"as defined in Minnesota Statutes, Sections 1661993 to 1161995,as
amended(the"Business Subsidy Act");and
WHEREAS, it is proposed that the Loan be considered forgivable provided that the Borrower
complies with certain requirements of the business subsidy agreement contained in the Loan Agreement;and
WHEREAS,to evidence the repayment obligations of the Borrower under the Loan Agreement,the
Borrower will execute and deliver to the City a Promissory Note(the"Note")and a Security Agreement(the
"Security Agreement");and
WHEREAS, the City Council has had the opportunity to review the Loan Agreement, Note, and
Security Agreement;and
WI-IEREAS, on June 18, 2013, the City conducted a duly noticed public hearing as required by
Section 116J.994, subdivision 5 of the Business Subsidy Act on the proposed Loan to be made to the
Borrower pursuant to the Loan Agreement.
NOW,THEREFORE,BE IT RESOLVED by the City Council of the City of Shakopee,that:
1. The Grant Agreement,the Security Agreement, and the Loan Agreement, and the business
subsidy agreement contained therein, are approved (collectively, the "Loan Documents').
The Mayor and the City Administrator are authorized and directed to sign the Loan
Documents and any other documents or certificates necessary to carry out the transactions
described in the Loan Documents.
436293v1 NMI SH155-290
2. The Loan Documents are approved in substantially the form on file in City Hall, subject
to modifications that do not alter the substance of the transaction and are approved by the
Mayor and the City Administrator; provided that execution of the document will be
conclusive evidence of their approval.
Approved by the City Council of the City of Shakopee,Minnesota this 21 st day of January,2014.
Mayor
ATTEST:
Finance Director/City Clerk
436293v1 NM SH155-290 2
STATE OF MINNESOTA
GRANT CONTRACT
DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT
BUSINESS AND COMMUNITY DEVELOPMENT DIVISION
Minnesota Investment Fund Program Grant Contract
Grant No: CDAP-13-0015-H-FY14
This grant contract is between the State of Minnesota, acting through the Department of Employment and Economic
Development, Business and Community Development Division, ("STATE"),,.and City of Shakopee, 129 South Holmes
Street, Shakopee,MN 55379("GRANTEE").
Recitals
1. Under Minn. Stat. § 116J.8731,Minnesota Investment Fund,the State igfmpowered to enter into this grant.
2. The State is in need of local units of government to adrtrinister projects in acdbko*ce with Minn. Stat. §
116J.8731 Minnesota Investment Fund;Minnesota Ridgs chapter 4300;and pol,cles,and procedures developed
by the State.
3. The Grantee represents that it is duly quokfed and agrees to perform all services described in this grant contract
to the satisfaction of the State. Pursua rt ta:`Minn. Stat. §16I1.48, subdivision 1, the Grantee agrees to minimize
administrative costs as a condition of this grant
4. The Grantee has made apphcalton("APPLICAU N )tis ,State for the purpose of providing a forgivable loan
to Rosemount,Inc.,(`B(A �1Vi ..')in the ma-" r desc'-b05`d,inlhe Application which is incorporated into this
agreement by reference;
;Grant COntl'$Ct
1 Term of Grant Contract
1.1 Effective date: Tanuacy 24, 20
1.2 Espuatr®n ifate: August 24,2015''
1.3 Survival of Terms. The follbtYing clauses.-survive the expiration or cancellation of this grant contract: 8.
Liability;
9. State Audits; 10., Governmenti.Data Practices; 12. Publicity and Endorsement; 13. Governing Law,
Jurisdiction, and Venue;„15. Data Disclosure;and Exhibit A.4.Repayments.
2 Grantee's Duties
2.1 Duties. The Grantee,who is 13010'state employee,will:
Perform the duties specified in Exhibit A which is attached and incorporated into this grant contract.
2.2 Provisions for Contracts and Sub-grants. The Grantee must include in any contract and sub-grant,including the
loan agreement with the Borrower,in addition to provisions that define a sound and complete agreement,such
provisions that require contractors,sub-grantees and the Borrower to comply with applicable state and federal
laws.
3 Time.
The Grantee must comply with all the time requirements described in this grant contract.In the performance of this
grant,time is of the essence.
MIFGrmtAgreement.8.13
4 Consideration and Payment
4.1 Consideration. The State will pay the Grantee under this grant contract as follows:
a. Compensation. The Grantee will be reimbursed according to the approved Budget contained in
Exhibit B, which is attached and incorporated into the grant contract and Section 4.2 of this grant contract.
Any modifications to the budget must have written approval from the State prior to implementation.
b. Total Obligation. The total obligation of the State for all compensation and reimbursements to the Grantee
under this grant contract will not exceed$500,000.
4.2. Payment
a. Payment Request Forms and Documentation. The State will,4ttse funds to the Grantee pursuant to this
contract,based upon payment request forms provided by the Sj9vbmitted by the Grantee and reviewed and
approved by the State. The following information must be s* nd approved by the State before funds
will be released:
1) Grantee's Revolving Loan Fund Policies and Procedures.
2) Minnesota Investment Fund loan agreement,:from issory note,am6rtlzntion schedule,personal guaranty
and evidence of security filings.
3) Documentation that funding from the follownig.contributors has been secured:
a)City of Shakopee
b)Rosemount,Inc.
4) Invoices for building renovatiot)drfdconstruction cdata `funds should be released based on a cost-sharing
ratio of 5%grant funds to 95%oth� °fttds,,,
b. If the Grantee has received invoices frouV. Borrower for expendi res made after the effective date of this
contract but before the, an clxfsed or until alt funds are tifbeu5ed,whichever is earlier,the Grantee shall
submit those invoices top S'1aW14' review and apprquat txo Idtei thar125 days after the end date of the state
fiscal year of June 30` ,7'b ensure tut all funds atealr$1sn by the exj53ation date of the grant, all Grantee
payment requests must ived by*State at least,30 days or to the Expiration Date.
5 Conditions of Paptlt3i
a. All services provided by the 0 autee underthr 5 gran ticontract must be performed to the State's satisfaction,
as detetxYtitied at the sole discretion bf the State's Xiaorized Representative and in accordance with all applicable
federal state„and local laws�,t&dinan&§,54.ales, and regulations. The Grantee will not receive payment for work
found by the State to be unsatis tpry or NAT rmed in violation of federal,state,or local law.
b. The State will riot authorize c*ursement of funds if there has been any adverse change in the Borrower's
financial condition,organization, operations or their ability to repay the project financing.
6 Authorized Representative
The State's Authorized RepreserpCative is Bart Bevins, Senior Loan Officer, 332 Minnesota Street, Suite E200, St.
Paul, MN 55101,Email: bart.bevins@state.mn.us., or his/her successor, and has the responsibility to monitor the
Grantee's performance and the authority to accept the services provided under this grant contract. If the services
are satisfactory, the State's Authorized Representative will certify acceptance on each payment request form
submitted for payment.
The Grantee's Authorized Representative is Brad Tabke,Mayor, 129 Homes Street South, Shakopee,MN 55379,
952/233-9300, Email: administration @ci.shakopee.mn.us. If the Grantee's Authorized Representative changes at
any time during this grant contract,the Grantee must immediately notify the State.
7 Assignment,Amendments,Waiver,and Grant Contract Complete
7.1 Assignment The Grantee shall neither assign nor transfer any rights or obligations under this grant contract
MIFCm tAgreemmt.8.13
without the prior written consent of the State, approved by the same parties who executed and approved this grant
contract,or their successors in office.
7.2 Amendments. Any amendments to this grant contract must be in writing and will not be effective until it has
been executed and approved by the same parties who executed and approved the original grant contract, or their
successors in office, or by those persons authorized by the Grantee through a formal resolution of its body.
7.3 Waiver. If the State fails to enforce any provision of this grant contract, that failure does not waive the
provision or the State's right to enforce it.
7.4 Grant Contract Complete. This grant contract contains all negotiations and agreements between the State
and the Grantee. No other understanding regarding this grant contract,;whether written or oral, may be used to bind
either parry. Where provisions of the Application are inconsistent wroth other provisions of this contract, the other
provisions of this Contract will take precedence over the provisions ol,tte Application.
8 Liability
Subject to the provisions and limitations of Minn. Stat. §466,the Grantee i74ttst indemnify, save,and hold the State,
its agents, and employees harmless from any claims or.causes of acti on 1- 1 orney's fees incurred by the
State, arising from the performance of this grant contract by the Grantee or'ibg,Grantee's agents or employees.
This clause will not be construed to bar any legal remedies the Grantee may have fQFtthe State's failure to fulfill its
obligations under this grant contract.
9 State Audits
Under Minn. Star. §1613.98, Subd 8, the Grantee's books records, documents, and accounting procedures and
practices of the Grantee or other party relaxant to this,grant agreement or transaction are subject to examination
by the State and/or the State Auditor or 1,6kislatrv&Auditor, as appropriate, for a minimum of seven (7) years
from the date of the final repayment to the State, or the required period.of time to satisfy all state and program
retention requirements,whmcli ever is later.
10 Government Data Prac&K,,
The Grantee and State mus comply with the Nhnnesofa:Govemment Data Practices Act, Minn. Stet. § Ch. 13, as
it applies to alt data provided boheS§We;tlrider this grit contract, and as it applies to all data created,collected,
received, use
a o di 1paintaine or disseminated b the f}rantae under this grant contract. The civil remedies of
Minn.
Slat §13.08 apply to;the release-of the data refetzed to in this clause by either the Grantee or the State.
If the Grantee receives a request to release the.data referred to in this Clause,the Grantee must immediately notify
the State. Tlie State will give the,Grantee instructions concerning the release of the data to the requesting party
before the data is rel eased.The Grantee's response to the request shall comply with applicable law.
11 Workers' Compensation_,
The Grantee certifies thatlit is in compliance with Minn. Star. § 176.181, subd. 2, pertaining to workers'
compensation insurance coverage.' The Grantee's employees and agents will not be considered State employees.
Any claims that may arise under the Minnesota Workers' Compensation Act on behalf of these employees and
any claims made by any third party as a consequence of any act or omission on the part of these employees are in
no way the State's obligation or responsibility.
12 Publicity and Endorsement
12.1 Publicity. Any publicity regarding the subject matter of this grant contract must identify the State as the
sponsoring agency. For purposes of this provision, publicity includes notices, informational pamphlets,
press releases, research, reports, signs, and similar public notices prepared by or for the Grantee
individually or jointly with others, or any subcontractors, with respect to the program, publications, or
services provided resulting from this grant contract.
12.2 Endorsement. The Grantee must not claim that the State endorses its products or services.
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13 Governing Law,Jurisdiction,and Venue
Minnesota law, without regard to its choice-of-law provisions, governs this grant contract. Venue for all legal
proceedings out of this grant contract, or its breach, must be in the appropriate state or federal court with
competent jurisdiction in Ramsey County,Minnesota.
14 Termination
14.1 Termination by the State.The State may immediately terminate this grant contract with or without cause,
upon 30 days' written notice to the Grantee. Upon termination,the Grantee will be entitled to payment,
determined on a pro rata basis,for services satisfactorily performed.
14.2 Termination for Cause. The State may immediately termuethis grant contract if the State finds that there
has been a failure to comply with the provisions of this grant°oontract,that reasonable progress has not been
made or that the purposes for which the funds were granfedlia�Spot been or will not be fulfilled.The State
may take action to protect the interests of the State of IVfinnesota including the refusal to disburse additional
funds and requiring the return of all or part oft S aready disbar ed.
-!>
14.3 Termination for Insufficient Funding The State. may immediately tenntnate this grant contract if:
a.It does not obtain funding from the Minnesota=f egislature;o[
b.If funding cannot be continued ai aieyel sufficient to 111aw for the payment of the services covered here.
Termination must be by written or faxho#ce to the GraziteecThe State is not obligated to pay for any
services that are provided after nottce.and efFective date of imination.However,the Grantee will be
entitled to payment,determined on a pio rata bassxfor services satisfactorily performed to the extent that
funds are available The State will not be assessed any penalty if the Contract is terminated because of the
decision of the Minnesota]legislature,or'other fun_,Og soul a not16 appropriate funds.The State must
provide the Granted'notice of the fund
lack of ing t "in a rtrasohable time of the State's receiving that
notice.
15 Data Disclosure
Under Minn Stat § 2700 65, siibd 3, and other applicable law, the Grantee consents to disclosure of its social
security ntiXFiber, federal employer tax identification number, and/or Minnesota tax identification number, already
provided&,the State, to toderal and state tax agencies and state personnel involved in the payment of state
obligations: These identi fication numbers lnay be used in the enforcement of federal and state tax laws which
could result in action requiring th G.rantee to file state tax returns and pay delinquent state tax liabilities, if any.
Other Provisions
16 Affirmative Action
The Grantee is encouraged to pzepare and implement an affirmative action plan for the employment of minority
persons,women,and the disable°and submit the plan to the Commissioner of Human Rights as required by Minn.
Stat. § 363A.36.
17 Antitrust
The Grantee hereby assigns to the State of Minnesota any and all claims for overcharges as to goods and/or
services provided in connection with this Contract resulting from antitrust violations that arise under the antitrust
laws of the United States and the antitrust laws of the State of Minnesota.
18 Conflict of Interest
The Grantee shall comply with the Conflict of Interest provisions of Minn. Stat. §471.87 and 471.88.
19 Successors and Assignees
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This contract shall be binding upon any successors or assignees of the parties.
20 Business Subsidies Law
Minn. Star. §11J.993-116J.994 applies to this project.
EXHIBIT A
GRANTEE'S DUTIES
The Grantee,who is not a state employee,will
1. Administer the project in accordance with the requirements of the Minnesota Investment Fund program,Minn.
Stat. § 116J.8731;Minn. Rules, Chapter 4300; and policies and procedesdeveloped by the State.
i
2. Enter into a Loan Agreement with the Borrower for$500,000, and assure the following conditions are included
in such agreement:
a. Loan Term:five years,unless the loan is forgiven f
Interest Rate: 0%
Collateral: equipment purchased for this WWI
Guaranty:
b. Job Creation and Wages:
1) The Borrower identified 1983 full tnne�,quivalent(FTE)base jobs that must be maintained for the duration of
the grant period.
2) 125 permanent non-contract full time equivalent(FTE)lobs wiI[be created by the Borrower. All of the jobs
created by the Borrower must pay at least$14 50 pet hour in wages or more,exclusive of benefits.
3) If the Borrower fails to meet the job creation goal and Wage level commitment by the Expiration Date,the
Grantee may,after b6lding a puHtic hearing extend the grant period foc one year,after approval from the
State. If, after the ex)etlsion,theBorrower faila toffee{the loci creahon goal and wage level commitment the
Borrower will be requued to repay,Yo the Grantee all or a proportional share of the loan funds on an
accelerated term. The Gsaatee will:then be requirec :to return to the State all or a proportional share of the
funds.
4) In the e,,ent that Borrower documents that�t has complied with the requirements specified in Exhibit A,
Sertl6& .b.(1)and`(2 througb the end of the grant period,Borrower will not be required to repay to the
Graff*the full amount of the loan amount. If Borrower fails to create and maintain the required j obs,then
�...
Borrowez will be required to repay the,)Grantee all or a portion of the grant funds. The repayment will be
calculate the ratio of the niunber of jobs:which the Borrower did not maintain and create,divided by 125
and multrpli4by the Loan Amount. The Borrower's total obligation in the event any repayment is required
shall not exceed$$00,000. Any amounts required to be repaid must comply with the provisions of Minn Star.
I I6J.995, subd. 6:,from the date of default to the date of payment.
c. Payment of Prevailing Wages to Contractors: Minnesota Statutes,section 116J.871, applies if a business receives
$500,000 or more in State funds the State funds are used for building renovation and construction.
d. Surety Deposits Required for Construction Contracts:Minnesota Statutes, section 290.9705,pertains to
foreign corporations that perform construction work in Minnesota and applies if State funds are used for
construction.
e. Job Listing Agreements
Minn. Stat. §116L.66,subd.1,applies when a business receives $200,000 or more per year in grants or loans from
the State. When applicable, the business will agree to enter into a Job Listing Agreement with the MN
Department of Employment and Economic Development, Workforce Center Business Services,to list any vacant
or new positions with the state workforce center.
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f. Reporting
The Borrower must provide information to the Grantee for inclusion in the annual Minnesota Investment Fund
progress report and the Minnesota Business Assistance Form.
g. Other provisions of the Grant Contract
Sections 4.1 a; 4.2.a.2),3)and 4); 5.b.; 11; 12.1 and 2.
3. Require the City Attorney to review the loan agreement,promissory note,security agreement,mortgage,
guaranty and/or other documents, if any,considered necessary to secure the loan to ensure they are valid,
binding and enforceable.
4. Retain 20%of any principal and interest payments made by the Bonow„er�gj'he Grantee will establish and
maintain a revolving loan fund(RLF)consistent with the requiremeg0%o�Section 2 of the Recitals section of
this contract. The Grantee must retain financial control and decistoif"; ing authority regarding the use of the
repayments from the loan. However,the Grantee may loan or grant-inoneg from its RLF to a regional
development commission,other regional entity, or statewide eorfimunity capital.fund to capitalize or to provide
or
the local match required for capitalization of a regional statewide RLF i'Wtate must provide written
approval prior to the release of funds to an organization '
5. Repay to the State 80%of any principal and interest loan ayments made by the Borro r until the loan is paid in
full. In the event the loan is not paid in full,principal and interest the!Gr6itee retains wilt reduced proportionally.
6. Submit to the State annual progress reports onfofms provided by theate. These reports must be received by the
State no later than January 25 for the period eridmg December 31 faf each year until the project goals have been met.
The State,at its discretion,may require the submittal of ad`Hitional pro&*reports. Information required in this
report includes,but is not limited to the following
--permanent jobs created --hourly base wage date of hire
job titles hourly In 46 benefits =--benefits
project expenditures, status of ptoject --status of payments
7. Keep financial recordsxmcludmg pfppeiIy executed contracts,,invoices,receipts,vouchers, and other documents
sufficient to etrtence'in paper detail the'natureandproprietpof the expenditures made pursuant to this
contract Accounting methods must be in accordance wifh::generally accepted accounting principles.
8. Complete the3{olect in accordanc the aguroved budget within the time frames specified in this grant
contract.
9. Promptly notify the State:of any proposed material change in the scope of the project,budget or completion
date, which must be appin,d by the,State,prior to implementation.
10. Have on file the necessary documentation to show that all project funds have been used for the items stated in
the application.
11. Submit Minnesota Business Assistance Forms, annually,to the Department of Employment and Economic
Development for the Project until the project goals have been met.
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EXHIBIT B
APPROVED BUDGET
MIF Bank Equity Citv Total
Property Acquisition $ $ $ 7,500,000 - $ 7s00,000
Site Improvement $ $ $ 900,000 $"900,000 $ 1,800,000
Renovation of
Existing Buildings $ $ $22,850,000 1 4$ 350,000 $23,200,000
New Construction $ 500,000 $ $ $ $ 500,000
Machinery& Equip. $ $ $ $ $
Administration $ $ $ $ $
Roads $
Water $
Sewer(Sanitation) $ $
Other $
Other $
Total Project Cost $500,000 $31,250,000 " $1,250,000 $33,000,000
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1. STATE ENCUMBRANCE VERIFICATION 3. STATE AGENCY
Individual certifies thatfunds have been encumbered as
required by inn. Stat. " 16A.15 and 16C.05. By:
(with delegated authority)
Signed: Title:
Date:
Date
SWIFT Contract/PO No(s).
2. GRANTEE
The Grantee certifies that the appropriate person(s)
have executed the grant contract on behalf of the Granteeas
required by applicable articles,bylaws,resolutions or oi'flutances.
By:
Title: ✓. . k.
Date:
By:
Title:
Date:
Distribution:
Agency
Grantee
State's Authorized Representative-Photo Copy
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SECURITY AGREEMENT
This Security Agreement (the "Security Agreement") is made and given as of this _ day of
January, 2014, by ROSEMOUNT INC., a Minnesota corporation with its principal place of business at
8200 Market Boulevard, Chanhassen, Minnesota 55317 (the "Borrower"), in favor of the CITY OF
SHAKOPEE,MINNESOTA,a municipal corporation under the laws of Minnesota,with its offices at 129
Holmes Street South, Shakopee, Minnesota 55437, and its endorsees, successors and assigns (the
"Lender").
RECITALS
A. The Lender and the Borrower have entered z", a certain Agreement for Loan of
Minnesota Investment Fund — Forgivable Loan, dated as of the date hereof(the "Loan Agreement"),
pursuant to which the Lender will loan to the Borrower no' more tY7an Five Hundred Thousand and
no/100ths dollars ($500,000.00) (the "Loan") to 0",ance the acgwsltion of the equipment (the
"Equipment") described in EXHIBIT A attached hel'e 4, such Equlpmenf tof be located at the property
described in EXHIBIT B attached hereto (the Property"). The Borrower a payment obligations under
the Loan Agreement will be evidenced by a promissory,note(the"Note")dated as of the date hereof.
B. As security for the repayment of the Loan the fender has requiredifiat the Borrower
execute and deliver to the Lender this Security Agreement gra*, g a security interest to the Lender in the
Equipment.
C. The Note this Security Agreement, ild.any_other Instruments or documents given as
security for the Loan are hetemferred to as the"Loan Documents"
NOW, THEREFORE,for good and valuabld,COnsideration;the receipt and adequacy of which are
hereby acknowledged by th"e;?$orrower,dt is agreed as follows:
1. , Crian6 of Securi 4nterest. 'As security`fo the payment and performance of the Note and
z:. .
all the liabilities, oh]Igauons, and indebtedness of,the Borrower to the Lander due or to become due,
direct or indirect,absolute or contingenf,joint or several,howsoever created,now or hereafter at any time
created, arising, or evidenced under or pursuant to the Note or this Secur ty Agreement or any other
document orinstrument evidencing or securing the Note,the Borrower does hereby transfer, assign, and
grant to the Lender a security iatetest in ali.'of the Borrower's right title, and interest in and to the
following (he rematier,collectively referred to as the "Collateral"), whether now owned or hereafter
acquired or an sin
(a) the Equlpmenf;
(b) any and all proceeds of the foregoing.
2. Borrower's Representations Warranties and Covenants. The Borrower represents,
warrants,covenants,and agrees:
(a) Oreanization. The Borrower is a corporation organized under the laws of the State of
Minnesota, validly existing and in good standing under the laws of the State of Minnesota, and the
Borrower has full power and authority to execute,deliver, and perform the Loan Documents, and to own
its property and conduct its business as presently conducted and as proposed to be conducted.
1
435786v2 JAE SH155-290
(b) Authorization.The execution,delivery, and performance of this Security Agreement have
been duly authorized by all necessary action and will not:
G) require any consent or approval of any entity that has not been obtained;or
(ii) violate any provision of any indenture, contract, agreement, or instrument to
which the Borrower is a party or by which it is bound.
(c) Performance by Borrower. Unless the Borrower obtains the Lender's prior written
consent,the Borrower shall not:
(i) terminate its interest in any of the Collateral,oYf
(ii) sell, transfer, or assign, or offer to selisiitsfer or assign all or any part of the
Collateral or permit all or any part of the Collateral`t6;be sotd,transferred, or assigned; or
(iii) remove or consent to the removal of any of the Equrpment from the Property.
(d) Title to Collateral. The Borrower shall keep good and mar6 ble title to all of the
Collateral, and none of the Collateral is subject to aay lien or,Security interest except for the security
interest created by this Security Agreement and other security uiteiests consented tQ in writing by the
Lender. The Borrower has not granted,and will not grant or permit to exist,any lien or security interests
in all or a portion of the Collateral other than the hens in favor,oftbe Lender and other liens consented to
in writing by the Lender. The Borrower shall def [dtk�e Collatera(against all claims and demands of all
and any other persons at any time claiming aiiy interesf tereui adversetbShe Lender.
(e) Actions hFPr&&dinss. There ar uo actibng at law, suits in equity, or other
proceedings pending b;et`tlre or expected to be filed with any goverhiniental agency, commission, bureau,
tribunal, or other arbitratt6q,,proceedings against or affecting the Borrower that if adversely determined
would adversely affect the Borigwet s interest in the Collateral or would adversely affect the rights of the
Borrower to;�ledge aqd assign all or apatt of the Collateral or the rights and security afforded the Lender
hereunder.:;,
(f) s Insurance Th&Borroweragrees it will keep the Equipment insured at all times against
loss by fire"and.other hazards concerning which, in the judgment of the Lender, insurance protection is
reasonably necessary and in amounts sufficient to protect against loss or damage of the Equipment. Such
policy or pollcles'wil contain a loss payable clause in favor of the Lender or its successors or assigns, in
form satisfactory to tlieI ender, pioiWed, however, that the Borrower may, at its reasonable discretion,
self-insure the Equipment
(g) No Fixture Tf any of the Collateral is or becomes a fixture, the Borrower agrees to
furnish the Lender,at the Lender's request,with a statement or statements signed by all persons who have
or claim an interest in the real estate concerned,which statements shall provide that the signer consents to
the security interest created hereby and disclaims any interest in the Collateral as fixtures.
(h) Understandings Regarding Collateral. The Borrower acknowledges that the Collateral is
of the design, capacity, and manufacture specified for and by the Borrower, and that the Borrower is
satisfied that the same is suitable for its intended purposes. The Borrower further acknowledges and
agrees that the Lender has not made, and does not make, any representation, warranty, or covenant with
respect to merchantability, fitness for any purpose, durability, patent, copyright or trade mark
infringement, suitability, or capability of any item of Collateral in any respect or in connection with any
2
435786v2 3AE SH155-290
other purpose or use of the Borrower, or any other representation, warranty, or covenant of any kind or
character expressed or implied with respect thereto. The Borrower accordingly agrees not to assert any
claim whatsoever against the Lender based thereon. The Borrower further agrees,regardless of cause,not
to assert any claim whatsoever against the Lender for loss of anticipatory profits or consequential
damages.
G) Use of Collateral. The Collateral will be used for its intended business purpose and will
at all times be located at the Property.
0) Condition of Collateral. The Borrower will keep the Collateral in good condition and
repair,reasonable wear and tear excepted,will permit the Lender to,@}ter upon the Property at reasonable
times for the purpose of examining the Collateral.
(k) Costs of Collection. In the event of any actt64 otproceeding to collect or realize upon
the Collateral or to enforce any of the Lender's rights hereunder,the ObiTower shall pay:
(i) all of the Lender's attorneys£eps and other legal expenses, with interest thereon,
incurred by the Lender;
(ii) all taxes, levies, insurance expenses, and'"5 s of repairs toy or maintenance of,
the Collateral; and
(iii) all costs of the Lender jwcurred m taking possession of, disposing of or
preserving the Collateral after any Event of&tult(defined below).
3. Event of Default Upon the event of a de1541t,under the Loan Agreement, the Lender
may exercise any remedy available to it under the terms 3of.the Loan Agreement.
4. Further Assurances. ;;The Borrower,shall deliver to the Lender, promptly and at the
Borrower's expense, Umfiiin Commercial..Code ("Cdde") financing statements and evidence of tax
filings and payment xncludmg�Wit nt limit
a UCC.'t Financing Statement in substantially the form
set forth at 1 XHIBII t ,The Borrower agrees that: (1)4e Lender is authorized, at its option, to file a
carbon, &.Otographic, or other;reproduction of this Security Agreement as a financing statement and that
such statement shall be sufficient as 4 financing statement under the Code; and (ii) the Lender is
authorized t6,fRle financing statements or aendments thereto without the signature of the Borrower,
provided that if a:signature is requi[ed by law, then the Borrower appoints the Lender as the Borrower's
attorney-in-fact to�ute any such financing statements.
5. CumulafiV6 Remedies. All of the Lender's rights and remedies herein are cumulative and
in addition to any rights oX,reri a Pies available at law or in equity including the Code, and may be
exercised concurrently or separately. The Borrower shall pay all costs, expenses, losses, damages and
legal costs (including attorneys' fees) incurred by the Lender as a result of enforcing any terms or
conditions of this Security Agreement.
6. No Liability Imposed on Lender. The Lender shall not be obligated to perform or
discharge,nor does it hereby undertake to perform or discharge any obligation, duty,or liability,nor shall
this Security Agreement operate to place responsibility for the control, care, or management of the
Equipment upon the Lender.
7. Indemnification. The Borrower agrees to defend,protect,indemnify and hold the Lender
harmless of and from any and all liability, loss, and damage that the Lender does, may, or might incur
3
435786v2 SAE SH 155-290
under or by reason of this Security Agreement, and of and from any and all claims and demands
whatsoever which may be asserted against the Lender by reason of any alleged obligations or
undertakings to perform or discharge any of the terms, covenants, or agreements contained herein.
Should the Lender incur any such liability or be required to defend against any such claims or demands,
or should a judgment be entered against the Lender, the amount thereof, including costs, expenses, and
reasonable attorneys fees, shall bear interest thereon at the rate then in effect on the Note, shall be secured
hereby, shall be added to the Loan, and the Borrower shall reimburse the Lender for the same
immediately upon demand, and upon the failure of the Borrower so to do, the Lender may declare the
Loan immediately due and payable.
8. Expenses of Lender. All expenses in protecting, storing, warehousing, insuring,
handling and shipping of the Collateral, all costs of keeping the,,',CC611ateral free of liens, encumbrances
and security interests (other than the security interest created b�this Security Agreement) and the
removing of the same and all excise, property, sales, and use'ta'
xe$, imposed by state, federal, or local
authority on any of the Collateral or with respect to the sale. ereo&�JJlall be borne and paid for by the
Borrower and if the Borrower fails to promptly pay any"ounts thereof,hen due,the Lender may,at its
option, but shall not be required to, pay the same„and upon such pay m`eiht the same shall constitute
obligations and shall bear interest at the rate specified in the Note and shalf`,lie secured by the security
interests granted hereunder.
9. Continuing Rights The rights and powers of tfie Lender hereunder shall continue and
remain in full force effect until the Loan i8 Qaid,n full.
10. Books and Records TheBorrowermwill perm if:tfie,Lender and its representatives to
examine the Borrowers books and records`(tricJuding dafa processmgrecords and systems) with respect
to the Collateral and makq;copies=thereof at anq time and from tmle to hrn and the Borrower will furnish
such information repot tothe Lender and its repre edtafyves regarding the Collateral as the Lender and
its representatives may from time to tune request then ender shall`have the authority, at any time, to
require the Borrower to pl ace,upon the Borrower's bop,, and records relating to the Collateral and other
rights to payment covered bya e security interest created in this Security Agreement a notation stating
that any such Qollateral and other rights rof payment'ara subject to a security interest in favor of the
Lender
I T,; Effect on OtherAgreements Nothing in this Security Agreement shall be construed to
modify any telm of any other agreement to which the Lender and the Borrower are parties.
12. Release and Indemnification Covenants. Except for any breach of the representations
and warranties of tb6lender or the negligence or other wrongful act or omission of the following named
parties,the Borrower agrees to protect and defend the Lender and the governing body members, officers,
agents, servants and employees tfiereof, now and forever, and further agrees to hold the aforesaid
harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity
whatsoever arising or purportedly arising from the acquisition, construction, installation, ownership,
maintenance,and operation of the Equipment.
13. Modifications. This Security Agreement may be modified solely through written
amendments hereto executed by the Lender and the Borrower and approved by the Minnesota Department
of Employment and Economic Development.
14. Notices and Demands. Any notice, demand, or other communication under this Security
Agreement by either party to the other shall be sufficiently given or delivered only if it is dispatched by
registered or certified mall,postage prepaid,return receipt requested,or delivered personally:
4
435786v2 JAE SH155-290
(a) as to Lender: City of Shakopee, Minnesota
129 Holmes Street South
Shakopee,Minnesota 55379
Attention: City Administrator
(b) as to Borrower: Rosemount Inc.
8200 Market Boulevard
Chanhassen,Minnesota 55317
Attention: Vice President and Chief Financial Officer
With a copy to: Emerson Process Manage"; f
8000 Norman Center I3jivF'
Suite 1200
Bloomington,Minnesota 55437,,
or at such other address with respect to any party as fiat party may, from;time to time, designate in
writing and forward to the others as provided in this Section 14.
15. Conflict of Interests:Representatives Not Individually Liable No officer or employee of
the Lender may acquire any financial interest, direct or mcjre in this Secun"i"�
Agreemen the
Equipment, or in any contract related to the Equipment No dffcer, agent, or employee of the Lender
we
shall be personally liable to the Borror;,or any successor ln�interest, in the event of any default or
breach by the Lender or for any amount which may become due'to the Borrower or on any obligation or
term of this Security Agreement.
16. Bindingtffiict. Thy covenants and a teements4i this Security Agreement shall bind and
benefit the heirs, executors, administrators succe§sots, and assigns of the parties to this Security
Agreement.
17. None'of the provisions of this Security Agreement are intended to or shall be
merged h reason of°any deed transferring any interest iri the Property and any such deed shall not be
deemedto affect or impalf'e:provisions and covenants'ofthis Security Agreement.
18.` ;Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of
this Security Agreement are insetted for convenience of reference only and shall be disregarded in
construing or mteP ting any of its lovisions.
19. Counterparts, This Security Agreement may be executed in any number of counterparts,
each of whom shall constltuta,pne,and the same instrument.
20. Choice of Law and Venue. This Security Agreement shall be governed by and construed
in accordance with the laws of the State of Minnesota without regard to its conflict of laws provisions.
Any disputes, controversies, or claims arising out of this Security Agreement shall be heard in the state or
federal courts of Minnesota, and all parties to this Security Agreement waive any objection to the
jurisdiction of these courts,whether based on convenience or otherwise.
21. Waiver. The failure of any party to take any action or assert any right or remedy, or the
partial exercise by any party of any right or remedy, shall not be deemed to be a waiver of such action,
right,or remedy if the circumstances creating such action,right,or remedy continue or repeat.
5
435786v2 SAE SH155-290 -
22. Entire Agreement. This Security Agreement, with the other Loan Documents constitutes
the entire agreement between the parties pertaining to its subject matter and it supersedes all prior
contemporaneous agreements, representations, and understandings of the parties pertaining to the subject
matter of this Security Agreement.
23. Senarabiliri. Wherever possible, each provision of this Security Agreement and each
related document shall be interpreted so that it is valid under applicable law. If any provision of this
Security Agreement or any related document is to any extent found invalid by a court or other
governmental entity of competent jurisdiction, that provision shall be ineffective only to the extent of
such invalidity, without invalidating the remainder of such provision or the remaining provisions of this
Security Agreement or any other related document.
24 Immuni Nothing in this Security Agreeme{�t'shall�be construed as a waiver by the
Lender of any immunities, defenses, or other limitations on 1taFstlity`to which the Lender is entitled by
law, including but not limited to the maximum monetary (iiriits on liability established by Minnesota
Statutes,Chapter 466.
25. Other Matters. All representations and warranties contamed m this Security Agreement
or in any other agreement between the Borrower and the Lender shall survive the execution,delivery and
performance of this Security Agreement and the creation and payment of any mdeb*pess to the Lender.
The Borrower waives notice of the acceptance ofthis Security Aeeinent by the Len�eck`a
' The remamder of this page is mtenhonally left blank.)
6
435786v2 JAE SHI55-290
IN WITNESS WHEREOF,the Borrower has caused this Security Agreement to be duly executed
in its name and on its behalf and the Lender has caused this Security Agreement to be duly executed in its
name and on its behalf as of the date first above written.
ROSEMOUNT INC.
By
Its
l fs
By
Its
IS
i/Sri
S-1
435786v2 JAE SH155-290
written.Execution page of the Lender to Security Agreement, dated as of the date and year first above
CITY OF SHAKOPEE,MINNESOTA
By
Its Mayor
By , >
Its City Admmfsttafor
S-2
436786v2 JAE 8H165-290
EXHIBIT A
DESCRIPTION OF EQUIPMENT
[Insert list of equipment]
ljl i
A-1
435786v2 JAE SH 155-290
EXHIBIT B
DEVELOPMENT PROPERTY
Lot 1,Block 1, Valley Park Business Center First Addition, Scott County,Minnesota.
n�
B-1
435786v2 JAE SH155-290
EXHIBIT C
FORM OF UCC-1 FINANCING STATEMENT
4 IN
sr„s,
C-1
435786v2 JAE SH155-290
AGREEMENT FOR LOAN OF MINNESOTA INVESTMENT FUND—FORGIVABLE LOAN
This Agreement for Loan of Minnesota Investment Fund(the "Agreement") is made and entered
into as the _ day of January, 2014, by and between the CITY OF SHAKOPEE, MINNESOTA, a
municipal corporation under the laws of Minnesota(the "City"), and ROSEMOUNT INC., a Minnesota
corporation(the"Borrower").
WITNESSETH:
WHEREAS, the City has applied to the Minnesota Degartnt of Employment and Economic
Development for a Minnesota Investment Fund Grant (the `.`IvIC(rrpnt") pursuant to an application (the
"Grant Application")and received approval for said grant,
WHEREAS, Grant Agreement Number CRAP-13-0015 H F 14 (the "Grant Agreement")
between the Minnesota Department of Employment and Economic Develop ent and the City has been
executed and requires that the Borrower provide sufficient funds to complete fm2ticing and agree to loan
terms with the City regarding the MIF Grant; and
WHEREAS, the funds to be loaned. to the Borrower will be used to finan ce the purchase of
equipment to be installed in a facility acquired and renovated b'the Borrower which will be used by the
Borrower for manufacturing, a research and development lab,'`bffce space and warehouse space (the
an
"Facility") and will be considered a forgivable lo pzUvided that the<Borrower complies with the terms
of the business subsidy agreement set forth Jii Section 7 1 hereof(the."Business Subsidy Agreement");
and
WHEREAS,tha Parties heretoagree to rncoiporate into this Agreement by reference said Grant
Application and Grant Agreement as if fully set forth herein word for word.
NOW"THE it' s agreed by and between the parties hereto as follows:
ARTICLE 1
Definitions
Section 1.1. Defimttons.;In this Agreement, unless a different meaning clearly appears from the
context:
"Benefit Date"means the date the recipient puts the equipment into service. The Benefit Date is
anticipated to be March 15,2014.
"Borrower"means Rosemount Inc.,a Minnesota corporation.
"Business Subsidy Agreement" means the business subsidy agreement set forth in Section 7.1
hereof.
"City"means the City of Shakopee, Minnesota.
432672v2 JAE SH155-290
"Compliance Date"means the date that is two(2)years after the Benefit Date. The Compliance
Date is antipated to be March 15,2016.
"DEED"means the Minnesota Department of Employment and Economic Development.
"Development Property"means the real property described at Exhibit B attached to the Security
Agreement.
"Equipment" means the equipment purchased by the Borrower with the Loan and described in
EXHIBIT A hereto.
"Facility" means the construction and equipping of improvements consisting of an
approximately 285,000 square-foot build-out of an existing 500,000 square-foot building on the
Development Property in three phases, which shall include approximately 72,000 square feet of
manufacturing space,26,000 square feet of research and development space, 145,000 square feet of office
space and 42,000 square feet of warehouse space.
"Grant Agreement"means Minnesota Department of Employment and Economic Development
Grant Agreement#CDAP-13-0015-H-FY14.
"Grant Application" means the Grant Application submitted by the City to Minnesota
Department of Employment and Economic Development to obtain the MIF Grant,which incorporated the
Borrower's grant application.
"Grantor Agency" means the Minnesota Department of Employment and Economic
Development.
"Initial Disbursement Date"means the date of the first disbursement of any Loan Proceeds by
the City to the Borrower.
"Leveraged Funds"means the funds described in Section 2.2 of this Agreement.
"Loan"means the funds loaned by the City to the Borrower pursuant to this Agreement.
"Loan Proceeds"means the funds disbursed to the Borrower pursuant to this Agreement and any
proceeds thereof.
"MIF"means the Minnesota Investment Fund.
"MIF Grant" means the grant of funds by the Grantor Agency to the City pursuant to the Grant
Agreement.
"New Jobs"has the meaning set forth in Section 7.1(b)of this Agreement.
"Note"means the promissory note of even date herewith from the Borrower to the City.
"Project"means the Borrower's purchase of the Equipment with the assistance of the Loan.
"Security Agreement" means the security agreement of even date herewith between the
Borrower and the City.
432672v2 JAE SH155-290 2
"State"means the State of Minnesota.
"Termination Date"means the date of the final payment made to the City.
ARTICLE 2
Financing for Project
Section 2.1. Project Financing. The Borrower has secured a commitment for the financing
necessary to complete acquisition and renovation of the Facility and the purchase of the Equipment, in a
form and under conditions satisfactory to the Bank and the Borrower.
Section 2.2. Borrower's Equity and Other Financing. The Borrower shall commit not less than
$31,250,000 of equity and not less than $1,250,000 of other financing(exclusive of the Loan)to be used
for the acquisition and renovation of the Facility and the purchase of the Equipment, and other costs of
Facility.
Section 2.3. MIT Grant. The MIF Grant will be used by the City to make a loan to the Borrower
of not more than $500,000 for the purchase of the Equipment to be located on the Development Property.
The City's obligations under this Agreement are expressly contingent on the City's receipt of funds from
the Grantor Agency in an amount adequate to make the Loan.
ARTICLE 3
MIF Loan Terms and Conditions
Section 3.1. Basic Loan Terms. The principal amount of the Loan shall not exceed $500,000.
The Loan shall be forgiven by the City upon satisfaction by the Borrower of the terms of the Business
Subsidy Agreement. The Loan terns may not be modified without prior written approval from the
Grantor Agency. The Loan shall be used exclusively for the purchase of Equipment. In the event that all
or a portion of the Loan is not forgiven,the Loan shall be payable based on the terms and interest rate set
forth in Section 5.4 hereof.
Section 3.2. Prepayment. If the Loan is not forgiven,prepayment of the Loan may occur at any
time during the Loan without penalty.
Section 3.3. Assignment. If, prior to the Termination Date, the Borrower sells, conveys,
transfers, further mortgages or encumbers, or disposes of the Equipment, or any part thereof or interest
therein, without the prior written approval of the City or enters into an agreement to do any of the
foregoing,the Borrower shall immediately repay all amounts then outstanding on the Loan. This shall be
in addition to any other remedies at law or equity available to the City.
Section 3.4. Termination. This Agreement shall automatically terminate without any notice to
Borrower: (1) if no Loan Proceeds have been disbursed to the Borrower prior to ; or
(2)if (a) the Borrower has not received any disbursement of Loan Proceeds from the City; and (b)the
Borrower fails to pay its debts as they become due, makes an assignment for the benefit of its creditors,
admits in writing its inability to pay its debts as they become due,files a petition under any chapter of the
432672v2 JAE SH155-290 3
Federal Bankruptcy Code or any similar law, state or federal, now or hereafter existing, becomes
"insolvent" as that term is generally defined under the Federal Bankruptcy Code, files an answer
admitting insolvency or inability to pay its debts as they become due in any involuntary bankruptcy case
commenced against it, or fails to obtain a dismissal of such case within sixty (60) days after its
commencement or convert the case from one chapter of the Federal Bankruptcy Code to another chapter,
or is the subject of an order for relief in such bankruptcy case, or is adjudged a bankrupt or insolvent, or
has a custodian, trustee, or receiver appointed for it, or has any court take jurisdiction of its property, or
any part thereof, in any proceeding for the purpose of reorganization, arrangement, dissolution, or
liquidation, and such custodian, trustee, or receiver is not discharged, or such jurisdiction is not
relinquished,vacated,or stayed within sixty(60)days of the appointment.
Section 3.5. Security for Forgivable Loan. Before any disbursement of Loan Proceeds by the
City to the Borrower, the Borrower shall execute and deliver to the City the Note and the Security
Agreement.
ARTICLE 4
Default and Collateral
Section 4.1. Default. The Borrower shall be in default under this Agreement upon the happening
of any one or more of the following events:
(a) the Borrower fails to pay when due any amount payable on the Loan and such
nonpayment is not remedied within ten(10)business days after written notice thereof to the Borrower by
the City;
(b) the Borrower is in breach in any material respect, of any obligation or agreement under
this Agreement(other than nonpayment of any amount payable on the Loan)and remains in breach in any
material respect for thirty (30) business days after written notice thereof to the Borrower by the City;
provided, however, that if such breach shall reasonably be incapable of being cured within such thirty
(30) business days after notice, and if the Borrower commences and diligently prosecutes the appropriate
steps to cure such breach,no default shall exist so long as the Borrower is proceeding to cure such breach;
(c) if any material covenant, warranty, or representation of the Borrower shall prove to be
untrue in any material respect, provided such covenant, warranty or representation of the Borrower
remains untrue in any material respect for thirty (30) business days after written notice thereof to the
Borrower by the City; provided, however, that if such untruth shall reasonably be incapable of being
corrected within such thirty (30) business days after notice, and if the Borrower commences and
diligently prosecutes the appropriate steps to correct such untruth, no default shall exist so long as the
Borrower is so proceeding to correct such untruth;
(d) the Borrower, on or after the Initial Disbursement Date, fails to pay its debts as they
become due, makes an assignment for the benefit of its creditors, admits in writing its inability to pay its
debts as they become due, files a petition under any chapter of the Federal Bankruptcy Code or any
similar law, state or federal, now or hereafter existing, becomes "insolvent" as that term is generally
defined under the Federal Bankruptcy Code, files an answer admitting insolvency or inability to pay its
debts as they become due in any involuntary bankruptcy case commenced against it, or fails to obtain a
dismissal of such case within sixty (60) days after its commencement or convert the case from one
chapter of the Federal Bankruptcy Code to another chapter, or be the subject of an order for relief in such
432672v2 JAE SH155-290 4
bankruptcy case,or be adjudged a bankrupt or insolvent, or has a custodian,trustee,or receiver appointed
for it, or has any court take jurisdiction of its property, or any part thereof, in any proceeding for the
purpose of reorganization, arrangement, dissolution, or liquidation, and such custodian, trustee, or
receiver is not discharged, or such jurisdiction is not relinquished, vacated, or stayed within sixty (60)
days of the appointment;
(e) a final judgment is entered against the Borrower that the City reasonably deems will have
a material,adverse impact on the Borrower's ability to comply with the Borrower's obligations under this
Agreement;
(f) the Borrower sells, conveys,transfers,encumbers,or otherwise disposes of all or any part
of the Equipment without the prior written approval of the City;
(g) the Borrower merges or consolidates with any other entity without the prior written
approval of the City;
(h) there is a loss, theft, substantial damage, or destruction of all or any part of the
Equipment that is not remedied to the City's satisfaction within sixty (60) business days after written
notice thereof by the City to the Borrower;or
(i) there is a default under the Note or the Security Agreement.
Section 4.2. Remedies Upon Default. (a) Upon the occurrence of an event of a default,the City
shall have the right as its option and without demand or notice, to declare all or any part of the Loan
immediately due and payable, and in addition to the rights and remedies granted hereby, the City shall
have all of the rights and remedies available under the Uniform Commercial Code and any other
applicable law.
(b) Upon the occurrence of an event of a default,the Borrower agrees to make the collateral
available to the City within ten(10)days after written request therefore by the City. The Borrower agrees
to pay the costs and expenses incurred by the City in enforcing its rights under this Agreement, including
but not limited to the City's attorneys fees. If any notice of sale, disposition or other intended action by
the City is required by law to be given to the Borrower, such notice shall be deemed reasonably and
properly given if mailed to the Borrower at the Development Property or at such other address of the
Borrower as may be shown herein,at least fifteen(15)days before such sale,disposition or other intended
action.
Section 4.3. Collateral. The Borrower hereby grants to the City a security interest in the
Equipment pursuant to the terms of the Security Agreement in an amount equal to the amount of the Loan
disbursed hereunder and pursuant to the Security Agreement.
Section 4.4. Default on Business Subsidy Act Requirements.
(a) Upon the occurrence of an Event of Default arising from a breach by the Borrower of any
provision of Section 7.1 of this Agreement, if the implicit price deflator for government consumption
expenditures and gross investment for state and local governments prepared by the Bureau of Economic
Analysis of the United States Department of Commerce for the 12-month period ending March 31 of the
previous year, exceeds four percent(4%) on the date of the earliest such Event of Default, the Borrower
shall, in addition to any other payment required hereunder, pay to the City the difference between the
present value of the interest actually paid and accrued on the Loan as of the date of the payment required
by this Section 4.4, and the amount of interest that would have been paid and accrued on the Loan if the
432672v2 JAE SH155-290 5
interest rate of the Loan at all times had been equal to the implicit price deflator on the date of the earliest
Event of Default.
(b) Nothing in this Section 4.4 shall be construed to limit the City's rights or remedies under
any other provision of this Agreement, and the provisions of Section 4.4(a) are in addition to any other
such right or remedy the City may have available.
ARTICLE 5
Loan Disbursement Provisions
Section 5.1. Payment Requisition Documentation and Format. Loan disbursements shall be for
the purchase of the Equipment and shall not exceed $500,000. The Loan shall be disbursed to the
Borrower only after the City has received from the Borrower an invoice or invoices for equipment costs.
Upon receipt of such invoice or invoices, the City will disburse an amount equal to the amount of the
invoice or invoices, up to a total disbursement amount of$500,000. Upon receipt of such invoice or
invoices, the City will disburse an amount equal to five percent (5%) of the amount of the invoice or
invoices,up to a total disbursement amount of$500,000 or the Borrower can wait to submit its request for
disbursement until all of the equity described in Section 2.2 has been expended and then submit evidence
of all equity having been expended and its request for disbursement under this Agreement. The first
disbursement must occur prior to . The Loan must be fully disbursed by March 15,2016.
Section 5.2. Provision for Evidentiary Materials. No disbursements of Loan funds shall be made
until all evidentiary materials required by the Grantor Agency have been submitted and approved by the
Grantor Agency. These evidentiary materials shall include,but not necessarily be limited to,the materials
described in Article 6 hereof and the invoices described in Section 5.1 hereof.
Section 5.3. Project Time Frame. The time frame outlined in the Grant Application pertaining to
the Project shall be met by the Borrower.
Section 5.4. Loan Terms. If the Loan must be repaid pursuant to a default by the Borrower with
respect to the Business Subsidy Agreement, the term of the Loan shall be one(1)year, commencing as of
the date of any default by the Borrower, and the Loan shall bear interest at the rate of four percent(4.0%)
per annum. Interest shall commence to accrue as of the first day of the first month following such default.
Section 5.5. Loan Repayments Schedule. If the Loan must be repaid pursuant to a default by the
Borrower with respect to the Business Subsidy Agreement, payments of principal and interest shall
commence on the first day of the first month following such default and shall continue on the first day of
each and every month thereafter until paid in full. Such payments shall fully amortize the portion of the
Loan that must be repaid over one (1) year; provided, however, the entire remaining unpaid balance of
principal and interest shall be due and payable in full on the first day of the thirteenth (13th) month
following such default.
Section 5.6. Leveraged Funds. The Leveraged Funds described in Section 2.2 hereof and the
Grant Application must be used for the same purposes and under the same terms,rates, and conditions as
specified therein unless prior written consent is received from the Grantor Agency.
432672v2 JAE SH155-290 6
ARTICLE 6
Provision of Evidentiary Material Requirement
Section 6.1. Provision of Evidentiary Materials. In addition to those materials described in
Section 5.2 of this Agreement, the Borrower shall provide the City with all evidentiary materials
according to the format and timetable cited in the Grant Agreement. The City will forward these
materials to the Grantor Agency and assist in expediting reviews leading to a release of the Loan.
Section 6.2. Documentation of Use of Funds. The Borrower must provide the City with
necessary documentation that the Loan and the Leveraged Funds have been used for the items and
purposes stated in the Grant Application prior to submitting the final progress report and requesting grant
closeout from the Grantor Agency.
Section 6.3. Job Creation Documentation. The Borrower shall submit to the City a written
report by January 15 of each year and shall terminate on the Compliance Date if the Borrower is not then
in breach of Section 7 hereof, on forms provided by the City. This information shall be provided by the
Borrower and must include at a minimum:
(a) the number of New Jobs created and the dates on which each were created and filled;
(b) the job title,wages,benefits and hourly value of such benefits for each New Job; and
(c) the total number of jobs maintained by the Borrower within the State of Minnesota.
ARTICLE 7
Business Subsidy Agreement
Section 7.1. Business Subsidy Agreement. The provisions of this Section constitute the
"business subsidy agreement" for purposes of the Minnesota Business Subsidy Act (Minnesota Statutes
Sections 116J.993-995, as amended and any successor statute).
(a) The Borrower acknowledges and agrees that the provisions of Minnesota's Business
Subsidy Act apply to this Agreement, as Borrower is receiving government assistance under the terms of
this Agreement.
(1) The subsidy provided to the Borrower includes the Loan in the amount of
$500,000 made hereunder which will be used for the purchase of the Equipment by the Borrower.
(2) The public purposes and goals of the subsidy are to provide additional
employment opportunities and increase the tax base in the City and the State.
(3) The goals for the subsidy are to retain the Developer as a Minnesota based
business and create jobs that pay a livable wage,per Section 7.1(b)hereof.
(4) If the goals are not satisfied, the Borrower shall make payment to the City as
required in Section 4.4 hereof.
432672v2 JAE SH155-290 7
(5) The subsidy is needed to induce the Developer to retain and expand a portion of
its operations to Minnesota and enhance job and tax base in the City and the State. Without the
subsidy provided pursuant to this Agreement and other subsidies provided to the Developer, the
retention of this business in Minnesota by the Developer would be economically infeasible.
(6) The Borrower must continue operations at the Facility for at least five years
following the Benefit Date.
(7) The Borrower does have a parent corporation.
Name: Emerson Electric Co.
Address:
(8) In addition to the assistance provided under this Agreement, the Borrower has
received or expects to receive with respect to its new business, the following financial assistance
from other "grantors" as defined in the Business Subsidy Act: an infrastructure grant in the
amount of approximately $900,000; a loan in the amount of $350,000 from the Economic
Development Authority for the City of Shakopee, Minnesota; tax abatement from the City in the
maximum amount of $590,496; tax abatement from Scott County in the maximum amount of
$570,608, tax abatement from Independent School District No. 191 (Burnsville — Eagan —
Savage) in the maximum amount of$366,925; sales tax exemptions from the State of Minnesota
in the approximate amount of $745,493; fiber optic assistance from Scott County valued at
$ ;and SAC/WAC credits from the City of Shakopee,Minnesota,valued at$
(b) Within two years after the Benefit Date,the Borrower shall create or cause to be created
at least 125 new permanent,full-time equivalent jobs at the Facility located on the Development Property.
The 125 New Jobs described in this section(the"New Jobs")must pay a wage of at least$14.50 per hour,
exclusive of benefits. If the Borrower fails to meet the job creation goal and wage level commitment by
the Compliance Date, the City will be required to return all, or a proportional share of the Grant, as
described in Exhibit A of the Grant Agreement.
(d) The Borrower shall maintain a total of 1,983 full-time equivalent jobs(including the New
Jobs created)within the State of Minnesota during the term of this Agreement.
(e) The New Jobs required by this Section 7.1 are provided in conjunction with Section 3.12
of the Contract for Private Development, dated June 27, 2013 (the "Contract'), between the City, the
Economic Development Authority for the City of Shakopee, Minnesota, Scott County, and Independent
School District No. 191 (Burnsville—Eagan — Savage) and not in addition to the New Jobs required by
Section 3.12 of the Contract.
Section 7.2. Reporting_ The Borrower shall provide to the City information regarding job and
wage goals and results for two years after the Benefit Date or until the goals are met, whichever is later.
This reporting requirement will expire if the goals are met by the Compliance Date. If the goals are not
met, the Borrower must continue to provide information on the Loan until the Loan is repaid. If the
report is not submitted by March 15, the City shall mail the Borrower a warning within one week of the
required filing date. If,after 14 days of the postmarked date of the warning,the Borrower fails to provide
a report, the Borrower must pay to the City a penalty of$100 for each subsequent day until the report is
filed. The maximum penalty shall not exceed$1,000.
Reporting Documentation includes the following:
432672v2 JAE SH155-290 8
(a) The type,public purpose, and amount of the subsidy;
(b) The hourly wage of eachjob created with separate bands of wages;
(c) The sum of the hourly wages and cost of benefits;
(d) The date the job and wage goals will be reached;
(e) A statement of goals identified in the subsidy agreement and an update on
achievement of those goals;
(f) The location of the recipient prior to receiving the business subsidy;
(g) If the recipient was previously located in another site in Minnesota, the reason
that the project was completed on this site;
(h) If the company has a parent corporation,the name and address;
(i) A list of all financial assistance by all grantors for the project;and
0) Other information the City may request.
ARTICLE 8
First Source Emnlovment Agreement
Section 8.1. First Source Em llument Referral Agreement. Pursuant to Minnesota Statutes,
Section 116L.66 and any successor statutes, the Borrower shall list any vacant or new positions with the
local Workforce Development Center.
ARTICLE 9
Provision of Monitoring Information Related To Proiect Progress
Section 9.1. Provision of Progress Information. The Borrower shall provide to the City
information for incorporation into progress reports, as required by the Grantor Agency and as needed by
the City,to monitor Project implementation for compliance with Grantor and local guidelines.
ARTICLE 10
Nondiscrimination, Prevailing Wage
Section 10.1. Nondiscrimination. The provisions of Minnesota Statutes, Section 181.59, which
relate to civil rights and discrimination, shall be considered a part of this Agreement as though wholly set
432672v2 JAE SH155-290 9
forth herein and the Borrower shall comply with each such provision throughout the term of this
Agreement.
Section 10.2. Prevailing Wage. The provisions of Minnesota Statutes, Section 116J.871, which
relate to payment of prevailing wages to contractors, shall be considered a part of this Agreement as
though wholly set forth herein and the Borrower shall comply with each provision throughout the term of
this Agreement.
ARTICLE 11
Borrower's Acknowledements Representation and Warranties
Section 11.1. Acknowledgments. (a) The Borrower acknowledges that the City, in order to
obtain funds for part of the City's activities in connection with the Project,has applied for the MIF Grant
to the Grantor Agency under the Minnesota Investment Fund Program, Business and Community
Development Division, and that the City has entered into the Grant Agreement with the Grantor Agency,
setting forth the terms, conditions, and requirements of the MIF Grant. The Borrower further
acknowledges that it has made certain representations and statements in the Grant Application concerning
its activities relating to the Project, and that the Borrower is designated and identified under the Grant
Agreement.
(b) A copy of the Grant Agreement shall be on file in the offices of the City. In the event
any provision of this Agreement relating to the Borrower's obligations hereunder is inconsistent with the
provisions of the Grant Agreement relating to the Borrower's activities there under, the provisions of the
Grant Agreement shall prevail.
(c) The Borrower acknowledges that nothing contained in the Grant Agreement or this
Agreement, nor any act of the Grantor Agency or the City, shall be deemed or construed to create
between the Grantor Agency and the Borrower (or, except as Borrower and lender between the City and
the Borrower) any relationship, including but not limited to that of third-party beneficiary, principal and
agent,limited or general partnership,or joint venture.
Section 11.2. Representations and Warranties. The Borrower warrants and represents, in
connection with the MIF Grant and for the benefit of the Grantor Agency and the City,that:
(a) Representations, statements, and other matters provided by the Borrower relating to those
activities of the Facility and the Project to be completed by the Borrower, which were contained in the
Grant Application,were true and complete in all material respects as of the date of submission to the City
and that such representations, statements, and other matters are true as of the date of this Agreement and
that there are no adverse material changes in the financial condition of the Borrower's business since the
date of the Grant Application.
(b) To the best of the Borrower's knowledge,no member, officer, or employee of the City, or
its officers, employees, designees, or agents, no consultant, member of the governing body of the City,
and no other public official of the City, who exercises or has exercised any functions or responsibilities
with respect to the Project or the Facility during his or her tenure shall have any interest,direct or indirect,
in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the
Facility or the Project or in any activity,or benefit there from,which is part of the Facility or the Project.
432672v2 JAE SH155-290 10
(c) The Borrower acknowledges that the Grantor Agency, in selecting the City as recipient of
the Grant, relied in material part upon the assured completion of the Facility or the Project to be carried
out by the Borrower, and the Borrower warrants that said Project will be carried out as promised.
(d) The Borrower warrants that to the best of its knowledge, it has obtained all federal,state,
and local governmental approvals,reviews,and permits required by law to be obtained in connection with
the Facility and the Project and has undertaken and completed all actions necessary for it to lawfully
execute this Agreement as binding upon it.
(e) The Borrower warrants that it shall keep and maintain books, records, and other
documents relating directly to the Leveraged Funds, and that any duly authorized representative of the
Grantor Agency shall, at all reasonable times, have access to and the right to inspect, copy, audit, and
examine all such books, records, and other documents of the Borrower until such time that the City and
the Grantor Agency have both determined that all issues, requirements, and close-out procedures relating
to or arising out of the MIF Grant have been settled and completed.
(f) The Borrower warrants that no transfer of any or all of the Loan Proceeds by the City to
the Borrower shall be or be deemed an assignment of Loan Proceeds, and the Borrower shall neither
succeed to any rights, benefits, or advantages of the City under the Grant Agreement,nor attain any right,
privileges,authorities,or interest in or under the Grant Agreement.
(g) The Borrower warrants that it has fully complied with all applicable local, state, and
federal laws pertaining to its business and will continue such compliance throughout the terms of this
Agreement. If at any time notice of noncompliance is received by the Borrower, the Borrower agrees to
take any necessary action to comply with the local, state,or federal law in question.
ARTICLE 12
Immieration Reform and Control Act of 1986 as Amended
Section 12.1. Immigration Reform and Control Act of 1986 as Amended. The Borrower
acknowledges that it has registered and is participating with the E-Verify system through the Department
of Homeland Security. All new employees hired after February 1,2008,shall have been determined to be
eligible for employment in the United States by the E-Verify system. The Borrower shall report to the
City on compliance with the Immigration Reform and Control Act of 1986, as amended throughout the
term of the Loan. If it is determined that the Borrower is not in compliance with the Immigration Reform
and Control Act of 1986, as amended, or knowingly employs persons in violation of the United States
immigration laws, or have not begun or implemented the E-Verify program, the Borrower will be found
in default of this Agreement.
ARTICLE 13
Other Special Conditions
Section 13.1. Antitrust. The Borrower hereby assigns to the State of Minnesota any and all
claims for overcharges as to goods and services provided in connection with this Agreement resulting
432672v2 JAE SH 155-290 11
from antitrust violations that arise under the antitrust laws of the United States or the antitrust laws of the
State.
Section 13.2. Workers Compensation Insurance. The Borrower has obtained workers
compensation insurance as required by Minnesota Statutes, Section 176.181, subd. 2. The Borrower's
workers compensation insurance information is as follows:
(a) Company Name: Self-insured through Berkley Risk Administrators
(b) Policy Number: 222100
(c) Local Agent: Sandy Reiffenberger,Phone:612-766-3243 SReiffenberger a berkleyrisk com
Section 13.3. Business with the State of Minnesota: State Tax Laws. The Borrower is required
by Minnesota law to provide its Minnesota tax identification number if it does business with the State of
Minnesota. This information may be used in the enforcement of Federal and State tax laws. Supplying
these numbers could result in an action to require the Borrower to file State tax returns and pay delinquent
State tax liabilities. This Agreement will not be approved unless these numbers are provided. These
numbers will be available to Federal and State tax authorities and State personnel involved in the payment
of State obligations.
Minnesota Tax ID: 8915542
Federal Employer ID: 270354660
Section 13.4. Grant Closeout. The Borrower shall, prior to grant closeout from the Grantor
Agency, provide the City with all documentation necessary to demonstrate that the Loan has been used
for the items and purposes set forth in the Grant Application.
Section 13.5. Review of Documents. The Borrower shall not be entitled to any disbursement of
Loan proceeds until the City's legal counsel and the Grantor Agency have reviewed and approved this
Agreement and the exhibits attached hereto.
Section 13.6. Effect on Other Agreements Nothing in this Agreement shall be construed to
modify any term of any other agreement to which the City and the Borrower are parties.
Section 13.7. Release and Indemnification Covenants. Except for any breach of the
representations and warranties of the City or the negligence or other wrongful act or omission of the
following named parties, the Borrower agrees to protect and defend the City and the goveming body
members, officers, agents, servants, and employees thereof, now and forever, and further agrees to hold
the aforesaid harmless from any claim, demand, suit, action, or other proceeding whatsoever by any
person or entity whatsoever arising or purportedly arising from the acquisition and operation of the
Equipment,the operation of the Facility and the Borrower's activities on the Development Property.
Section 13.8. Modifications. This Agreement may be modified solely through written
amendments hereto executed by the Borrower and the City and approved by the Grantor Agency.
Section 13.9. Notices and Demands. Any notice, demand, or other communication under this
Agreement by either party to the other shall be sufficiently given or delivered only if it is dispatched by
registered or certified mail,postage prepaid,return receipt requested, or delivered personally:
432672v2 JAE SH155-290 12
(a) as to the City: City of Shakopee,Minnesota
129 South Holmes Street
Shakopee,Minnesota 55379
Attention: City Administrator
(b) as to the Borrower: Rosemount,Inc.
8200 Market Boulevard
Chanhassen,Minnesota 55317
Attention: Vice President and Chief Financial Officer
With a copy to:
Emerson Process Management
8000 Norman Center Drive
Suite 1200
Bloomington,MN 55437
Attn: Vice President and Chief Counsel
or at such other address with respect to any party as that party may, from time to time, designate in
writing and forward to the others as provided in this Section 13.9.
Section 13.10. Conflict of Interests• Representatives Not Individually Liable. No officer or
employee of the City may acquire any financial interest, direct or indirect,in this Agreement,the Facility,
the Project,the Development Property or in any contract related thereto. No officer, agent, or employee
of the City shall be personally liable to the Borrower or any successor in interest in the event of any
default or breach by the City or for any amount that may become due to the Borrower or on any
obligation or term of this Agreement.
Section 13.11. Binding Effect. The covenants and agreements in this Agreement shall bind and
benefit the heirs, executors,administrators, successors,and assigns of the parties to this Agreement.
Section 13.12. Provisions Not Merged With Deed. None of the provisions of this Agreement are
intended to or shall be merged by reason of any deed transferring any interest in the Development
Property and any such deed shall not be deemed to affect or impair the provisions and covenants of this
Agreement.
Section 13.13. Titles of Articles and Sections. Any titles of the several parts, articles, and
sections of this Agreement are inserted only for convenience of reference and shall be disregarded in
construing or interpreting any of its provisions.
Section 13.14. Countemarts. This Agreement may be executed in any number of counterparts,
each of which shall constitute one and the same instrument.
Section 13.15. Choice of Law and Venue. This Agreement shall be governed by and construed
in accordance with the laws of the state of Minnesota without regard to its conflict of laws provisions.
Any disputes, controversies, or claims arising out of this Agreement shall be heard in the state or federal
courts of Minnesota, and all parties to this Agreement waive any objection to the jurisdiction of these
courts,whether based on convenience or otherwise.
432672v2 JAE SH155-290 13
Section 13.16. Waiver. The failure or delay of any party to take any action or assert any right or
remedy,or the partial exercise by any party of any right or remedy shall not be deemed to be a waiver of
such action, right, or remedy if the circumstances creating such action, right, or remedy continue or
repeat.
Section 13.17. Entire Agreement. This Agreement, with the exhibits hereto, constitutes the
entire agreement between the parties pertaining to its subject matter and it supersedes all prior
contemporaneous agreements, representations, and understandings of the parties pertaining to the subject
matter of this Agreement.
Section 13.18. Seoarability. Wherever possible, each provision of this Agreement and each
related document shall be interpreted so that it is valid under applicable law. If any provision of this
Agreement or any related document is to any extent found invalid by a court or other governmental entity
of competent jurisdiction,that provision shall be ineffective only to the extent of such invalidity,without
invalidating the remainder of such provision or the remaining provisions of this Agreement or any other
related document.
Section 13.19. Immuni . Nothing in this Agreement shall be construed as a waiver by the City
of any immunities, defenses, or other limitations on liability to which the City is entitled by law,
including but not limited to the maximum monetary limits on liability established by Minnesota Statutes,
Chapter 466.
(The remainder of this page is intentionally left blank.)
432672v2 JAE SH 155-290 14
IN WITNESS WHEREOF, the City has caused this Agreement for Loan of Minnesota
Investment Fund to be duly executed in its name and on its behalf, and the Borrower has caused this
Agreement for Loan of Minnesota Investment Fund —Forgivable Loan to be duly executed in its name
and on its behalf as of the date first above written.
CITY OF SHAKOPEE,MINNESOTA
By
Its Mayor
By
Its City Administrator
S-I
432672v2 JAE SH 155-290
Execution page of the Borrower to the Agreement for Loan of Minnesota Investment Fund,dated
as of the date and year first above written.
ROSEMOUNT INC.
By
Its Vice President and Controller
S-2
432672v2 JAE SH155-290
EXHIBIT A
DESCRIPTION OF EQUIPMENT
[Insert identifying information and serial numbers for air compressor equipment]
A-1
432672v2 JAE SH 155-290
PROMISSORY NOTE
$500,000 January.2014
ROSEMOUNT INC., a Minnesota corporation (the "Maker"), for value received, hereby
promises to pay to the CITY OF SHAKOPEE, MINNESOTA (the "City"), or its assigns (the City and
any assigns are hereinafter referred to as the "Holder"), at its designated principal office or such other
place as the Holder may designate in writing,the principal sum of Five Hundred Thousand and No/100ths
Dollars ($500,000) or so much thereof as may be advanced under this Note, with interest as hereinafter
provided,in any coin or currency which at the time or times of payment is legal tender for the payment of
private debts in the United States of America. The principal of this Note is payable in installments due as
follows:
1. The funds loaned by the City to the Maker (he ". Pan") pursuant to the terms of the
Agreement for Loan of Minnesota Investment Fund—Forgtvable Loamof even date herewith(the "Loan
Agreement"),between the City and the Maker, shall not bear interest
2. The Loan shall be forgiven by the City
1. upon satisfaction byihe:Maker of the terms of the
Business Subsidy Agreement set forth in Section 7. of the Agreement for Loan of Minnesota Investment
Fund—Forgivable Loan of even date herewith(the"Ld AgreemefiV),between the City and the Maker.
3. If all or a portion of the Loan is not forgrvent the portion of the Loan that must be repaid
shall bear interest at a rate of four percenf.(4 0°6)per annum soddriterest shall commence to accrue as of
the first day of the first month following a default%y the MakeY With respect to the Business Subsidy
Agreement. Payments of principal and interest ShAIl commence oii:the first day of the first month
following a default by the,Bo;roryer with respect,to the Business Subsid}2Agreement and shall continue
on the first day of each and-every""' month thereafter,until paid in hill ,Such payments shall fully amortize
the Loan over one (1 gear; provlded;�however th6,edhtire remaining unpaid balance of principal and
interest shall be due and'tiayable in full on the frsC day of the thirteenth (13th) month following such
default.
4 j_ The Maker shalI have the righf to prepay the principal of this Note, in whole or in part,
without prepayment penalty
5. This Note is given pursuant'to the oan Agreement and the Grant Agreement and is
secured by a Security Agreement:of even date`herewith(the "Security Agreement"), between the Maker
and the City, covering certain property located in Scott County,Minnesota. In the event any such security
is found to be invalid f6r,whatever reason, such invalidity shall constitute an event of default hereunder.
All of the agree en,, conditions, covenants, provisions, and stipulations contained in the Loan
Agreement, or any ins trument sec uring this Note 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. It is agreed that time is of the
essence of this Note. If a default occurs under the Loan Agreement,or any instrument securing this Note,
then the Holder of this Note may at its right and option, without notice, declare immediately due and
payable the principal balance of this Note, together with any costs of collection including attorney fees
incurred by the Holder of this Note in collecting or enforcing payment hereof,whether suit be brought or
not, and all other sums due hereunder, or under any instrument securing this Note. The Maker agrees that
the Holder of this Note may,without notice to the Maker of this Note and without affecting the liability of
the Maker of this Note, accept additional or substitute security for this Note,or release any security or any
party liable for this Note or extend or renew this Note.
432673v2 JAE SH155-290 I
6. The remedies of the Holder of this Note as provided herein, and in the Loan Agreement,
or any other instrument securing this Note, shall be cumulative and concurrent and may be pursued
singly, successively, or together, and, at the sole discretion of the Holder of this Note, may be exercised
as often as occasion therefore shall occur; and the failure to exercise any such right or remedy shall in no
event be construed as a waiver or release thereof.
The Holder of this Note shall not be deemed, by any act of omission or commission, to have
waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Holder
of this Note and then only to the extent specifically set forth in the writing. A waiver with reference to
one event shall not be construed as continuing or as a bar to or waiver of any right or remedy as to a
subsequent event. This Note may not be amended,modified, or changed except only by an instrument in
writing signed by the party against whom enforcement of any such amendment, modifications, or change
is sought.
7. This Note shall be governed by and construed L acoocdance with the laws of the State of
Minnesota without regard to its conflict of laws provisigns._% Any disputes,FQntroversies,or claims arising
out of this Note shall be heard in the state or e.PP. of Mmnesota and all parties to this Note
waive any objection to the jurisdiction of these courts;whether based on convenience or otherwise.
8. The headings used in this Note are solely for conyfn1.ence of referehce,are no part of this
Note,and are not to be considered In construing or nterpretmg this,Note.
9. This Note,with the Secuil Agreement and any;gther instruments or documents given as
security for the loan(collectively,the Load Documents ), constitutes the entire Note between the parties
pertaining to its subject matter and it supersedes all prlor,contemporaneous Notes, representations, and
understandings of the parttes pertaining to the sn6�ect matted of this Note
10. WherdVer possible each provtsion of this Note and each related document shall be
interpreted so that it is valid under applicable law , If any provision of the Security Agreement or the
Loan Agreement or any related document is to any extent found invalid by a court or other governmental
entity of competent aunsdiction,tliat provi sion,shall lie ineffective only to the extent of such invalidity,
without i id'ating tKe remainder of such provision oz the remaining provisions of this Note or any other
relateddocnent.
IT IS HEREBY CERTIFIED AND RECITED that all conditions, acts, and things required to
exist, happen and,Ie performed' ' cedent to'6k in the issuance of this Note do exist, have happened, and
have been performed in regular and due form as required by law.
(The remainder of this page is intentionally left blank.)
432673v2 JAE SH155-290 2
IN WITNESS WHEREOF, the Maker has caused this Note to be duly executed as of the
day of January,2014.
ROSEMOUNT INC.
By
Its Vice President arid.Controller
i
�r
432673v2 JAE SH155-290 S-1