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5. HRSR 05-02-2011,// City of Elk_ River REQUEST FOR ACTION TO ITEM NUMBER Housin & Redevelo ment Authori 5. AGENDA SECTION MEETING DATE PREPARED BY May 2, 2011 Catherine Mehelich, Director of Economic Develo ment ITEM DESCRIPTION REVIEWED By Consider HRA Resolution Authorizing an Interfund Loan for Tim Simon, Finance Director Advance of Certain Costs in Connection with TIF 16 Spending REVIEWED BY Plan and Authorizing a Loan to Elk River Pizza Ranch Project ACTION REQUESTED The HRA is asked to consider approval of the attached Resolution Authorizing an Interfund Loan for Advance of Certain Costs in Connection with TIF 16 Spending Plan and Authorizing a Loan to Elk River Pizza Ranch Project. The resolution provides for the authorization of an interfund loan between the HRA general fund and the TIF 16 fund in order to provide the $90,000 loan to the project. In addition the resolution authorizes the HRA President, Vice President and Executive Director to execute the Loan Agreement in substantially the form attached. Following the HRA's approval, the City Council will consider approval of the final Loan Agreement as required under the MN Business Subsidy Law at its May 9, 2011 meeting. BACKGROUND/DISCUSSION In June 2010 the HRA and City Council amended the HRA's TIF District No. 16 (King & Main) and adopted a Spending Plan, under new legislation that allowed the temporary utilization of existing TIF revenues in order to stimulate construction or substantial rehabilitation of private development and stimulate job creation. The Spending Plan adopted by the City Council identified the statutory requirements as well as the City's criteria for use of the funds. At its April 2011 meeting the HRA considered an application request from Robert McDonald, Elk River Pizza Ranch. The project includes the acquisition and substantial rehabilitation of the former Movie Gallery building located at 19141 Freeport St. NW, Elk River. The proposed project is considered a Class I restaurant in which food is served to the customer at a table. Total estimated private investment in the proposed project is $1,500,000. Proposed construction rehabilitation costs are estimated at $559,150. The application was found to meet the minimum requirements as established by statute, the HRA and City Council in the Spending Plan. The HRA directed staff to work with the applicant on aloes-interest loan from the TIF 16 Fund to assist the project. Loan Agreement The Loan Agreement and Promissory Note describes the project and specifies the assistance to be provided and conditions, including job and wage goals under the business subsidy requirements. A loan up to $90,000 from TIF 16 is proposed to be provided at a fixed interest rate of 2%, with a 10- year amortization and 5-year balloon payment. These terms are consistent with the EDA's Micro Loan Fund. The loan is secured by a Mortgage and Personal Guarantee of the owners. C:\Users\jjohnson\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.0utlook\SFWAYSNS\5 2 11 HRA TIF16 Action Requested.doc The Spending Plan adopted by the City requires the assistance is subject to the "Business Subsidy Law" and that the recipient create or retain at least 1 full-time equivalent job (including construction jobs) for every= $25,000 of assistance provided. The applicant has proposed to create 4 full time jobs in addition to approximately 70 part-time jobs. The Loan Agreement requires the creation of a minimum of 4 full-time equivalent positions at $15 per hour wage within 2-years of project completion. The Loan Agreement requires that construction commence before July 1, 2011 as required by= the Spending Plan and statute authorizing use of the TIF funds. TIF 16 Interfund Loan The TIF 16 Fund has a current cash balance of $44,053 and is expected to receive $60,503 in tax revenues generated from the TIF 16 King & Main project by the end of 2011. Therefore in order to fund the proposed $90,000 loan to the project at this time, the HRA will need to fund the loan from its current cash balance and establish an Interfund Loan that provides for the HRA's reimbursement from the anticipated TIF 16 proceeds by the end of 2011. FINANCIAL IMPACT Statutory deadline for commencement of construction and use of funds is June 30, 2011 unless otherwise extended this legislative session. If no requests are approved prior to the deadline, the HRA would be required to use the TIF 16 funds to reimburse the HRA $39,671.78 balance due (from the original TIF 16 Interfund Loan), decertify the TIF district, and distribute the balance and future taxes to the city, county and school district. Loan repayments will be first directed to reimburse the HRA Interfund Loans and then upon decertification of the TIF District (anticipated in 2012) to the county for redistribution to the respective taxing jurisdictions through the life of the loan. RECOMMENDATION Staff recommends approval of the HRA Resolution. ATTACHMENTS ^ Resolution Authorizing an Interfund Loan for Advance of Certain Costs in Connection with TIF 16 Spending Plan and Authorizing a Loan to Elk River Pizza Ranch Project ^ Loan Agreement DRAFT dated Apri128, 2011 ^ Promissory Note DRAFT dated Apri128, 2011 ACtlOtl Motion by Second by Vote Follow Up C:\Users\jjohnson\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.0utlook\SFWAYSNS\S 2 11 HRA TIF16 Action Requested.doc HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF ELK RIVER, MINNESOTA SHERBURNE COUNTY STATE OF MINNESOTA Commissioner introduced the following resolution and moved its adoption: RESOLUTION NO. RESOLUTION AUTHORIZING AN INTERFUND LOAN FOR ADVANCE OF CERTAIN COSTS IN CONNECTION WITH TAX INCREMENT FINANCING DISTRICT NO. 16 SPENDING PLAN AND AUTHORIZING A LOAN FOR THE ELK RIVER PIZZA RANCH PROJECT. BE IT RESOLVED by the Board of Commissioners (the "Board") of the Housing and Redevelopment Authority of the City of Elk River, Minnesota, Minnesota (the "HRA"), as follows: Section 1. Back round. 1.01. The HRA has heretofore established Tax Increment Financing District No. 16 (the "TIF District") and has adopted a Spending Plan (the "Spending Plan") pursuant to Minnesota Statutes, Section 469.176 Subd. 4m. 1.02. The I4RA has determined to pay for certain costs identified in the Spending Plan consisting of land acquisition, public utilities, interest, administrative costs and other costs incurred in connection with the Loan for the Pizza Ranch Project described in Section 4 below (collectively, the "Qualified Costs"), which costs may be financed on a temporary basis from HRA funds or funds of the City of Elk River, Minnesota, Minnesota (the "City") available for such purposes. 1.03. Under Minnesota Statutes, Section 469.178, Subd. 7, the HRA is authorized to advance or loan money from the HRA's general fund or any other fund from which such advances may be legally authorized, in order to finance the Qualified Costs. 1.04. The HRA intends to reimburse itself for the Qualified Costs from tax increments derived from the TIF District in accordance with the terms of this resolution (which terms are referred to collectively as the "Interfund Loan"). Section 2. Terms of Interfund Loan. 2.01. The HRA hereby authorizes the advance of up to $51,000 from the HRA fund or so much thereof as may be paid as Qualified Costs. The HRA shall reimburse itself for such advances together with interest at the rate stated below. Interest accrues on the principal amount from the date of each advance. The maximum rate of interest permitted to be charged is limited to the greater of the rates specified under Minnesota Statutes, Section 270C.40 or Section 549.09 as of the date the loan or advance is authorized, unless the written agreement states that the maximum interest rate will fluctuate as the interest rates specified under Minnesota Statutes, Section 270C.40 or Section 549.09 are from time to time adjusted. The interest rate shall be 2% or such other rate determined by the City Finance Director and will not fluctuate. 385619v2 JSB EL185-12 2.02. Principal and interest ("Payments") on the Interfund Loan shall be paid semi-annually on each August 1 and February 1 (each a "Payment Date"), commencing on the first Payment Date on which the Authority has Available Tax Increment (defined below), or on any other dates determined by the City Finance Director, through the date of last receipt of tax increment from the TIF District. 2.03. Payments on this Interfund Loan are payable solely from "Available Tax Increment," which shall mean, on each Payment Date, tax increment available after other obligations have been paid, or as determined by the City Finance Director, generated in the preceding six (6) months with respect to the property within the TIF District and remitted to the HRA by Sherburne County, all in accordance with Minnesota Statutes, Sections 469.174 to 469.1799, all inclusive, as amended. Payments on this Interfund Loan may be subordinated to any outstanding or future bonds, notes or contracts secured in whole or in part with Available Tax Increment, and are on parity with any other outstanding or future interfund loans secured in whole or in part with Available Tax Increment. 2.04. The principal sum and all accrued interest payable under this Interfund Loan are pre- payable in whole or in part at any time by the HRA without premium or penalty. No partial prepayment shall affect the amount or timing of any other regular payment otherwise required to be made under this Interfund Loan. 2.05. This Interfund Loan is evidence of an internal borrowing by the IIRA in accordance with Minnesota Statutes, Section 469.178, Subd. 7, and is a limited obligation payable solely from Available Tax Increment pledged to the payment hereof under this resolution. This Interfund Loan and the interest hereon shall not be deemed to constitute a general obligation of the State of Minnesota or any political subdivision thereof, including, without limitation, the HRA. Neither the State of Minnesota, nor any political subdivision thereof shall be obligated to pay the principal of or interest on this Interfund Loan or other costs incident hereto except out of Available Tax Increment, and neither the full faith and credit nor the taxing power of the State of Minnesota or any political subdivision thereof is pledged to the payment of the principal of or interest on this Interfund Loan or other costs incident hereto. The HRA shall have no obligation to pay any principal amount of the Interfund Loan or accrued interest thereon, which may remain unpaid after the final Payment Date. 2.06. The HRA may amend the terms of this Interfund Loan at any time by resolution of the HRA Board, including a determination to forgive the outstanding principal amount and accrued interest to the extent permissible under law. Section 3. Effective Date. This resolution is effective upon the date of its approval. Section 4. Approval of Loan for the Elk River Pizza Ranch Project. 4.01. Robert G. McDonald (as an individual or through an entity to be created, the "Borrower") has applied to the HRA for a loan in the principal amount of $90,000.00 to finance SAC and WAC fees and a portion of the cost of land for additional parking (the "Loan") in connection with substantial renovations to and equipping of the building located at 19141 Freeport St NW, Elk River, Minnesota, which will be operated by the Borrower as Class I restaurant of approximately 220 seats (the "Pizza Ranch Project"). 4.02. The HRA believes that the development of the Pizza Ranch Project subject to all of the terms and conditions of a Loan Agreement to be entered into between the HRA and the Borrower (the "Loan Agreement"), and fulfillment generally of the Loan Agreement, are in the vital and best interests of the City and the health, safety, morals, and welfare of its residents, and in accord with the public purposes and provisions of the applicable State 385619v2 JSB EL185-12 and local laws and requirements under which the Pizza Ranch Project will be undertaken and is being assisted. 4.03. Contemporaneously with the execution of the Loan Agreement, the HRA will receive the following security documents (the "Collateral Documents"): (i) A Promissory Note ("Note") effective as of the date herewith made by Borrower and payable to the order of the HRA, in the original principal amount of $90,000.00. (ii) A Mortgage and Assignment of Rents and Security Agreement and Fixture Financing Statement securing the Note (``Mortgage") executed by Borrower and Robert McDonald, as mortgagor, in favor of the HRA, as mortgagee, and covering the Pizza Ranch Project site. (iii) A Personal Guaranty executed by Robert G. McDonald, Denise A. McDonald and Gerald H. McDonald (jointly and severally as "Guarantors"). 4.04. The Loan to the Borrower in accordance with the Spending Plan, the Loan Agreement and the Collateral Documents as presented to the Board is hereby in all respects approved, subject to modifications that do not alter the substance of the transaction and that are approved by the President and Executive Director of the HRA; provided that execution of the Agreement by the President, Vice President and Executive Director of the HRA shall be conclusive evidence of approval. 2.02. The President, Vice President and Executive Director of the HRA are hereby authorized to execute the Loan Agreement on behalf of the HRA and to carry out on behalf of the HRA the HRA's obligations thereunder. The motion for the adoption of the foregoing resolution was duly seconded by Commissioner and upon a vote being taken thereon, the following voted in favor thereof: and the following voted against the same: Dated: May 2, 2011 ATTEST: President Executive Director (Seal) 385619v2 JSB EL185-12 Apri128, 2011 Draft LOAN AGREEMENT THIS LOAN AGREEMENT ("Agreement") is made effective as of May , 2011, by and between GRM OF MINNESOTA, LLC, a Minnesota limited liability company, ("Borrower") and the HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF ELK RIVER, MINNESOTA, a public body corporate and politic of the State of Minnesota ("Lender"). RECITALS A. Borrower has applied to Lender for a construction and term mortgage loan on the Loan Property (as hereinafter defined) in the principal amount of $90,000.00. B. Lender is willing to make such mortgage loan to Borrower in the principal amount of $90,000.00, subject to all of the terms and conditions of this Agreement. C. Contemporaneously with the execution hereof, Borrower is executing and delivering to Lender the following security documents: (i) A Promissory Note ("Note") effective as of the date herewith made by Borrower and payable to the order of Lender, in the original principal amount of $90,000.00. (ii) A Mortgage and Assignment of Rents and Security Agreement and Fixture Financing Statement securing the Note ("Mortgage"). The Mortgage is of even date herewith, is executed by Borrower and Robert McDonald, as mortgagor, in .favor of Lender, as mortgagee, and covers property therein described situated in Sherburne County, Minnesota (the "Loan Property"). NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, it is hereby agreed as follows: 1. Amount and Purpose of Loan. Borrower agrees to take and Lender agrees to make a mortgage loan in the principal amount of $90,000.00 (the "Loan") to be advanced in a single disbursement as hereinafter provided, the Loan to be evidenced by the Note and secured by the Mortgage and any other security document required under this Agreement. The sole source of the Loan is available tax increments generated within the Lender's Tax Increment Financing District No. 16 (A Redevelopment District) and authorized to be spent in accordance with the spending plan adopted by the Lender on June 7, 2010 and the City Council of the City of Elk River, Minnesota (the "City") on June 21, 2010 (the "Spending Plan"), pursuant to Minnesota Statutes, Section 469.176 Subd. 4m (the "Temporary. Authority"). 385593v3 JSB EL185-12 2. Construction of Improvements. For the purposes of this Agreement, the term ``Loan Property" means the real estate described in the Mortgage together with all improvements now located or hereafter placed thereon. Borrower agrees to improve as a part of the Loan Property a project ("Project") consisting generally of substantial renovations to and equipping of the building located at 19141 Freeport St NW, Elk River, Minnesota, in accordance with, plans and specifications which have been provided to and approved by City building department (the "Plans and Specifications") to be operated by the Borrower as Class I restaurant of approximately 220 seats. The improvements to and equipping of the Loan Property contemplated by the Plans and Specifications, as the same may be changed with the approval of Lender, are herein referred to as the "Improvements." Borrower covenants that when completed, the Improvements shall comply with all applicable restrictions, conditions, codes, ordinances, regulations and laws of the City of Elk River, Minnesota ("City") and all other governmental bodies having jurisdiction over the Loan Property, including, without limitation, the Americans with Disabilities Act and those related to environmental protection. Borrower shall commence construction of the Improvements not later than July 1, 2011. For purposes of this Agreement, the term "commence" means the making of visible improvements, including without limitation [demolition of interior walls, paving for parking, and subsurface excavation but excluding mere surface grading]: Borrower represents he would not construct the Improvements on the Loan Property but for the financial assistance being provided by the Lender hereunder, and more specifically, would not commence such construction by July 1, 2011 without the assistance provided under this Agreement and the Spending Plan. Borrower agrees to carry on continuously, diligently and with reasonable dispatch the construction of the Improvements to full and final completion. 3. Title Insurance. Commercial Partners Title, LLC ("Title"), is designated as the title insurer with respect to this Agreement. Title will insure Lender against loss or damage on account of mechanic's liens upon or unmarketability of the title to the Loan Property, and will insure that the Mortgage constitutes a second lien upon Borrower's interest in the Loan Property as contemplated by this Agreement, subject only to a mortgage made or granted by way of security for, and only for, the purpose of obtaining construction, interim or permanent financing necessary to enable Borrower to construct the Improvements or any component thereof. Borrower agrees to promptly and fully observe and comply with the reasonable requirements of Title and Lender with respect to the title, the Mortgage, disbursements of funds and such other reasonable requirements as Title may make. 4. Documents to be Delivered. Borrower covenants and agrees to immediately cause the compliance with the following conditions: (a) Note. Deliver to Lender the Note. (b) Mort~a~e. Deliver to Lender the Mortgage, together with evidence that the Mortgage has been or will be duly filed for record. 385593v3 JSB EL185-12 -2- (c) Title Insurance Policy. Deliver to Lender a mortgagee's title insurance policy ("Title Policy"), from Title issued to Lender in the amount of $90,000.00 with respect to the Mortgage and insuring that the Mortgage is a second lien on the Loan Property, subject only to a mortgage made or granted by way of security for, and only for, the purpose of obtaining construction, interim or permanent financing necessary to enable Borrower to construct the Improvements or any component thereof, free and clear of mechanic's liens, materialmen's liens, taxes, special assessments, rights of parties in possession, other than the rights of tenants as tenants only under existing leases, and questions of survey and subject only to exceptions approved in writing by Lender. (d) Organizational Documents and Resolutions. Deliver to Lender copies of the (i) articles of organization for Borrower certified by the Minnesota Secretary of State, (ii) operating agreement and member control agreement for Borrower, (iii) a certificate of good standing for Borrower issued by the Minnesota Secretary of State; and (iv) a certified copy of resolutions of Borrower authorizing the execution and delivery of this Agreement, the Note, the Mortgage, and any other document to be executed by Borrower pursuant to this Agreement. (e) Insurance. Deliver to Lender (i) a certificate or policy for all insurance required, under the terms hereof or of the Mortgage, to be maintained by Borrower, and (ii) evidence that no part of the Loan Property is located in an area designated as being a flood plain or flood hazard area as defined by the Flood Hazard Boundary Map published by the Federal Insurance. Administration. (f) Compliance With Laws, Etc. Deliver to Lender such evidence as Lender may require as to the compliance of the Loan Property and the Improvements with (i) all applicable laws, codes, rules, regulations and ordinances, including, without limitation, those relative to environmental protection, protection of wetlands, building and zoning matters and the Americans with Disabilities Act, and (ii) the requirements of any restrictive covenants, conditions and restrictions; conditional use permit and/or planned unit development applicable to the Loan Property. (g) Hazardous Substances. Deliver to Lender evidence acceptable to Lender, that (i) the Loan Property has not been used as a hazardous waste storage facility or burial site, (ii) the soil is free from hazardous waste, hazardous substances, pollutants and contaminants, and (iii) no hazardous waste, hazardous substance, pollutant or contaminant has been used in the construction or use of any building or other improvement on the Loan Property. For purposes of this subparagraph, the terms "hazardous waste," "hazardous substances," "pollutants" and "contaminants" shall include, but not be limited to, polychlorinated biphenyls (PCBs), asbestos, petroleum products and any other chemical or substance determined to be a hazard to human health or the environment. 385593v3 JSB EL185-12 -3- (h) Indemnity. Deliver to Title any indemnity agreement in favor of Title in the form required by Title in order for Title to issue the title insurance policies referred to above. (i) Project Cost and Total Equity Contribution Certificates. Deliver to Lender a sworn project cost certificate ("Project Cost Certificate"), in a form acceptable to Lender, verified on oath by the [sole member of] Borrower, showing the itemized breakdown of the total cost of the Improvements, including, without limitation, the cost of constructing the Improvements, special assessments, soft costs and all other costs and charges to be paid from the Loan or necessary to complete the Improvements, and a Certificate of Total Equity Contribution showing the portion of all such costs and charges paid to the date of the Project Cost Certificate. Borrower shall deliver to Lender lien waivers, receipts for payment and other evidence of payment acceptable to Lender with respect to any such portion of costs and charges incurred to the date of the Project Cost Certificate. (j) Sworn Construction Statement. Deliver to Lender a Sworn Construction Statement acceptable to Lender completed and executed by Borrower and Borrower's general contractor which identifies all subcontractors and suppliers having a contract with the Borrower or Borrower's contractor and the amount of the contract between Borrower or Borrower's contractor and each subcontractor or supplier with respect to the construction of the Improvements. (k) Personal Guaranty. Deliver to Lender the Personal Guaranty, executed by Robert G. McDonald, Denise A. McDonald and Gerald H. McDonald (the "Guarantors") guaranteeing the obligations of the Borrower under the Note. (1) Project Financing. Deliver to Lender evidence the Borrower has closed on the construction loan or loans providing financing for the construction of the Improvements in an amount sufficient, together with equity contributed by the Borrower as shown in the Project Cost Certificate, to pay all costs shown in the Sworn Construction Statement. (m) Expend Funds; Lien Waivers. Deliver evidence acceptable to Lender that Borrower has completed the Improvements not later than December 31, 2011 and paid all costs referred to in the Project Cost Certificate, and provide an original written lien waiver from each contractor, subcontractor and supplier who performed work or supplied materials which were paid for out of Borrower's Total Equity Contribution. Lender may waive any of the above requirements in its sole discretion. 5. Disbursement of Loan. Upon (a) receipt by Lender of the items required pursuant to paragraph 4(a) - (1) above, (b) issuance by the City of a building permit for the Improvements, (c) receipt by Lender of a signed settlement statement in connection 385593v3 JSB EL185-12 -4- with closing on the acquisition of the Loan Property, including the land necessary for all required parking, and (d) determination by Lender that construction of the Improvements has commenced, Lender agrees to disburse the Loan to Borrower, provided no event of default exists under this Agreement or the Mortgage. 6. Business Subsidies Act. (a) In order to satisfy the provisions of Minnesota Statutes, Sections 116J.993 to 116J.995 (the "Business Subsidies Act''), Borrower acknowledges and agrees that the amount of the "Business Subsidy" granted to the Borrower under this Agreement is the amount of the Loan, and that the Business Subsidy is needed because the cost of the Improvements is prohibitive for the Borrower to undertake without the Business Subsidy. The public purpose of the Business Subsidy is to develop new jobs within the City and better utilize an existing property in the City. The Borrower agrees that it will meet the following goals (the "Goals"): it will create 4 new full time equivalent positions at the Loan Property at a wage of at least $15.00 -per hour within two years of the date which is the earlier of (i) the date the Borrower completes the Improvements in accordance with the Plans and Specifications, or (ii) the date the Borrower receives a certificate of occupancy for the Loan Property and the Improvements (the "Benefit Date"). (b) If the Goals are not met, the Borrower agrees to immediately repay all or a part of the Business Subsidy to the Lender on a pro rata basis, plus interest ("Interest") set at the greater of 2% or the implicit price deflator defined in Minnesota Statutes, Section 275.70, Subdivision 2, accruing from and after the Benefit Date, compounded semiannually. If the Goals are met in part, the Borrower will repay a portion of the Business Subsidy (plus Interest) determined by multiplying the Business Subsidy by a fraction, the numerator of which is the number of jobs in the Goals which were not created at the wage level set forth above and the denominator of which is 4 (i.e. number of jobs set forth in the Goals). (c) To the extent required by the Minnesota Department of Employment and. Economic Development, the Borrower .agrees to (i) report its progress on achieving the Goals to the Lender until the later of the date the Goals are met or two years from the Benefit Date, or, if the Goals are not met, until the date the Business Subsidy is repaid, (ii) include in the report the information required in Section 116J.994, Subdivision 7 of the Business Subsidies Act on forms developed by the Minnesota Department of Employment and Economic Development, and (iii) send completed reports to the Lender. The Lender shall have the right to inspect the Borrower's books and records to verify compliance with the requirements of this Section 6. The Borrower agrees to file these reports no later than March 1 of each year commencing March 1, 2012, and within 30 days after the deadline for meeting the Goals. The Lender agrees that if it does not receive the reports, it will mail the Borrower a warning within one week of the 385593v3 JSB EL185-12 -5- required filing date. If within 14 days of the post marked date of the warning the reports are not made, the Borrower agrees to pay to the Lender a penalty of $100 for each subsequent day until the report is filed up to a maximum of $1,000. (d) The Borrower agrees to continue operations of its Class I restaurant facility in the City for at least five (5) years after the Benefit Date. (e) The Borrower does not expect to receive any financial assistance in connection with its activities at the facility located on the Loan Property from any other state or local government entity. (f) There is no parent corporation of the Borrower. (g) The Borrower certifies that it does not appear on the Minnesota Department of Employment and Economic Development's list of recipients that have failed to meet the terms of a business subsidy agreement. 7. Access to Loan Property. Lender and its respective representatives shall have at all reasonable times the right to enter and have free access to the Loan Property and the right to inspect all work done, labor performed and material furnished in connection therewith. 8. Books and Records. Borrower agrees to maintain accurate and complete books, accounts and records in regard to the Loan Property in a manner reasonably acceptable to Lender. Lender and its representatives shall have the right to inspect, examine and copy all such books and records of Borrower and Borrower shall, at Lender's request, furnish such information as Lender may reasonably demand. 9. Encumbrances and Transfer. Other than a mortgage made or granted by way of security for, and only for, the purpose of obtaining construction, interim or permanent financing necessary to enable Borrower to construct the Improvements or any component thereof, Borrower agrees not to sell, transfer, lease or convey the Loan Property or any part thereof, or any interest therein, or encumber the Loan Property or any part thereof, in any manner, without the prior written consent of Lender which consent may be granted or withheld in the sole discretion of Lender. This requirement shall apply to each and every sale, transfer, lease or conveyance, whether voluntary or involuntary and whether or not Lender has consented to any prior sale, transfer lease or conveyance. The Loan shall be immediately due and payable upon any sale, transfer, lease, conveyance, or encumbrance of the Loan Property or any part thereof, or any interest therein, in any manner, without the prior written consent of Lender. 10. Time of Essence. Time is of the essence in the performance of this Agreement. If Borrower fails to commence construction of the Improvements prior to July 1, 2011 or to submit the items required by Section 5 prior to December 31, 2011, no Loan proceeds will be disbursed. 385593v3 JSB EL185-12 -6- 11. Assignability. Borrower shall not assign this Agreement or all or any part of any Advances to be made hereunder without written consent of Lender. 12. Miscellaneous Covenants of Borrower. Borrower covenants and agrees with Lender that, without costs to Lender, Borrower will: (a) Performance of Conditions. Promptly keep, perform and comply with all of the terms, covenants and conditions to be kept and performed by Borrower, as required by the City and any other governmental body having jurisdiction over the Loan Property as a condition of platting, rezoning or developing the Loan Property; keep unimpaired the rights of Borrower under any permit or agreement issued or made by the City or other governmental body having jurisdiction over the Loan Property and the Construction Contracts and any other contracts obtained or held by Borrower in connection with the construction or operation of the Improvements; and to enforce the prompt performance of all of the terms, covenants and conditions to be kept and performed by the City or other governmental body having jurisdiction over the Loan Property, respectively, under any permits or agreements issued or made by the City or such other .governmental bodies, or by the architect or other design professional, the general contractor and any other contractors under all contracts obtained or held by Borrower in connection with construction or operation of the Improvements. (b) Amendment, Etc. of Documents. Not amend, cancel, terminate, supplement or waive any of the material terms, covenants and conditions of any permit or agreement issued or made by the City or any other governmental body having jurisdiction over the Loan Property, or any other contracts obtained or held by Borrower in connection with the construction of the Improvements or operation of the Loan Property or any contracts, documents or agreements referred to herein without the prior written approval of Lender. Borrower will provide to Lender complete documentation concerning any change made to the Improvements. (c) Performance of Note, Mortgage, Etc. Without limiting the foregoing, keep and perform all of the terms, covenants, conditions and requirements of the Note, the Mortgage, and this Agreement. (d) Insurance. During the term of the Mortgage, Borrower shall procure and maintain or cause to be procured and maintained at its sole expense builder's risk insurance, casualty insurance, public liability insurance and such other types of insurance as are reasonably required by Lender from time to time, including, without limitation, the coverages expressly required by the Mortgage, insuring Lender and Borrower with coverages, in amounts and with companies satisfactory to Lender. The policy or 385593v3 JSB EL185-12 -7- policies or duly executed certificate or certificates for such insurance. and renewals or replacements thereof shall be deposited with Lender. (e) Pa~Charges. Immediately pay all loan charges including, but not limited to, title insurance fees, mortgage registration taxes and filing fees of the Mortgage and any other instruments required under this Agreement, except to the extent otherwise payable by Lender. (f) Pap Certain Costs. Immediately after written demand from Lender and without regard to whether or not any of the Loan proceeds have been advanced under this Agreement, pay or cause to be paid from time to time if requested by Lender, costs referred to in the Project Cost Certificate in an amount equal to the costs referred to therein in excess of the Loan proceeds remaining available to be advanced to pay such costs, and furnish to Lender proof of payment thereof satisfactory to Lender and Title. (g) Copies of Plans, Contracts, etc. Furnish Lender from time to time as reasonably requested by Lender, copies of the Plans and Specifications, contracts and any other specifications and contracts relating to the Improvements together with estimated costs of such Improvements. 13. Warranties. Borrower represents and warrants to Lender the following: (a) The Borrower is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Minnesota. (b) The making and performance of this Agreement and the execution and delivery of the Note, the Mortgage and any other instrument required hereunder are within the powers of the Borrower and have been duly authorized by all necessary action of the governing body of the Borrower. This Agreement and the Note, the Mortgage and any other instruments required hereunder have been duly executed and delivered and are the legal, valid and binding obligations of the Borrower enforceable in accordance with their respective terms. (c) No litigation, tax claims or governmental proceedings are pending or threatened against the Borrower or the Loan Property, and no judgment or order of any court or administrative agency is outstanding against the Borrower or the Loan Property which would have a materially adverse effect on Borrower or the Loan Property. (d) Borrower has filed all tax .returns (federal and state) required to be filed for all prior years and paid all taxes shown thereon to be due, including interest and penalties. Borrower will file all such returns and pay all such taxes for the current and future years. 385593v3 JSB EL185-12 -g- (e) All information, financial or other, which has been submitted by Borrower and Guarantors in connection with the Loan is true, accurate and complete in all material respects. 14. Indemnification. Borrower agrees to indemnify Lender and save it harmless against all loss, liability, expense, or damages including but not limited to attorneys fees, which may arise by reason of the assertion of any lien against the Loan Property. 15. Defaults. Each of the following shall constitute an Event of Default: (a) Borrower abandons the Loan Property, work on construction of the Improvements is halted or the Improvements are not constructed in accordance with this Agreement. (b) Bankruptcy, reorganization, assignment, insolvency or liquidation proceedings, or other proceedings for relief under any applicable bankruptcy law or other law for relief of debtors are instituted by or against Borrower or Guarantors and, if such proceedings are instituted against Borrower or Guarantors, an order, judgment or decree, without the consent of Borrower or Guarantors appointing a trustee or receiver for Borrower or any part of its or their property or approving a petition under the bankruptcy laws of the United States or any similar laws of any state or other competent jurisdiction, shall have remained in force undischarged or unstayed for a period of 30 days. (c) Any judgment, attachment, garnishment or other similar process is entered against Borrower or against any property or assets of Borrower and is not released, satisfied or discharged or bonded to Lender's satisfaction within 30 days of entry. (d) Borrower fails to commence or complete construction of the Improvements within the time designated in this Agreement or Borrower fails to submit the items required by Section 5 prior to December 31, 2011. (e) Any of the terms, covenants or conditions of any permit or other agreement issued or made by the City or other governmental body having jurisdiction over the Loan Property, including, but not limited to, those relating to the cost of or time for installation of the Improvements, are not complied with within the time required thereby or are terminated or modified by the City or such other governmental body and Borrower has not taken the necessary steps to correct or cure the same within 30 days after written notice is given by Lender. (f) Any mechanic's or material supplier's lien is filed, against the Loan Property and is not released, satisfied or discharged or bonded to Lender's 385593v3 JSB EL185-12 -9- satisfaction, subject, however, to Borrower's right to contest the same in accordance with the provisions of the Mortgage. (g) A transfer which violates by Section 9 hereof occurs. (h) Borrower (i) fails to pay any amount due under this Agreement, the Note or the Mortgage when due; or (ii) fails to perform any other obligation to be performed under this Agreement, the Note, the Mortgage or any other document executed by Borrower pursuant to this Agreement and such failure continues beyond any applicable cure period. (i) Any representation or warranty by Borrower contained herein or in the Note, the Mortgage or any other instrument required hereunder is false or untrue in any material respect when made. (j) Borrower defaults in the payment or performance of anything by it to be paid or performed under any note, mortgage or other agreement now or hereafter made by Borrower in favor of or with Lender or otherwise now or hereafter held by Lender and as to defaults other than in the payment of a sum when due, the continuance thereof beyond any notice and/or cure period contained therein. Upon the occurrence of an Event of Default, Lender, at its option, shall, in addition to any other remedies which it might be entitled to by law, have the right to: (1) To refrain from making advances under this Agreement; (2) To enter into possession of the Loan Property and perform any and all work and labor necessary to complete the Improvements substantially as required under this Agreement and to do all things necessary or incidental thereto; (3) To perform such other acts or deeds which reasonably may be necessary to cure any default existing under this Agreement, and to this end, it is hereby agreed as follows: (i) All sums expended by Lender in effectuating its rights under Subparagraphs (2) and (3) of this Paragraph shall be deemed to have been advanced under this Agreement and to be secured by the Mortgage and any other security document required under this Agreement as security for the Loan. (ii) Borrower hereby constitutes and appoints Lender its true and lawful attorney-in-fact with full power of substitution either in the name of Lender or in the name of Borrower or in the name of both, for the following purposes: (a) to complete the Improvements or 385593v3 JSB EL185-12 -1~- cause the same to be completed; to use the plans and specifications; to make such additions, changes and corrections in the plans and specifications as Lender reasonably shall deem necessary or desirable; to collect and use any funds of Borrower; to use any funds .which may remain unadvanced under this Agreement; to employ such contractors, subcontractors, agents, design professionals and inspectors and enter into such contracts and arrangements as Lender reasonably deems necessary for such purposes; to pay, settle or compromise all existing bills and claims which may be liens against the Loan Property or as may be necessary or reasonably desirable for the completion of the Improvements or clearance of title; to execute all applications and certificates in the name of Borrower; to prosecute and defend all actions or proceedings in connection with the construction of the Improvements on, or any other matter relating to, the Loan Property and do any and every act which Borrower might do in its own behalf; (b) to enforce by any means that Lender then reasonably deems necessary or advisable, all of the terms, covenants and conditions of any permit or agreement issued by the City or any other governmental body having jurisdiction over the Loan Property or the construction contracts or any other contracts obtained or held by Borrower in connection with the construction of and any other contracts; (c) to perform each of the terms, covenants and conditions to be kept and performed by Borrower under any permit or authorization issued by the City or any other governmental body having jurisdiction over the Loan Property or the construction contracts or any other contracts and/or leases obtained or held by Borrower in connection with the construction or operation of the Improvements, and any other contracts; (d) without limiting the foregoing to perform each of the terms, covenants and conditions to be kept or performed by Borrower under this Agreement, the Mortgage and any other instrument required under this Agreement; and (e) to do all things that Lender reasonably deems necessary or advisable for the purpose of carrying out the powers enumerated in (a), (b), (c) and (d) of this Subparagraph (ii); (iii) The powers herein granted Lender shall be deemed to be powers coupled with an interest and the same are irrevocable; (4) cancel this Agreement; (5) bring appropriate action to enforce such performance and the correction of such Event of Default; 385593v3 JSB EL185-12 -11- (6) declare the entire unpaid principal of the Note and all accrued interest thereon immediately due and payable without notice; (7) foreclose the Mortgage and any other security instrument referred to in this Agreement and/or exercise any other rights or remedies it may have under the Mortgage and such other security instrument. 16. Default under Note and Mortgage. The failure by Borrower to keep or perform any of the terms, covenants and conditions to be kept or performed by it under this Agreement shall constitute a default under the Note, the Mortgage and any other security instrument held by Lender in connection with the Loan. 17. Notices. Any notices given hereunder shall be in writing and shall be deemed to have been given when delivered personally or three (3) days after deposited in the United States mail, registered, postage prepaid, addressed as follows: If to Borrower: GRM of Minnesota, LLC 19141 Freeport St NW Elk River, Minnesota 55330 If to Lender: Housing and Redevelopment Authority of the City of Elk River 13065 Orono Parkway Elk River, Minnesota 55330 or addressed to any such party at such other address as such party shall hereafter furnish by notice to the other parry. Any notice delivered personally to Borrower shall be delivered to an officer of Borrower, and any notice delivered personally to Lender shall be delivered to an officer of Lender at the address for Lender for the mailing of notices. Either party may change its address for the giving of notices by giving the other party at least ten (10) days' notice in the manner provided above. 18. Headings. The headings used in this Agreement are for convenience only and do not define, limit or construe the contents of this Agreement. 19. Bindings on Successors and Assigns. Subject to the limitations on transfer contained in this Agreement, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. 20. Assi ng, abilitX. Borrower shall not assign this Agreement or all or any part of any advances to be made hereunder without written consent of Lender which consent maybe granted or withheld in the sole discretion of Lender. 385593v3 JSB EL185-12 -12- 21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Minnesota, without giving effect to any choice or conflict of law provision or rule. 22. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be an original and all of which shall constitute the same agreement. 23. Entire Agreement. This Agreement, the Note, the Mortgage and the other documents executed by Borrower and/or Lender pursuant to this Agreement contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior understandings and agreements, both oral and written. This Agreement may be amended only in a writing signed by the parties hereto. 24. Fees and Expenses. Borrower agrees to pay to Lender immediately upon demand all costs and expenses, including, without limitation, all attorneys fees, incurred by Lender in connection with the enforcement of the Lender's rights and/or the collection of any amounts which become due to Lender under this Agreement, the Note, the Mortgage or the other documents executed in connection herewith; and the prosecution or defense of any action in any way related to this Agreement, the Note, the Mortgage or the other documents executed in connection herewith. [Signature Pages follow] [Remainder of page intentionally left blank.] 385593v3 JSB EL185-12 -13- Signature Page to Loan Agreement IN TESTIMONY WHEREOF, each of the parties hereto has caused these presents to be effective as of the day and year first above written. GRM OF MINNESOTA, LLC By: Name: Its: 385593v2 JSB EL185-12 S-1 Signature Page to Loan Agreement IN TESTIMONY WHEREOF, each of the parties hereto has caused these presents to be effective as of the day and year first above written. HOUSING AND REDEVELOPMENT AUTHORITY OF THE CITY OF ELK RIVER, MINNESOTA By: Name: Its: And By: Name: Its: 385593v2 JSB EL185-12 S-2 Apri128, 2011 Draft PROMISSORY NOTE Effective as of May , 2011 Amount: $90,000.00 Interest: 2.00% Maturity: May 1, 2016 FOR VALUE RECEIVED, the undersigned, GRM OF MINNESOTA, LLC, a Minnesota limited liability company, ("Borrower"), promises to pay to the order of Housing and Redevelopment Authority of the City of Elk River, a public body corporate and politic of the State of Minnesota ("Lender"), at 13065 Orono Parkway, Elk River, Minnesota 55330, or such .other place as the Lender or any other holder of this note may designate in writing, on or before May 1, 2016 ("Maturity Date"), the principal sum of Ninety Thousand and 00/100 Dollars ($90,000.00), together with interest on any and all amounts remaining unpaid thereon from time to time from the date hereof (computed on the basis of actual days elapsed in a year of 360 days) at a fixed interest rate of two percent (2%) per annum. The Borrower shall be obligated to make semiannual installments ("Semiannual Installments") in the amount of and _/100 Dollars ($~, which Semiannual Installments shall commence on November 1, 2011, and continue on each May 1 and November 1 thereafter through and including the Maturity Date, when all unpaid accrued but unpaid interest shall be payable in full. The final payment will be a balloon payment. This Note is made pursuant to a Loan Agreement ("Loan Agreement") between Borrower and Lender of even date herewith and secured by, among other things a Mortgage and Assignment of Rents and Security Agreement and Fixture Financing Statement ("Mortgage") given by Borrower and Robert McDonald to Lender of even date herewith. All of the terms and conditions contained in the Loan Agreement and the Mortgage which are to be kept and performed by Borrower 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; and Borrower covenants and agrees to keep and perform them, or cause them to be kept and performed, strictly in accordance with their terms. If the Lender, or any other holder of this note, has not received the full amount of any Semiannual Installment provided for in this note, by the end of seven (7) calendar days after the date it is due, Borrower shall pay a late charge fee to the Lender, or any other holder of this note. The amount of the late charge fee shall be eight percent (8.00%) of the overdue Semiannual Installment. The Borrower shall pay this late charge fee on demand, however, collection of the late charge fee shall not be deemed a waiver of 385594v3 JSB EL185-12 the Lender's right to declare an Event of Default and exercise its rights and remedies as provided for in the Loan Agreement and the Mortgage. Each Semiannual Installment and other payments made under this note .shall be applied as follows, (i) first, to be applied against and pay interest which has accrued and remains unpaid on the date the payment is received, then (ii) to be applied against and pay unpaid late charges and any other charges, including attorneys' fees and protective advances, and then (iii) all remaining amounts, if any, shall be applied against and reduce the .then outstanding principal balance of this note. If an Event of Default shall occur hereunder or under the Loan Agreement or the Mortgage and any cure period provided for in the Loan Agreement or the Mortgage has expired, the Borrower agrees to pay a default rate of interest equal to ten percent (10.00%) per annum as the applicable interest rate of this note, and the entire principal amount outstanding, accrued interest and any other charges due hereon shall at once become due and payable at the option of the Lender or the holder hereof. Any failure of the Lender to exercise its right to increase the interest rate by the default rate of interest set forth above or its option to accelerate this note at any time shall not constitute a waiver of the right to exercise the same right to increase the interest rate or accelerate at any subsequent time. Notwithstanding anything contained herein to the contrary, the default rate of interest hereon shall never exceed the highest rate permitted by law. The Borrower may prepay the principal under this note at any time and from time to time, in whole or in part, without premium or penalty. No partial prepayment shall postpone the due date of any Semiannual Installment or reduce the amount of any such Semiannual Installment unless the Lender agrees otherwise in writing. All sums payable to the Lender under this note shall be paid in immediately available funds. The Borrower promises to pay all costs in connection with the enforcement of this note, including but not limited to, those costs, expenses and attorneys' fees of Lender whether or not suit is filed with respect thereto and whether or not such cost or expense is paid or incurred or to be paid or incurred prior to or after the entry of judgment or for the pursuance of, or defense of, any litigation, appellate, bankruptcy or insolvency proceeding. Presentment, notice of dishonor and protest are hereby waived by all makers, sureties, guarantors and endorsers hereof. This note shall be binding upon Borrower, its successors and assigns. The remedies of Lender, as provided herein and in the Loan Agreement and the Mortgage, shall be cumulative and concurrent and may be pursued singly, successively or together, at the sole discretion of Lender, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. 385594v3 JSB EL185-12 -2- Time is of the essence hereof. This note shall be governed by and be construed under the laws of the State of Minnesota, without regard to principles of conflicts of law. 385594v3JSB EL185-12 -3- IN WITNESS WHEREOF, the undersigned has caused this note to be effective as of the day and year first above written. GRM OF MINNESOTA, LLC By Its 385594v2 JSB EL185-12 S-1