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2013-10-01 Otsego Revenue Bond Loan AgreementS Return to: Sherburne Co Abstract 351 Main Street Elk River MN 55330 & Title Co JA& Doc. No. Al248711 OFFICE OF THE COUNTY RECORDER WRIGHT COUNTY, MINNESOTA Certified Filed and/or Recorded an 10/1/2013 at 10:15 AM Check #: 58464 Fee: $0.00 Payment Code 02 Addl. Fee Barb Gabrelcik, County Recorder EXECUTION 6 ",WAIGHT COUNIV REGIVMTIONTM fti Tr war $10,000,000 City of Otsego Revenue Bonds (Evans Park, Inc. Project), Series 2013 COMBINATION MORTGAGE, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT AND ASSIGNMENT OF LEASES AND RENTS Dated as of September 1, 2013 EVANS PARK, INC. to CITY OF OTSEGO, MINNESOTA This document drafted by: Dorsey & Whitney LLP (Helde) 50 South Sixth Street, Suite 1500 Minneapolis, Minnesota 55402 COMBINATION MORTGAGE, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT AND ASSIGNMENT OF LEASES AND RENTS This COMBINATION MORTGAGE, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT AND ASSIGNMENT OF LEASES AND RENTS, dated as of September 1, 2013 (this "Mortgage"), is entered into by EVANS PARK, INC., a Minnesota nonprofit corporation (referred to alternatively as the "Corporation," the "Mortgagor" or the "Assignor"), in favor of the CITY OF OTSEGO, MINNESOTA, a Minnesota municipal corporation, as mortgagee hereunder (referred to alternatively as the "Municipality," the "Mortgagee" or the "Assignee"). WHEREAS, the Corporation and the Municipality, are entering into a Loan Agreement (the "Loan Agreement") of even date herewith, pursuant to which the Municipality will lend (herein referred to as the "Loan") to the Corporation the gross proceeds of the $10,000,000 City of Otsego, Minnesota Revenue Bonds (Evans Park, Inc. Project), Series 2013 (the `Bonds"); and WHEREAS, the Municipality and U.S. Bank National Association, as trustee (the "Trustee") are entering into a Trust Indenture of even date herewith (the "Indenture"), pursuant to which the Municipality will assign to the Trustee, as security for the owners of the Bonds, the Loan Repayments and covenants and all other rights and interests of the Municipality in the Loan Agreement (except for the rights of the Municipality thereunder relating to expenses, indemnity and advances of the Municipality); and WHEREAS, the Trustee is authorized by the Indenture to receive as part of the Mortgaged Property any and all other property conveyed, mortgaged, assigned or transferred, or in which a security interest is granted, by (among others) the Corporation, and to hold and apply the Mortgaged Property pursuant to the provisions of the Indenture; and WHEREAS, the Mortgagor has agreed to mortgage and grant a security interest in the Mortgaged Property, as defined herein and as further described in Exhibit A hereto, to secure the obligations of the Corporation under the Loan Agreement, including its obligation to make Loan Repayments at times and in amounts sufficient to pay when due the principal of, premium (if any) on and interest on the Bonds; and WHEREAS, consistent with its Contract for Private Development with the City of Otsego, the Corporation has agreed to reserve at least 12 units in the Project (as defined in the Loan Agreement)for residents whose income is 50% or less of the area median income, within the requirements of Section 142(d) of the Code; and WHEREAS, accordingly, Minnesota Statues, Section 287.04(f) provides for an exemption from the Minnesota mortgage registry tax,of the principal amount of this Mortgage because the Loan is made under a low and moderate income or other affordable housing program and the mortgagee is a federal, state or local government agency; and WHEREAS, in order to so provide security for the payment of the Bonds, the Municipality is assigning its interests in this Mortgage to the Trustee, pursuant to an Assignment of Mortgage of even date herewith; NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged; in consideration of the purchase and acceptance of the Series 2013 Bonds by the persons who, from time to time, may become the owners thereof; and to secure the due and punctual payment of any and all liabilities of the Corporation under the Loan Agreement, including (without limitation) all Loan Repayments payable thereunder, and the payment of all fees and expenses and advances of the Municipality and the Trustee under the Loan Agreement, the Indenture and this Mortgage, the Mortgagor does hereby grant, bargain, sell, convey, and warrant and assign to the Mortgagee, its permitted successors and assigns a lien on and security interest in, and does hereby mortgage and pledge unto the Mortgagee, its successors and assigns, forever, with power of sale, the following: , All of its right, title and interest in and to the tracts, parcels and interests in land described in Exhibit A hereto (the "Land") and the buildings, structures and other improvements now standing or at any time hereafter constructed or placed upon the Land (the `Buildings"), including but not limited to (i) all building materials, supplies and equipment now or hereafter located on the Land and suitable or intended to be incorporated in any building, structure, or other improvement located or to be erected on the Land, (ii) all heating, plumbing and lighting apparatus, motors, engines and machinery, electrical equipment, incinerator apparatus, air conditioning equipment, water and gas apparatus, pipes, faucets, and all building service equipment and other fixtures of every description which are now or may hereafter be placed or used upon the Land or in any building or improvement now or hereafter located thereon, (iii) all additions, accessions, increases, parts, fittings, accessories, replacements, substitutions, betterments, repairs and proceeds to and of any and all of the foregoing, and (iv) all hereditaments, easements, appurtenances, estates, and other rights and interests now or hereafter belonging to or in any way pertaining to the Land or to any building or improvement now or hereafter located thereon. II All furnishings, furniture, equipment and all other tangible personal property of any nature whatever now or hereafter located in the Buildings or elsewhere on the Land, exclusive of personal property owned by residents (the "Equipment"), including all additions, accessions, increases, parts, fittings, accessories, replacements, substitutions, betterments, repairs and proceeds to and of any and all such property, excluding any items released or disposed of in accordance with the Loan Agreement. 2 III All rents, issues, condemnation awards, insurance proceeds, and similar revenues and income arising from the ownership of the Land, the Buildings and the Equipment and all proceeds and products thereof (herein collectively called "Revenues and Income"). To Have and To Hold the Land, Buildings and Equipment (the "Mortgaged Property"), and the Revenues and Income thereof, together with all privileges, hereditaments and appurtenances thereunto now or hereafter belonging, or in anywise appertaining, and the proceeds thereof, unto the Mortgagee, its successors and assigns forever. In Trust Nevertheless, upon the terms and trust as part of the Mortgaged Property set forth in the Indenture, for the equal and proportionate benefit, security and protection of all owners of the Bonds, without preference, priority or distinction as to lien or otherwise of any of the Bonds over any of the others. Provided, nevertheless, that these presents are upon the express condition that if the Corporation shall pay all Loan Repayments under the Loan Agreement, and if the Corporation shall strictly observe and perform all of the terms, covenants and conditions contained in the Loan Agreement and this Mortgage, then this Mortgage and the estate, right and interest of the Mortgagee in and to the Mortgaged Property, and the Revenues and Income thereof, shall cease and be and become void and of no force and effect, and shall be satisfied at the Corporation's expense, otherwise to remain in full force and effect. The Mortgagor and the Mortgagee further agree as follows: 1. Definitions Applicable -Loan Restrictions Exemption from Mortgage Regis Tax. Terms used in this Mortgage not otherwise defined in this Mortgage, but defined in the Loan Agreement or the Indenture, shall have the same meaning as in the Loan Agreement or Indenture unless the context clearly indicates a contrary meaning. The Corporation agrees, as a condition to the execution and delivery of the Loan Agreement and this Mortgage and consistent with its Contract for Private Development with the City of Otsego, to reserve at least 12 units in the Project (as defined in the Loan Agreement)for residents whose income is 50% or less of the area median income, within the requirements of Section 142(d) of the Code. Accordingly, the principal amount of this Mortgage is exempt from the Minnesota Registry Tax under the provisions of Minnesota Statues, Section 287.04(f). 2. Amount and Maturity of Series 2013 Bonds; Loan Rea ents. The Corporation represents and agrees as follows: (a) The Series 2013 Bonds shall be in the aggregate principal amount of $10,000,000. The final stated maturity thereof is October 1, 2043. (b) Loan Repayments are required to be made monthly by the Corporation in order to pay principal, premium (if any) and interest of the Series 2013 Bonds when and 3 as the same shall become due, or when required to be redeemed, as more fully provided in the Loan Agreement and Indenture. 3. Additional Payments. Under the Loan Agreement, the Corporation will be obligated, in addition to the Loan Repayments described above, to pay all required rebate payments due to the United States in respect of the Bonds under Section 148(f) of the internal Revenue Code, the fees and expenses of the Trustee and any paying agent of the Bonds, fees and expenses of the Municipality, and any advances by the Municipality or the Trustee to meet obligations of the Corporation .for (among other things) taxes, special assessments, utility charges, insurance premiums, and liens in connection with the Mortgaged Property and also to provide indemnity to the Municipality, all as more fully provided in the Loan Agreement, which obligations are additional indebtedness intended to be secured by this Mortgage. 4. Release of Property. Property included in the Mortgaged Property may be released from the lien of this Mortgage as provided in the Loan Agreement. 5. Warranty of Title; Permitted Encumbrances. The Mortgagor does hereby covenant, represent and warrant that it is the lawful owner of and has good right and lawful authority to grant, bargain, sell, convey, warrant, mortgage, assign and pledge the Mortgaged Property and Revenues and Income thereof as provided herein; that the Mortgagor is and will continue to be well and truly seized of good and marketable title to the Mortgaged Property; that the Mortgaged Property and Revenues and Income thereof are free and clear of all mortgages, liens, pledges, charges and encumbrances, excepting only Permitted Encumbrances; and that the Mortgagor does warrant and will defend the title to the Mortgaged Property and Revenues and Income thereof against all claims and demands whatsoever not specifically excepted herein. "Permitted Encumbrances" shall mean Permitted Encumbrances as defined in the Loan Agreement and Indenture, including those encumbrances identified in Exhibit B hereto. 6. Events of Default, Remedies. If any Event of Default as defined in the Loan Agreement shall occur and be continuing, the Trustee shall have authority (i) to accelerate the Loan Repayments and to declare the Loan immediately due and payable as provided in the Loan Agreement and Indenture, and (ii) to pursue one or more of the remedies provided for in the Loan Agreement and Indenture respectively, and in lieu thereof or addition thereto, one or more of the following remedies and provisions for foreclosure or enforcement of this Mortgage: (a) The Trustee may proceed to protect and enforce its rights by a suit or suits in equity or at law, either for the specific performance of any covenant or agreement contained herein or in aid of the execution of any power herein granted, or for the foreclosure of this Mortgage, or for the enforcement of any other appropriate legal or equitable remedy. (b) The Trustee shall have and may exercise with respect to all personal property and fixtures which are part of the Mortgaged Property all the rights and remedies accorded upon default to a secured party under the Uniform Commercial Code, as in effect in the State of Minnesota. If notice to the Corporation of intended disposition of such property is required by law in a particular instance, such notice shall be deemed 4 commercially reasonable if given (in the manner specified in the Loan Agreement) at least 10 calendar days prior to the date of intended disposition. (c) The Trustee shall be entitled, without notice, except that which is required by law, and without any showing of waste of the Mortgaged Property, inadequacy of the Mortgaged Property as security, or insolvency of the Corporation, to the appointment of a receiver of the rents .and profits of the Mortgaged Property including those past due, as permitted by Minnesota Statutes § 576.01. The Trustee or any receiver shall be entitled to receive and dispose of the Revenues and Income of the Mortgaged Property and to sue for and recover any account or other item of Revenues and Income from the Corporation or any account debtor or other third person. Subject to any order of a court appointing a receiver or otherwise having jurisdiction of the Mortgaged Property, the Trustee in its discretion may apply the Revenues and Income received by it as provided in Section 576.01, subdivision 2, as follows: (i) to the application of tenant security deposits as required by Minnesota Statutes § 504.20, (ii) to the payment when due of prior or current real estate taxes or special assessments with respect to the mortgaged premises, or the periodic escrow for the payment of the taxes or special assessments, (iii) to the payment when due of premiums for insurance of the types required by the Loan Agreement or this Mortgage, or the periodic escrow for the payment of the premiums, (iv) to the just and reasonable compensation of the Trustee for its own services and for the services of counsel, agents and employees by it properly engaged and employed, (v) to the reimbursement of advances made by the Mortgagee pursuant to the provisions of the Loan Agreement or this Mortgage, (vi) to the payment of the indebtedness secured hereby, (vii) to the expenses of operating the Mortgaged Property and conducting the business thereof, and (viii) to the repair, maintenance, renewal, replacement or alteration of the Mortgaged Property. (d) The Trustee may (and is hereby authorized and empowered to) foreclose this Mortgage by action or advertisement, pursuant to the statutes of the State of Minnesota in such case made and provided, power being expressly granted to sell the Mortgaged Property at public auction and convey the same to the purchaser in fee simple and to apply the proceeds arising from such sale, first, as provided in the Indenture, to the payment of the indebtedness secured thereby and hereby, including all reasonable expenses, liabilities and advances of the Trustee and the Bonds and interest thereon and Loan Repayments relating thereto, and all legal costs and charges of such foreclosure, which costs, charges and fees the Corporation agrees to pay, and, second, to the payment of any obligations of the Corporation to the Municipality under the Loan Agreement, and, third, to return any surplus to the Corporation or such other person as may be entitled thereto. Such sale shall be made at public auction and at such place or places and at such time or times and upon such notice as the Trustee may be advised by counsel to be consistent with the laws applicable thereto, and upon such terms as the Trustee or the public officer conducting such sale may fix. Any such sale made pursuant to judicial proceedings or advertisement shall be made either as an entirety or in such parcels as may be directed by the court or as the Trustee in its sole discretion may determine. The Mortgagor, for it and all persons and corporations hereafter claiming through or under it, does hereby expressly waive and release all right to have the properties and rights comprised in the Mortgaged Property marshaled upon any foreclosure or other enforcement hereof. The Trustee or public officer conducting such sale from time to time may adjourn any such sale to be made by it by announcement at the time and place appointed for such sale or for such adjourned sale or sales, and without further notice or publication it may make such sale at the time to which the same shall be so adjourned, but in the event of such adjournment or adjournments, sale shall be made within any limitation of time or number of adjournments prescribed by law and, in any event, within six months from the date of sale fixed in the advertisement or court order, unless notice of sale on some later date shall be given again in the manner provided by law. (e) Upon any foreclosure sale, the owners of any Bonds outstanding, or the Trustee, may bid for and purchase the Mortgaged Property or any part thereof and upon compliance with the terms of sale may hold, retain and possess and dispose of such property in his, their or its own absolute right without further accountability, and any purchaser at any such sale may, in paying the purchase money, turn in any of such Bonds or claims for interest outstanding hereunder in lieu of cash to the amount which shall, upon distribution of the net proceeds of such sale, be payable thereon. (f) Upon the completion of any sale or sales made under or by virtue of this Mortgage, the Trustee shall execute and deliver, or cause to be executed and delivered, to the accepted purchaser or purchasers the property sold with good and sufficient transfers, assigning and transferring all its right, title and interest in and to the properties sold. The Trustee and its successor or successors are hereby appointed the true and lawful attorney or attorneys irrevocable of the Mortgagor in its name and stead or in the name of the Trustee to make all necessary assignments, transfers and deliveries of the property thus sold, and for that purpose, the Trustee and its successors may execute all necessary instruments of assignment and transfer, and may substitute one or more persons with like power, the Mortgagor hereby ratifying and confirming all that said attorney or attorneys or such substitute or substitutes shall lawfully do by virtue hereof Nevertheless, the Mortgagor, if so requested in writing by the Trustee, shall ratify and confirm any such sale or sales by executing and delivering to the Trustee or to such purchaser or purchasers all such instruments as may be advisable, in the judgment of the Trustee, for the purpose and as may be designated in such request. (g) Upon any sale made under the power of sale hereby granted or under judgment or decree in any judicial proceedings for the foreclosure or otherwise for the enforcement of this Mortgage or the Indenture, the receipt of the Trustee or of the officer making such sale shall be a sufficient discharge to the purchaser or purchasers at any sale for his or their purchase money, and such purchaser or purchasers, his or their assigns or personal representatives shall not, after paying such purchase money and receiving such receipt of the Trustee or of such officer therefor, be obliged to see to the application of such purchase money, or be in anywise answerable for any loss, misapplication, or nonapplication thereof. (h) The Mortgagor does hereby expressly consent to sale of the Mortgaged Property by advertisement pursuant to Minnesota Statutes, Chapter 580, which provides for sale after service of notice thereof upon the occupant of the Mortgaged Property and publication of said notice for six weeks in the county in which the Mortgaged Property is located, notwithstanding that service might not be made upon the Mortgagor personally, and that no hearing of any type is required in connection with the sale. Except as required by the aforesaid statutory provision, the Mortgagor hereby expressly waives any and all rights to notice of sale of the Mortgaged Property and any and all rights to a hearing of any type in connection with the sale of the Mortgaged Property. (i) In case of any Event of Default as aforesaid, to the extent that such rights may then lawfully be waived, neither the Mortgagor nor anyone claiming through or under it shall or will set up, claim, or seek to take advantage of any appraisement, valuation, stay, extension or redemption laws now or hereafter in force in any locality where any of the Mortgaged Property may be situated, in order to prevent or hinder the enforcement or foreclosure of this Mortgage or the Indenture, or the absolute sale of the Mortgaged Property, or the final and absolute putting into possession thereof, immediately after such sale, of the purchaser or purchasers thereat, but the Mortgagor, for itself and all who may claim through or under it, hereby waives, to the extent that it lawfully may do so, the benefit of all such laws and all right of appraisement and redemption to which it may be entitled under the laws of the State in which it is situated. 0) Any sale made under the power of sale granted hereby or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Mortgage shall, if and to the extent then permitted by law, operate to divest all right, title, interest, claims and demand whatsoever, either at law or in equity, of the Mortgagor of, in and to the property so sold, and be a perpetual bar both at law and in equity against the Mortgagor and against any and all persons, firms or corporations claiming or who may claim the property sold, or any part thereof, from, through or under the Mortgagor. 7. Possession of Corporation. Unless a Default or an Event of Default shall exist under the Loan Agreement, the Corporation shall be entitled to the possession and disposition of the Mortgaged Property and the Revenues and Income thereof subject, however, to the rights of the Trustee to the possession and disposition of the Funds and Accounts provided for in the Loan Agreement and Indenture. 8. Further Assurances. As provided in the Loan Agreement, the Corporation shall execute, deliver, file and record at its expense such supplements to this Mortgage, financing statements or other documents as may be required in the opinion of counsel, including (without limitation) any supplement to this Mortgage to particularly describe any properties which have been or are intended to become subject to the lien hereof. 9. Amendments. This Mortgage may be amended only as provided in the Loan Agreement and Indenture. 10, Loan Agreement and Indenture Control. Any provision in this Mortgage which is inconsistent with the Loan Agreement or the Indenture or any provision thereof shall be interpreted as if such provision were not contained herein and as if the provisions of the Loan Agreement and Indenture had been fully incorporated herein. In all cases of inconsistency, and in case of any amendment to or supplement to the Loan Agreement or Indenture, entered into in accordance with the provisions thereof, the provisions of the Loan Agreement (as amended and 7 supplemented) and Indenture (as amended and supplemented) shall control. Reference is hereby made to copies of the Loan Agreement and Indenture to be placed on file at the offices of the Corporation and the Trustee and at the office of the City Administrator of the Municipality. 11. Fixture Filing. From the date of its recording, this Mortgage shall be effective as a financing statement filed as a fixture filing with respect to all goods constituting part of the Mortgaged Property which are or are to become fixtures related to the real estate described herein. For this purpose, the following information is set forth: a. Name and Address of Debtor: Evans Park, Inc. 508 Freeport Avenue NW, Suite A Elk River, Minnesota 55330 Attention: Chief Financial Officer b. Name and Main Office Address of Secured Party: U.S. Bank National Association 60 Livingston Avenue, 3rd Floor EP-MN-WS3C St. Paul, MN 55107 Attention: Corporate Trust Services C. This document covers goods which are or are to become fixtures. d. Mortgagor's Organizational I.D. Number is: Z-172. 12. Assignment of Leases and Rents. The Assignor does hereby grant, transfer and assign to the Trustee (this "Assignment") all of the right, title and interest of the Assignor in and to (i) any and all present or future leases or tenancies, whether written or oral, covering or affecting any or all of the Mortgaged Property (all of which, together with any and all extensions, modifications and renewals thereof, are hereinafter collectively referred to as the "Leases" and each of which is referred to as a "Lease"), and (ii) all rents, profits and other income or payments of any kind due or payable or to become due or payable to the Assignor as the result of any use, possession or occupancy of all or any portion of the Mortgaged Property or as the result of the use of or lease of any personal property constituting a part of the Mortgaged Property (all of which are hereinafter collectively referred to as "Rents"), but not including any general revenues, income or accounts receivable of the Assignor, and whether the Rents accrue before or after foreclosure of the Mortgage or during the periods of redemption thereof, all for the purpose of securing: (a) All indebtedness under the Loan Agreement and all other sums secured by this Mortgage and Assignment; and (b) Performance and discharge of each and every obligation, covenant and agreement of the Assignor contained herein and in the Loan Agreement. 13. Covenant. The Assignor warrants and covenants that it is and will remain the absolute owner of the Rents and Leases free and clear of all liens and encumbrances other than the lien granted herein and Permitted Encumbrances; that it has not heretofore assigned or otherwise encumbered its interest in any of the Rents or Leases to any person other than as set forth in the Permitted Encumbrances; that it has the right under applicable law, under the Leases, and otherwise to execute and deliver this Assignment and keep and perform all of its obligations hereunder; that it will warrant and defend the Leases and Rents against all adverse claims, whether now existing or hereafter arising. 14. Performance of Leases. The Assignor will faithfully abide by, perform and discharge each and every obligation, covenant and agreement which it is now or hereafter becomes liable to observe or perform under any present or future Lease, and, at its sole cost and expense, enforce or secure the performance of each and every obligation, covenant, condition and agreement to be performed by the tenant under each and every Lease, subject to such waivers or extensions of time as may be granted by Trustee, provided that Trustee shall have the right, at any time, to rescind any such waiver or extension of time. The Assignor will observe and comply with all provisions of law applicable to the operation and ownership of the Mortgaged Property. The Assignor will give prompt written notice to the Trustee of any notice of default on the part of the Assignor with respect to any Lease received from the tenant thereunder, and will also at its sole cost and expense, appear in and defend any action or proceeding arising under, growing out of or in any manner connected with any Lease or the obligations, duties or liabilities of the Assignor or any tenant thereunder. 15. Collection of Rents. Unless permitted by the Trustee, the Assignor will not collect or accept any Rents for the use or occupancy of the Mortgaged Property for more than one month in advance. Security deposits shall not be deemed Rents for purposes of this paragraph. 16. Protecting. the Security of This Assignment. Should the Assignor fail to perform or observe any covenant or agreement contained in this Assignment, then the Trustee, but without obligation to do so and without releasing the Assignor from any obligation hereunder, may make or do the same in such manner and to such extent as the Trustee may deem appropriate to protect the security hereof, including, specifically, without limiting its general powers, the right to appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Trustee, and also the right to perform and discharge each and every obligation, covenant and agreement of the Assignor contained in the Leases and in exercising any such powers to pay necessary costs and expenses, employ counsel and pay reasonable attorneys' fees. The Assignor will pay immediately upon demand all sums expended by the Trustee under the authority of this Assignment, together with interest thereon, and the same shall be added to said indebtedness and shall be secured hereby and by the Mortgage. 17. Present Assignment. This Assignment shall constitute a perfected, absolute and present assignment, provided that the Assignor shall have the right to collect, but not prior to accrual (except as permitted by paragraph 15 above), all of the Rents, and to retain, use and enjoy the same unless and until an Event of Default shall occur under the Loan Agreement or the Mortgage or the Assignor shall have breached any warranty or covenant in this Assignment. W Any Rents which accrue prior to an Event of Default under the Loan Agreement or the Mortgage but are paid thereafter shall be .paid to the Assignee. 18. Survival of Obligation to ComplyCoMply with Mortgage and This Assignment. All of the Assignor's obligations under this Mortgage and Assignment shall survive foreclosure of this Mortgage and the Assignor covenants and agrees to observe and comply with all terms and conditions of this Mortgage and Assignment and to preclude any Event of Default from occurring under the Loan Agreement or the Mortgage throughout any period of redemption after foreclosure of the Mortgage. 19. Additional Remedies. Upon the occurrence of any Event of Default Specified in the Loan Agreement, the Indenture or herein, the Trustee may, at its option, in addition to any remedies set forth in Section 6, at any time: (a) in the name, place and stead of the Assignor and without becoming a mortgagee in possession (i) enter upon, manage and operate the Mortgaged Property or retain the services of one or more independent contractors to manage and operate all or any part of the Mortgaged Property, (ii) make, enforce, modify and accept surrender of the Leases; (iii) obtain or evict tenants, collect, sue for, fix or modify the Rents and enforce all rights of the Assignor under the Leases; and (iv) perform any and all other acts that may be necessary or proper to protect the security of this Assignment. (b) with or without exercising the rights set forth subparagraph (a) above, give or require the Assignor to give, notice to any or all tenants under the Leases authorizing and directing the tenants to pay all Rents under the Leases directly to the Assignee. (c) without regard to waste, adequacy of the security or solvency of the Assignor, apply for, and the Assignor hereby consents to, the appointment of a receiver of the Mortgaged Property, whether or not foreclosure proceedings have been commenced under the Mortgage, and if such proceedings have been commenced, whether or not a foreclosure sale has occurred. The exercise of any of the foregoing rights or remedies and the application of the rents, profits and income pursuant to paragraph 20, shall not cure or waive any Event of Default (or notice of default) under the Mortgage or invalidate any act done pursuant to such notice. 20. Application of Rents, Profits and Income. All Rents collected by the Trustee or the receiver each month shall be applied as provided hereinabove. The rights and powers of the Trustee under this Assignment and the application of Rents under this paragraph 20 shall continue until expiration of the redemption period from any foreclosure sale, whether or not any deficiency remains after a foreclosure sale. 21. No Liability for Assignee. The Trustee shall not be obligated to perform or discharge, nor does it hereby undertake to perform or discharge, any obligation, duty or liability of the Assignor under the Leases. This Assignment shall not operate to place upon the Trustee responsibility for the control, care, management or repair of the Mortgaged Property or for the carrying out of any of the terms and conditions of the Leases. The Trustee shall not be 10 responsible or liable for any waste committed on the Mortgaged Property, for any dangerous or defective condition of the Mortgaged Property, for any negligence in the management, upkeep, repair or control of said Mortgaged Property or for failure to collect the Rents. 22, Assignor's Indemnification. The Assignor shall and does hereby agree to indemnify and to hold the City of Otsego, Minnesota (the "Municipality") harmless of and from any and all claims, demands, liability, loss or damage (including all costs, expenses, and reasonable attorney's fees in the defense thereof) asserted against, imposed on or incurred by the Municipality in connection with or as a result of this Mortgage or the exercise of any rights or remedies under this Mortgage or under the Leases or by reason of any alleged obligations or undertakings of the Municipality to perform or discharge any of the terms, covenants or agreements contained in the Leases. Should the Municipality incur any such liability, the amount thereof, together with interest thereon, shall be secured hereby and the Assignor shall reimburse the Municipality therefor immediately upon demand. 23. Authorization to Tenant. Upon notice from the Trustee that it is exercising the remedy set forth in paragraph 19(b) of this Assignment, the tenants under the Leases are hereby irrevocably authorized and directed to pay to the Trustee all sums due under the Leases, and the Assignor hereby consents and directs that said sums shall be paid to the Trustee without the necessity for a judicial determination that a default has occurred hereunder or that Trustee is entitled to exercise its rights hereunder, and to the extent such sums are paid to Trustee, the Assignor agrees that the tenant shall have no further liability to Assignor for the same. The signature of the Trustee alone shall be sufficient for the exercise of any rights under this Mortgage and the receipt of the Trustee alone for any sums received shall be a full discharge and release therefor to any such tenant or occupant of the Mortgaged Property. Checks for all or any part of the Rents collected under this Assignment shall upon notice from the Trustee be drawn to the exclusive order of the Trustee. 24. Trustee an Attorney -In -Fact. The Assignor hereby irrevocably appoints the Trustee, and its successors and assigns, as its agent and attorney -in -fact, which appointment is coupled with an interest, with the right but not the duty to exercise any rights or remedies hereunder and to execute and deliver during the term of this Assignment such instruments as the Trustee may deem appropriate to make this Assignment and any further assignment effective, including without limiting the generality of the foregoing, the right to endorse on behalf and in the name of the Assignor all checks from tenants in payment of Rents that are made payable to the Assignor. 25. Trustee Not a Mortgagee in Possession. Nothing herein contained and no actions taken pursuant to this Assignment shall be construed as constituting the Trustee a mortgagee in possession. 26. Specific Assignment of Leases. The Assignor will transfer and assign to the Trustee, upon written notice by Trustee, any and all specific Leases that the Trustee requests. Such transfer or assignment by the Assignor shall be upon the same or substantially the same terms and conditions as are herein contained, and the Assignor will properly file or record such assignments, at the Assignor's expense, if requested by the Trustee. 11 27. Unenforceable Provisions Severable. All rights, powers and remedies provided herein may be exercised only to the extent that the exercise thereof does not violate any applicable law, and are intended to be limited to the extent necessary so that they will not render this Assignment invalid, unenforceable or not entitled to be recorded, registered or filed under any applicable law. If any term of this Assignment shall be held to be invalid, illegal or unenforceable, the validity of other terms hereof shall in no way be affected thereby. It is the intention of the parties hereto, however, that this Assignment shall confer upon the Trustee the fullest rights, remedies and benefits available pursuant to Minn. Stats. § 559.17 and § 576.01, subd. 2. 28. Successors and Assigns, Assignment to Trustee. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to the respective successors and assigns of the Assignor and the Trustee, including any purchaser at a foreclosure sale. Pursuant to that certain Assignment of Mortgage, dated as of September 1, 2013 (the "Assignment'), the Mortgagee/Assignee will assign all of its right, title and interest in and obligation under this Mortgage to the Trustee, and said Assignment shall be without recourse to the Mortgagee/Assignee, and the Trustee, and not the Mortgagee/Assignee, shall then be responsible to discharge any and all obligations as Mortgagee/Assignee hereunder. It is further understood and agreed that no covenant, provision or agreement contained in this Mortgage or in the Assignment, and that no obligation herein or therein otherwise imposed upon the Mortgagee/Assignee or respecting the breach thereof, shall give rise to a pecuniary liability of the Mortgagee/Assignee or a charge against its general credit or taxing powers nor shall the Mortgagee/Assignee be responsible to discharge any of such obligations upon the failure of the Trustee, as assignor of the Mortgagee/Assignee under the Assignment, to do so. 29. Captions; Amendments; Notices. The captions and headings of the paragraphs of this Mortgage are for convenience only and shall not be used to interpret or define the provisions of this Mortgage. This Mortgage may be amended only in a writing signed by the Assignor and the Trustee, in accordance with the provisions of the Indenture. Any notice from the Trustee to the Assignor under this Mortgage shall be deemed to have been given when given by the Assignee in accordance with the requirements for notice by the Mortgagee hereunder. 30. Counterparts. This instrument may be executed in any number of counterparts, each of which shall be an original but all of which shall constitute one instrument. 31. Environmental Indemnification. Mortgagor covenants, represents and warrants to Mortgagee, its successors and assigns, that to the best of its knowledge, the Mortgaged Property and its existing and prior uses comply and have at all times complied with, and Mortgagor is not in violation of, has not violated and will not violate, in connection with the ownership, use, maintenance or operation of the Mortgaged Property, and the conduct of the business related thereto, any applicable federal, state, county or local statutes, laws, regulations, rules, ordinances, codes, standards, orders, licenses and permits of any governmental authorities relating to environmental matters (being hereinafter collectively referred to as the Environmental Laws), including by way of illustration and not by way of limitation (a) the Clean Air Act, the Federal Water Pollution Control Act of 1972, the Resource Conservation and Recovery Act of 1976, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, and the Toxic Substances Control Act (including any amendments or extensions thereof and any rules, 12 regulations, standards or guidelines issued pursuant to any of said Environmental Laws), and (b) all other applicable environmental standards or requirements. Without limiting the generality of the foregoing; (i) Mortgagor, its agents, employees and independent contractors, (a) has and will operate the Mortgaged Property and has and at all times will receive, handle, use, store, treat, transport and dispose of all petroleum products and all other toxic dangerous or hazardous chemicals, materials, substances, pollutants and wastes, and any chemical, material or substance exposure to which is prohibited, limited or regulated by any federal, state, county, regional or local authority or which even if not so prohibited, limited or regulated, may or could pose a hazard to the health and safety of the occupants of the Mortgaged Property or the occupants and/or owners of property near the Mortgaged Property (all the foregoing being hereinafter collectively referred to as "Hazardous Materials") in strict compliance with all applicable environmental, health or safety statutes, ordinances, orders, rules, standards, regulations or requirements, and (b) has removed from the Mortgaged Property all Hazardous Materials; (ii) to the best knowledge of the Mortgagor, there are no existing or pending statutes, orders, standards, rules or regulations relating to environmental matters requiring any remedial actions or other work, repairs, construction or capital expenditures with respect to the Mortgaged Property, nor has Mortgagor received any notice of any of the same; (iii) to the best knowledge of the Mortgagor, no Hazardous Materials have been or will be released into the environment, or have been or will be deposited, spilled, discharged, placed or disposed of at, on, or near the Premises, nor has or will the Mortgaged Property be used at any time by any person as landfill or a disposal site for Hazardous Materials or for garbage, waste or refuse of any kind; (iv) to the best knowledge of the Mortgagor, there are no electrical transformers or other equipment containing dielectric fluid containing polychlorinated biphenyls located in, on or under the Mortgaged Property, nor is there any friable asbestos contained in, on or under the Mortgaged Property, nor will Mortgagor permit the installation of same; (v) to the best knowledge of the Mortgagor, there are no locations off the Mortgaged Property, where Hazardous Materials generated by or on the Mortgaged Property have been treated, stored, deposited or disposed of; (vi) to the best knowledge of the Mortgagor, there is no fact pertaining to the physical condition of either the Mortgaged Property or the area surrounding the Mortgaged Property (a) which Mortgagor has not disclosed to Mortgagee in writing prior to the date of this Mortgage, and (b) which materially adversely affects or will materially adversely affect the Mortgaged Property or the use or enjoyment or the value thereof, or Mortgagor's ability to perform the transactions contemplated by this Mortgage; 13 (vii) to the best knowledge of the Mortgagor, the mortgaging of the Mortgaged Property by Mortgagor to Mortgagee does not require notice to or the prior approval, consent or permission of any federal, state or local governmental agency, body, board or official; (viii) to the best knowledge of the Mortgagor, no notices of any violation of any of the matters referred to in the foregoing sections relating to the Mortgaged Property or its use have been received by Mortgagor and there are no writs, injunctions, decrees, orders or judgments outstanding, no lawsuits, claims, proceedings or investigations pending or threatened, relating to the ownership, use, maintenance or operation of the Mortgaged Property, nor is there any basis for any such lawsuit, claim, proceeding or investigation being instituted or filed; and (ix) to the best knowledge of the Mortgagor, the Mortgaged Property is not listed in the United States Environmental Protection Agency's National Priorities List of Hazardous Waste Sites nor any other log, list, schedule, inventory or record of Hazardous Materials or Hazardous Waste sites whether maintained by the United States, any state or local governmental unit. The Mortgagor agrees to indemnify and reimburse the Mortgagee, its successors and assigns, for any breach of these representations and warranties and from any loss, damage, expense or cost arising out of or incurred by Mortgagee which is the result of a breach of, misstatement of or misrepresentation of the above covenants, representations and warranties, or for any loss, damage, expense or cost sustained as a result of their being located on the Mortgaged Property any Hazardous Materials or dangerous, toxic or hazardous pollutants, chemicals, wastes or substances, together with all attorneys' fees incurred in connection with the defense of any action against the Mortgagee arising out of the above. These covenants, representations, warranties and indemnities shall be deemed continuing covenants, representations, warranties and indemnities running with the Land for the benefit of the Mortgagee, and any successors and assigns of the Mortgagee, including any purchaser at a mortgage foreclosure sale, any transferee of the title of the Mortgagee or any subsequent purchaser at a foreclosure sale, and any subsequent owner of the Mortgaged Property claiming through or under the title of Mortgagee and shall survive any foreclosure of this Mortgage and any acquisition of title of Mortgagee. The amount of all such indemnified loss, damage, expense or cost, shall bear interest thereon at the rate of interest in effect on the Bonds and shall become so much additional Indebtedness Secured Hereby and shall become immediately due and payable in full on demand of the Mortgagee, its successors and assigns. [The balance of this page is intentionally left blank.] 14 IN WITNESS WHEREOF, the Mortgagor and Trustee have caused this Mortgage to be duly executed as of the day and year first above written. EVANS PARK, INC. t By ((t Its President and Chief Executive Officer STATE OF MINNESOTA } ss. COUNTY OF HENNEPIN } The foregoing instrument was acknowledged before me this&�ay of September, 2013 by Daniel C. Dixon, to me personally known, being the President and Chief Executive Off cer of Evans Park, Inc., a Minnesota nonprofit corporation, on behalf of said nonprofit corporation. Notary Public CATHERINE M. NUfZMANN Notary Pubrio.Minnesota my commhwon S Jan St. 2tna [Signature Page - Combination Mortgage, Security Agreement and Fixture Financing Statement and Assignment of Leases and Rents (Otsego)] S-1 U.S. BANK NATIONAL ASSOCIATION By Its Vice President STATE OF MINNESOTA ), ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this Z7'day of September, 2013 by Christine Robinette, to me personally known, being a Vice President of U.S. Bank National Association, named as Mortgagee in the foregoing instrument, on behalf of said Mortgagee. CASHER1l�E M- NlliZMA�►� Notary puglyo.Minnesota Notary Public my cam ^ r '„w, v,, jan;� [Signature Page - Combination Mortgage, Security Agreement and Fixture Financing Statement and Assignment of Leases and Rents (Otsego)] S-2 EXHIBIT A to Combination Mortgage, Security Agreement and Fixture Financing Statement and Assignment of Leases and Rents (Legal Description) Those tracts or parcels situated in the Counties of Wright and Sherburne, State of Minnesota described as follows: Site 1 (Evans Park): Lot 3, Block 1, Guardian Angels Addition, according to the plat thereof on file and of record in the office of the County Recorder of Sherburne County, Minnesota, together with appurtenant easements contained in Document Nos. 194139, 271253, 271254, 273240 and 297007. Together with easements as set forth in Declaration of Easements (Common Driveway) dated March 28, 2000, filed March 29, 2000, as Document No. 410269. Site 2 (Guardian Angels by the Lake): Lot 2, Block 1, Guardian Angels West, together with easements as set forth in Declaration of Easements (Common Driveway), dated March 28, 2000, filed March 29, 2000, as Document No. 410269. Site 3 (Engel Haas): All that part of the East Half of the Southeast Quarter of the Southwest Quarter, and the Southwest Quarter of the Southeast Quarter, Section 2, Township 120, Range 24, Wright County, Minnesota, described as follows: Commencing at the Southeast corner of said Southwest Quarter of the Southeast Quarter; thence North 00' 06' 3 1 " East (assumed bearing) along the East line of said Southwest Quarter of the Southeast Quarter a distance of 379.85 feet to the centerline of C.S.A.H. No. 18 (formerly Wright County Highway No. 118); thence Northwesterly deflecting 62' 37' 30" Left along said centerline for a distance of 303.78 feet to the actual point of beginning; thence Southwest deflecting 85' 09' Left a distance of 249.28 feet; thence Southeast deflecting 94' 51' Left a distance of 155.59 feet; thence Northeast deflecting 85' 09' Left a distance of 249.28 feet to the centerline of C.S.A.H. No. 18 (formerly Wright County Highway No. 118); thence Southeasterly along said centerline for a distance of 16.56 feet to the most Northerly corner of Heuring Addition; thence South 32' 20' 0 1 " West along the Northwesterly line of said Heuring Addition and the southwesterly extension thereof for a distance of 330.85 feet, more or less, to an intersection with the North line of the South 5.00 acres of said southwest Quarter of the I.16I Southeast Quarter; thence South 890 10' 49" West along said North line of the South 5.00 acres of the Southwest Quarter of the Southeast Quarter for a distance of 1024.94 feet, more or less, to the West line of said Southwest Quarter of the Southeast Quarter; thence South 000 07' 50" West along said West line of said Southwest Quarter of the Southeast Quarter for a distance of 0.17 feet to an intersection with the North line of the South 10 rods of the East Half of the Southeast Quarter of the Southwest Quarter; thence South 88' 33' 02" West along said North line of the South 10 rods of the East half of the Southeast Quarter of the southwest Quarter for a distance of 343.95 feet, more or less, to the centerline of County Ditch Number 9, as shown on the plat of Albert Villas; thence Northeasterly along said centerline of County Ditch Number 9 as shown on the plat of Albert Villas to the most Easterly corner of Albert Villas; thence south 62' 55' 08" East along the centerline of Jason Avenue for a distance of 954.93 feet to the point of beginning. A-2 EXHIBIT B to Combination Mortgage, Security Agreement and Fixture Financing Statement and Assignment of Leases and Rents (Additional Permitted Encumbrances) Site 1 (Evans Park): Those encumbrances set forth on the Pro Forma Title Insurance Policy, issued by Old Republic National Title Insurance Company, File No. 1340760. Site 2 (Guardian Angels by the Lake): Those encumbrances set forth on the Pro Forma Title Insurance Policy, issued by Old Republic National Title Insurance Company, File No. 1340010. Site 3 (Engel Haus): Those encumbrances set forth on the Pro Forma Title Insurance Policy, issued by Old Republic National Title Insurance Company, File No. 1340011. 4824-9331-074011 l:19I