HomeMy WebLinkAbout6603 (Res.)f
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RESOLUTION NO. 6603
RESOLUTICV RELATING TO A $700,000 CCWERCIAL IEVE[OPMENT REVENUE NOTE: AUTHORIZING THE
ISSUANCE OF PURSUANT TO MINNESOTA STATUTES, CHAPTER 474.
BE IT RESOLVED by the City Council of the City of Stillwater, Minnesota as follows:
Section 1. Definitions
1.10. In this Resolution the following terms, when used with initial capital letters,
have the following respective meanings unless the context hereof or use herein clearly
requires otherwise:
Act: the Minnesota Municipal Industrial Development Act, Minnesota Statutes, Chapter
474, as amended;
Assignment: the Assignment of Rents and Jeases, to be given by the Fee Owner and the
Partnership in favor of the Lender;
City: the City of Stillwater, Minnesota, its successors and assigns;
Equipment: those items defined as such in Section 1-1 of the Mortgage;
Fee Owner. hboley Lander Partnership No. 1, a Minnesota general partnership, its successors
and assigns;
Fixtures: those items defined as such in Section 1-1 of the Mortgage;
Guaranty: the Guaranty Agreement to be executed by John W. Hooley, Charles M. Hooley, and
Ernest R. Tkueson in favor of the balder;
Iaprovena1ts: the retail supermarket facility of approximately 40,000 square feet to be
constructed by the Partnership in accordance with the Plans and Specifications (as defined in
the LoanAgreement), together with all related facilities;
Land: the real estate deserted in Exhibit A to the Mortgage;
Lender: Northwestern National Life Insurance Company, its successors and assigns;
Loan Agreement: the Loan Agreement to be executed by the City and the Partnership;
Loan Agreeent Assignment: The assignment of Loan Agreement, to be given by the City
in favor of the Le der;
Mort e: the Combination Mortgage and Security Agreement, to be given by the Fee Owner
and Partnership in favor of the Lender;
Note: the $700,000 Commercial Development Revenue Note (Hooley Land Partnership No. 2
Project to be issued by the City pursuant to this Resolution;
Partnership: Hooley Land Partnership No. 2, a Minnesota general partnership, its successors
and assigns;
Project: the Land, the Improvements, the Fixtures and the Equipment as they may at any
time exist;
Project Costs: those costs defined as such in Section 1.01 of the loan Agreenent;
Resolution: this resolution of the City, adopted January 23, 1979, authorizing the
issuance of the Note.
Section 2. Findings. It is hereby fond and declared that:
(a) the real property and Improvements described in the Loan Agreement and the Mortgage
constitute a Project authorized by the Act;
(b) the purpose of the Project is, and the effect thereof will be to promote the public
welfare by the attraction, encouragement and development of economically sound industry and
commerce so as to prevent the emergence of or to rehabilitate, so far as possible, blighted and
marginal lands and areas of chronic uneoploymatt; the retention of industry to use the avail-
able resources of the moronity in order to retain the benefit of its existing investment in
educational and public service facilities; halting the armament of talented, educated personnel
of netu to age to other areas and thus preserving the economic and hymn resources needed as a
base for providing governmental servtes and facilities; more intensive development of land
available in the commnity to provide an adequate and better balanced tax base to finance the
increase in the anon and cost of govermental services;
(c) the Project when completed will add to the tax base of the City, and will accordingly
be of direct benefit to the taxpayers of the City as well as those of the County and School
District in which the City is located;
(d) the Project has been approved by the Commissioner of Securities of the State of
Minnesota as tending to further the purposes and policies of the Act;
(e) the financing of the Project, the issuance and sale of the Note, the execution and
delivery of the loan Agreement and the loan Agreeent Assignment and the perfonrence of all
covenants and agreements of the City contained in the Loan Agreement and the loan Agreement
Assignment and of all other acts and things required under the Constitution and laws of the
State of t and the Wan
and bindinggoobligati.onssota to o the the Cite, the Loan ity enforceableiineaccccordance with theireementterms �are�author authorizedt valid
by the Act;
(continued on page 23)
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RESOLUTION NO. 6603 - continued
(f) it is desirable that the Camercial Development Revenue Note in the amount of
$700,000 be issued by the City upon the terms set forth herein, and that the City assign
its interest in the Loan Agreement and grant a security interest therein to the Lender as
security for the payment of the principal of and interest and premium, if any, on that Note;
to
(d) the loan payments contained the so asL to produced incaseement aree and revenue suffiixed, and iccientbe
to
revised from time to tire as necessary,P
provide for prompt payment of principal of and interest on the Note issued under this Resolution
when due, and the loan Agreement also provides that the Partnership is required to pay all
expenses of the operation and maintenance of the Project including, but without limitation,
adequate insurance thereon and all taxes and special assessments levied upon or with respect
to the Land payable during the term of the Loan Agreement; and
(h) under the provisions of Minnesota Statutes, Section 474.10, and as to be provided
in the Note, the Note is not to be payable from nor charged upon afunds °of Ci
ty other
eof,
than the revenue under the Loan Agreement pledged to the paymentany t Cis cnot
tel
subject to any liability thereon; no Holder of the note shall ever have the right to
any exercise of the raving power of the City to pay the Note or the interest thereon, nor to
enforce payment thereof against any property of the City exrept the Project, or portions
thereof, mortgaged or otherwise enambered by the hbrtgage and the Assignment; the Note
issued hereunder shall recite that the Note, including interest thereon, is payable solely
from the revenue under the Loan Agreement pledged to the payment thereof; and the Note shall
not corefitute a debt of the City within the meaning of any constitutional or statutory
limitation; provided, however, that nothing contained in this paragraph (h) shall impair the
rights of the Holder or Holders of the Note to enforce covenants made for the security thereof
as provided in Minnesota Statutes 474.11.
Section 3. Authorization and Sale
3.01. Authorization.---- The City is authorized by the Act to issue revenue bonds and
loan the proceeds thereof to business enterprises to finance the acquisition and construction
of "projects" as defined in the Act, and to make all contracts, execute all instruments and do
all things necessary or convenient in the exercise of r. uch authority.
3.02. Preliminary City Approval. By preliminary resolution duly adoptec by the Council
on July 11, 1978, this Council approved the sale of a revenue note pursuant to the Act and the
loan of the proceeds to the Partnership for the construction of the ject�tabl�lemaand
ds as designed
for use as a retail supermarket facility and authorized and preparation
may be appropriate to the Project.
3.03. Approval of Documents. Pursuant to the above, there have been prepared and presented
to this Council copies of the following documents, all of which are now, or shall be, placed on
file in the office of the City Clerk:
(a) the Loan Agreement;
(b) the Assignment,
(c) the Loan Agreement Assignent
(d) the Mortgate; and
(e) the Guaranty Agreement.
The forms of the documents listed in (a) through (e) above d, with approved uchtca City
insertions and additions as are deemed appropriateby parties and
Attorney.
Section 4. Authorizations. Upon the cacpletion of the Loan Agreanant and the loan Agree-
ment Assignment, approved in Section 3.03 hereof, and execution thereof by the Partnership and
the Lender, as the raga may be, the Mayor and the City Clerk shall execute the same on behalf
of the City and shall execute the Note in substantially the form as the Fonn of Note set forth
following Section 5.01 hereof on behalf of the City, and shall execute su..h other certifications,
documents or instruments as band counsel or counsel for the Lender shall require, subject to the
approval of the City Attorney, and all certifications, recitals and representations therein shall
constitute the certificates, recitals and representations of the City. Execution of any instrument
or ducument by one or more appropriate officers of the City shall constitute, and shall be deemed
the conclusive evidence of, the approval and authorization by the City and the Council of the
instrument or document so executed. In the absence or disability of the Mayor, any of the
documents authorized by this resolution to be executed, shall be executed by the acting n ft r,
and in the absence of the City Clerk, by such officer of the City who,
in the the
City Attorney, may execute such documents.
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Section 5. The Note.
5.01. Form and Authorized Amount. The Note shall be issued substantially in the form here-
inafter set forth, with such appropriate variations, omissions and insertions as are permitted or
required by this Resolution, and in accordance with the further provisions of this Section, in
the total principal amount of $700,000.
(continued on page 24)
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RESOLU1TON NO. 6603 - continued
FORM OF HOPE
UNITED STATES OF AMERICA
STATE OF )lnlgESOTA
COUNTY OF WASHINGTO
CITY OF STILINATER
Commercial Development Revenue Note
(Henley land Partnership No. 2 Project)
$700,000
The City of Stillwater, Minnesota, a municipal cucpviation of the State of Minnesota (the
City), for value received, hereby pranises to pay to the order of MORTtb1ESTEIN7 NATIONAL LIFE
INSURANCE CIIPANY, or assigns (the Holder), at its principal office in Mumeapolis, Minnesota,
or at such other place as the Folder may designate in writing, from the source and in the manner,
and with interest thereon as hereinafter provided, the principal sum of SEVEN HUNDRED THOUSAND
DOLLARS ($700,000), with interest on the unpaid principal anoint at the rate of eight and three -
eighths percent (8-3/87.) per mama, in any coin or currency which at the time or tines of payment
is legal tender for the payment of public or private debts in the United States of America. This
Note is payable in installments due on the first day of each moth as follows:
(a) on February 1, 1979, an ammmt equal to the interest accrued monthly on the
outstanding pricnipal of this Note; and
(b) camatcing on March 1, 1979 and on the first day of each month therefter to and
including February 1, 1994, in equal monthly installments of Five Thousand Five Hundred
Eighty-two and 50/100ths Dollars ($5,582.50) each, and the entire unpaid principal and
accrued interest thereon, if not sooner paid, to be due and payable on March 1, 1994, all
payments to be applied first to interest and then to principal.
All interest hereon shall be cmpeted on the basis of the actual umber of days elapsed
on the assumptions that each moth contains thirty (30) days and each year three hundred sixty
(360) days, except that prior to February 1, 1979, the payment required hereunder shall be node
on the basis of actual days elapsed in a three hundred sixty (360) day year.
Notwithstanding the foregoing, in the evert that the interest on this Note becomes
subject to federal or State of Minnesota income taxation pursuant to a Determination of Tax-
ability as defined in the loan Agreement dated January 25, 1979 (the Loan Agreement) between the
City and Hooley Land Partnership No. 2 (the Partnership), the Holder of this Note may, by written
notice of election given to the City and the Partnership within 90 days after such Holder receives
notice of such Deterudnation of Taxability, elect either (1) to have the interest rate on the
Note increased to ten and one -quarter percent (10-1/4%) per annun from the Date of Taxability as
Loan defined in the Agreement, in which case the monthly installment payments
from
and after such Date of Taxability shall be competed at such increased rate and the City shall
pay to the Holder of this Note and to any prior Holder the aggregate difference between (A) the
amounts actually paid between the Date of Taxability and the date of such payment and (B) the
mounts that would have been paid during such period at such increased interest rate, or (2)
to call this Note for redeuption and prepayment in full, with prepayment penalty as hereinafter
provided.
The Holder of this Note shall have the option, upon written notice to the City and the
Partnership, to call the Note for redemption and prepayment in full if (i) the interest of this
Note becomes subject to a federal or State of Minnesota incase taxation pursuant to a DDeterndn-
ation of Taxability (provided such option is exercised within 90 days after such Holder receives
notice of such Determination of Taxability), or (ii) as a result of changes in the Constitution
of the State of Minnesota or the United States or of legislative or administrative action (whether
state or federal) or of a final decree, judgment or order of any court or administrative body
(whether state or federal), the loan Agreement shall have becme void or unenforceable or impossible
of performance in accordance with the intent and purpose of the parties express therein. In either
such case, the City shall, rot later than 90 days after receiving written notice of such call for
redemption and prepayment, pay to the Holder, the then outstanding principal balance of this Note,
together with accrued interest (at the rate of 8-3/8% per amain) to the date of such payment, plus
the then applicable prepayment premiun, as hereinafter set forth.
Except as hereinbefore provided with respect to the rights of the Holder of this Note to
call this Note for redemption and prepayment in full, the principal of this Note is not subject to
prepayment prior to the expiration of the eighth loan year. Fran and after the expiration of the
aigjith loan year, the principal of this Note may be prepaid at any time, either in whole or in
part, on any monthly installment payment date upon payment of a price equal to the principal being
so prepaid plus accrualinterest to the date of prepayment and subject to a premium expressed as a
percentage of the principal being so prepaid as follows:
(continued on page 25)
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RESOLUTION NO. 6603 - continued
IIIPN YEAR PREMIUM
s 5%
10 4%
11 3%
12 27�
r 13 or thereafter 1%
(*he 5% prepayment premium shall also apply in the event that the Holder of this
Note shall call for the redemption and prepayment of this Note in full during the first eight
loan years, as hereinbefore provided )
The first loan year is defined as the twelve-month (12) period c®encing with the
date of the Note. Subsequent loan years shall run consecutively, each commencing upon the
anniversary of the conmencenent of the first loan year. Any prepayments shall be made on at
least thirty (30) days' advence written notice to the Holder of this Note and shall not suspend
or reduce required installmc..` payments. All prepayments, after deduction of accrued interest
and prepayment preien, shall be applied to reduce the principal balance of this Note. Partial
prepayments nay be made only on or as a regular monthly installment payment date.
This Note constitutes an issue in the total authorized face amount of $700,000. This
Note is issued by the City pursuant to the authority granted by Minnesota Statutes ,Chapter 474,
as amended (the Act), for the purpose of providing funds for a Project, as defined in Minnesota
Statutes, Section 474.02, Subdivision la, consisting of certain real estate and construction of
improvements thereon, and paying necessary expenses incidental thereto, such funds to be loaned
by the City to the Partnership pursuant to a Resolution adopted by the City on January 23. 1979
(the Resolution) and the Loan Agreement, thereby assisting activities in the public interest
and for the public welfare of the City. This Note is secured by an Assignment of Loan Agreement
dated January 25, 1979 (the Loan Agreement Assignment) between the City and the Holder, a
Carbination Mortgage and Security Agreement dated January 25, 1979 (the Mortgage) given by
Hooley hand Partnership No. 1 (the Fee Owner) and the Partnership in favor of the Holder, an
Assignment of Rents and Leases dated January 25, 1979 (the Assignment) given by the Fee Owner
and the Partnership in favor of the Holder, and a Guaranty Agreement dated January 25, 1979
(the Guaranty) between John W. Hooley, Charles M. Hooley and Ernest R. Ttueson and the Holder.
As provided in the Resolution and subject to certain limitations set forth therein,
the City will, upon request of the Holder, register this Note upon its books. Prior to any
f;y such registration, this Note is transferable upon the books of the City at the office of the
City Clerk 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 Clerk,
duly executed by the Holder or its duly authorized attorney. Upon such transfer the City Clerk
will note the date of registration and the name and address of the new Holder upon the books
of the City and in the registration blank appearing below. Alternatively, the City will at the
request of the Holder issue new notes in an aggregate principal amount equal to the
ipal amount id
d
principal balance of this Note, and of like �� except reggis in the name of the registered
the
Holder of the monthly f installments b payable
Holder or whose
vane this Noe i be designatedegby thetheHolder. The City may deem and treat
eg the
person in wonthe this then is last owner
upon the books of the City ue with sueh registra-
tion rated on Note as the absolute curer thereof, whether or not overdue, for the purpose of
receiving payment of or on account of the principal balance, redemption price or interest and
►wa for all otter 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
sun or suns so paid, and the City shall not be affected by any notice to the contrary.
All of the agreements, conditions, covenants, provisions and stipulations contained in
the Resolution, the Iran Agreement and the loan Agreement Assignment 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. If a default occurs under this Note, or under the loan Agreement, the Mortgage, the
Assigment or the Guaranty, or if the Partnership sells, conveys, transfers or otherwise disposes
of all or any part of its interest in the Mortgaged Property (as defined in the Mortgage) without
the prior written consent of the Mortgagor thereunder, then the Holder may at its right and
option (subject, however, to such notice as may be required under paragraph (d) of Section 6-1
of the Mortgage) declare immediately due and payable the principal balance of this Note and
interest accrued thereon to the date of declaration of such default, together with any attorney's
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 Loan Agreement, the Mortgage, the Assign-
ment or the Guaranty. The Holder nay extend the tine of payment of interest or principal
f
and
this Note, without notice to or consent of any party liable hereon,
ny
such party.
This Note shall not be payable from nor charged upon any funds of the City other than
the revenue under the Loan Agreement pledged to the payment thereof, nor shall the City be
subject to any liability thereon. No Holder or Holders of this Note shall ever have the right
keel to compel any exercise of the taxing power of the City to pay this Note or the interest thereon,
nor to enforce payment thereof against any property of the City except the Project, or portions
thereof, mortgaged or otherwise encumbered by the Mortgage and theupon
property
signment� of teee sCity,
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not constitute a charge, lien, or encumbrance, legal or equitable,
(continued on page 26)
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RESOWITON NO. 6603 - continued
except the Project, or portions thereof, mortgaged or otherwise encumbered by the Mortgage
and the Assignment. This Note, including interest thereon, is payable solely from the revenue
under the Loon Agreement pledged to the payment thereon. This note shall not constitute a
debt of the City within the meaning of any constitutional or statutory limitation. However, nothirg
contained in this paragraph shall impair the rights of the Holder or Polders of this Note to
enforce covenants snide for the security thereof as provided under the provisions of Minnesota
Statutes, Section 474.11.
The Holder 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
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 evert.
IT 1S HEREBY CERTIFIED AND RECITED that all conditions, acts and things required to exist,
have beand be an performed regularformed lardad to or in the issuance due form as required byf� Note do exist, have happened and
IN WITNESS WHEREOF, the City has caused this Note to be duly executed by its duly authorized
officers and its corporate seal affixed all as of the day of
CITY OF STILIJATER, MINNESOTA
(SEAT.)
Attest:
City Clerk
By
PROVISIONS AS TO REGISTRATION
The ownership of the unpaid Principal Balance of this
thereon is registered on the books of the City of Stillwater in
last noted below.
Date of Name and Address of
Registration Registered holder
Mayor
Note and the interest accruing
the name of the registered folder
Signature of
City Clerk
5.02. Note Terms. The Note shall be designated the Comercial Development Revenue
Note (liooley Land Partnership No. 2 Project), and shall:
(a) be dated as of the date of delivery thereof to, and payment therefor, by the Lander;
(b) be in the total principal amount of $700,000,
(c) bear interest on the unpaid principal balance from date of issue until paid or
discharged as herein provided at the rate of eight and three -eighths (8-3/8%) per arm,
except that in the event the interest an the note becomes subject to federal income taxation
pursuant to a "Determination of Taxability" as defined in the loan Agreement, the Holder of
the Note may elected either (1) to have the interest rate on the Note increased to ten and one -
quarter precent (10-1/4%) per ann m fran the date of Taxability, as defined in the Wan Agreement,
or (2) to call the Note for redemption and prepayment in full, all as provided in the Loan
Agreement and in the Form of Note following Section 5.01 hereof.
(d) be payable in installments on the first day of each nonth as follows:
(1) on February 1, 1979, an amount equal to interest accrued monthly on the
principal balance of the Note;
(2) commencing on March 1, 1979 and the first day of each month thereafter to and
including February 1, 1994, in equal monthly installments of Five Thousand Five Hundred
Eighty-two and 50/100ths Dollas($5,582.50) each, and the entire unpaid principal and
accrued interest thereon, if rot sooner paid, to be due and payable on March 1, 1994,
all payments to be applied first to interest and then to principal.
(e) be payable as to both principal and interest to the registered holder thereof at the
principal office of the holder for the account of the City;
(f)te for
be subjectto
the
�encce of certains of the der or events assssets to forthlinhtheoForm of Note
emption
and prepaymentn
following Section 5.01 hereof;
(g) be subject to prepayment in any event after the eighth loan year upon 30 days'
I"h
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written notice and payment of a prepayment premiun, as provided in the Form of Note
following Section 5.01 hereof.
5.03. Execution. The Note shall be executed on behalf of the City by the signatures
of the mayor and the City Clerk, and shall be sealed with its corporate seal. In case any
officer wfiose signature shall appear on the Note shall cease to be such officer before the
delivery thereof, such signature shall neverthless be valid and sufficient for all purposes.
5.04. Mnitilated, lost and Destroyed Note. In case the Note shall become mutilated
or be destroyed or lost, the City shall cause to be executed and delivered a new Note of like
outstanding principal amount and tenor in exchange and substitution for and 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 City in connection therewith, and
in case the Note is destroyed or lost, its filing with the City evidence satisfactory to it.
5.05. Registration of Transfer. The City will, upon the request of the Holder,
register this Note upon its books. Prior to any such registration, the Note shall be trans-
ferable upon the books of the City 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, duly executed by the Holder or its duly authorized attorney.
Upon such transfer the City Clerk shall note the date of registration and the nee an Mad Tess
of the new Holder on the books of the City and in the registration blank appearing
Alternatively, the City shall, at the request and expanse of the Holder, issue new notes, in
aggregate outstanding principal amount equal to that of the Note surrendered, and of like tenor
except as to comber, principal -amunt and the amxmt of the monthly installments payable there-
under, and registered in the none of the Holder or such transferee as say be designated by the
Holder. The City may deem and treat the person in whose name each Note is last registered
upon the books of the City with such registration noted on the Note as the absolute owner there-
of, whether or not overdue, for the purpose of receiving payment or or on account of the
principal balance, redemption 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 sun or sums so paid, and the City shall not
be affected by any notice to the contrary.
5.06. Delivery and Use of Proceeds. Prior to delivery of the Note, the documents
referred to below shall be completed and executed in form and substance as approved by the City
Attorney. The City shall execute and deliver to the Lender the Note in the total principal amount
of $700,000, together with the following:
(a) a duly certified copy of this Resolution:
(b) original, executed counterparts of the Loan Agreement and the loan Agreement
Assignment; and
(c) such closing certificates, opinions and related documents as are required by
bond counsel.
Upon delivery of the Note and the above items to the bonder, the fader shall, on
behalf of the City, disburse to the Partnership the proceeds of the Note in reimbursement of
Project Costs pursuant to the provisions of the Loan Agreement, and the proceeds so disbursed
shall betner-
ship shall
de thhe Ciittyynwiithhaaffuulllfaacccounting othe f all fudthe srdisbursedforr Projeor ct Oasts.
Section Section 6. Limitations of the City's Obligations. Notwithstandingther m� conrcontatain
in the Note, the Lean Agreement, the LoanAgreement Assignment, or any fads of the City
to in Section 3.03, the Note shall not be payable from nor charged upon any
other than the revenue under the Loan Agreement pledged to the payment thereof, nor shall the
City be subject to any liability thereon. No Holder or Holders of the Note shall ever have the
right to compel any exercise of the taring power of the City to pay the Note or the interest
thereon, nor to enforce payment thereof against any property of the City except the Project, or
portions thereof, mortgaged or otherwise encumbered by the Mortgage and the Assignment. The Note
shall not constitute a charge, lien, or encumbrance, legal or equitable, upon any property or
the City, except the Project, or portions thereof, mortgaged or otherwise encumbered by the
Mortgage and the Assignment. The Note, including interest thereon, is payable solely from the
revenue under the Loan Agreement pledged to the pament thereon. The Note shall not constitute
a debt of the City within the meaning of any constitutional or statutory limitation. However,
nothing contained in this Section 6 shall impair the rights of the Holder or Holders of the Note
to enforce covenants male for the security thereof as provided under the provisions of Minnesota
Statutes, Section 474.11.
Adopted by the Council this 23rd day of January, 1979.
Published- January 26, 1979
Mayor
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