7.7. SR 04-18-2016 EGty1� ,.,�� Request for Action
River
To Item Number
Mayor and City Council 7.7
Agenda Section Meeting Date Prepared by
Public Hearin s Aril 18, 2016 Amanda Othoudt,EDD
Item Description Reviewed by
Die Concepts,Inc.Jobs Incentive 1Vlicroloan and Cal Portner, City Administrator
Blighted Properties Forgivable Loan Reviewed by
Action Requested
1. Open public hearing to consider comments on the proposed microloan application for Die
Concepts,Inc. in the amount of$185,200 and a blighted properties forgivable loan application in
the amount of$75,000.
2. Adopt,by motion, two resolutions approving the Jobs Incentive 1Vlicroloan and Blighted
Properties Forgivable Loan and authorizing execution of the loan documents for Die Concepts,
Inc.
Background/Discussion
Die Concepts,Inc., a manufacturer currently located in Ramsey,MN,is interested in purchasing a
property and relocating to Elk River. The property has been vacant for some time and is in very poor
condition. Die Concepts is requesting assistance under the city's blighted property and jobs incentive
loan programs to renovate the building,improve the aesthetics of the property and make connections to
city water and sanitary sewer services.
The City Council must hold a public hearing and invite comments for any business subsidy in an amount
greater than $150,000.
The EDA Finance Committee reviewed the jobs incentive microloan application and recommended the
EDA approve an $185,200 loan not to exceed 20% of the total project costs.
The city also received an HRA Blighted Properties Commercial/Industrial Forgivable Loan for$75,000
which was approved by the HRA on April 4, 2016.
The attached staff reports provide background on the project as considered by the HRA and by the EDA
earlier this evening for financial assistance to make substantial improvements to the property located at
18485 Twin Lakes Road, NW.
Financial Impact
The Economic Development Authority of the City of Elk River will provide a$185,200 microloan to Die
Concepts,Inc. In addition, the Housing and Redevelopment Authority of the City of Elk River will
provide a$75,000 forgivable loan to Die Concepts,Inc. for the substantial renovation of a blighted
property.
POWERED 6T
AR
Attachments
1. Microloan Application (March 7, 2016)
2. Blighted Properties Forgivable Loan Application (March 7, 2016)
3. Letter from CorTrust Bank(March 4,2016)
4. Letter of Commitment from Die Concepts,Inc.
5. Springsted Analysis - Microloan (March 23, 2016)
6. Springsted Analysis — Forgivable Loan (March 23, 2016)
7. EDA Finance Committee Staff Report (March 29, 2016)
8. HRA Staff Report (April 4, 2016)
9. EDA Staff Report (April 18, 2016)
10. Loan Documents for Microloan
11. Loan Documents for Forgivable Loan
12. Resolution—I\Ecroloan
13. Resolution— Forgivable Loan
14. Site Photos
b.
City O
Powered by Nature
Development
And Application
Amended: May 2011
November 18, 2013
July 2014
November 17, 2014
City eye Elk River
Economic Development Division
13065 Orono Parkway
Elk Paver,,NIN 55330
363.635.1040
ELK RIVER ECONOMIC DEVELOPMENT
MIICROL.,OAN FUND POLICY & GUIDELINES
1. PURPOSE
'rhe Economic I)evelopment /\uthority for the city of F'lk River (h."DA) recognizes
the need to stimulate private sector investment into manufacturing and certain
commercial facilities and equiptrient in order to create new jobs, boost producdvit�T
and retain existing jobs for local residents. Additionally, the need exists to encourage
investment in the expansion and/or rehabilitation of commercial and retail buildings
in order to maintain the economic viability of the City and in the IDowntown
District. Subsequently, the purpose of this program is to provide low interest,long-
term (i.e. greater than one year) loans as incentives for new industrial and
commercial development within the city of 1--,,'Ik River and to encourage commercial
and retail business owners in the Downtown District to rehabilitate their existing
buildings.
2. LOAN PROGRAMS
In order to meet the economic and community development objectives of the ED./',
four distinct loan programs exist within the Microloan Fund to promote business
growth in Elk River.
Industrial Incentive Program
Purpose: The purpose of the Industrial Incentive Program is to encourage
industrial and high technology business development that supports
the tax base and [)rings quality jobs to the city',
Amount: Lip to $100,000 of secondary financing not to exceed 201'11D of the
project cost.
1.'.'1qL1itV: Must have private-sector corn fitments for 50% of the project cost.
Borrower must provide 10% or more of project financing.
Rate: Fixed;2 points below the lowest prime rate published in
the Wall Street J ournal the day the loan is closed, or 3%,whichever is
greater.
Term: Financing with a balloon payment in 5-years. The balloon payment
Must not be longer than the balloon payment of the participating
bank. J.,oaris may be amortized up to the following limits;
20 years on real estate uses;
10 years or) equipment uses.
Fxtension: In the event that the Borrower is unable to obtain conventional
financing to> replace the AEcroloan at the end of five years, the loan
Rage 2 of 17
may be extended up to two additional years at -a market rate of
interest..
Criterix Borrower rnust be an industrial or high technology firril and create or
retain one new full-timc, job for each $20,000 loaned within 2 years,
Said jobs must pay minimum wage of$1(.).(,.)0 per hour excluding
benefits required by law, Loaris of$75,000 or more shall meet the city
of Elk River Business Subsidy Policy for the creation of new jobs at a
rr:ihtimurn wage of$15.00 per hour excluding benefits required by law,
as well as a 5-year location requirement.
In the case where multiple sources of public financing are requested
(e.g. Microloan and Tax Increment Financing) job creation goals shall
not be double-counted.
Borrower must comply with the provisions of the city's Industrial and
Business Park zoning ordinances as applicable.
Do,wntown Revitalization Financing Program
Purpose: The Downtown Revitalization Financing Program is available to
business and property owners in the Downtown Area primarily for the
rehabilitation and restoration of older buildings, as well as new business
development. Non-profit organizations may be considered. The
Downtown Area shall be described as that area in the attached Exhibit
A.
Amount: Ulp to $74,999 of secondary financing not to exceed 40",'o of the
project cost.
l:"quity'. Must hake private-sector con-1.1-nitri-te tits for 50%0 of the project cost.
Borrower must provide 10016 or more of project Financing.
Rate: Fixed at 2"/o.
Ten-1-1: Financing with a balloon payment in up to 5-years. Loans may be
amortized tip to the following lirnits:
20 years on real estate. uses;
10 years on equipment uses.
F�.'xtension: In the event that the Borrower is unable to obtain conventional
financing to replace the Nficroloan at the end of five years, the loan
may be extended up to two additional years at a market rate of
interest.
Criteria: At a minimum, 2W/o of Microloan dollars must: be used for the
improvement of the building faqades,with exceptions to be
Targe 3 of 17
considered when it appears the facade irnprOvenicilts are not
necessary. IFInancing of leaseliold improvements will be considered at a
IIII'lit of$25,000,.
Borrower must be located in the Downtown Area.
Lc')ans must be supported bysufficienr collateral,which may include
personal assets and guarantees.
Energy,Efficiency Improvement Program
Purpose: The f4nerp, Efficiency Improvements Prograln is available to
property owners of commercial or industrial buildings in Elk River to
provide capital to businesses to invest in energy efficiency and.
improve their profitability through reduced energy costs and enhance
their ability to retain and create jobs. In addition, the program helps
the city of Elk River use energy conservation as an economic
development tool. Non-profit organizations may be considered,
Amount: Applicants inay apply for the cost of improvements up to $74,999
Eligible Uses: Energy efficiency measures installed in or on a building include:
• Facility systems optimization (corniTiissioll�ii-ig/re-commissioning)
• Facility systerns control improvements
• Process efficiency iniprovernents (CenterPoirit Energy)
• Trrllglltlil-lg efficiency improvements
• Heating,ventilation and air conditioning system modifications
• Exterior envelope improvements
• Nlotor and pump efficiency irnproverrients
• Ground-source heat purnp systems used to, heat or cool a facility
• Installation of equipment or devices that use renewable energy
sources to generate electricity or heat or cool a building including
solar electricity (photovoltaic),wind turbine or solar thermal.
1.a.quity: Must have ,I minimum of 10% equity provided by the borrower.
Rate: Fixed; 2 points below the lowest prime rate published in the Wall
Street Journal the day the loan is closed, or 30210,whichever is greater.
Terni: The maximum maturity date will be determined by the useful life of
the improvement and the energy payback achieved. For projects that
have a shorter length of payback (2-5) years as calculated according
to energy savings, the loans will have an initial MatUrity of up to 5
years from the date of closing. Longer life,improvements (6-15
years) may apply for I longer maturity of III) to 10 years.
Page 4 of 17
Criteria: At least 50111"0 of microloan funds should be spent on energy
efficiency improvernents.
Applicant must agree to energy audits conducted under the utility
company's Conservation Improvement Program (CIP). If warranted,
engineering studies then are performed on facilities with consen-ation
opportunities under the utility company's CIP Program,
Energy efficiency is defined as Improvements that are rebatable by
the Elk River Municipal Utilities (E'RNIU) or the utility provider for
the property if not ERM(T. Proposed energy efficiency improvements
that do not qUalif)l for the utility's prescriptive rebate program will be
reviewed and approved by the utility company, servicing the upgrade
measures (e.g. Elk River Nfunicipal Utilities, ConueXUS, CenterPoint)
along with a letter indicating eligible utiliny rebates.
Utility rebates as applicable will be assigned to the Elk River EDA
and applied toward principal repayment of the loan.
An E'Ik River Energy City Comt-nission mern. ber will be asked to
participate in the EDA Finance ("omrnittee review and
recommendation of the application.
The loans will be secured by personal and corporate guarantees, and
if applicable a lien on equipinent financed and Subordinate mortgage
on the property. Loans are not transferrable.
Installation must be certified through a licensed contractor and
electrician. New construction is eligible when participating with a
utility coinparly rebate program. Eligible costs shall include only
incremental costs over industry design standards.
Jobs Incentive Program
purpose: To assist existing businesses with expansion and attract new
businesses to the City whose local operations will help expand the
City's economy through job retention and creation and
maintain/grow the City's tax base. 'rhe purpose: of the_Jobs Incentive
Program is to encourage the creation of high paying and quality jobs
to, the city.
Amount: UP to $200,000 of secondary financing not to exceed 2(P,/6 of the
project cost.
f"quity: Must have private-sector commitments for 50% of the project cost.
Borrower must provide 10'1/0 or more of project financing.
Rate: Fixed at 2'rf`o.
P 0 1
Page 5 of 17 6N�AXITW6R�JE
Term: Financing with a balloon payment in up to 5-years. Loans may be
amortized up to the following limits:
20 years, on real estate uses,
5 years on equipment uses.
Extension: The loan term of 5 years may be extended by up to two additional
years'voith approval from the F,DA and City Council.
Criteria: Borrower must create one new full-time job for each $20,000 loaned,
retain one new full-time job for each $10,000 loaned, or combination
of retain,,qe and creation to meet the requirements. All new jobs must
be created within 2 years and retained for the period of the loan. Said
jobs must pay greater of$15.00 per hour or 15W,6 of state or federal
minimum wage,whichever is greater, exclusive of beriefits required 1)),
law, Any loans shall meet the city of Elk River Business Subsidy Policy
for the creation of new Jobs, as well as a 5-year location requirement.
In the case where multiple sources of public financing are requested
(e.g. Microloan and Tax Increment Financing) job creation goals shall
not be double-counted.
Eligible Costs: Funds may be used by the borrower for costs related to job creation
and retention as a result of the project as defined in the City's
Microloan Fund Policy. Eligible costs may include relocation costs that
equal the lesser of$25,000 or 20% of total loan -arnount. Costs may
also include actual incurred City fees, associated with construction
and/or development costs of the project and outstanding or pending
assessments on properties where a business is to be located. In no
circurnstarice may jobs Incentive funds be used for restaurants, retail
businesses, casinos,or sports facilities.
3. USES
1. Permitted Fund Uses:
a, Building construction
b. Land acquisition
c. Machinery,
d. Furniture, Fixtures, and equipment (FF&F',)
e. Renovation and modernization of buildings
f. Exterior renovation of retail, commercial and industrial buildings
g. Public infrastructure needed for economic developmerit expansions
li. Investment real estate with minimum of 5W10 of the space pre-leased
2. Ineligible Fund Uses:
a. Expenditures for the construction and/or renovation of residential units
b. Working capital
c, Refinancing of existing debt
d, Inventory
Page 6 of 17 QNA T WUR E
4. BUSINESSES ELIGIBILITY
Any project meedq4 the above criteria, and located or proposed to be located within
the city limits of Elk River as defined by this program,may= be eligible for an
Economic Development Microloanas further defined herein:
• L-InIcss othei�,risc stated, business must be a for-profit corl.-.)onatioll,
partnership, or sole proprietorship.
• Business must be as;,na11bio7'11exs as defined by the Small Business
Administration (SB,A).
® Business must have a positive net worth.
• Religious,political, and pornographic enterprises are not eligible to use
the E'conomic Development Microloan Fund.
5, MICROLOAN FUND TERMS & CONDITIONS
Loan Structure
All F''conomic Development Nficroloans shall be structured as participation loons and
serviced by the project's primary lending institution,rather than as a direct loan,
unless otherwise approved by the EDA Finance Committee. Such an arrangement
allows for the central distribution and collection of funds and simplifies the financing
process for all parties involved. A participation agreement will be signed by the
borrower, primary lender and the EDA.
The FDA rnay require additional agreements to be: signed by the borrower
(i,e, security agreement, personal guarantees,business subsidy agreement).
Simultaneous Microloans
1"he simultaneous use of different Microloan Fund Programs by any one borrower or
for any one project is prohibited.
Loan Repayment
jobs Incentive funds, including principal and interest received may not be used to
support restaurant, retail, casinos,or sports facilities.
Call of Loan
A loan shall become due and payable in full if a business relocates outside of the city
of Elk River prior to the rriaturity date of the loan.
Late Payment Charge
.11" late payment charge of of the installment amount may be enforced,
6. REGULATION FOR NEW CONSTRUCTION AND IMPROVEMENTS
All buildings which public funds will be used for construction or renovation are to
be brought into u.mfortriance with city ordinances and state building codes. Repairs
may include the following systems and portions of real property:
a. Mechanical heating, plumbing, and electrical
P I N [ t I1 l 6 1
Page 7 of 17 NAMPE
[&�--R
b. Structural; including the facade of the structure and energy related
improvements.
C. Hook-up to city senrices (i,e, water,sewer)
d. ADA (Americans xvith Disabilities Act.) improvements
7. LOAN SECURITY AND GUARANTEES
Applicant must be able to secure the loan by providing the FDA with, a n-tinimum. of
a subordinate mortgage upon the building and/or assets or other approved collateral.
Applicant Must demonstrate the financial me-iris to repay the loans, as deteri-nined by
the Econon-ric Developi-nent ,kuthority,
Whenever possible, personal guarantees will be made part of any loan agreement.
Key person life insurance may be required as determined by the EDA Finance
,Committee based on loan amount and company ownership partners,
8. TIMING OF PROJECT EXPENSES
No project should commence until the Ok River 11conomic Development Authority
has approved the loan application. Any costs incurred prior to the approval of the
loan application are generally not eligible expenditures.
No building construction should comrrrenCeUntil the required city permits are
secured.
The applicant swill be responsible for all legal, recording, and ether fees required for
protection of a security interest in the loan, payable by a non-refundable 10/16
processing fee, which is paid at the time of application. In addition to the
non-refundable P,c) processing fee,all legal and filing fees shall be paid by the
borrower at loan closing.
9. PROCEDURAL GUIDELINES FOR APPLICATION AND APPROVAL
1. All applicants shall first contact a pritnary lending institution to determirre if
additional equity is needed, and if so, how much.
2. The applicantandthe primary lender shall then meet with city staff to obtain
information about the Nlicroloan program, discuss the project, and obtain
application forms.
3. The applicant shall complete and submit an application form to the city, along
with a processing fee of 1% of the loan request. (The fee is used to cover
processing expenses and will be returned only if application is denied.) The
applicant must provide evidence of their ability, to meet the equity requirements
or provide a letter of commitment for conventional financing from, the primary
lending institution.
Page 8 of 17
4. The EDA is a governi-nental entity and as such must provide public access to
public data it receives, Data deemed by Applicant to be nonpublic data under
State hIW Should be so designated or marked by Applicant. See Minn, Sat.
Sections 13,59, Subd. 1,respectively.
5. The application will be reviewed by the city staff to determine if it conforins to
all city policies and ordinances and to consider the following:
a. The availability and applicability of other governmental grants and/or
loan programs.
b, \Vhether the proposed project will result in conformance with building
and zoning codes.
c. Whether it is desirous and In the best interests of the public to provide
funding for the project.
6. With written permission granted by the applicant, the al-.)plication be
submitted by city Staff to the Small Business Development Center (SBDC) as
advisory consult for staff and EDA finance Committee. Applicant will be asked
to execute a Release of Information form with SBDC,. To make an appointment
with the SBDC, call 320.308.4842.
7. The 1.7l..)A Finance Committee and F,'IDA Commissioners will review each
:application in terms of its consistency with the goals of the city's Comprehensive
Plan and Economic Development Strategic Plan and in relation to the project's
overall impact on the community's economy. Downtown Revitalization
Program applications will also be reviewed by a I lousing& Redevelopment
Authority Commissioner in conjunction with the f,"'DA Finance Committee.
.nergy Efficiency trnproven-lent Prognarri applications will also be reviewed by
an Energy City C'ornmissioner niconpunction with the EDA Finance Committee.
The EDA I-,inance Committee will evaluate the project application in terms of
the following:
a. Project Design - Evaluation of project design will include
review of proposed activities, time lines and a capacity, to implernerit.
b. Mnancial Feasibility -Availability of funds, private involvement, Financial
packaging and cost effectiveness,
• Appropriate ratio of private funds to Microloan, funds.
• Sufficient cash flow to cover proposed debt service as demonstrated
by financial statements and projections.
• Ability to demonstrate a positive net worth.
• Letter of Commitment from applicant pledging to complete the
project during proposed Project duration,if the loan application is
approved.
• Letter of Corriniin-nent from other financing Sources staring terms
and conditions of their participation in the project if applicable.
Page 9 of 17
0 Sufficierit collateral..
c. All other information as required in the application and/or additional
information as may be requested by the Economic Development
,Authority.
d. project compliance with all city codes and policies.
c. Program(.-)bjectives - In addition to quality job and wage
creation/rctention requirements, the applicant must meet all Microloan
Fund criteria and dernonstrate how the proposed activities will meet at
least one of the following objectives;
• The project contributes to the fulfillment of the city's approved and
adopted economic development and/or redevelopment plans.
• The project prevents or eliminates slums and blight.
• The project increases the local tax base.
• The project brings a structure into compliance with all existing
buildirig code violation.
8. A written request for all extension shall be accompanied by a copy of current
financial statements and a $500 upfront processing fee. 17he processing fee is
used to cover processing expenses and will be returned if request is denied,. The
application, for an extension beyond the original term should include a letter of
denial from a conventional lender.
9'. The FIDA Finance. Committee will recommend the approval, denial, or request a
resubmission. A recommendation from the Finance Committee will be
forwarded to the IN for final action.
10. LOAN POLICY REVIEW
"I'lie above criteria will be reviewed oil all annual basis to ensure that the policies
reflected in this document rare consistent with the economic development goals set
forth by the city,
11. RIGHT OF REFUSAL
The Elk River Economic Development Authority may deny any project which it
deems inappropriate according to the guidelines established in this document.
12. COMPLIANCE WITH MN BUSINESS SUBSIDY LAW
All developers/bLISInesses receiving financial assistance from the Clity of Elk River
shall be subject to the provisions and requirements set forth by the ("ity's, Business
Subsidy policy as amended and Nlinnesota Statutes Sections 11(�J.9'93 to 116J.995
(the "Minnesota Business Subsidy Law")
P 1 0 1 R E D I I
Rage 10 of 17 EVN4=;UWOR�i
ELK RIVER ECONOMIC DEVELOPMENT
MICROLOAN FUND APPLICATION
1 , CONTACT INFORMATION
Legal Name of Business:
Project Site Address:
"J"
City State Zip
Contact Person(s)
Fax
3us'ness Phone
Home Phone
_3
Email
Check One: Provrietor Corporat:ion Partnership
Federal ID # State ID #_
2. NATURE OF LOAN REQUEST
Which Micro-Loan Program are you applying for?
Industrial Incentive Program
1")owntown Revitalization Financing Prograin
Energy E',fficiency improvement Program
jobs Incentive Prograrn
Amount Requested: $ Total Project Cost: $
Type of project:
New construction for a start-up business
New construction for an existing business
Onsite expansion
'quipment purchase
Remodeling: (tinle one) Commercial / Retail /Oindustrial
Other
Please give a brief summary of your business and its products or service:
Page I I of 17 PO 1 1RI at
NAWRE
",-J,5.1
ra
!epi'
ut
C
please give abrief(summary athe project: �"' � �i F�" "d ''' _ '
�..A,, 61,
01,
r ,
�� ..r
.A
lrlease.describ hew this loan wil-I impact your project;
p
, p
�,.f ,1rv� 41) p
m.
.l �,
�F
a FINANCING
Project Casts
Land ( .
Site improvements $
Buildings (attach plans &casts) $
k gt.ipment/['vlachinery/L~yil tures
(attach list and estiariated coasts)
Remodeling s E-52-(.. ) 000
Industrial Inventory/Working Capital
Other (attach description)
Total Casts ✓� , ..,,
Carr meats•
Proposed'Sources of FinangLm
Page t? of 17 P p 1 N 1 0 � t
i v
SOURCE NAME' TERNIS AMOUNr
2.0 k, V, s
Batik Loan
Bank Loan
a
I k-I
Other
Fed Grant/I.,oan
State Grant/Loan
2C
EDA Nficroloan
'fax Increment Financing
Tax Abatement
Total Financing
Collateral Assignments
Lien
Description of Collateral Position
To Batik I
To Batik 2
To Private SOLirces
To Other. Sources
To Federal Govt
To State
To FDA Microloan
Page 13 of 17
Value of Collateral
Book.YA11 e Coast ExistingIs
Land6 $
°m 1�,>i,0,o �)-V.
Machinery & 1"'cluila. $ �P
Other $ $
Other $
Present# of l-0xr7ploye s 12.-, � rratal P'ayvroll �t�.., ... V,� 0A�
scabs To Be Created* it
Please. rovide the fcallowi information c> a 'alas rcau expect to crate v�ritlmin 2-years.
Average Are the obs Expected
N Urnlaer: Hourly Annual Pc:rinancrit or S Ii.ring
o� kbitle nt ja � ��a e alar Lcna ora ? Date ate
" m . 7�
�.
✓ R
"If loan is for jot) retention only, please explain in Business Plan.
Program Objectives
(Check all that apply)
The project contributes to the fulfillment of the city's approved and adopted
economic development and/car redevelopment plans.
'Fhe project prevents or eliminates slu.rns and ]alight.
The project increases the local tax Lase.
X" The project brings a structure into compliance with an existing building code
violation..
Page 14 of 1,7 E t 8 � t��
S. PROJECT CONTACTS
Attomey
Name ,v
z-,
Address
c <
Phone
Accountant
Narne a, e-ct-,—s
Address'-7/0'/
Phone r
Financing Sources (lenders. partners, etc...�
Name
Address lcli�v,�
Phone
Name
Address
Phone
Parent Company
Na m c
Address
Phone
Others
Narrie
Address
Phone
Name
Address
Phone
Page 15 of 17
6. ATTACHMENTS CHECK LIST
Please attach the follo,,ving:
2'k) Written Business Plan:
1. Description of Business
2. Ownership
I Management
4, 1: ate Established
5. Products/Sery ices
6, 1,;'uture Plans
--B) Financial Statements for Past'lwvo Years
-C) financial 11'rojecnons f(-)r'Fwo Years
-D) Resume: (-.)f Owner/Management
Personal Financial Statements of Proprietor,partners,
Guarantors
_F') Letter of Comn-litment fron-i Applicant Pledging to Complete
During the Proposed Project Duration
-G) Letter of Cornn�itrnent from the Other Sources of 1"inancing,
Stating Terms and Conditions of their Participation in
Proect
-11) F'ce Of 1'//(,, of amount of loan request
7. AGREEMENT
I / We certify that all information provided in this application is true and correct to the best
,Of my/our knowledge. I / We -authorize the cit}, of Elk River and the Finance Committee to
check credit references and verify financial and other information. I / We agree to provide
any additional information as may be r es td by the city, and the Finance Committee,
A1:'PLICANTSIGNA1 URE
BY
1)ATE /Z 2
Page 16 of 17 P 0 1 E R I I a I
NATURE
Ili- 0 1
City Of
El
Housing and Redevelopment, Authority
Blighted Properties Forgivable
Commercial/Industrial Loan Policy
Guidelines & Application
Original Amended: November 2015
HRA Adopted November 2,2015
Clity Council adopted: November 2, 2015
Original Adopted: September 2015
,City Council Adopted: September 21, 2015
111A .Adopted: September 8, 2015
Cin,o,f Elk River
housing and kedevelopment Authority
13065 Orono Parkway
Elk Rivet,ININ 55.330
763.635.1040
k-r,v-er",I I wv-
P 0 1 1 R I 0i 0 Y
NATURE]
&WRE
d
ELK R,IVER HOUSING AND REDEVELOPMENT AUTHORITY
BLIGHTED PROPERTIES FORGIVABLE
COMMERCIAL/INDUSTRIAL LOAN POLICY
GUIDELINES & APPLICATION
I. OVERVIEW
'I'he I lousing and Redevelopment Authority for the City oft_Ik River (HR.A)
recognizes the need to stimulate private sector investment to help spur new
Construction, create and retain employment opportunities and promote the sale .and
redevelopment of structurally substandard properties.
The focus is on commercial,retail,industrial, manufacturing, and technology-related
industries to increase the local and state tax base and improve economic vitality. The
program can be used toward the purchase of properties deemed structurally
substandard.
11. TO APPLY
Apl-,)Iications will be accepted on an ongoing basis. Projects will be scored based on
attached Application Review Worksheet. The applicant shall complete and submit
the attached application to the city, along with a processing fee of$2000 to cover
processing expenses. Once application is deemed complete,it will be reviewed by the
cities Financial Advisor, Executive Director and I IRA (process may take Lip to six
weeks).
III. PURPOSE
The Blighted Properties Forgivable Commercial/Industrial Loan funds are to be
used for business start-ups, expansions, and relocations where jobs are created and
tax base is generated. This can be accomplished by the following means:
1. Creation of permanent private-sector lobs in order to create above average
economic growth;
1 Stimulation orleverage of private investment to ensure economic renewal
U__W) lc�'"
and competitiveness;
3, Increase local tax base; w
T. Improi,ernent of employment and economic opportunity for citizens,in the Z VNI'kl
region to create a reasonable standard of living; and C-'a '3 iy-v)
5. Stimulation of productivity growth through improved corrimercial, retail., (Oca'(
manufacturing or new technologies.
IV. PROJECT ELIGIBILITY AND REQUIREMENTS
The Blighted Properties Forgivable Cornmercial/Industrial Loan must be based on
the folloNving criteria:
Blighted Properties Forgivabie Commercial/Industrial Ix)an Policy& Gutdehoes FIRXN to oil
Page 2 of 15 TURE
9NAW
I- The rnininiurn wage for a job to be considered a new or retained job shall be the greater of
$15.00 per hour or 15011110 of state or federal rninitnum. %vage,whichever is greater,exclusive
of benefits required by law.
2. Increase in tax base
3. 'T'he project can demonstrate that investment of public dollars induces private funds;
4. The project provides higher wage levels to the community or will add value to current
workforce skills;
5. The project results in the sale and/or redevelopment of properties deemed structurally
substandard;
6. Whether assistance is necessary to retain existing business; and
7. Whether assistance is necessary to attract out-of-state business.
A Blighted properties Forgivable Commercial/Industnial Loan is required to meet clause
5.). A loan cannot be made solely on a finding that the conditions in clause 5.), 6.) or 7.)
exist, A finding 1-nust be made that a condition in clause I,),2,), 3), or 4.) also exists.
Blighted Properties Forgivable ('ornmercial/Industrial 1.,oans are awarded to businesses
that meet all project and job requirements as outlined within. Projects are evaluated on a
first-come, first-senedbasis and awarded based upon meeting program criteria,
V. ELIGIBLE ACTIVITIES
1. Blighted Properties Forgivable Commercial/Industrial Loan may be used for
the foRowing activities:
a. Property acquisition, dernolition, soil prep,infrastructure, or building
construction.
b. Purchase furniture, fixtures, and equipment (IJ&E) along with new
construction.
V1. BUSINESSES ELIGIBILITY
Any project meeting the above criteria, and located or proposed to be located Within
the city limits of Elk River as defined by this program, may be eligible for a 1-lousing
and Redevelopment Authority Blighted Properties, Forgivable Commercial Indus trial
Loan as further defined herein,
• Business must be a for-profit corporation, partnership, or sole
proprietorship,
• Business must be a s1nallbusinessas defined by the Small Business
Administration (SBA).
• Business must have a positive net worth,
• non-profit corporations,casino, sports facilities and sexually oriented
businesses are not eligible to use the I fousing and Redevelopment
Authority Blighted Properties ForgiN;aide Loan Program.
V11. BLIGHTED PROPERTIES FORGIVABLE
Blighted Properties 1�()rgjvawc(,(.)niiiiei�cia.1/indusTriiiI Loan Policy&Guidehiies P I I I N, E I I I
Page 3 of LS ONAXWTURE,
COMMERCIAL/INDUISTRI'AL LOAN TERMS & CONDITIONS
Loan Amount
There is a MaXIMUM of$75,000 per Blighted properties Forgivable
Cornmercial/I nd us trial Loan, Federal guidelines requirca minunurn of one job to be
c reated for ever) $15,000 requested. To receive maximum loan amount of$75,000,
applicant. would need to create five new F"fE positions '17he nunimum wage for a job
to be considered -a new or retained job shall be the greater of$15,00 per hour or 150'�'o
of state or, federal Minin-Win wage,whichever is greater, exclusive of benefits required by
law.
Loan Structure
J\11 Housing and Redevelopnien t Authority Blighted Properties Forgivable
Corrimcrcial/Industrial Loans shall be structured as direct loans.
Applicant must provide at least 50% of project cost through other means. Equity
down payment reqtdrernents may vary depending on project and primary lending
institution. Blighted Properties forgivable Commercial/Industrial Loan funds may
be used as equity upon approval of primary lending institution
The FIRA may require additional agreements to be sig-lied by the borrower
(i.e. mortgage, promissory note, security agreement,personal guarantees, business
subsidy agreement).
Other HRA Incentives
Projects can combine the Blighted Properties Forgivable Commercial/I rid us trial
1,oan with all other incentives (i.e.: Micro Loan Program, 'Fax Abatement,TIF, etc.)
Evaluate Building(s) Existing Condition
An evaluation must be conducted to determine if the building(s) is structurally,
substandard by a licensed structural engineer with experience in inspection and
facility assessment projects, Structurally Substandard shall mean containing defects in
structural elements or a combination of deficiencies in essential utilities and facilities,
light and ventilation, fire protection including adequate egress,layout and conditic)n
of interior partitions, or similar factors,which defects or deficiencies are of sufficient
total significance to justify substantial renovation or clearance.
Deliver a written narrative analysis of the property describing why the property does
or does not meet the criteria as "'structura.Hy substandard" as established in
Minnesota Statutes Section 117.025, subdivision 7.
Call of Loan
Blighted properties Forgivable Loan terms are set by the FIRA. Projects wl-iich don't
meet. the terms inay be required to repay all or a portion of the loan as deterinined in
the loan agreement. A job creation extension may be granted upon review of the
Flousingand Redevelopment Authority on a.case by case basis, except as otherwise
required by law. Repayment terms will vaq. 7 depending on the use of funds and
collateral securing the loan. Specific repayment terms will be defined in the loan
agreement in the event repayment of part or the entire Blighted Froperties
Blighted Properties Forgivable(,olTiniercial/Industrial bman Poky&Guidelines
Page 4 of 15 NATURE
QW6
5, The application N611 be reviewed by the (-"try staff to determine if it conft.)nns to
all City policies and ordinances and to consider the following:
a. 'rhe availability and applicability of other governmental grants and/or
loan programs,
1). Whether the proposed project wall result in conformance with building
and zoning codes.
c. W'hether it Is desirous and in the best interests, of the public to provide
funding for the project.
7. The FIR-A Commissioners will review each application in terms of its consistency
with the goals of the City's Comprehensive Plan and Housing and
Redevelopment Authority Strategic Plan and in relation to the project's overall
impact on the community's econornyand will evaluate the project application III
terms of the following:
a. Project Design - Fwaluation of project design will include
review of proposed activities, time lines and a capacity to implement,
b. Financial Feasibility -Availability of funds, private involvement, financial
packaging and Cost effectiveness.
® Appropriate ratio of private funds to the Blighted Properties
Forgivable Loan funds,
• Sufficient cash flow to cover proposed debt:service as demonstrated
by financial statements and projections.
• Ability to demonstrate a Positive nct worth.
• Letter of Conunitment frorn applicant pledging to complete the
project during proposed project duration,,if the loan application is
approved,
• Letter of Corrin-litment from other financing sources stating terri-is
and conditions of their participation in the project if applicable.
• Sufficient collateral.
,a Certificate of Good Standing from the Minnesota Secretary oaf State
c. All other infon-nation as required in the application and/or additional
information as may be requested by the 1--lousing and redevelopment
Authority.
d. Project corril-.)hanceAith all city codes and policies,
e. Program (")bjectives - lit addi6on to quality,job and wage
creation/retention requirements, the applicant must meet all of the
Blighted properties Forgjvable Loan Program criteria, and demonstrate
how the proposed activities will meet at least one of the following
objectives listed on page two of this application,
Blighted Properties Forgivable Commercial/Industrial Lc)an Policy&GuidelinesV I T
Pag6 e of 1-5 ATURIE
UNW
I"orgiN,able Comi-nercial/Industriil Loan is required. A loan shall become due and
payable in full if a business relocates outside of the city ofti'llk River prior to the
m-atur 1
t), data of the loan. Jobs created must be maintained for a period of 2 years
frorn the dat, . of cl( in Y. .......
V1111. LOAN SECURITY AND GUARANTEES
Applicant must secure the loan by providing the I-IRA with a minimum of a
subordinate mortgage upon the building and/or assets or other approved collateral.
Personal guarantees and entity guarantees inay be made part of all loan agreements.
Key person life insurance may be required as detertnined by the IIl?-A based on loan
:amount and company ownership partners.
Vill. TIMING OF PROJECT EXPEINSES/PROJIE'CT TIMELINE
No project should commence until the Elk River Housing and Redevelopment
Authority has approved the loan application. Any costs incurred prior to the
approval of the loan application are generally not eligible expenditures. Applicant
must submit project tirrielinewith application; timeline,,,will assist in determining job
creation goal deadlines.
The applicant ill be responsible for all legal,recordinex 1 AusL th �jjred or
g -f!�, xvq
protection of a security interest in the ]oan, pavable by non-refund
ti;rocessing fee, hick is Paid at the time of application, 1-Tr-addition
flon-ref-uwiaNct,000 processing fee, all legal and filing fees shall be paid by the
borrower at loan closing.
X PROCEDURAL, GUIDELINES FOR APPLICATION AND APPROVAL
1. AN applicants shah first contact a primary lending institution to detenriine if
additional equity,is needed, and if so, how much.
2. The applicant and the primary lender (if applicable) shall then meet:with City
Staff to obtain information about the I lousing and Redevelopment Blighted
Properties Forgivable Commercial/Industrial Loan program, discuss the project,
and obtain application formas..
3, The applicant shall corriplete and subinit an application form to the City,along
%krith a non-refundable Processing fee of$2,000. The applicant must provide
evidence of their ability to meet the equity requirements or provide a letter of
commitment for conventional financing from the primary lending institution if
applicable.
4. The I IRA is a governmental entity and as such Must provide public access to
public data it receives. Data deemed 1)), Applicant to be nonpublic data under,
State law should be so designated or marked by Applicant. See Minn. Sat,
Sections 13.59, Subd. 1, respectively.
Blighied Properties Forgivable(,olninercial/Industrial Loan Pohcy&Guidelines
Page 5 of 15
KNAX::tVU6: 1
1Ri:E
K The Housing and Redevelopment ALIthority �;vill recommend the approvAl,
denial, or request a resubmIlission.
9. Loan Proceeds will be disbursed upon execution of the Blighted Properties
Forg�ivable (]ornmercial/Industrial Loan documents. .A closing to execute the
13.1ighted Properties F'or9 ivable Cornmercial/Industrial Loan documents will onl,g,,
occur upon the following: Evidence of Applicant's portion of project funds
have been disbursed or escrowed;or written confirmation from the primary
lender that Applicant has met equity requirements for the project and Primary
Lender has either funded their portion of the project;Lender has fully funded
the project and is seeking take out financing by I-IRA for I IRA's portion of the
project; or Lender is requesting simultaneous closing Cor the funding of the
Project.
X1. LOAN POLICY REVIEW
The above criteria will be reviewed on an annual basis to ensure that the policies
reflected in this docurnent are consistent with the housing and redevelopment
:authority goals set forth by the City
X11. RIGHT OF REFUSAL
The F'Ilk River I lousing and Redevelopment Authority may deny any project which it
deems inappropriate according to, the gwidelines established in this docurnent.
XIII. COMPLIANCE WITH MN BUSINESS SUBSIDY LAW
Each company receiving assistance stance in the principal amount:of$75,000 from the
I IRA Blighted Properties Forgivable Commercial/Industrial Loan program shall be
subject to the provisions and requirements set forth by Minnesota Business Subsidy
Law Statute 11(`J.99,3 and the City of 1'.,'Ik River BUSineSS Subsidy Policy.
All applicants will be required to submit annual progress reports to the f Jousing and
Redevelopment Authority until job creation requirements are met.
Blighted Properties, ForjvaHe Commercial/Industrial Loan Poky&Guidelines P a I I I I I T
Page 7 of 15 [NAFURE
ELK RIVER HOUSING AND REDEVELOPMENT AUTHORITY
FORVIABLE COMM ERCIAL/I N DUSTRIAL, LOAN
APPLICATION
1. CONTACT INFORMATION
Legal Name of Business:
Project Site Address: `5 v E
("ity / State / Zip
Contact Persons
Business Phone ax
Home Phone 2- 3S,E 56 —Ernail
(;heck-- One: propnetor - Coi-poration Partnerslaap
Federal ID # /1_.fState ID
If. NATURE, OF LOAN REQUEST
Does your project involve the redevelopment of structural1y substandard property?
Yes
No
.Am(.-)unt Requested: $ -75 00() Total Pro;'ect Cost: LLk)—
Project timefine: App�o ?)Vn 0, r t �is dW, 16,5 i' obil
Please aive a brief summary of your flv
business and its products or sen7ice:
, /
t
"Y 76
0 aA- if
BLighted Properties Forgivablc Commercial/Industrial Loan Fund Application Page 9 of 15
Please give a bn'ef surnmary of the pro cct and how it complies to the criteria for approval of
-e , N ,C ry
the blighted properti f r I 11. zornmercial/ii d' I I I ,in program� ,ull V)�I U (a 4,
L
z, X4 7
1 4
W A k
ritu, phz"I # 11,4/
26
2,-
o'd
K
h0a t
WOW,, a4i 4y'a,e a A-b
�4 jo v
ry
�e bl�
t our project:
i),f.5 akv
... t
Pleafe. 'Scrlfm kow t us loan�Nil] impac
ly,wJ-s
o
q�v trill I L,�,tt� b
j(dq
TTVY jjl�,,t�j r �b,u t h/Z9
�)IXA41 -j prci I' Ll)
I'll. FINANCING
Project Costs
Land $
Site improvements $
Buildings (attach plans & costs) 3 2.0,1-000
Equipment/Mac inert//Fixtures
(attach list and estimated costs) $ -
Remodeling $
Industrial Inventory/Working Capital $
Other (attach description) $
,notal Costs
Comments:
Proposed Sources of Financing
SOURCE, NAMIt TI'RIMS J"tMOUNT
Bank Loan
Bhgjited Propertio F'orgivable Commercial/Industrial Loan.Fuad Applicatioll Page 10 of 1-5
Bank Loan $
Other Private Funds
Applicant ("'ontribution
Othcr CO Lk,"(t
f4'ed (3rantlIAM11 $
State Grant/Loan
I-IRA Blighted ks 7� OLU
Properties 1,orgivable Commercial/Industrial Loan Program
Tax Increment J=-inancing $
Tax Abatement
Total Financing
Collateral Assign ents
Len
Decrjpflan of Collateral Position
To Bank I Lay)d/ E)UL V' '
To Bank 2
To Private Sources
To Other Sources
To State
To HRA Nficro Loan
Yc
1 IRA Blighted Properties Forgivable C/I loan �
Value of Co lateral
Book Value Cost ExistinaI dens,
------
Machinery & L,'1qt.iJp.
Blighted Prop trdes Forgivable Loan Fund Application page 11 of 15
Other
Other
!V® JOB & WAGE GOALS
Flow rnany employees (10 )IOU currently have? V2.
GUidelines require a minimum of one job created for every $15,000 requested,
jobs, to be Created"
Please provi e the followl ig information on jobs you expect to create within 2--years,.
F—F—Average Are the Jobs Expected
Number Hourly Annual Permanent or Hiring
Job Tide of Jabs Wae `Salary �reaorarv? Date
Vfv)�* C)v asial 2_ ?q h( pe i ry\
hir I
MI h(
Program Objectives
((,heck all that apply)
The project contributes to the fulfilh-nent of the city's approved and adopted
housing and redevelopment atithorlity and/or redevelopment plat-is.
The project prevents or eliminates slums and blight.
The project increases the local tax base.
`rhe project bn'ngs a structure into compliance with an existing building code
violation.
Bhghted Propertics Forgivable Comaicrcial/IndListrial Loan.Ftind Application Page 12 of 15
V. PROJECT CONTACT'S
Attomujey
Name
Address
�Ic
L
Phone
Accountant
<
5
Address 0 vv —Ao
Phone, 3- 71 (/?---316
Financing—,Sources (lenders. partners, etc...)
Name
Address
—76 Phone 30
Name
Address,
Phone
Parent Company
Name
Address
Phone
Others
Name
Address
Phone
Name
Address,
Phone
Bhgh�ed Properties Forgivabie Comi-nercial/Indumri-al Loan FundApplication Page 13 of 1.5
V1. ATTACHMENTS CHECK LIST'
Please attach the fallowing:
A) Written Business Plan:
1, Description of Business
2. Ownership
3, Management
4. late.Estabhshed
5. Products/Services
6. Future Plans
-B) Financial Statements for Past Two Years
---�'�""" C) Financial Projections forTwo Years
D) Resume of Owner/Management
------ Personal Financial Statements (-.)f Proprietor, Partners,
Guarantors
F) Letter of Commitment from Applicant pledging to Complete
.During the Proposed project Duration
G
Letter of Corniiiitt-nent from the Other Sourcesof Financing,
Stating Terms and Conditions of their Participation in
Pre l'ect
-11) Application Fee of$2,000
Certificate of Good Standing
V1. AGREEMENT
I /'w'e'e certify that A information provided in this application is true and correct to the best
of my/our knowledge. I / We authorize the City of Elk River Housing and Redevelopment
.Authoriq, to check credit references and verify, financial and other information, I We
agree to provide any additional information s mai;,be requested by the 11RA,
APPLICANTSIGNATURE,==
DATE
Bfighied Properties Forgivable Con-imercial/Ind ustria I Loan Fund .Application Page 14 of 15
011me Concepts Inc.
Precision Tooling and Metal Stamping Dies,
13,915 Radium,St.,Suite F, Ramsey, MN 55303
763-712-8168(Phone)763-712-8169(Fax)
Letter of Commitment
City of Elk River
RE: Purchase and Improvement of property 18489Twin Lakes Road, Elk River,
Mn 55330
Dear City of Elk River,
We, Fred Trapp and Michael Tracey, representing Die Concepts, Inc and F & M
Properties, LLC, are going to proceed. forward with this project. We intend to
begin the project in April 201 6 and have it completed no later then July 31, 2016.
Sincerely,
X"
Date
54-
..............
Fred Trapp
Date7 -
..............
Michael Tracey
...........
Fred Trapp Phone (763)712-8168 Michael Tracey
Owner Fax (763)712-8169 Owner
Email ftrapp@die-concepts,corn
BUILDERS,INC.
March 7, 2016
City of Elk River
Building Department
13065 Orono Parkway
Elk River, Minnesota 55330
On behalf of Die Concepts, 1.3915 Radium St NW, Ramsey, Mn., a building code review
was perfonned on an existing industrial building located at 18489 Twin Fakes Road, Elk
River, Mn,,, March 4"', 2016 using the current Minnesota Building Code.
The building is an unsprinklered, one story, n-meta.l framed structure with all addition that
is a wood framed pole structure. The proposed occupancy group will be an. F1 Factory.
Due to this information, the code review used a construction type of 1118 which has a.
basic allowable floor area of 12,000 square feet. The current building square footage is
20,900 square feet. A frontage increase was used to gain more allowable square feet,
because the building has more than 25% of its perimeter on a public way or open space
wider than 20 feet. This increased the allowable floor area to 21,000 square feet,
however in F1 occupancies Fire Areas can't exceed 12,000 square feet, therefore the
building does not meet the current building code for area. A 3 hour Fire Barrier wall
must be constructed within the building to separate the square footage into areas that do
not exceed 12,000 square feet each.
The building also does not meet the current Minnesota Accessibility Code for restroonms.
At Least one restroom for men and one for women will need to be constructed or updated
to brim; the building into compliance..
Please contact mime if you have any questions regarding the building code review findings.
Regards,
Mike R.ichgels, AIA
Principal. Architect
Scott Builders, Inc.
12 Division Street
Buffalo, NFN 55313
763-684-0000
tnriclm�,,els(mi),scottbLmi ld.co iit.
a
.r,. .. _..,.._. _�... ., �......,,,,.�.....w..... ..._.. _-�,,,.._..,..._�_....
MCI M
•, X4 2�0' bur
a b v rwr a tis
w
� a
ra
� Pull
p W gy bow
mk
ov t q
rp b �. v, "'T
v
g tF8 gzr � ` " of �
g G F k frauF a, - 1 Fea g' 3
n aa pqp��VA
pnp
G tbA " 888 *"�,�
c
n'' f Ivor a ik
11
v ,gG
br
a 7b q w. a Xpg�a�egr, Mesa e' no ,r"b°�z
pgtdb t ¢
ME
� 5a }�`gkr
„Ix ryud ,-"x
+fit
b
k
' v
i
,
r
^
w n.
ori
n,
DO S9t
ym,PLODOOS .._
r /
ZIP
J _ w
�T
K
d
y
�r
r
4`w. ��� •ate..-✓
.y
v
_....
J-
all
r..
�Q VYwy�
_ R
m �9
AN..M,
53.1.0N CiN`d NQUVN313 NVId
w ld3O'NOO 310
aa�..n,x�ew nvmwv ar.�wv. rarae�ru,x awia.e naz.. ae.m.�
_. _. ✓ ' v.�wbl�
b`O 8 S3AV hJ1Mt 1 6
7
Fj
w
:J74
CL
`kyyr 5 p'y 4, P y
a
rz tir
I'I A
............
3 lug G
Alli
X � (Ao
Q I I kk tCY Y f 1^ k I •'�'�
I I 4 I i 1
I f m I I
I 1 I I
P I I I I I
i
i 1 I I
Q 'R I
y 1YY I I
I I
I II
k_r
I
0'' I U
1 ! <
Q I
f y�
y�^^ry
V � w � I % cl I
0 I I
i 0
II i i I I
r I �
r
I
I I I � I
I I � . I
I I
eI
I
g
CL
'I I
t I
I� ` I
I {
I I I I
I I
4
1 mo
r a .S1ASN 0 DISI `
Ill 1511, CIV08 S�NVI
� a
L 69t,
� .,...
a .
as
.N % yyyy eti P q� FA
0 of
m
�S Y z
,J olnu°'"siiw" U—
a Z
nZ
' m z
W
o
W cc
F-
�u
'} Q F—
,�.. ..... F^'
o-2
.' r p., - W
w2 c F Cdr
i r �
:.
W
7 C]
E r
I I
M,s
4
W �
a 6f S .R.0 4
LLJ
ti� oaw;
tL
a
w
d
„
Q
1 LL1 J uj
W--
' - C0.!
.x +
� � �c Ed, �� z z CI,
" a�Zt z
* 0
n F- s c7
~ '
.E}'.0
d
k
y44
r
n
c, J
Ma
L w e CL
wi
U-
1'
LL
i
m P,
x
w F
� R 5
:
w
I x
71r
7-1
LLj
"
F,.
r r
i
n :
C'. c
v:
t
1`
N/, d
I
w
Y Y r°l J W
k ^ a
K' Y.
t
a.
W:
U
r
r 01.� ^"._�. .... .... __
I AI
Y + ,
i
z �
GO '' f, ...,] (5J
LI kd
S { �.
:Y
a ..
_a
f C]
,
D"
w
,
® _ .,. .... ..m... _. ...a.., m,. .. ...._...... ._,.__
PAW"I
a
oi
d
1 i j
d1 =
Grp:Fr � s
�y V
ly i yy��
G y
�i g i n 3
"
�T
1 2
� I
u
fil
a.
LLJJ
uj 1
W00
.. ...
LO
0 ya
X
e �
--- .....,or,sr5scw-........ ....__. .................
04
I
I I
l
I
I
i
.x
V Yu � ms
5
c
I
� I
I �
i I
"m
}
ti ^
2 w
`1
k
..
u ,
M
t
r u t
r
w
r
y ,
a•
�+p —•�--u � a fit
µ r P
7 �
��
C, ,;,;" +;h °• lr I P'VIIVP , u t ��� ,"4 ,/ (' ' �L f�1G1J`Jn i i//�V'//�i Ir
r rr �G,' L/ ,, r'�� 'c"� ry„ � "'� �k17 IY d 1�' �r�� ( /��r/1�Il`�111� �//�//�/�Y/��//// "•�t
J
r
o W
a /
/fau/�11WN'kN yf^�YWV � rlr 0�d
m
� "'' J�� r"" �"�^� .�lY �� �/f� �I n I ��i�ki �Wa�!„AP'�G �5s i 4 •'W'
�Y
W
8�
k �
I
� N V
f' tl
I
i
x✓ /i" �r �� r ' x � 'G/ Wu�4�/J n
I /
�._ ✓' /,�� Ifi ,1 �%iii% �%�// r� ;,, /" �. � ? /l� - j ,, d.'��� / / 1 �," - ry
r/ r
r
/
I a,Byer /�kl N/� �f% ✓ ✓ ' ✓, �� ,/%!�fd�lM/ rude r r U lGGuw„r„ +�i,�; l�yy/,, ! ��✓ l i f Y,
I
n n ”: ";� „ rn ,/ aui.:o, or,:ra,,," � ✓// 1��%r%��Wl y,, Jl,�. I' ,'t, y��V v� m.
o 'G
�,✓/
"�° „,,,/Gaul F/9 Irr/ ,,yyWdW i,. �I�Y(l4;✓b%;"ry�1'",.,,,; � ,�� ,mn�r�frn 6wlAN w�nwm" ;, ,;r L /%N�y/1 1 / �I �Vi. � �f
rry/M
I
X (/
r
VOLAr
M
�v
�Ga G � r✓rl N // iak � r+r" u�dp��y9 i /, 'i
o �
Tit
�/
/Fj
„�to n
91600 � �,J,31C'
P)wol,,llyn kfsnne�: )o `,',5441m�
"7635) 95 1 2,9 N
COMMITMENT LETTER
Fred Trapp and Michael. Tracey
F&M Properties, LLC
Die Concepts, Inc.
RE: Purchase and improve property described in the Purchase Agreement
dated December 1.7, 2015 between SKD ("Seller") and F&M Properties
LLC ("Buyer" and "Borrower") as 18480 Twin Lakes Road NW, Elk
River, MN
Dear Mr. Trapp and. Mr. Tracey:
In response to your loan request, CorTrust Bank ("Leader") hereby
agrees to make a mortgage loan ("Loan") to F&M Properties LLC, a
Minnesota limited liability company ("Borrower") in an amount up to
Five Hundred Forty Thousand Eight Hundred and 00/100ths Dollars
$540, 800 . 00 (Loan)
The Loans shall be made on the following terms and conditions :
1. TERMS OF LOANS
a. .Borrower: F&M Properties LLC, a Minnesota limited
liability company..
b. Amount of Loan: Five Hundred Forty Thousand Eight Hundred.
and 00/100ths Dollars ($540, 8001 . 00)
c . Useof Loan Proceeds The proceeds of the loan shall be
used to pay the costs and expenses incurred in connection.
with the purchase, renovation and improvement of the
Project . The "Project" consists of the purchase,
renovations and improvements of a 20, 0100 +/- square foot
industrial building on the property, fixtures and permits
being purchased by the Borrower located in Elk River,
Minnesota.
d. Interest : Interest shall accrue at a fixed rate of 4 . 254
per annum for 5 years after inception, then re-price at a.
fixed rate of 2 . 75a over the 5-year treasury rate until the
loan matures in IO years.
e . Payments : Borrower shall make monthly payments of interest:
charged on the outstanding balance of the loan beginning
within 30 days following the Closing Date and continuing on
the same day of each month thereafter for 6 months; then
convert to monthly payments of principal and interest until
maturity or, the loan is fully repaid. The loan will
amortize over 20 years ,
f . Guarantors: The following persons and entity shall
...........
guaranty the repayment of the Loan: Fred Trapp and Michael.
Tracey and Die Concepts, Inc . , a Minnesota Corporation
("Guai.'antors") .
g. Prepa�rment : Borrower would subject to a 3 . 0% prepayment
penalty of any principal balance prepaid within 3 years
following inception.
h. Operating and Financial Covenants:
i- on or before may 15 of each year during the term of
the Loan, Borrower shall provide Lender with copies of
Borrower' s state and federal tax returns, ir)cluding
all schedules and attachments thereto, for the
immediately preceding calendar year.
ii . on or before May 15 of each year during the term of
the Loan, the Corporate Guarantor shall provide Lender
with copies, of their state and federal tax returns,
including all schedules and attachments thereto, for
the immediately preceding calendar year.
iii . On or before May 15 of each year during the term of
the Loan, the Personal Guarantor shall also provide
Lender with an annual personal financial statement .
The annual personal financial statements shall be on
such forms and contain such certifications as the
Lender shall reasonably require.
iv. On or before February 15 of each year during the term
of the Loan, the corporate Guarantor shall also
provide Lender with company prepared annual financial
statements . On or before 45"" of each quarter during
the term of the Loan, Die Concepts, Inc. shall also
provide Lender with company prepared year-to-date
interim financial statements with comparison financial
statements from the previous year.
2 . CONDITIONS. Lender' s obligati.Dris to fund the loari hereunder shall
-...............................................................-
be conditioned upon the following:
a. Borrower and Corporate: Guarantor shall establish and maintain
all. depository relationships with the Lender as long as any
loan facilities have a balance .
2
b. Verified bank statements showing liquid balances that will
provide down payment proceeds .
c. Borrower obtaining funds from the Elk River Economic
Development Microloan Fund in the amount of $200 , 000 . 00 and
the Elk River Economic Development Forgivable Loan Program in
the amount of $75, 000 . 00 .
d. Borrower' s satisfactory completion of and compliance with all.
of the terms and conditions of this commitment, conditions
stated in the programs administered by the Elk River Economic,
Development, and any conditions set forth in the Purchase
Agreements between parties.
3 . LOAN COVENANTS. Borrower will be required to meet the following
........................
requirements:.....
a. Borrower will be required to maintain a Global Debt Service
Coverage of 1 . 20 to 1 . 00 measured annually beginning December
31, 2017 .
4 . LOAN DOCUMENTS . Borrower shall execute such documentation as Lender
..........---
deems necessary or desirable, for its protection ("Loan Documents")
All Loan Documents shall be prepared by Lender or Lender' s counsel
and be satisfactory in form and content to Lender. The Loan
Documents shall contain cross-default provisions and shall include,
but not be limited to, the following:
a. Promissory Notes ("Notes") ,
b. Combination Mortgages, Security Agreements and Fixture
Financing Statements ("Mortgage" ) to be executed by Borrower
covering the real property, improvements, fixtures and
equipment involved in both loans, Any UCC-2 ' s that are
necessary to perfect Lender' s security interest shall also be
executed and filed of record in the appropriate state offices .
c'. Loan 'Agreements to be executed by Borrower and Lender ("Loan
Agreements") .
d. Separate unconditional and unlimited Guaranties to be executed
by the Guarantors .
e . Hazardous Waste Indemnification and Waiver to be executed by
Borrower and Guarantors in favor of Lender,
f . Affidavit of Borrower.
3
g. Acceptable evidence of corporate and LLC authority for
Borrower and the corporate Guarantor, including all documents
relating to the formation and management of Borrower and
corporate Guarantor. Borrower and the corporate Guarantor
shall also provide any and all certificates, resolutions and
minutes necessary to establish the validity of such documents
and to authorize the transaction contemplated hereby.
h. Assignment of Leases and Rents.
i . Any other legal. documents, instruments or certificates
reasonably required by the Lender.
5 . TITLE, INSURANCE. Lender shall receive a title commitment from a
title company ("Title Company") satisfactory to Lender agreeing to
issue a title insurance policy which (a) names Borrower as owning
fee simple title to each Property separately and Lender as insured
in the principal amount of each Loan separately, (b) insures each
Mortgage to be a valid first lien on the Property, and (c) is free
from exception for (1) matters which would be disclosed by a survey
or inspection, (2) matters which would be disclosed by a survey or
inspection, (2 ) rnechanic' s, contractor' s, or materia linen' s liens and
lien claims, (3) rights and claims of parties in possession, (4)
easements, or claims of easements not shown by the public records,
and (S) other exceptions not approved by Lender. Lender shall also
receive an endorsement to such commitment stating its effective date
to be the date of recording of the Mortgage . Borrower agrees to
promptly and fully observe and comply with any requirements
established by the title insurance company.
6. INSURANCE. Borrower shall obtain and maintain in full force and
effect during the term of the Loan the following insurance :
a. Prior to closing, Borrower shall provide proof of insurance in
an amount equal to 100% of the full replacement value of the
each property. The Lender' s interest shall be protected in
accordance with a mortgagee' s clause in form and content
satisfactory to the Lender.
b, Borrower shall keep the buildings, structures, fixtures,
personal property and other improvements now existing or
hereafter erected or placed on the Land insured against loss
by fire, perils of extended coverage, and such other hazards,
casualties and contingencies as are typically covered by a
"special form" policy of insurance. The Borrower shall insure
the Project for the full replacement cost thereof , with
coverage for demolition and increased costs of construction,
4
for such periods and with policies in such form as may be
required by the Mortgagee .
c. Borrower shall maintain public liability insurance, including
personal injury and property damage insurance, applicable to
the real estate involved in each loan in such amounts as are
usually carried by persons operating similar properties in the
,same general locality but. in any event with limits of
liability not less than $1, 000 , 000 . 00 combined single limit ,
naming Lender as an additional. insured, and containing an
agreement of the insurer that it will not cancel the policy
except after thirty (30) days prior written notice to Lender.
d. Borrower shall also maintain such other insurance shall be
written, by a company or companies acceptable to Lender and
shall contain such terms and conditions as required by Lender,
in Lender' s sole discretion.
All such insurance shall be written by a company or companies
acceptable to Lender and shall contain such terms and conditions as
required by Lender, in Lender' s sole d:� scretion.
7 . CLOSING SUBMITTALS. No later than ten business days prior to the
..........
Closing Late (hereinafter defined) , Borrower shall submit the
following to Lender, all of which must be acceptable to the Lender,
in the Lenders sole, discretion:
a. Satisfactory evidence of acceptable zoning, proof of permits
necessary for the commencement and completion of the Project
(including, but not limited to, any permits needed from the
City of Elk River, the County of Sherburne, the State of
Minnesota, any watershed district in which the Project is
located, and the Army Corps of Engineers) .
b. Satisfactory evidence that the Project has direct and free
access to, a publicly dedicated street .
c. A Uniform Commercial Code search and a state: and federal tax
lien and bankruptcy search against Borrower and Guarantors.
The: searches shall be certified by a reporting service
acceptable to Lender and shall be free of any judgments,
interest or liens that may adversely affect the collateral.
securing each loan.
d. Owner' s Duplicate Certificate of Title covering the Project,
if any.
5
e . Satisfactory evidence that both subject properties are not
located within a 100-year flood plain.
f . Fully executed and legally binding lease covering the Project
and providing enough cash flow to allow the Borrower to repay
this Loan, and comply with all other terms and conditions set
forth in the Loan Documents, including the obligation to
maintain the Project and pay all real estate taxes and special
assessments levied against the Project . The lease shall be
for a term of at least 20 years.
8 . ORIGINATION FEE. At closing, Borrower shall pay Lender an
................
origination fee in the amount of 0 . 75% of the loan. TI-ie bank' s
origination fee shall be considered fully earned at the time of this
commitment letter and shall be considered fully earned at the time
of closing and shall not be refunded for any reason.
9. EXPENSES , By signing below and accepting this commitment, Borrower
I..........
and Guarantors agree to pay all expenses actually incurred by Lender
in connection with the consideration of its application, the
preparation and issuance of this commitment and the Loan Documents,
the closing of the Loans, and the supervision of Loan disbursements,
whether or not the Loans are closed.
10 . ASSIGNMENT. Borrower may not assign this commitment without the
express written consent of Lender, which consent may be withheld in
Lender' s sole discretion.
11 . BROKERAGE. Borrower shall indemnify and hold Lender harmless from
....................--
any and all losses and expenses sustained by Lender as a result of
any liability to any broker or any claim of any such liability on
account of Borrower' s action.
12 . COMMITMENT TERMINATION. This Coramitment may, at Lender' s option, be
.......... -..................-
terminated by written notice to Borrower at the above address if
there is any change in the security, the US Small Business
Administration does not provide an approval and authorization, or if
either the: application or any information,nformation, representation or
warranty contained therein or furnished to Lender in connection with
the Loans shall have contained at the time made or furnished or at
any time thereafter any material untrue statement or at any such
time shall have omitted to state any material fact necessary to make
the application or any such information, representation or warranty
not misleading.
6
If the commitment is terminated hereunder Lender shall incur no
liability by reason thereof, and Borrower agrees to pay all.
reasonable costs and expenses incurred by Lender in connection with
the Loan,
13 . CHANGE IN CONDITION. Lender may terminate its obligations under
this commitment if, prior to the closing of the Loan, there is a
material, adverse change in the assets, net worth, financial
condition or credit standing of the Borrower or any Guarantor.
14 . CLOSING DATE. ':'he closing date of these Loans )"Closing Date")
......................
shall occur on or before April 30 , 2016, or this commitment shall he
null. and void. Time is of the essence in the performance of all
obligations of this Commitment Letter. These Loans shall be closed
at the location that is mutually agreed upon by Borrower and Lender.
CorTrust Bank, N.A.
7
Barl.'Y/L. Sorensen
Its : 'VP Commercial Banking officer
The commitment contained in the forgoing letter and the conditiozs and
obligations pertaining thereto are hereby accepted as of this ��—day
o f 2016 .
Borrower: F&M Properties LLC, a Minnesota Limited Liability
Company.
...........
By:
Its : Chief Manager
Guarantor:
Fred Trapp,
Guarantor:
Michael Tracey
Die Concepts, Inc. , a Minnesota corporation
' '
By:
/5
Its : President
7
Ble Concepts Inc.
Precision Tooling and Metal Stamping Dies
13915 Radium,St.,Suite F, Ramsey, MN 55303
763-712-8168(Phone)763-712-8169(Fax)
Letter of Commitment
City of Elk River
RE: Purchase and Improvement of property 18489: Twin Lakes Road, Elk River,
Mn 55330
Dear City of Elk River,
We, Fred Trapp and Michael Tracey, representing Die Concepts, Inc and F & M
Properties, LL.C, are going to proceed forward with this project. We intend to
begin the project in April 2016 and have it completed no later then July 31, 2016.
Sincerely,
,7
Date
Fred Trapp
DateIle, X
Michael Tracey
Fred Trapp Phone (763)712-8168 Michael Tracey
Owner Fax (763) 712-8169 Owner
Email ftrapp@die-concepts.com
Springsted Incorporated
380 Jackson Street, Suite 300
�p r-i n g s t e d Saint Paul,MN 55101-2887
Tel: 651-223-3000
Fax: 651-223-3002
www.springsted.com
DRAFT MEMORANDUM
TO: Amanda Othoudt, Economic Development Director
FROM: Mikaela Huot,Vice President/Consultant
DATE: March 23, 2016
SUBJECT: Die Concepts, Inc.—Jobs Incentive Microloan Fund Application Review
Summary
The City of Elk River received a loan request from Die Concepts, Inc. (the applicant) through the Economic
Development Jobs Incentive Microloan Fund for the maximum loan amount of $200,000. The applicant has also
submitted an application for assistance through the newly created Housing and Redevelopment Authority Blighted
Properties Forgivable Commercial/Industrial Loan Policy for $75,000. The project as proposed by the applicant
includes the acquisition and clean up of an existing approximate 20,000 square foot industrial building including
refacing the exterior, new windows, asphalt, doors, landscaping and roof. The interior would be completely gutted with
new electrical and other renovations to meet the applicant's needs. The project as proposed would allow for the
occupancy and renovation of an existing vacant building in the City and would bring 12 new jobs to the City through
business relocation. The applicant has indicated it also has future plans to increase sales and add jobs, due to
additional space the newly renovated building would allow for.
At the request of City staff, Springsted has undertaken a review of the company's application and supporting financial
materials to determine that, based upon the provided information, the applicant meets the guidelines as set forth by
the City of Elk River's Economic Development Jobs Incentive Microloan Fund policy. The purpose of this memo is to
outline the financial components of the applicant's request for assistance from the Jobs Incentive Microloan Fund
Policy and Application,dated November 17,with a loan amount of$200,000.
The table on the following page illustrates the projected sources and uses of funds for the proposed project as
provided in the application. It also includes the percentage of project costs and funding sources to determine the
funding sources meet the Jobs Incentive Program criteria. Based on the applicant's initial request, approximately 70%
of the funding sources would be provided privately through debt (58.4%) and equity (11.9%)with approximately 30%
i ubHc Sector Advisors
City of Elk River, Minnesota
Die Concepts Inc.
March 23, 2016
Page 2
funded publicly through the HRA Blighted Properties Forgivable Loan (8.1%) and EDA Jobs Incentive Microloan
(21.6%).
Project Costs Amount Sources Amount
Land 80,000 8.6% Bank Loan 540,800 58.4%
Buildings 320,000 34.6% Applicant Equity 110,200 11.9%
Remodeling 526,000 56.8% HRA Blighted Properties 75,000 8.1%
EDA Microloan 200,000 21.6%
Total 926,000 Total 926,000
The Jobs Incentive Microloan Program has certain criteria that must be met. The maximum amount of financing that
can be provided is up to$200,000 and cannot exceed 20%of the total project cost. As shown in the table above, the
microloan request is currently over the 20% limit at 21.9%. With a project cost amount of$926,000 and 20% limit, the
maximum loan amount that could be provided is $185,200. The Microloan requirements also include private-sector
commitments of at least 50%and borrower financing of at least 10%. Both of those requirements would be met based
on the provided debt and equity amounts(58.4%and 11.9%, respectively).
Project Eligibility Requirements under Jobs Incentive Program
For a project to qualify under the Jobs Incentive Program of the City of Elk River Economic Development Microloan
Fund policy an applicant must meet certain criteria:
• Must create one new full-time job for each $20,000 loaned, retain one new full-time job for each
$10,000 loaned, or combination of retainage and creation to meet the requirements:
• All new jobs must be created within 2 years and retained for the period of the loan:
• Created and retained jobs must pay greater than $15.00 per hour or 150%of State or Federal
minimum wages(whichever is greater):
• Any loans shall meet the City of Elk River Business Subsidy Policy for the creation of new jobs as
well as a 5 year location requirement:
• Eligible costs must be used for costs related to job creation and retention:
The application received by the City includes a requested loan amount of$200,000 with 12 jobs being created. The
creation of 12 jobs would allow for up to$240,000 of a loan amount, and exceeds the maximum loan amount available
of$200,000. In addition, the proposed project would bring the 12 new jobs into the City following purchase and
renovation of the existing building and would be within the required 2 year period. The company will agree to retain
the jobs within the City for the period of the loan. The average hourly wages of the 12 jobs range from$23-$29. The
project as proposed with the job creation would meet the City's Business Subsidy Policy as the wages exceed the
minimum of$15/hour plus benefits and the company will agree to stay in the City for at least 5 years. The microloan
funds would be used to acquire and renovate the building which allows the company to locate within the City, bringing
the jobs, and thus meeting the job creation requirements of the project.
City of Elk River, Minnesota
Die Concepts Inc.
March 23, 2016
Page 3
3. Permitted Fund Uses of Microloan (Page 6 of Policy)
To qualify for receipt of a microloan, the applicant must utilize the funds for the specific purposes outlined in the City's
Economic Development Microloan policy. Funds may be used by the borrower for costs related to job creation and
retention as a result of the project. According to the policy, loans may be used for the following activities:
1. Building construction
2. Land acquisition
3. Machinery
4. Furniture,fixtures, and equipment(FF&E)
5. Renovation and modernization of buildings
6. Exterior renovation of retail, commercial and industrial buildings
7. Public infrastructure needed for economic development expansions
8. Investment real estate with a minimum of 50%of the space pre-leased
The funds would be used for renovation and modernization of an existing building, including both exterior and interior
renovations of the building for industrial use.
4. Business Eligibility (Page 7 of Policy)
In addition to having an eligible project a business must also meet certain criteria before it is deemed eligible to
receive the loan funds. According to the Economic Development Microloan Fund Policy, to be eligible for a microloan
a business must meet the following
• Business must be a for-profit corporation, partnership or sole proprietorship:
• Business must be a small business as defined by the small business administration:
• Business must have a positive net worth:
• Business must be an industrial, manufacturing, or technology-based industry:
• Religious, political, casino, sports facilities and pornographic enterprises are not eligible to use the
Economic Development Microloan Fund:
Based on the submitted application, the business is a for-profit corporation defined as a small business, is an
industrial, manufacturing or technology-based industry and is not a religious, political, casino, sports facilities, or
pornographic enterprise. The two most recent full years of financial statements (2014 and 2015) indicate positive net
worth. Following the completion of the acquisition, renovation and location into Elk River, the company is showing
projected positive cash flow and continued net worth in 2016 and 2017.
5. Microloan Fund Terms & Conditions (Page 7 of Policy)
To be determined if loan terms approved by the EDA.
6. Regulation for New Construction and Improvements (Page 7 of Policy)
To be regulated if funding is approved and determined to be used for any improvements of the existing building.
City of Elk River, Minnesota
Die Concepts Inc.
March 23, 2016
Page 4
7. Loan Security and Guarantee Requirements (Page 8 of Policy)
The City's Economic Development Microloan Fund policy states that prior to the City granting a loan to a proposed
business, that the proposed project must meet certain loan security requirements. These requirements are:
• Applicant must be able to secure the loan by providing the EDA with a minimum of a subordinate
mortgage upon the building and/or assets or other approved collateral:
• Applicant must demonstrate the financial means to repay the loans, as determined by the Economic
Development Authority:
• Whenever possible, personal guarantees will be made part of any loan agreement:
• Key person life insurance may be required as determined by the EDA Finance Committee based on
loan amount and company ownership partners:
8. Timing of Project Expenses (Page 8 of Policy)
To be regulated if funding is approved and determined to be used for any improvements of the existing building.
9. Procedural Guidelines for Application and Approval (Page 8 of Policy)
To be regulated if funding is approved and determined to be used for any improvements of the existing building.
The EDA Finance Committee is asked to evaluate the project application based on the
following criteria
a. Project design: evaluation of project design will include review of proposed activities, time lines and a
capacity to implement
b. Financial feasibility: availability of funds, private involvement,financial packaging and cost effectiveness
• Appropriate ratio of private funds to microloan funds: The full requested loan amount of$200,000 is
greater than 20% of the total project cost(approximately 21.6%). To stay within the criteria of the Jobs
Incentive Microloan program, the loan amount would have to be reduced to$185,200. The criteria
related to equity and private financing are within the appropriate percentages(at least 50%private-
sector commitments and 10%owner equity with 58.4%and 11.9%, respectively)
• Sufficient cash flow to cover proposed debt service as demonstrated by financial statements and
projections: the company has provided cash flow projections for 2016 and 2017 that includes existing
operations of the business plus repayment of the loan obligations(bank and City's microloan)that shows
positive cash flow and continued positive net income beginning in 2016 and moving forward. This
positive net income and cash flow will allow coverage of the proposed debt service.
City of Elk River, Minnesota
Die Concepts Inc.
March 23, 2016
Page 5
• Ability to demonstrate positive net worth: the company has demonstrated positive net income in the
provided 2014 and 2015 financial statements, with continued practices projected in cash flow analysis
following the relocation commencing in 2016 and 2017.
• Letter of commitment from applicant pledging to complete the project during proposed project
duration: Provided
• Letter of commitment from other financing sources stating terms and conditions of their
participation. CorTrust Bank is willing to provide financing for the project in the amount of$540,800.
The loan proceeds are to be used to pay the costs associated with the purchase, renovation, and
improvement of the project. The project consists of the purchase, renovations and improvements of a
20,000+/-sf industrial building on the property, fixtures and permits being purchased by the applicant in
the City of Elk River. Interest shall accrue at a fixed rate of 4.25%for 5 years after inception, and then
reprice at a fixed rate of 2.75%over the 5-year treasury rate until the loan matures in 10 years. Fred
Trapp, Michael Tracey and Die Concepts, Inc., a Minnesota Corporation, are the loan guarantors. The
financing commitment letter from CorTrust Bank has been provided in conjunction with the loan
application and supporting documents.
• Sufficient collateral: CorTrust Bank is in position#1 on the land and building. The EDA would be#2 for
the microloan and#3 on the HRA's Blighted Properties forgivable loan policy. A personal/corporate
guarantee will also be provided.
c. All other information as required in the application and/or additional information as may be requested by the
Economic Development Authority
d. Project compliance with all city codes and policies
e. Program Objectives: In addition to quality job and wage creation/retention requirements, the applicant must
meet all Microloan Fund criteria and demonstrate how the proposed activities will meet at least one of the
following objectives:
• The project contributes to the fulfillment of the city's approved and adopted economic development
and/or redevelopment plans
• The project prevents or eliminates slums and blight
• The project increases the local tax base
• The project brings a structure into compliance with an existing building code violation
Springsted Incorporated
380 Jackson Street, Suite 300
�p r-i n g s t e d Saint Paul,MN 55101-2887
Tel: 651-223-3000
Fax: 651-223-3002
www.springsted.com
DRAFT MEMORANDUM
TO: Amanda Othoudt, Economic Development Director
FROM: Mikaela Huot,Vice President/Consultant
DATE: March 23, 2016
SUBJECT: Die Concepts, Inc.—Housing and Redevelopment Authority Blighted Properties
Forgivable Commercial/Industrial Loan Application Review
Summary
The City of Elk River received a loan request from Die Concepts, Inc. (the applicant) through the newly created
Housing and Redevelopment Authority Blighted Properties Forgivable Commercial/Industrial Loan Policy for$75,000.
The applicant has also submitted an application for assistance through the Economic Development Jobs Incentive
Microloan Fund for the maximum loan amount of$200,000. The project as proposed by the applicant includes the
acquisition and clean up of an existing approximate 20,000 square foot industrial building including refacing the
exterior, new windows, asphalt, doors, landscaping and roof. The interior would be completely gutted with new
electrical and other renovations to meet the applicant's needs. The project as proposed would allow for the
occupancy and renovation of an existing vacant building in the City and would bring 12 new jobs to the City through
business relocation. The applicant has indicated it also has future plans to increase sales and add jobs, due to
additional space the newly renovated building would allow for.
At the request of City staff, Springsted has undertaken a review of the company's application and supporting financial
materials to determine that, based upon the provided information, the applicant meets the guidelines as set forth by
the City of Elk River's Housing and Redevelopment Authority Blighted Properties Forgivable Commercial/Industrial
Loan Policy. The purpose of this memo is to outline the financial components of the applicant's request for assistance
from the Blighted Properties Forgivable Commercial/Industrial Loan Policy and Application, dated November 2, 2015,
with a loan amount of$75,000.
The table on the following page illustrates the projected sources and uses of funds for the proposed project as
provided in the application. It also includes the percentage of project costs and funding sources to determine the
funding sources meet the policy criteria. Based on the applicant's initial request, approximately 70% of the funding
i ubHc Sector Advisors
City of Elk River, Minnesota
Die Concepts Inc.
March 23, 2016
Page 2
sources would be provided privately through debt(58.4%)and equity(11.9%)with approximately 30%funded publicly
through the HRA Blighted Properties Forgivable Loan (8.1%)and EDA Jobs Incentive Microloan (21.6%).
Project Costs Amount Sources Amount
Land 80,000 8.6% Bank Loan 540,800 58.4%
Buildings 320,000 34.6% Applicant Equity 110,200 11.9%
Remodeling 526,000 56.8% HRA Blighted Properties 75,000 8.1%
EDA Microloan 200,000 21.6%
Total 926,000 Total 926,000
The Blighted Properties Forgivable Loan Program has certain criteria that must be met. The maximum amount of
financing that can be provided is up to $75,000 and federal guidelines require a minimum of one job be created for
every $15,000 that is requested. The applicant must provide at least 50% of the total project cost through other
means and equity down payment requirements may vary depending on project and primary lending institution.
Blighted Properties Forgivable Loan funds may be used as equity upon approval of primary lending institution.
Projects can combine the Blighted Properties Forgivable Loan funding with other incentives (Microloan Program, for
example). As shown in the table above, the applicant will provide more than 50% of the total project cost from other
means with approximately 70%financed through debt and equity.
Purpose
The Blighted Properties Forgivable Loan funds are to be used for business start-ups, expansions, and relocations
where jobs are created and tax base is generated based on the following means:
1. Creation of permanent private-sector jobs to create above-average economic growth
2. Stimulation or leverage of private investment to ensure economic renewal and competitiveness
3. Increase local tax base
4. Improvement of employment and economic opportunity for citizens in the region to create a reasonable
standard of living
5. Stimulation of productivity growth through improved commercial, retail, manufacturing or new technologies
Project Eligibility Requirements under Blighted Properties Forgivable Loan Program
For a project to qualify under the Blighted Properties Forgivable Loan Program of the City of Elk River Housing and
Redevelopment Authority an applicant must meet certain criteria:
1. Created and retained jobs must pay greater than$15.00 per hour or 150%of State or Federal minimum
wages(whichever is greater):
2. Increase in tax base
3. Project can demonstrate that investment of public dollars induces private funds
4. Project provides higher wage levels to the community or will add value to current workforce skills
5. Project results in the sale and/or redevelopment of properties deemed structurally substandard
6. Whether assistance is necessary to retain existing businesses
City of Elk River, Minnesota
Die Concepts Inc.
March 23, 2016
Page 3
7. Whether assistance is necessary to attract out-of-state business
An applicant must meet criteria#5 in which the project results in the sale and/or redevelopment of properties deemed
structurally substandard. In addition, a loan cannot be made solely on a finding that the conditions in 5, 6, or 7 exist.
A finding must be made relative to 1, 2, 3 or 4 as well.
The application received by the City includes a requested loan amount of$75,000 with 12 jobs being created. In
addition, the proposed project would bring the 12 new jobs into the City following purchase and renovation of the
existing building and would be within the required 2 year period. The company will agree to retain the jobs within the
City for the period of the loan. The average hourly wages of the 12 jobs range from$23-$29. The project as proposed
with the job creation would meet the City's Business Subsidy Policy as the wages exceed the minimum of$15/hour
plus benefits and the company will agree to stay in the City for at least 5 years. The blighted properties funds would
be used to acquire and renovate the building which allows the company to locate within the City, bringing the jobs, and
thus meeting the job creation requirements of the project.
5. Eligible Activities (Page 3 of Policy)
To qualify for receipt of a blighted properties forgivable loan, the applicant must utilize the funds for the specific
purposes outlined in the City's policy.According to the policy, loans may be used for the following activities:
• Property acquisition, demolition, soil prep, infrastructure, or building construction
• Purchase furniture,fixtures and equipment(FF&E)along with new construction
The funds would be used for renovation and modernization of an existing building, including both exterior and interior
renovations of the building for industrial use.
6. Business Eligibility (Page 3 of Policy)
In addition to having an eligible project a business must also meet certain criteria before it is deemed eligible to
receive the loan funds. According to the Blighted Properties Forgivable Loan Policy, to be eligible for a loan a
business must meet the following:
• Business must be a for-profit corporation, partnership or sole proprietorship:
• Business must be a small business as defined by the small business administration:
• Business must have a positive net worth:
• Non-profit corporations, casino, sports facilities and sexually oriented enterprises are not eligible to use the
Blighted Properties Forgivable Loan Policy:
Based on the submitted application, the business is a for-profit corporation defined as a small business, is an
industrial, manufacturing or technology-based industry and is not a non-profit, casino, sports facilities, or sexually
oriented enterprise. The two most recent full years of financial statements (2014 and 2015) indicate positive net
worth. Following the completion of the acquisition, renovation and location into Elk River, the company is showing
projected positive cash flow and continued net worth in 2016 and 2017.
City of Elk River, Minnesota
Die Concepts Inc.
March 23, 2016
Page 4
7. Blighted Properties Forgivable Commercial/Industrial Loan Terms & Conditions (Page 4 of
Policy)
The HRA Commissioners are asked to evaluate the project application based on the
following criteria
a. Project design: evaluation of project design will include review of proposed activities, time lines and a
capacity to implement
b. Financial feasibility: availability of funds, private involvement,financial packaging and cost effectiveness
• Appropriate ratio of private funds to the blighted properties forgivable loan funds: The applicant is
providing more than 50%of the total project costs through private funding sources. The criteria related
to equity and private financing are within the appropriate percentages(at least 50%private-sector
commitments and 10% owner equity with 58.4% and 11.9%, respectively)
• Sufficient cash flow to cover proposed debt service as demonstrated by financial statements and
projections: The company has provided cash flow projections for 2016 and 2017 that includes existing
operations of the business plus repayment of the loan obligations(bank and City's microloan)that shows
positive cash flow and continued positive net income beginning in 2016 and moving forward. This
positive net income and cash flow will allow coverage of the proposed debt service.
• Ability to demonstrate positive net worth: the company has demonstrated positive net income in the
provided 2014 and 2015 financial statements, with continued practices projected in cash flow analysis
following the relocation commencing in 2016 and 2017.
• Letter of commitment from applicant pledging to complete the project during proposed project
duration: Provided
• Letter of commitment from other financing sources stating terms and conditions of their
participation. CorTrust Bank is willing to provide financing for the project in the amount of$540,800.
The loan proceeds are to be used to pay the costs associated with the purchase, renovation, and
improvement of the project. The project consists of the purchase, renovations and improvements of a
20,000+/-sf industrial building on the property, fixtures and permits being purchased by the applicant in
the City of Elk River. Interest shall accrue at a fixed rate of 4.25%for 5 years after inception, and then
reprice at a fixed rate of 2.75%over the 5-year treasury rate until the loan matures in 10 years. Fred
Trapp, Michael Tracey and Die Concepts, Inc., a Minnesota Corporation, are the loan guarantors. The
financing commitment letter from CorTrust Bank has been provided in conjunction with the loan
application and supporting documents.
• Sufficient collateral: CorTrust Bank is in position#1 on the land and building. The EDA would be#2 for
the microloan and#3 on the HRA's Blighted Properties forgivable loan policy. A personal/corporate
guarantee will also be provided.
c. All other information as required in the application and/or additional information as may be requested by the
Housing and Redevelopment Authority
d. Project compliance with all city codes and policies
City of Elk River, Minnesota
Die Concepts Inc.
March 23, 2016
Page 5
e. Program Objectives: In addition to quality job and wage creation/retention requirements, the applicant must
meet all Blighted Properties Forgivable Loan Fund criteria and demonstrate how the proposed activities will
meet at least one of the following objectives:
• Creation of permanent private-sector jobs to create above-average economic growth
• Stimulation or leverage of private investment to ensure economic renewal and competitiveness
• Increase local tax base
• Improvement of employment and economic opportunity for citizens in the region to create a
reasonable standard of living
• Stimulation of productivity growth through improved commercial, retail, manufacturing or new
technologies
8. Loan Security and Guarantee Requirements (Page 6 of Policy)
The City's Housing and Redevelopment Authority Blighted Properties Forgivable Loan policy states that prior to the
City granting a loan to a proposed business, that the proposed project must meet certain loan security requirements.
These requirements are:
• Applicant must be able to secure the loan by providing the HRA with a minimum of a subordinate mortgage
upon the building and/or assets or other approved collateral.
• Whenever possible, personal guarantees will be made part of any loan agreement:
• Key person life insurance may be required as determined by the HRA based on loan amount and company
ownership partners:
9. Timing of Project Expenses (Page 6 of Policy)
To be regulated if funding is approved and determined to be used for any improvements of the existing building.
10. Procedural Guidelines for Application and Approval (Page 6 of Policy)
To be regulated if funding is approved and determined to be used for any improvements of the existing building.
Eof
lk ,.,,. Request for Action
,.iVe
To Item Number
Economic Development uthonity Finance Committee 4.2
Agenda Section Meeting Date Prepared by
General Business March 29, 2016 Amanda Othoudt,EDD
Item Description Reviewed by
Die Concepts,Inc.Jobs Incentive Microloan Cal Portner, City Administrator
Program Financial Application Review Reviewed by
Action Requested
Consider and provide recommendation to the EDA on the following Jobs Incentive Microloan
application for Die Concepts,Inc. The Finance Committee may recommend approval, approval with
conditions, or denial of the request
Background/Discussion
The city received an application from Die Concepts,Inc. for a$200,000 Jobs Incentive NEcroloan and an
HRA Blighted Properties Commercial/Industrial Forgivable Loan for$75,000 which will be reviewed by
the HRA on April 4,2016.
The Jobs Incentive NEcroloan Program goal is to encourage the growth of new jobs and the retention of
existing jobs. The company currently employs 12 people with an average hourly wage of$26.50/hr.,has
outgrown their leased space in Ramsey, and intends to relocate their operation to Elk River
Anal
The attached memo from Springsted summarizes the analysis completed to date. Staff's analysis is shown
in bold, alongside the applied policy.
Purpose: To assist existing businesses with expansion and attract new businesses to the city whose local
operations will expand the city's economy through job retention and creation and maintain/
grow the city's tax base. The purpose of the Jobs Incentive Program is to encourage the
creation of quality,high-paying jobs within the city.
Die Concepts will relocate 12 FTE,paying between $23-$29/hour, exclusive of benefits.
Amount: Up to $200,000 of secondary financing not to exceed 20% of the project cost.
The total project cost is $926,000. The requested amount is 21.6% of the total project cost,which
exceeds 20% of the maximum allowed. By policy, the maximum loan amount is $185,200.
Equity: Must have private-sector commitments for 50% of the project cost. Borrower must provide
10% or more of project financing.
The applicant indicated they will provide $110,200 as equity contribution to the project. Their
equity will cover the relocation costs and remodeling blighted property in Elk River. The total
contribution represents approximately 12% of project equity.
Criteria: Borrower must create one new full-time job for each $20,000 loaned,retain one new full-time
job for each $10,000 loaned, or combination of retainage and creation to meet the
requirements. All new jobs must be created within two years and retained for the period of the
loan. Said jobs must pay greater of$15.00 per hour or 150% of state or federal minimum wage,
exclusive of benefits required by law. Any loans shall meet the city of Elk River Business
Subsidy Policy for the creation of new jobs, as well as a 5-year location requirement.
Relocating 12 jobs to Elk River accounts for a loan amount up to $240,000. By policy, the
applicant is eligible for a $185,200 loan.
Summary
The applicant is eligible for a loan of$185,200, meeting the equity, wage, and job criteria
requirements and the proposed fund uses are eligible expenses.
Financial Impact
If the committee agrees this loan meets the goals of the city and EDA, the loan funds could be funded
from the City Microloan Fund account,which has a balance of$767,636.73.
Attachments
■ Springsted Analysis (March 24, 2016)
■ Letter from CorTrust Bank (March 4,2016)
■ Microloan Application (March 7, 2016)
■ Financial Documents to be distributed at the meeting
EOty1� ,.,�� Request for Action
River
To Item Number
Housing and Redevelopment Authority 7.2
Agenda Section Meeting Date Prepared by
General Business Aril 4, 2016 Amanda Othoudt,EDD
Item Description Reviewed by
Die Concepts Blighted Properties Forgivable Cal Portner, City Administrator
Commercial/Industrial Loan application review Reviewed by
Action Requested
Consider and provide recommendation to the City Council on the following Blighted Properties
Commercial/Industrial forgivable loan application for Die Concepts,Inc.
Background/Discussion
The city received an application from Die Concepts, Inc. for a $75,000 Blighted Properties Forgivable
Commercial/Industrial loan and an application for a Jobs Incentive Microloan which was approved by
the EDA Finance Committee on March 29, 2016.
Die Concepts has leased space in an 11,000 sf manufacturing plant in Ramsey for the past 16 years and
intends to relocate their operation to Elk River. They design and build progressive metal stamping
tooling for a variety of customers in the US,Mexico, and Ireland including Medronic, Boston Scientific,
Toro, Graco, and 3M. They have executed a purchase agreement on the property located at 18485 Twin
Lakes Road NW, contingent upon receiving city financial assistance. The company has plans to renovate
the former 21,000 sf MN FAB building.
The building is a one story,metal-framed structure with a wood-framed pole structure addition and will
take approximately three months to update. Updates include residing; new windows, doors and lighting;
updated electrical systems,restroom,ventilation, and fire protection. The outside plan includes
landscaping. The applicant intends to connect to city water and sewer. Soil contamination has been
identified on the site and the applicant is conducting further soil reports to identify remediation which
may add to the overall project costs.
Analysis
The goal of the HRA Blighted Properties Commercial/Industrial forgivable loan program is to stimulate
private sector investment and help spur new construction, create and retain employment opportunities
and promote the sale and redevelopment of structurally substandard properties.
A Blighted Properties Commercial/Industrial forgivable loan is required to meet the following guidelines
and staff analysis is shown in Bold, alongside the applied policy:
1. The project results in the sale and/or redevelopment of properties deemed structurally
substandard. Structurally substandard shall mean containing defects in structural elements or a
combination of deficiencies in essential utilities and facilities,lighting and ventilation, fire
protection,including adequate egress,layout and condition of interior partitions, or similar
POWERED 6T
AR
factors,which defects or deficiencies are of sufficient total significance to justify substantial
renovation or clearance.
The city has received a letter from Scott Builders, Inc. summarizing the building code review
performed on the subject property on March 4, 2016. The letter outlines a combination of
deficiencies in essential utilities and facilities, code compliance, lighting,ventilation, and fire
protection, which meets the criteria outlined in the policy.
2. The minimum wage for a job to be considered anew or retained job shall be the greater of
$15/hour or 150% of the state or federal minimum wage,whichever is greater, exclusive of
benefits.
The company currently employs 12 FT paying$23-$29/hour, exclusive of benefits. They intend
to relocate the 12 FTE to Elk River. The average hourly wages of the retained jobs meet or
exceed the minimum business subsidy requirements of at least $15/hr.
3. The project will result in an increase in tax base, the project can demonstrate that investment of
public dollars induces private funds and the project provides higher wage levels to the community
or will add value to current workforce skills.
A total of$260,200 in total public investment will result in over $926,000 in private capital
investment accounting for more than 20,900 sf blighted property redevelopment and will increase
the total annual property tax revenue by approximately $9,025. The applicant will relocate 12
FTE to Elk River paying between $23-$29/hour.
Summary
The applicant is eligible for the HRA Blighted Properties Commercial/Industrial forgivable loan
in the amount $75,000, meeting the definition of structurally substandard,wage goals, and job
criteria requirements and the proposed fund uses are eligible expenses.
Financial Impact
If the commission agrees this loan meets the goals of the city and HRA, the loan funds could be funded
from the HRA Blighted Properties Commercial/Industrial fund account,which has a balance of
$225,000.
Attachments
■ Springsted Analysis (March 23, 2016)
■ Blighted Properties Commercial/Industrial Application (March 7,2016)
■ Photos of the Subject Property
■ Loan Agreement
■ Promissory Note
■ Mortgage
■ Personal Guarantee—Tracey
■ Personal Guarantee - Trapp
■ Entity Guarantee
■ Environmental Indemnification Agreement
■ Resolution
City of
Elk Request for Action
ever
To Item Number
Economic Development Authori 6.1
Agenda Section Meeting Date Prepared by
General Business Aril 18, 2016 Amanda Othoudt,EDD
Item Description Reviewed by
Die Concepts,Inc.Jobs Incentive Microloan Cal Portner, City Administrator
Program Financial Application Reviewed by
Action Requested
Provide recommendation to the City Council on the following jobs Incentive Microloan application for
Die Concepts,Inc.
Background/Discussion
The city received an application from Die Concepts,Inc. for a $200,000 jobs Incentive Microloan. On
March 29, 2016, the EDA Finance Committee reviewed the jobs incentive microloan application and
recommended the EDA approve an $185,200 loan not to exceed 20% of the total project costs.
The city also received a HRA Blighted Properties Commercial/Industrial Forgivable Loan for$75,000
which was approved by the HRA on April 4,2016.
Die Concepts has leased space in an 11,000 sf manufacturing plant in Ramsey for the past 16 years and
intends to relocate their operation to Elk River. They design and build progressive metal stamping
tooling for a variety of customers in the US,Mexico, and Ireland including Medronic,Boston Scientific,
Toro, Graco, and 3M. They have executed a purchase agreement on the property located at 18485 Twin
Lakes Road NW, contingent upon receiving city financial assistance. The company has plans to
completely renovate the former 21,000 sf MN FAB building.
The jobs Incentive Microloan Program goal is to encourage the growth of new jobs and the retention of
existing jobs. The company currently employs 12 people with an average hourly wage of$26.50/hr.,has
outgrown their leased space in Ramsey, and intends to relocate their operation and employees to Elk
River.
Following the EDA meeting this evening, the City Council will hold a public hearing for the proposed
subsidies,invite public comment and take final action on the requests.
Financial Impact
The loan funds could be funded from the City Microloan Fund account,which has a balance of
$767,636.73.
Attachments
■ Microloan Application (March 7, 2016)
■ Springsted Analysis (March 24,2016)
P' UWEAEU 0V
NA
■ Letter from CorTrust Bank (March 4,2016)
■ Letter of Commitment from Die Concepts,Inc.
■ EDA Finance Committee Staff Report (March 29, 2016)
■ Microloan Agreement
■ Environmental Indemnification Agreement
■ Personal Guarantee—Tracey
■ Personal Guarantee -Trapp
■ Entity Guarantee
■ Mortgage
■ Security Agreement
■ Promissory Note
■ UCC Exhibit List of Equipment
■ UCC Exhibit Addresses
■ Site Photos
■ EDA Resolution
1
477330v1 EL185-40
LOAN AGREEMENT
(Microloan)
THIS LOAN AGREEMENT (“Agreement”) is made effective as of _______________,
2016, by and between F & M Properties, LLC, a Minnesota limited liability company
(“Borrower”), and the ECONOMIC DEVELOPMENT AUTHORITY OF THE CITY OF ELK
RIVER, a public body corporate and politic of the State of Minnesota (“Lender”).
RECITALS
A. Borrower has applied to Lender for a Microloan Program loan for Borrower’s
relocation to and purchase and renovation of an existing building located on certain real property
at 18489 Twin Lakes Road, Elk River, Minnesota 55330 (the “Loan Property”) in the principal
amount of $185,200.00.
B. Lender is willing to make such loan to Borrower in the principal amount of
$185,200.00 (the “Loan”), subject to all of the terms and conditions of this Agreement.
C. Contemporaneously with the execution hereof, Borrower is 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
$185,200.00.
(ii) A Security Agreement securing the Note (“Security Agreement”). The
Security Agreement is of even date herewith, is executed by the Entity Guarantor, in favor
of the Lender, as secured party, and provides a [first lien] security interest in the
equipment owned or will be owned by the Entity Guarantor at the Loan Property (the
“Equipment”);
(iii) The personal guaranty of Fred Trapp, President of Borrower and the
personal guaranty of Michael Tracey, Vice President of Borrower (collectively, the
“Personal Guaranty”);
(iv) Mortgage and Assignment of Rents and Security Agreement and Fixture
Financing Statement (“Mortgage”). The Mortgage is of even date herewith, is executed
by Borrower, as mortgagor, in favor of Lender, as mortgagee, and covers the Loan
Property as well as a security interest in certain other property described therein; and
(v) An entity guaranty (the “Entity Guaranty”) of Die Concepts, Inc. (the
“Entity Guarantor”).
NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained, it is
hereby agreed as follows:
2
477330v1 EL185-40
1. Amount and Purpose of Loan. Borrower agrees to take and Lender agrees to
make a loan in the principal amount of One Hundred Eighty-Five Thousand Two Hundred and
No/100s Dollars ($185,200.00) (the “Loan”) to be advanced in a single disbursement as
hereinafter provided, the Loan to be evidenced by the Note and secured by the Security
Agreement, the Personal Guaranty, the Mortgage, the Entity Guaranty and any other security
document required under this Agreement. The Loan proceeds will be used only towards the cost
of Borrower’s relocation to and acquisition and renovation of an existing building located the
Loan Property.
2. Mortgage, Equipment and Security Interest.
(a) The Entity Guarantor has provided Lender second priority mortgage in the
Loan Property acquired by the Entity Guarantor with the proceeds of the Loan.
(b) The Entity Guarantor has provided Lender a preliminary list of the
Equipment to be relocated to the City of Elk River, Minnesota, and that shall be subject
to the [first lien] Equipment Security Interest, which is attached as Exhibit A. The
Security Agreement will provide Lender with a [first priority] security interest in such
Equipment.
3. Title Insurance. ______________ (“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
ensure that the Mortgage constitutes a second priority lien upon Borrower’s interest in the
Loan Property as contemplated by this Agreement, subject only to a mortgage in favor of
CorTrust Bank in the amount of $540,800.00 (the “First Lien Mortgage”). 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) Security Agreement. Deliver to Lender the Security Agreement, together
with evidence that a UCC-1 Financing Statement has been or will be duly filed for
record.
(c) Personal Guaranty. Deliver to Lender the Personal Guaranty.
(d) Entity Guaranty. Deliver to Lender the Entity Guaranty.
(e) Mortgage. Deliver to Lender the Mortgage, together with evidence that
the Mortgage has been or will be duly filed for record.
3
477330v1 EL185-40
(f) Organizational Documents and Resolutions. Deliver to Lender copies of
the (i) articles of organization for Borrower certified by the Minnesota Secretary of State,
(ii) certificate of good standing for Borrower issued by the Minnesota Secretary of State;
(iii) Borrower’s operating agreement, member control agreement and bylaws; and (iv)
certified 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.
(g) Organizational Documents and Resolutions. Deliver to Lender copies of
the (i) articles of incorporation for Entity Guarantor certified by the Minnesota Secretary
of State, (ii) certificate of good standing for Entity Guarantor issued by the Minnesota
Secretary of State; (iii) Entity Guarantor’s bylaws; and (iv) certified resolutions of Entity
Guarantor authorizing the execution and delivery of the Entity Guaranty, the Security
Agreement and any other document to be executed by Entity Guarantor pursuant to this
Agreement.
(h) Insurance. Deliver to Lender: (i) a certificate or policy for all insurance
required, under the terms hereof 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.
(i) Compliance with Laws, Etc. Deliver to Lender such evidence as Lender
may require as to the compliance of the Loan Property 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 or planned unit development
applicable to the Loan Property.
(j) 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.
(k) Program Fee. Deliver to Lender the program fee of $2,000; the Lender
acknowledges that the Borrower has previously paid the Lender’s program fee.
4
477330v1 EL185-40
(l) 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.
(m) Lease. Deliver to Lender a copy of the lease agreement for the use of the
Loan Property, executed no later than the date of this Agreement, by and between
Borrower, as landlord, and Entity Guarantor, as tenant (the “Lease”).
Lender may waive any of the above requirements in its sole discretion.
5. Disbursement of Loan. Upon receipt by Lender of all of the items required
pursuant to Section 4 above in the form and condition required therein and confirmation from
Title that Title is prepared to issue the mortgagee’s title insurance policy as required herein,
Lender agrees to disburse the Loan proceeds to Borrower.
6. 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 the Loan Property.
7. 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, acting solely through its municipal or financial advisor, 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 solely to the Lender’s municipal or finance advisor,
as may reasonably be demanded. The Borrower will not be required to provide its books and
records directly to the Lender. Borrower shall also ensure that Entity Guarantor maintains
accurate and complete books, accounts, and records in regard to the Equipment 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 Entity Guarantor and Entity Guarantor shall, at
Lender’s request, furnish such information as Lender may reasonably demand.
8. Encumbrances and Transfer. Other than the First Lien Mortgage, a mortgage in
favor of the Housing and Redevelopment Authority in and for the City of Elk River in the
amount of $75,000.00 (the “Third Lien Mortgage”), and the Lease to the Entity Guarantor,
Borrower agrees not to sell, transfer, lease or convey the Loan Property or any part of it, or any
interest therein, or encumber the Loan Property or any part of it, in any manner, without 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 such prior sale, transfer
lease or conveyance. The Entity Guarantor has agreed, pursuant to the Security Agreement, not
to sell, transfer, lease or convey the Equipment or any part of it, or any interest therein, or
encumber the Equipment or any part of it, in any manner, without the 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 such prior sale, transfer lease or
conveyance.
5
477330v1 EL185-40
9. Time of Essence. Time is of the essence in the performance of this
Agreement.
10. Assignability. Borrower shall not assign this Agreement without written consent
of Lender, which consent may be withheld, conditioned or delayed in Lender’s sole discretion.
Lender may freely assign or otherwise transfer (including by participation) all or any part of its
interest in the Loan or any or all of the Loan documents, in Lender’s sole discretion.
11. Miscellaneous Covenants of Borrower. Borrower covenants and agrees with
Lender that, without cost to Lender, Borrower will or will cause Entity Guarantor to:
(a) Performance of Conditions. Promptly keep, perform and comply with all of the terms,
covenants and conditions to be kept and performed by Borrower and/or Entity Guarantor,
as required by the City of Elk River (the “City”) and any other governmental body having
jurisdiction over the Loan Property; keep unimpaired the rights of Borrower and/or Entity
Guarantor under any permit or agreement issued or made by the City or other
governmental body having jurisdiction over the Loan Property; 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, and any contractors under all contracts obtained or held by
Borrower and/or Entity Guarantor in connection with construction or operation of the
Borrower or Entity Guarantor’s businesses.
(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 and/or Entity Guarantor in
connection with any contracts, documents or agreements referred to herein without the
prior written approval of Lender.
(c) Performance of Note, Security Agreement, etc. Without limiting the foregoing, keep and
perform all of the terms, covenants, conditions and requirements of the Note, the
Mortgage, the Security Agreement and this Agreement.
(d) Insurance. During the term of this Agreement, Borrower shall procure and maintain or
cause to be procured and maintained at its sole expense, 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, with coverages and in amounts normally held by owners of property similar to
the Loan Property (as improved) and with companies satisfactory to Lender. The policy
or policies or duly executed certificate or certificates for such insurance and renewals or
replacements thereof shall be deposited with Lender.
6
477330v1 EL185-40
(e) Pay Charges. Pay at closing, or within 30 days of written notice from the Lender, all loan
charges including, but not limited to: (i) Lender’s attorneys’ fees; (ii) title insurance fees,
costs and premiums; and (iii) filing fees of any instruments required under this
Agreement.
(f) Default Notices. Provide Lender with a copy of any default notice received by the
Borrower or the Entity Guarantor pursuant to any documents related to any financing
secured by the Loan Property or the Equipment (to the extent that such notice is sent by a
party other than Lender), promptly after receipt of the same.
(g) Continual Operation. At all times while any portion of the Loan remains outstanding,
Borrower will: (i) maintain its status as a for profit entity; (ii) maintain a positive net
worth; and (iii) will operate its business from the Loan Property in a first class manner.
(h) Title to Equipment. Borrower represents that Entity Guarantor owns or will own all of
the Equipment listed in Exhibit A [“free and clear,”] that Lender will have a [“first
priority”] lien in the Equipment listed in Exhibit A pursuant to the Security Agreement
and that no other party has any right, title or interest in the Equipment listed in Exhibit A.
12. Warranties. Borrower represents and warrants to Lender the following:
(a) The Borrower corporation 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, the Security Agreement and any other instrument
required hereunder are within the powers of the Borrower and the Entity Guarantor and
have been duly authorized by all necessary company action on the part of the Borrower
and the Entity Guarantor. This Agreement and the Note, Mortgage, Security Agreement
and any other instruments required hereunder have been duly executed and delivered and
are the legal, valid and binding obligations of the Borrower and the Entity Guarantor
enforceable in accordance with their respective terms.
(c) No litigation, tax claims or governmental proceedings are pending or
threatened against the Borrower, the Entity Guarantor or the Loan Property, and no
judgment or order of any court or administrative agency is outstanding against the
Borrower, the Entity Guarantor or the Loan Property which would have a material
adverse effect on Borrower, the Entity Guarantor or the Loan Property.
(d) Borrower and the Entity Guarantor have 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 and the Entity Guarantor will file all such
returns and pay all such taxes for the current and future years.
7
477330v1 EL185-40
(e) All information, financial or other, which has been submitted by
Borrower, the personal guarantors, and the Entity Guarantor in connection with the Loan
is true, accurate and complete in all material respects.
(f) Entity Guarantor is under common ownership.
13. 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 or the Equipment.
Borrower will indemnify and hold Lender harmless from any damages Lender may suffer or
incur from Borrower’s breach of its covenant in Section 12(h).
14. Defaults. Each of the following shall constitute an Event of Default:
(a) If Borrower or Entity Guarantor abandons the Loan Property.
(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 and, if such proceedings are
instituted against Borrower, an order, judgment or decree, without the consent of
Borrower appointing a trustee or receiver for Borrower or any part of its 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 thirty (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 thirty (30) days of entry.
(d) 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 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 or has not caused the Entity Guarantor to take the necessary steps to correct or
cure the same within thirty (30) days after written notice is given by Lender.
(e) 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 satisfaction,
subject, however, to Borrower’s right to contest the same in accordance with the
provisions of the Security Agreement.
(f) A transfer which violates by Paragraph 9 hereof, Encumbrances and
Transfer, occurs.
(g) Borrower: (i) fails to pay when due any amount due under this Agreement,
the Note, or any other documents listed in Section 3; (ii) fails to perform any other
8
477330v1 EL185-40
obligation to be performed under this Agreement, the Note, or any other document
executed by Borrower pursuant to this Agreement; or (iii) fails to pay any amount or
perform any obligation under any other note, or other agreement now or hereafter made
by Borrower in favor of or with Lender or otherwise now or hereafter held by Lender or
Bank, and such failure continues beyond any applicable cure period.
(h) Entity Guarantor fails to timely provide Lender any information necessary
for Lender to perfect its security interest in the Equipment.
(i) Any representation or warranty by Borrower contained herein or in the
Note, the Mortgage, the Security Agreement, or any other instrument required hereunder
is false or untrue in any material respect when made.
(j) A default under the Entity Guaranty, the Mortgage, the Personal Guaranty,
or the Security Agreement beyond any applicable notice and cure period.
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:
(a) Take possession of the Equipment;
(b) 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
paragraphs (ii) and (iii) of this paragraph shall be deemed to have
been advanced under this Agreement and to be secured by the
Security Agreement 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 prosecute and defend all actions or
proceedings in connection with the Loan Property or the Equipment
and do any and every act which Borrower might do in its own
behalf; (B) to perform each of the terms, covenants and conditions to
be kept and performed by Borrower under any contracts and/or
leases obtained or held by Borrower in connection with the operation
of the Loan Property and any other contracts; (C) without limiting
the foregoing, to perform each of the terms, covenants and
conditions to be kept or performed by Borrower under this
Agreement, the Security Agreement and any other instrument
required under this Agreement; and (D) to do all things that Lender
reasonably deems necessary or advisable for the purpose of carrying
9
477330v1 EL185-40
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;
(c) cancel this Agreement;
(d) bring appropriate action to enforce such performance and the correction of
such Event of Default;
(e) declare the entire unpaid principal of the Note and all accrued interest
thereon immediately due and payable without notice;
(f) exercise any remedies under the Entity Guaranty, the Personal Guaranty,
foreclose the Mortgage, or the Security Agreement, foreclose any other security
instrument referred to in this Agreement and/or exercise any other rights or remedies it
may have under the Entity Guaranty, the Personal Guaranty, the Mortgage, the Security
Agreement and any other security instruments.
16. Default under Note and Security Agreement. 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, the Security Agreement 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:
F & M Properties, LLC
18489 Twin Lakes Road
Elk River, MN 55330
Attention: Fred Trapp
If to Lender:
Economic Development Authority of the City of Elk River
13065 Orono Parkway
Elk River, Minnesota 55330
Attn: Director of Economic Development
or addressed to any such party at such other address as such party shall hereafter furnish by
notice to the other party. 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
10
477330v1 EL185-40
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. 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.
21. 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.
22. Entire Agreement. This Agreement, the Note, the Mortgage, the Security
Agreement 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.
23. 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, the Security
Agreement 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, the Security
Agreement or the other documents executed in connection herewith.
24. Business Subsidies Act.
(a) In order to satisfy the provisions of Minnesota Statutes, Sections 116J.993
to 116J.995 (the “Business Subsidies Act”), the Borrower acknowledges and agrees that
the amount of the “Business Subsidy” granted to the Borrower under this Agreement is
the amount of the loan, which is $200,000, and that the Business Subsidy is needed
because the project is not sufficiently feasible for the Borrower to undertake without the
Business Subsidy. The public purpose of the Business Subsidy is to develop
manufacturing facilities, increase the tax base in the City and stimulate the creation and
retention of jobs. In consideration of the Business Subsidy provided for the Borrower’s
relocation to and purchase and renovation of an existing building located on the Loan
Property, the Borrower represents that pursuant to the terms of the Entity Guaranty,
Entity Guarantor has agreed to meet following goals (the “Goals”): the Entity Guarantor
shall relocate or create 12 full-time equivalent jobs in Elk River, Minnesota (the “City”),
11
477330v1 EL185-40
at the Loan Property at an hourly wage equal to the greater of $15.00 per hour or 150% of
the state or federal minimum wage, whichever is greater (the “Jobs”), by the two (2) year
anniversary of the date of closing on the Loan (the “Benefit Date”).
(b) If none of the Goals are met, the Borrower agree to repay all of the
Business Subsidy to the City, plus interest (“Interest”) set at the greater of 2.00% per
annum or the implicit price deflator defined in Minnesota Statutes Section 275.70,
subdivision 3, accruing from and after the date of closing on the Loan, compounded
semiannually. If the Goals are met in part, the Borrower agrees to 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 12 (i.e. number
of Jobs set forth in the Goals).
(c) The Borrower agrees to: (i) report the Entity Guarantor’s progress on
achieving the Goals to the City 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 City.
The Borrower agrees to file these reports no later than March 1 of each year commencing
March 1, 2017, and within 30 days after the deadline for meeting the Goals. The City
agrees that if it does not receive the reports, it will mail the Entity Guarantor and the
Borrower a warning within one week of the 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 City a penalty of $100 for each subsequent day until the report is filed up to a
maximum of $1,000.
(d) Pursuant to the terms of the Entity Guaranty, the Entity Guarantor has
agreed that it will continue operations in the City and maintain the Jobs for at least 5
years after the Benefit Date.
(e) Other than the loan provided pursuant to this Agreement, there are no
other state or local government agencies providing financial assistance for the project.
(f) There is no parent corporation of the Entity Guarantor or the Borrower.
[Signature Pages follow]
S-1
477330v1 EL185-40
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.
F & M PROPERTIES, LLC
By:
Fred Trapp
Its: President
By:
Michael Tracey
Its: Vice President
S-2
477330v1 EL185-40
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.
ECONOMIC DEVELOPMENT AUTHORITY
OF THE CITY OF ELK RIVER
By:
Name:
Its: President
By:
Name:
Its: Executive Director
477330v5 EL185-40
EXHIBIT A
Equipment List
Item Description Purchase Price Status
1
477332v4 EL185-40
PROMISSORY NOTE
(Microloan)
___________, 2016
Amount: $185,200.00 Interest: 2.00%
Maturity: ________, 2021
FOR VALUE RECEIVED, the undersigned, F & M PROPERTIES, LLC, a Minnesota
limited liability company (“Borrower”), promises to pay to the order of the ECONOMIC
DEVELOPMENT 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 ______ 1, 2021 (“Maturity Date”), the principal sum of One Hundred
Eighty-Five Thousand Two Hundred and 00/100 Dollars ($185,200.00), 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.
This Note is made pursuant to a Loan Agreement, between Borrower and Lender, of even
date herewith (“Loan Agreement”) which provides for the payment of the cost of relocation to,
and purchase and renovation of an existing building. The principal amount of this Note shall be
amortized over a 20 year period.
Based on the foregoing, the Borrower shall be obligated to make monthly installments
(each a “Monthly Installment”) in the amount of ____________, which Monthly Installments
shall commence on _______, 2016, and continue on the first (1st) day of each and every month
thereafter until the Maturity Date, when all outstanding principal and accrued but unpaid interest
shall be payable in full.
This Note is secured by, among other things a Security Agreement given by Die Concepts,
Inc. to Lender (“Security Agreement”), the Mortgage by Borrower in favor of Lender, the
Personal Guaranties made by Fred Trapp and Michael Tracey, and that certain Entity Guaranty
made by Die Concepts, Inc. all of which are made to Lender of even date herewith (collectively,
the “Security Documents”). All of the terms and conditions contained in the Security
Documents 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
Monthly Installment provided for in this Note, by the end of ten (10) 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 Monthly
Installment. The Borrower shall pay this late charge fee on demand, however, collection of the
2
477332v4 EL185-40
late charge fee shall not be deemed a waiver of 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 Security
Documents.
Each Monthly 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 any
Security Document and any cure period provided for in the Loan Agreement or such Security
Document 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 Monthly Installment or reduce the amount of any such Monthly 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 Security
Documents, 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.
3
477332v4 EL185-40
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.
[Signature Page Follows]
S-4
477332v4 EL185-40
IN WITNESS WHEREOF, the undersigned has caused this Note to be effective as of the
day and year first above written.
F & M PROPERTIES, LLC
a Minnesota limited liability company
By:
Fred Trapp
Its: President
By:
Michael Tracey
Its: Vice President
1
477340v3 EL185-40
MORTGAGE
AND
ASSIGNMENT OF RENTS
AND
SECURITY AGREEMENT
AND
FIXTURE FINANCING STATEMENT
(Microloan)
This Mortgage and Assignment of Rents and Security Agreement and Fixture Financing
Statement (“Mortgage”) is made as of ______________________, 2016, by F & M Properties,
LLC, a Minnesota limited liability company (“Mortgagor”), in favor of the ECONOMIC
DEVELOPMENT AUTHORITY OF THE CITY OF ELK RIVER, a public body corporate and
politic of the State of Minnesota (“Mortgagee”).
THE MAXIMUM AMOUNT SECURED BY THIS MORTGAGE IS $185,200.00 OF
PRINCIPAL INDEBTEDNESS, TOGETHER WITH ALL INTEREST ACCRUING
THEREON AND ANY AMOUNTS WHICH MAY BE ADVANCED BY MORTGAGEE IN
PROTECTION OF THE MORTGAGED PREMISES OR THE LIEN OF THIS MORTGAGE.
RECITALS
A. Mortgagor has executed and delivered to Mortgagee a Promissory Note effective
as of the date hereof in the principal amount of $185,200.00 and bearing interest at the rate set
forth therein, with principal being due and payable as set forth therein and with all principal and
interest, if not sooner paid, being due and payable on _________, 2021 (the Promissory Note as
the same may be renewed, extended, replaced, modified or amended is herein called the “Note”).
The proceeds of the Note are being utilized to pay a portion of the relocation to and acquisition
and renovation of the Mortgaged Property (as defined below).
B. Contemporaneous herewith, Mortgagor has entered into that certain loan
agreement (the “Loan Agreement”) setting forth the terms and conditions of Mortgagor and
Lender’s obligations with relation to this loan facility.
2
477340v3 EL185-40
C. Mortgagor is the landlord under that certain unrecorded leased dated _______,
20__, with Die Concepts, Inc. (the “Entity Guarantor”), as tenant leasing a portion of the
Mortgaged Property to the Entity Guarantor.
D. As a condition of providing the loan pursuant to the Loan Agreement, Lender
required that Mortgagor’s obligations under the Loan Agreement be secured by this Mortgage.
NOW THEREFORE, in consideration of the Recitals and for the purpose of securing the
payment and performance of all of Mortgagor’s obligations under the Loan Agreement
(collectively “Obligations”); and to secure the performance of all covenants, conditions and
agreements herein and in the Loan Agreement, Mortgagor does hereby mortgage, grant, bargain,
sell, release and convey unto Mortgagee, with power of sale, forever all of Mortgagor’s right,
title and interest in all the tracts or parcels of land lying and being in Sherburne County,
Minnesota, legally described in Exhibit A hereto, (hereinafter the “Land”), whether now owned
or hereafter acquired, together with: (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; and (ii) all of the buildings,
structures and other improvements now standing or at any time hereafter constructed or placed
upon the Land; and (iii) 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 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; and (iv) all additions, accessions, increases, parts, fittings, accessories,
replacements, substitutions, betterments, repairs and proceeds to any and all of the foregoing;
and (v) all hereditaments, easements, appurtenances, estates, rents, issues, profits, condemnation
awards, proceeds of policies of insurance and other rights and interests now or hereafter
belonging or in any way pertaining to the Land or to any building or improvement now or
hereafter located thereon; and (vi) all leases or other occupancy agreements now or hereafter in
effect in any way appertaining to the Land or to any building or improvement now or hereafter
located thereon, including, without limitation, all cash and security deposits, advance rentals and
deposits or payments of a similar nature (“Leases”), and all Rents (as herein defined) (all of the
foregoing, together with the Land, hereinafter being referred to as the “Property” or “Mortgaged
Property”),
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee forever;
PROVIDED, NEVERTHELESS, that this Mortgage is given upon the express condition
that if Mortgagor shall cause to be paid and performed all of the Obligations, and shall also keep
and perform all and singular the covenants herein contained on the part of Mortgagor to be kept
and performed, then the Mortgage and the estate hereby granted shall cease and be and become
void and shall be released of record at the expense of Mortgagor; otherwise this Mortgage shall
be and remain in full force and effect.
MORTGAGOR REPRESENTS, WARRANTS AND COVENANTS to and with
Mortgagee that Mortgagor has good right and full power and authority to execute this Mortgage
and to mortgage the Mortgaged Property; that the Mortgaged Property is free from all liens and
encumbrances except a mortgage in favor of CorTrust Bank in the amount of $540,800.00 (the
3
477340v3 EL185-40
“First Lien Mortgage”) and a mortgage in favor of Housing and Redevelopment Authority in and
for the City of Elk River in the amount of up to $75,000.00 (the “Third Lien Mortgage”) and
those other certain permitted encumbrances identified in Exhibit B hereto (the “Permitted
Encumbrances”); that Mortgagee shall quietly enjoy and possess the Mortgaged Property; that
Mortgagor will warrant and defend the title to the Mortgaged Property against all claims,
whether now existing or hereafter arising. The covenants and warranties of this paragraph shall
survive foreclosure of this Mortgage and shall run with the Land.
AND IT IS FURTHER COVENANTED AND AGREED AS FOLLOWS:
ARTICLE ONE
GENERAL COVENANTS, AGREEMENTS, WARRANTIES
1.1. Payment of Obligations; Observance of Covenants. Mortgagor will duly pay and
perform its Obligations and will perform all other agreements and covenants by Mortgagor to be
performed hereunder.
1.2. Payment of Impositions. Mortgagor agrees to pay, before a penalty might attach
for nonpayment thereof, all taxes, assessments, water and sewer charges, and other fees, taxes
and charges of whatsoever nature levied upon or assessed or placed against the Mortgaged
Property (collectively “Impositions”). Mortgagor will likewise pay all taxes, assessments and
other charges, levied upon or assessed, placed or made against, or measured by, this Mortgage,
or the recordation hereof, or the Obligations, provided that Mortgagor shall not be obliged to pay
such tax, assessment or charge if such payment would be contrary to law or would result in the
payment of an usurious rate of interest on the Obligations. Mortgagor shall promptly furnish to
Mortgagee all notices received by Mortgagor of amounts due under this Section and upon
Mortgagee’s request, shall deliver proper receipts evidencing the payment of such amounts. In
the event of a judicial decree or legislative enactment after the date of this Mortgage, providing
that any such imposition may not be lawfully paid by Mortgagor, or in the event that the payment
of any such imposition by Mortgagor would result in the payment of a usurious rate of interest
on the Obligations, the Obligations, together with interest, shall become immediately due and
payable, or, at Mortgagee’s option, Mortgagee may pay any amount or portion of such
Imposition as renders the Obligations unlawful or usurious, in which event Mortgagor shall
concurrently therewith pay the remaining lawful and non-usurious portion or balance of said
Imposition.
1.3. Payment of Operating Costs; Mortgages and Liens. Mortgagor agrees that it will
pay, or cause to be paid, all operating costs and expenses of the Mortgaged Property; keep the
Mortgaged Property free from mechanics’ and material suppliers’ and other liens, subject to
Mortgagor’s right to contest in good faith as set forth in Section 1.4 hereof; will keep the
Mortgaged Property free from levy, execution or attachment and will immediately pay when due
all indebtedness which may be secured by mortgage, lien or charge on the Mortgaged Property
and upon request will exhibit to Mortgagee satisfactory evidence of such payment and discharge.
4
477340v3 EL185-40
1.4. Contest of Impositions, Liens and Levies. Mortgagor shall not be required to pay,
discharge or remove any Imposition, lien or levy so long as Mortgagor shall in good faith contest
the same or the validity thereof by appropriate legal proceedings which shall operate to prevent
the collection of the levy, lien or Imposition so contested and the sale of the Mortgaged Property,
or any part thereof to satisfy the same; provided, however, that Mortgagor, prior to the date such
levy, lien or Imposition is due and payable or, in the case of a mechanic’s lien or other
involuntary lien within (30) days after the same shall have been filed, shall have given such
reasonable security as may be demanded by Mortgagee to ensure such payments and any
penalties and interest that may accrue thereon and prevent any sale or forfeiture of the
Mortgaged Property by reason of such nonpayment. Any such contest shall be prosecuted with
due diligence and Mortgagor shall promptly after final determination thereof pay the amount of
any such levy, lien or Imposition so determined, together with all interest and penalties, which
may be payable in connection therewith. Notwithstanding the provisions of this Section,
Mortgagor shall, and Mortgagee may (but shall have no obligation to), pay any such levy, lien or
Imposition notwithstanding such contest if in the reasonable opinion of Mortgagee, the
Mortgaged Property is in jeopardy or in danger of being forfeited or foreclosed.
1.5. Maintenance and Repairs; Inventory. Mortgagor agrees that it will keep and
maintain (or cause to be kept and maintained) the Mortgaged Property in good condition and
repair, free from any waste or misuse, and will comply with all requirements of law, municipal
ordinances and regulations, restrictions and covenants affecting the Mortgaged Property and its
use, and will promptly repair or restore any buildings, improvements or structures now or
hereafter on the Mortgaged Property which may become damaged or destroyed. Mortgagor
further agrees that without the prior consent of Mortgagee it will not remove from the Mortgaged
Property any fixtures or any personal property that is included in the Mortgaged Property unless
the same is immediately replaced with like fixtures or personal property of at least equal value,
or is otherwise removable under Section 6.1 hereof; or expand any improvements on the
Mortgaged Property, erect any new improvements or make any material alterations in any
improvements which will materially alter the basic structure, materially and adversely affect the
market value or materially change the existing architectural character of the Mortgaged Property.
Mortgagor agrees that it will complete within a reasonable time any buildings now or at any time
in the process of erection on the Mortgaged Property. Mortgagor agrees not to acquiesce in any
rezoning classification, modification or restriction affecting the Mortgaged Property without
Mortgagee’s prior written consent. Mortgagor agrees that it will not abandon the Mortgaged
Property. Upon request of Mortgagee, Mortgagor shall deliver to Mortgagee an inventory in
detail reasonably acceptable to Mortgagee of any personal property owned by Mortgagor that is
included in the Mortgaged Property pursuant to the terms hereof together with a certification by
Mortgagor that said inventory is a true and complete schedule of the personal property to be
included in the Mortgaged Property pursuant to the terms hereof. Such inventory shall list any
conditional sales contracts and other title retention arrangements to which such personal property
may b e subject.
5
477340v3 EL185-40
1.6. Insurance.
(a) So long as the Obligations remain unpaid, Mortgagor shall, at its own cost,
maintain or cause to be maintained with insurers of recognized responsibility acceptable
to Mortgagee the following insurance:
(i) hazard and fire insurance on the improvements now existing or
hereafter constructed on the Land insuring against loss by fire, hazards included
in the term “extended coverage,” loss by vandalism or malicious mischief, and
such other hazards, casualties and contingencies as may be required by
Mortgagee, on the basis of replacement cost without a coinsurance clause, in an
amount equal to the full replacement cost thereof (without deduction for
depreciation) or such additional amounts and for such periods as may be required
by Mortgagee;
(ii) comprehensive general public liability insurance covering the
liability of Mortgagor against claims for bodily injury, death or property damage
occurring on or about the Mortgaged Property in such minimum amounts and
limits as Mortgagee may require but in no event, less than $2,000,000.00
combined single limit per occurrence and naming Mortgagee as an additional
insured;
(iii) insurance covering the Mortgaged Property against loss or damage
by explosion, rupture or bursting of steam boilers, steam pipes, steam turbines,
steam engines or pressure vessels or fly wheels located on or a part of the
Mortgaged Property and providing for full repair and full replacement cost
coverage; and
(iv) such other forms of insurance in such minimum amounts as
Mortgagee may reasonably require or as may be required by law.
Mortgagor shall pay or cause to be paid all premiums on insurance required
hereunder by making payment directly to the insurer. Mortgagee shall have the
right to hold the policies and renewals thereof, and Mortgagor shall promptly
furnish to Mortgagee all such policies, renewals thereof, renewal notices and all
paid-premium receipts received by it. All policies of insurance and any and all
refunds of unearned premiums are hereby assigned to Mortgagee as additional
security for the payment of the Obligations secured hereby. In the event of
foreclosure of this Mortgage, all right, title and interest of Mortgagor in and to
any insurance policies then in force shall pass to the purchaser at the foreclosure
sale.
(b) The policies of all such insurance shall have mortgagee and loss payable
provisions in favor of Mortgagee. All such insurance shall be in form acceptable to
Mortgagee, shall provide for at least thirty (30) days’ prior written notice of cancellation,
termination or modification thereof to Mortgagee, shall permit Mortgagee to make
6
477340v3 EL185-40
premium payments to prevent cancellation, and shall provide that no act or negligence of
Mortgagor or of any occupant of the Mortgaged Property, and no occupancy or use of the
Mortgaged Property for purposes more hazardous than permitted by the terms of the
policy, will affect the validity or enforceability of such insurance as against Mortgagee.
In the event of loss under such insurance Mortgagor shall give prompt notice to the
insurance carrier and Mortgagee; Mortgagor shall duly make proof of loss, and shall
immediately furnish to Mortgagee a copy of such proof of loss.
(c) Subject to the rights of the mortgagee under the First Lien Mortgage
which has priority over this Mortgage and the Third Lien Mortgage which does not have
priority over this Mortgage, Mortgagee is authorized and empowered to settle, collect and
receive all fire and hazard insurance proceeds, to apply such proceeds to all expenses
(including reasonable attorneys’ fees) reasonably incurred by Mortgagee in collecting the
same and, at Mortgagee’s option and in its sole discretion, apply the balance of said
proceeds (“Net Proceeds”) to payment of the Obligations or make the Net Proceeds
available for the repair and restoration of the Mortgaged Property; provided, however,
Mortgagor may settle claims without Mortgagee’s consent if the loss is less than
$5,000.00 and no Event of Default exists at the time of settlement. Mortgagor shall apply
any such proceeds to the repair and restoration of the Mortgaged Property. So long as no
Event of Default exists, any settlement of a fire and hazard insurance claim of more than
$5,000.00 shall require the consent of Mortgagor, which consent will not be unreasonably
withheld.
(d) If Mortgagee elects to apply the Net Proceeds to repair and restoration of
the Mortgaged Property (i) the Net Proceeds shall be held by Mortgagee and at
Mortgagee’s election may be disbursed either by Mortgagee or a disbursing agent
selected by Mortgagee and paid by Mortgagor, (ii) upon Mortgagee’s request prior to
disbursement of any Net Proceeds or thereafter, from time to time, Mortgagor will
deposit with Mortgagee such amounts in excess of remaining Net Proceeds as Mortgagee
reasonably determines is required to complete the repair and restoration, (iii) the Net
Proceeds and any funds deposited by Mortgagor shall be held and disbursed in
accordance with sound construction loan disbursement practices, including, but not
limited to, approval of the plans and specifications, appraisal, its other conditions for
disbursement of draw requests and inspection of the work, and such other reasonable
conditions as Mortgagee may impose and (iv) any Net Proceeds not so applied to repair
and restoration shall be applied to the payment of the Obligations. If an Event of Default
occurs prior to full disbursement, any undisbursed portion of the Net Proceeds and any
funds deposited by Mortgagor with Mortgagee may at Mortgagee’s option be applied to
the Obligations.
1.7. Inspection. Mortgagee, or its agents, shall have the right to enter upon the
Mortgaged Property during ordinary business hours for the purposes of inspecting the Mortgaged
Property or any part thereof. Mortgagee shall have no duty, however, to make such inspection.
Mortgagee, or its agents, shall also have the right during ordinary business hours to examine the
books and records of Mortgagor pertaining to the Mortgaged Property and to make extracts
7
477340v3 EL185-40
therefrom and copies thereof. The parties agree that Mortgagee’s right to inspect the books and
records of Mortgagor, as described in this provision, relates solely to the Mortgaged Property.
1.8. Protection of Mortgagee’s Security. If Mortgagor fails to perform any of the
covenants and agreements contained in this Mortgage and such failure shall continue beyond any
applicable notice and cure period contained in Article Two hereof or if any action or proceeding
is commenced which does or may adversely affect the Mortgaged Property or the interest of
Mortgagor or Mortgagee therein, or the title of Mortgagor thereto, then Mortgagee, at
Mortgagee’s option, may perform such covenants and agreements, defend against such action or
proceeding, or otherwise act as Mortgagee deems necessary to protect its interest. In the event
that, after damage to or destruction of the Mortgaged Property or condemnation of a portion of
the Mortgaged Property or a sale under threat thereof, the proceeds are used to restore the
Mortgaged Property, and the insurance, sale or condemnation proceeds which are paid to
Mortgagee are not sufficient to pay for such restoration, Mortgagee may nevertheless effect the
restoration. Any amounts disbursed or costs incurred by Mortgagee pursuant to this Section,
including interest and reasonable attorney’s fees, shall become additional Obligations of
Mortgagor secured by this Mortgage. All amounts disbursed or costs incurred by Mortgagee
pursuant to this paragraph shall be payable upon demand, and shall bear interest from the date of
disbursement or incurrence at the rate set forth in the Note unless payment of interest at such rate
would be contrary to law, in which event such amounts shall bear interest at the highest rate
permitted by law. Mortgagee shall, at its option, be subrogated to any encumbrance, lien, claim
or demand, and to all the rights and securities for the payment thereof, paid or discharged with
the principal sum secured hereby or by Mortgagee under the provisions hereof, and any such
subrogation rights shall be additional and cumulative security for this Mortgage. Nothing
contained in this Section shall require Mortgagee to incur any expense or do any act hereunder,
and Mortgagee shall not be liable to Mortgagor for any damages or claims arising out of action
taken by Mortgagee pursuant to this paragraph.
1.9. Hazardous Materials. Mortgagor hereby represents and warrants to Mortgagee
that the Mortgaged Property has not at any time been used for storage, transfer, transportation or
disposal of hazardous substances, hazardous wastes, pollutants, contaminants or similar
substances (collectively “Hazardous Substances”), or for the discharge of the same into the
environment in violation of any law, regulation, or judicial or administrative order or judgment;
and the Mortgaged Property is not contaminated by, and does not contain, any Hazardous
Substances. Mortgagor will not use or permit the use of the Mortgaged Property for such
purposes. Mortgagor will fully indemnify Mortgagee and defend Mortgagee against any claims,
losses, damages, actions, costs and expenses of any kind, including without limitation, court
costs and reasonable attorneys’ fees, in connection with any Hazardous Substances now or
hereafter located on the Mortgaged Property or any other violation of any federal, state or local
environmental statute, ordinance, rule or regulation (“Environmental Laws”). This indemnity
shall not apply to the extent that the willful act or omission of the Mortgagee contributes to the
actual or threatened discharge, dispersal, release, storage, treatment, generation, disposal or
escape of the Hazardous Substances. The indemnity provisions of this Section shall survive the
foreclosure or other termination of this Mortgage.
8
477340v3 EL185-40
Without limiting the generality of the foregoing, Mortgagor agrees that upon the discovery
of a release or threatened release of Hazardous Substances on or from the Mortgaged Property, it
will promptly, diligently and without cost to Mortgagee, proceed to remediate all contamination
in accordance with all applicable laws, ordinances, rules and regulations, and the requirements of
all governmental authorities having jurisdiction, and otherwise to the satisfaction of Mortgagee.
A failure to do so shall constitute a default by Mortgagor under this Mortgage.
1.10. Escrows. Upon the request of Mortgagee after the occurrence of an Event of
Default (whether or not such Event of Default is subsequently cured), Mortgagor shall deposit
with Mortgagee, on the first day of each and every month, commencing with the date the first
payment shall be due on the Note which is after the date of such request, a deposit to pay the
Impositions and insurance premiums (collectively “Charges”) in an amount equal to:
(a) One-twelfth (1/12) of the Impositions next to become due upon the
Mortgaged Property; provided, however, that, in the case of the first such deposit, there
shall be deposited in addition an amount as estimated by Mortgagee which, when added
to monthly deposits to be made thereafter as provided for herein, shall assure that there
will be sufficient funds on deposit to pay the Impositions as they come due; plus
(b) One-twelfth (1/12) of the annual premiums on each policy of insurance
required to be maintained hereunder; provided that with the first such deposit there shall
be deposited, in addition, an amount equal to one-twelfth (1/12) of such annual insurance
premiums multiplied by the number of months elapsed between the date premiums on
each policy are last paid to and including the date of deposit.
The amount of such deposits shall be based upon Mortgagee’s reasonable estimate as to the
amount of Impositions and premiums of insurance next to be payable. Mortgagee will, upon
timely presentation to Mortgagee by Mortgagor of the bills therefor, pay the Charges from such
deposits. In the event the deposits on hand shall not be sufficient to pay all of the Charges when
the same shall become due from time to time, or the prior deposits shall be less than the currently
estimated monthly amounts, then Mortgagor shall pay to Mortgagee on demand any amount
necessary to make up the deficiency. The excess of any such deposits shall be returned to
Mortgagor or credited towards subsequent Charges, at the discretion of Mortgagee. If an Event
of Default shall occur under the terms of this Mortgage, Mortgagee may, at its option, without
being required so to do, apply any deposits on hand to the Obligations, in such order and manner
as Mortgagee may elect. When the Obligations have been fully paid, any remaining deposits
shall be returned to Mortgagor as its interest may appear. All deposits are hereby pledged as
additional security for the Obligations, shall be held for the purposes for which made as herein
provided, may be held by Mortgagee and may be commingled with other funds of Mortgagee,
shall be held without any allowance of interest thereon, and shall not be subject to the decision or
control of Mortgagor. Mortgagee shall not be liable for any act or omission made or taken in
good faith. In making any payments, Mortgagee may rely on any statement, bill or estimate
procured from or issued by the payee without inquiry into the validity or accuracy of the same.
If the taxes shown in the tax statement shall be levied on property more extensive than the
Mortgaged Property, Mortgagee shall be under no duty to seek a tax division or apportionment of
9
477340v3 EL185-40
the tax bill, and any payment of taxes based on a larger parcel shall be paid by Mortgagor, and
Mortgagor shall expeditiously cause a tax subdivision to be made.
1.11. Compliance with Code. Mortgagor covenants that when completed the
Mortgaged Property shall comply with all applicable restrictions, conditions, codes, ordinances,
regulations and laws of the City of Elk River (the “City”) and other governmental bodies having
jurisdiction over the Mortgaged Property, including, without limitation, the Americans with
Disabilities Act and those related to environmental protection. Mortgagor has NOT commenced
construction of the Improvements.
10
477340v3 EL185-40
ARTICLE TWO
EVENTS OF DEFAULT
Each of the following occurrences shall constitute an Event of Default hereunder:
2.1. Failure to pay. Mortgagor’s failure to pay any amount due under the Loan
Agreement or any other amount required to be paid by Mortgagor hereunder when due.
2.2. Other Performance Failure. The Mortgagor’s or Entity Guarantor’s failure to duly
observe or perform any of the other terms, conditions, covenants or agreements required to be
observed or performed by Mortgagor hereunder or by Entity Guarantor in the Entity Guaranty
and the continuation of such failure for a period of thirty (30) days after Mortgagee gives
Mortgagor written notice of such failure.
2.3. Breach of Warranty of Title. Subject to Mortgagor’s right to contest in good faith
as set forth in Section 1.4 hereof, the breach of any warranty of title or any other warranty made
by Mortgagor hereunder.
2.4. Misrepresentation. The making of any material misstatement in any financial
statement or report submitted to Mortgagee by or on behalf of Mortgagor.
2.5. Foreclosure. The institution of a foreclosure or other enforcement proceedings by
the holder of any other lien on the Mortgaged Property (without hereby implying Mortgagee’s
consent to any mortgage or other lien).
2.6. Sale of Property. The sale, assignment, conveyance, mortgage, encumbrance,
lease or transfer of: (i) Mortgagor’s interest in the Mortgaged Property or any part thereof, or any
interest therein; or (ii) any transfer in ownership or control of Mortgagor, without the prior
written consent of Mortgagee, which consent may be granted or withheld by Mortgagee at its
sole discretion.
2.7. Breach of the Mortgages, Other Agreements, etc. Any default or breach under the
First Lien Mortgage, the Third Lien Mortgage, any other note, mortgage or other obligation of
Mortgagor or Borrower now held or hereafter acquired by Mortgagee or City, or any other
failure to comply with the terms and conditions thereof and the continuance thereof beyond any
applicable notice and/or cure period contained therein.
11
477340v3 EL185-40
ARTICLE THREE
ACCELERATION AND FORECLOSURE; OTHER REMEDIES
Upon any Event of Default, Mortgagee may, at its option, exercise one or more of the
following rights and remedies (and any other rights and remedies available to it):
3.1. Acceleration. Mortgagee may declare immediately due and payable all
unmatured Obligations secured by this Mortgage, and the same shall thereupon be immediately
due and payable, without notice or demand.
3.2. UCC Remedies. Mortgagee shall have and may exercise with respect to all
fixtures and any personal property included in 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.
3.3. Foreclosure; Action or Advertisement. Mortgagee 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 to the full extent
of Mortgagor’s interest and, out of the proceeds arising from such sale, to pay all Obligations
secured hereby with interest, and all legal costs and charges of such foreclosure and the
maximum attorneys’ fees permitted by law, which costs, charges and fees Mortgagor agrees to
pay. Any real estate or interest or estate sold hereunder may be sold in one parcel, as an entirety,
or in such parcels and in such manner or order as Mortgagee, in its sole discretion, may elect. In
case of any sale of the Mortgaged Property pursuant to any judgment or decree of any court or at
public auction or otherwise in connection with the enforcement of any of the terms of this
Mortgage, Mortgagee, its successors and assigns, may become the purchaser, and for the purpose
of making settlement for or payment of the purchase price, shall be entitled to deliver over and
use any sum then due under the Entity Guaranty and any claims for interest accrued and unpaid
thereon, together with all other sums, with interest, advanced and unpaid hereunder, and all
statutory charges for such foreclosure including maximum attorney’s fees allowed by law in
order that there may be credited as paid on the purchase price the sum then due under the Note
and all other sums, with interest, advanced and unpaid hereunder, and all charges and expenses
of such foreclosure including maximum attorneys’ fees allowed by law.
3.4. Receiver. Mortgagee shall be entitled as a matter of right without notice and
without giving bond and without regard to the solvency or insolvency of Mortgagor, or waste of
the Mortgaged Property or adequacy of the security of the Mortgaged Property, to apply for the
appointment of a receiver, in accordance with the statutes and law made and provided. The
receiver shall collect the rents, and all other income of any kind; manage the Mortgaged Property
so to prevent waste; execute leases within or beyond the period of receivership, pay all expenses
for normal maintenance of the Mortgaged Property and perform the terms of this Mortgage and
apply the rents, issues and profits as permitted by Minnesota Statutes, Section 576.25 in the
following order to (i) payment of the reasonable fees of said receiver, (ii) application of tenant
security deposits as required by Minnesota Statutes Section 504B.178, (iii) payment when due of
12
477340v3 EL185-40
prior or current real estate taxes or special assessments with respect to the Mortgaged Property
or, if this Mortgage so requires, to the periodic escrow for the payment thereof, (iv) the payment
when due of premiums for insurance of the type required by this Mortgage or, if this Mortgage
so requires, to the periodic escrow for the payment thereof; and (v) as further provided in any
Assignment of Rents executed by Mortgagor as further security for the Obligations (whether
included in this Mortgage or separate instrument), including but not limited to applying the same
to the costs and expenses of the receivership, including reasonable attorneys’ fees, to the
repayment of the Obligations and to the operation, maintenance, upkeep and repair of the
Mortgaged Property, including payment of taxes and payments of premiums of insurance.
Mortgagor does hereby irrevocably consent to such appointment.
3.5. Specific Performance. Mortgagee may bring suit for specific performance of any
covenant or warranty hereunder.
3.6. Forbearance and Other Rights of Mortgagee. Any delay by Mortgagee in
exercising any right or remedy hereunder, or otherwise afforded by law or equity, shall not be a
waiver of or preclude the exercise of such right or remedy or any other right or remedy
hereunder or at law or in equity. The failure of Mortgagee to exercise any option to accelerate
maturity of the Obligations secured by the Mortgage, the forbearance by Mortgagee before or
after the exercise of such option, or the withdrawal or abandonment of proceedings provided for
by this Mortgage shall not be a waiver of the right to exercise such option or to accelerate the
maturity of such Obligations by reason of any past, present or future event which would permit
acceleration. The procurement of insurance or the payment of taxes or other liens or charges by
Mortgagee shall not be a waiver of Mortgagee’s right to accelerate the maturity of the
Obligations. Mortgagee’s receipt of any awards, proceeds or damages shall not operate to cure
or waive default by Mortgagor. Mortgagee may at any time, without notice, release any person
liable for payment of any Obligations, extend the time or agree to alter the terms of payment of
any of the Obligations, accept additional security of any kind, release any plat or map of the
Mortgaged Property or the creation of any easement thereon or any covenants restricting use or
occupancy thereof, or agree to alter or amend the terms of this Mortgage in any way. No such
release, modification, addition or change shall affect the liability of any person other than the
person so released, for payment of any Obligations, nor affect the priority and lien status of this
Mortgage upon any property not so released.
13
477340v3 EL185-40
ARTICLE FOUR
ASSIGNMENT OF RENTS
4.1. Assignment. As security in addition to the lien of this Mortgage upon the
Property, Mortgagor hereby grants, transfers and assigns to Mortgagee all of the right, title and
interest of Mortgagor in and to all Leases and all rents, income, profits, revenues, royalties,
bonuses, rights, accounts, contract rights, general intangibles and benefits (all of which are
sometimes hereinafter referred to as “Rents”), now or hereafter accruing or owing by reason of a
Lease of any or all of the Property.
4.2. Covenants of Performance. To protect the security of this Assignment,
Mortgagor warrants, covenants and agrees:
(a) to faithfully abide by, perform and discharge each and every obligation,
covenant and agreement under any Leases to be performed by Mortgagor thereunder; to
give prompt written notice to Mortgagee of any notice of default on the part of Mortgagor
with respect to any Lease received from a tenant thereunder; to enforce or secure short of
termination of any Lease the performance of each and every obligation, covenant,
condition and agreement of the Leases by the tenants thereunder to be performed; not to
borrow against, pledge or assign any of the Rents, or anticipate the Rents; not to waive,
excuse, condone or in any manner release or discharge any tenant thereunder of or from
the obligations, covenants, conditions and agreements to be performed under the Lease or
to permit the tenant to assign its interest in the Lease unless required to do so by the terms
of the Lease; not to terminate the Leases or accept a surrender thereof or a discharge of
the tenant unless required to do so by the terms of the Lease; not to consent to a
subordination of the interest of the tenant thereunder to any party other than Mortgagee
and then only if specifically required to do so by Mortgagee;
(b) at Mortgagor’s sole cost and expense, to appear in and defend any action
or proceeding arising under, growing out of or in any manner connected with the Leases
or the obligations, duties or liabilities of Mortgagor and tenants thereunder, and to pay all
costs and expenses of Mortgagee, including attorneys’ fees in a reasonable sum, in any
such action or proceeding in which Mortgagee may appear or with respect to which it
may incur costs;
(c) that Mortgagor has the full right and title to assign the Rents; that at the
date of this Mortgage there exist no Leases which now or in the future affect the
Mortgaged Property which have not been disclosed to Mortgagee in writing; and that
there is no outstanding assignment or pledge of the Leases or Rents; and
(d) to furnish to Mortgagee, at Mortgagee’s written request, a complete list of
all Leases and security deposits made thereunder as to any part of the Mortgaged
Property, showing the type of lease, the name of the tenant, the monthly rental, the date to
which paid, the term of the Lease, the date of occupancy, and the date of expiration and
any and every special premium, concession or inducement granted to the tenant.
14
477340v3 EL185-40
4.3. Assignment Absolute. This Assignment is absolute and is effective immediately.
Notwithstanding the foregoing, until an Event of Default, as defined in ARTICLE TWO above,
has occurred, Mortgagor may receive, collect and enjoy the Rents. Upon or at any time after an
Event of Default has occurred, Mortgagee may at its option, without notice:
(a) in the name, place and stead of Mortgagor (i) enter upon, manage and
operate the Mortgaged Property, or retain the services of an independent contractor to
manage and operate the same, (ii) make, enforce, modify and accept surrender of the
Leases, (iii) obtain or evict tenants, demand, collect, sue for, receive and give
acquittances for, fix or modify Rents and enforce all rights of Mortgagor under the
Leases, and (iv) perform any and all other acts that may be necessary or proper to protect
the security of this Assignment; provided always, however, that until the end of any
redemption period available to Mortgagor after any foreclosure of this Mortgage
Mortgagee shall continue to deal with the Leases on the Property in a reasonable
businesslike manner, recognizing and protecting Mortgagor’s continuing rights during
such period to retake possession and control of the Mortgaged Property upon paying the
appropriate redemption price, and to resume the management of such Leases;
(b) give or require Mortgagor to give notice to any and all tenants under the
Leases authorizing and directing the tenants to pay all Rents due under the Leases
directly to Mortgagee; and
(c) apply for, and Mortgagor hereby consents to, the appointment of a
receiver of the Mortgaged Property.
4.4. Application of Rents.
(a) All Rents collected by Mortgagee, or by a receiver, shall be held and
applied by Mortgagee in its reasonable discretion, in accordance with applicable law,
including, without limitation to: (i) payment of all reasonable fees of the receiver, if any,
approved by the court; (ii) the repayment when due of all tenant security deposits
pursuant to the provisions of Minnesota Statutes Section 504B.178; (iii) payment of all
delinquent or current real estate taxes and special assessments payable with respect to the
Property or, if this Mortgage so requires, to the periodic escrow for the payment thereof;
(iv) payment of all premiums then due for the insurance required by the provisions of this
Mortgage or, if this Mortgage so requires, to the periodic escrow for the payment thereof;
(v) payment of expenses incurred for normal maintenance of the Mortgaged Property.
(b) Any amounts remaining after such application shall be applied as follows:
(i) if received prior to any foreclosure sale of the Mortgaged Property
to Mortgagee for payment of the indebtedness secured by this Mortgage, but no
such payment made after acceleration of the indebtedness shall affect such
acceleration; and
15
477340v3 EL185-40
(ii) if received during or with respect to a period after a foreclosure
sale of the Mortgaged Property:
(1) if the purchaser at the foreclosure sale is not Mortgagee,
first to Mortgagee to the extent of any deficiency of the sale proceeds to
repay the indebtedness secured by this Mortgage, second to the purchaser
as a credit to the redemption price, but if the Mortgaged Property is not
redeemed, then to the purchaser of the Mortgaged Property;
(2) if the purchaser at the foreclosure sale is Mortgagee, first to
Mortgagee to the extent of any deficiency of the sale proceeds to repay the
indebtedness secured by this Mortgage and the balance to be retained by
Mortgagee as a credit to the redemption price, but if the Mortgaged
Property is not redeemed, then to Mortgagee, whether or not such
deficiency exists.
4.5. Continuing Effect. The rights and powers of Mortgagee under this Assignment
and the application of the Rents shall continue and remain in full force and effect both before and
after commencement of any action or procedure to foreclose this Mortgage, after any foreclosure
sale of Mortgagor’s interest in the Property in connection with the foreclosure of this Mortgage,
and until expiration of the period of redemption from any such foreclosure sale, whether or not
any deficiency from the unpaid balance of the Obligations exists after such foreclosure sale.
4.6. Mortgagee Not Obligated. Mortgagee shall not be obligated by this Assignment
for the control, care, management or repair of the Mortgaged Property, nor for the carrying out of
any of the terms and conditions of the Leases; nor shall this Assignment operate to make
Mortgagee responsible or liable for any waste committed on the Mortgaged Property by the
tenants or any other party, or for any dangerous or defective condition of the Mortgaged
Property, or for any violation of Environmental Laws or for any negligence in the management,
upkeep, repair or control of the Mortgaged Property resulting in any loss or any injury or death to
any person.
4.7. Hold Harmless. Mortgagor shall and does agree to indemnify and to hold
Mortgagee harmless of and from any and all liability, loss or damage which it may or might
incur under or by reason of this Assignment, and of and from any and all claims and demands
whatsoever which may be asserted against it by reason of any alleged obligations or undertakings
on its part to perform or discharge any of the terms, covenants or agreements contained in the
Leases; provided, however, that such indemnification shall not apply if the same arises out of
Leases intentionally breached by Mortgagee which were made by Mortgagor in the ordinary
course of managing the Mortgaged Property and prior to the time Mortgagee obtained the right
to possess and manage the Mortgaged Property, or if the same arises out of the negligent or
willful act of Mortgagee in operating and using the Mortgaged Property. Should Mortgagee
incur any such liability, loss or damage under any Lease or by reason of this Assignment, or in
the defense of any such claims or demands, the amount thereof, including costs, expenses, and
reasonable attorneys’ fees, shall be secured hereby and Mortgagor shall reimburse Mortgagee
therefor immediately upon demand. Mortgagee shall give Mortgagor notice of any such claim
16
477340v3 EL185-40
and Assignor shall have the opportunity to defend Mortgagee in connection therewith with
counsel reasonably acceptable to Mortgagee; provided Mortgagee’s failure to give such notice
and opportunity to defend shall not affect Mortgagor’s obligations under this Section except to
the extent Mortgagor is actually prejudiced by such failure.
4.8. Authorization to Tenants. The tenants under any of the Leases are hereby
irrevocably authorized and directed to recognize the claims of Mortgagee or its assigns
hereunder without investigating the reason for any action taken by Mortgagee, or the validity or
the amount of indebtedness owing to Mortgagee, or the existence of any such event of default, or
the application of the Rents to be made by Mortgagee. Mortgagor hereby irrevocably directs and
authorizes each tenant to pay to Mortgagee all sums due under its Lease and consents and directs
that said sums shall be paid to Mortgagee without the necessity for a judicial determination that
any such event of default has occurred or that Mortgagee is entitled to exercise its rights
hereunder, and to the extent such sums are paid to Mortgagee, Mortgagor agrees that the tenants
shall have no further liability to Mortgagor for the same. The sole signature of Mortgagee shall
be sufficient for the exercise of any rights under this Assignment and the sole receipt of
Mortgagee for any sums received shall be a full discharge and release therefor to the tenants or
occupants of the Mortgaged Property.
4.9. Mortgagee Attorney-in-Fact. Mortgagor hereby irrevocably appoints Mortgagee
as its agent and attorney in fact, which appointment is coupled with an interest, to exercise any
rights or remedies hereunder and to execute and deliver during the term of this Assignment such
instruments as Mortgagee may deem necessary to make this Assignment and any further
assignment effective.
4.10. Mortgagee Not in Possession. Nothing herein contained and no actions taken
pursuant to this Assignment shall be construed as constituting Mortgagee a “Mortgagee in
Possession.”
17
477340v3 EL185-40
ARTICLE FIVE
CONDEMNATION
5.1. Notice. Mortgagor will give Mortgagee prompt notice of any action, actual or
threatened, in condemnation or eminent domain, direct or inverse.
5.2. Awards. Subject to any obligations under the First Lien Mortgage, which has
priority over this Mortgage and the Third Lien Mortgage, which does not has priority over this
Mortgage, Mortgagor hereby assigns, transfers, and sets over to Mortgagee the entire proceeds of
any award or payment which becomes payable by reason of any taking of or damage to the
Mortgaged Property, or any part or appurtenance thereof, either temporarily or permanently, in
or by condemnation or other eminent domain proceedings or by reason of sale under threat
thereof, or in anticipation of the exercise of the right of condemnation or other eminent domain
proceedings. Mortgagor will file or prosecute in good faith and with due diligence what would
otherwise be its claim in any such award or payment and cause the same to be collected and paid
over to Mortgagee, and Mortgagor irrevocably authorizes and empowers Mortgagee, which
power is coupled with an interest and is irrevocable, in the name of Mortgagor or otherwise, in
the event that Mortgagor fails to do so, to file and prosecute any such claim and to collect,
receipt for and retain the same. The proceeds of the award or payment, after deducting all
reasonable costs, attorneys’ fees and other expenses which may have been incurred by
Mortgagee in collection thereof, at the sole discretion of Mortgagee, may be released to
Mortgagor, applied to restoration of the Mortgaged Property or applied to the payment of any
part of the Obligations, in such order of application as Mortgagee may determine. If proceeds
are made available to be applied to restoration, they shall be held and disbursed in accordance
with Paragraph 1.6(d) hereof.
18
477340v3 EL185-40
ARTICLE SIX
UNIFORM COMMERCIAL CODE
6.1. Security Interest. This Mortgage shall constitute a security agreement as defined
in the Uniform Commercial Code with respect to, and Mortgagor hereby grants Mortgagee a
security interest in, all of fixtures and any personal property included in the Mortgaged Property
and substitutions therefor and proceeds thereof. Mortgagor hereby authorizes Mortgagee to file
one or more financing statements, covering such fixtures and personal property (in a form
satisfactory to Mortgagee) which Mortgagee may reasonably consider necessary or appropriate
to perfect its security interest. Mortgagor also authorizes Mortgagee to file amendments to
financing statements, and terminations of financing statements filed by other secured parties, all
with respect to all fixtures and personal property included in the Mortgaged Property, in such
form and substance as Mortgagee, in its reasonable discretion, may determine. Mortgagor will
pay to Mortgagee, on demand, the amount of any and all costs and expenses (including
reasonable attorneys’ fees and legal expenses) paid or incurred by Mortgagee in connection with
the exercise of any right or remedy referred to in this Section. In any instance where Mortgagor
in its sound discretion determines that any item subject to a security interest under this Mortgage
has become: (i) inadequate, obsolete, worn out, or (ii) unsuitable, undesirable or unnecessary for
the operation of the Mortgaged Property, Mortgagor may, at its expense, remove and dispose of
it and substitute and install other items not necessarily having the same function, provided, that
such removal and substitution shall not impair the operating utility and unity of the Mortgaged
Property. With respect to items which are a part of the Mortgaged Property, all items substituted
for such items shall become a part of the Mortgaged Property and subject to the lien of this
Mortgage. Any amounts received or allowed Mortgagor upon the sale or other disposition of the
removed items of property shall be applied against the cost of acquisition and installation of the
substituted items. Nothing herein contained shall be construed to prevent any tenant or subtenant
from removing from the Mortgaged Property trade fixtures, furniture and equipment installed by
it and removable by tenant under its terms of any one or more of the Leases, on the condition,
however, that Mortgagor shall assure the repair of any and all damages to the Mortgaged
Property resulting from or caused by the removal thereof. Mortgagee acknowledges that no
items of personal property are included in the Mortgaged Property.
6.2. Fixture Filing. From the date of its recording, this Mortgage shall be effective as
a financing statement 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 Mortgagor:
F & M Improvements, LLC
18489 Twin Lakes Road
Elk River, MN 55330
Attention: Fred Trapp
19
477340v3 EL185-40
(b) Name and address of Secured Party:
Economic Development Authority of the City of Elk River
13065 Orono Parkway
Elk River, MN 55330
Attention: Director of Economic Development
(c) This document covers goods which are or are to become fixtures.
(d) The real estate to which such fixtures are or are to be attached is that
described in Exhibit A attached hereto.
20
477340v3 EL185-40
ARTICLE SEVEN
MISCELLANEOUS
7.1. Mortgagee’s Remedies Cumulative. All remedies of Mortgagee are distinct and
cumulative to any other right or remedy under this Mortgage or afforded by law or equity, and
may be exercised concurrently or independently, as often as the occasion therefore arises.
7.2. Successors and Assigns Bound; Captions. The covenants and agreements herein
contained shall bind, and the rights hereunder shall inure to, the respective heirs, legal
representatives, successors and assigns of Mortgagee and Mortgagor. The captions and headings
of the Sections of this Mortgage are for convenience only and are not to be used to interpret or
define the provisions hereof.
7.3. Notices. Any notice from Mortgagee to Mortgagor under this Mortgage shall be
deemed to have been given by Mortgagee and received by Mortgagor, when delivered personally
to an officer of Mortgagor or three (3) days after the date it is mailed by certified mail addressed
as follows:
F & M Improvements, LLC
18489 Twin Lakes Road
Elk River, MN 55330
Attention: Fred Trapp
7.4. Governing Law; Severability. This Mortgage shall be governed by the laws of the
State of Minnesota. In the event that any provision or clause of this Mortgage conflicts with
applicable law, such conflict shall not affect other provisions of this Mortgage which can be
given effect without conflicting provisions and to this end the provisions of this Mortgage are
declared to be severable.
7.5. Counterparts. This Mortgage may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute one instrument.
7.6. Waiver of Appraisement, Homestead, Marshaling. Mortgagor hereby waives the
benefit of any homestead, appraisement, evaluation, stay and extension laws now or hereinafter
in force. Mortgagor hereby waives any rights available with respect to marshaling of assets so as
to require the separate sales of any portion of the Mortgaged Property or to require Mortgagee to
exhaust its remedies against a specific portion of the Mortgaged Property before proceeding
against the other.
7.7. Subsequent Agreements. Any agreement hereafter made by Mortgagor and
Mortgagee pursuant to this Mortgage shall be superior to the rights of the holder of any
intervening lien or encumbrance.
[Signature Page follows]
S-1
477340v1 EL185-40
477340v3 EL185-40
Signature Page to Mortgage
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly executed as of
the day and year first written.
F & M IMPROVEMENTS, LLC,
a Minnesota limited liability company
By:
Fred Trapp
Its: President
By:
Michael Tracey
Its: Vice President
STATE OF MINNESOTA )
) ss.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me on ______________, 2016, by
Fred Trap and Michael Tracey, President and Vice President, respectively, of F & M
Improvements, LLC, a Minnesota limited liability company, on behalf of the limited liability
company.
Notary Public
My Commission Expires:
This Instrument was drafted by:
Kennedy & Graven, Chartered (JSB)
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, Minnesota 55402
Telephone: (612) 337-9300
A-1
477340v3 EL185-40
EXHIBIT A Legal Description
B-2
477340v3 EL185-40
EXHIBIT B
Permitted Encumbrances
(1) Access Easement
(2) Lease
1
477333v4 EL185-40
SECURITY AGREEMENT
(Microloan)
This SECURITY AGREEMENT (“Agreement”) is made to be effective as of
_________, 2016, by DIE CONCEPTS, INC., a Minnesota corporation (“Grantor”) and the
ECONOMIC DEVELOPMENT AUTHORITY OF THE CITY OF ELK RIVER (the “Secured
Party”).
AGREEMENT
In consideration of the above recitals, and the promises set forth in this Agreement, the
parties agree as follows:
1. OBLIGATIONS. “Obligations” means collectively each debt, liability and obligation of
every type and nature which the Grantor may now or at any time hereafter owe to
Secured Party by Die Concepts, Inc. (the “Entity Guarantor”) pursuant to the Entity
Guaranty of even date herewith, whether now existing or hereafter created or arising, and
whether direct or indirect, due or to become due, absolute or contingent, and the
repayment or performance of any of the foregoing if any such payment or performance is
at any time avoided, rescinded, set aside, or recovered from or repaid by Secured Party,
in whole or in part, in any bankruptcy, insolvency, or similar proceeding instituted by or
against the Grantor, the Entity Guarantor or any other guarantor of any Obligation, or
otherwise, including but not limited to all principal, interest, fees, expenses and other
charges, together with each debt, liability and obligation of every type and nature which
the F & M Properties, LLC (the “Borrower”) may now or at any time hereafter owe to
Secured Party including the promissory note of the Borrower to the Secured Party (the
“Note”) of even date herewith and all amendments, replacements, restatements, and
substitutions therefor and the obligations of the loan agreement between the Borrower
and the Secured Party (the “Loan Agreement”).
2. COLLATERAL. “Collateral” means collectively all of the following property of the
Grantor, whether now owned or hereafter acquired: (a) equipment specified on the
attached Exhibit A wherever located; (b) subject to liens of record, all equipment of the
Grantor located in Minnesota; (c) accessions, additions and improvements to,
replacements of, and substitutions for any of the foregoing wherever located; (d) all
products and proceeds of any of the foregoing wherever located; and (e) books, records
and data, wherever located, in any form relating to any of the foregoing.
3. SECURITY INTEREST. The Grantor grants to Secured Party a [first priority] security
interest (“Security Interest”) in the Collateral to secure the payment and performance of
the Obligations. The Security Interest continues in effect until this Agreement is
terminated in writing by Secured Party.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Grantor represents,
warrants, and agrees that:
2
477333v4 EL185-40
4.1. Principal Office/Residence. The Grantor’s chief executive office/residence is
located at the address specified on the signature pages to this Agreement. The
Grantor must give Secured Party written notice prior to any change in the location
of the Grantor’s principal office/residence.
4.2. Organization; Authority. The Grantor is a corporation, duly organized, existing
and in good standing under the laws of the state of its organization and has full
power and authority to enter into this Agreement. The Grantor’s state of
organization/residence is Minnesota and its exact legal name is as set forth on the
signature page to this Agreement. The Grantor will not change its state of
organization, form of organization or name without Secured Party’s prior written
consent.
4.3. Perfection of Security Interest. The Grantor will execute and deliver, and
irrevocably appoints Secured Party (which appointment is coupled with an
interest) the Grantor’s attorney-in-fact to execute and deliver in the Grantor’s
name, all financing statements (including, but not limited to, amendments,
terminations and terminations of other security interests in any of the Collateral),
control agreements and other agreements which Secured Party may at any time
reasonably request in order to secure, protect, perfect, collect or enforce the
Security Interest, the Grantor shall, at any time and from time to time, take such
steps as Secured Party may reasonably request for Secured Party: (i) to obtain an
acknowledgement, in form and substance reasonably satisfactory to Secured
Party, of any bailee having possession of any of the Collateral that such bailee
holds such Collateral for Secured Party; and (ii) otherwise to ensure the continued
perfection and priority of the Security Interest in any of the Collateral and the
preservation of the rights of Secured Party therein.
4.4. Enforceability of Collateral. To the extent the Collateral consists of accounts,
instruments, documents, chattel paper, letter-of-credit rights, letters of credit or
general intangibles, the Collateral is enforceable in accordance with its terms, is
genuine, complies with applicable laws concerning form, content and manner of
preparation and execution, and all persons appearing to be obligated on the
Collateral have authority and capacity to contract and are in fact obligated as they
appear to be on the Collateral.
4.5. Title to Collateral. The Grantor holds good and marketable title to the Collateral
[free of all] security interests and encumbrances. The Grantor will keep the
Collateral free of all security interests and encumbrances except for the Security
Interest. The Grantor will defend Secured Party’s rights in the Collateral against
the claims and demands of all other persons.
4.6. Collateral Location. The Grantor will keep all tangible Collateral at 18489 Twin
Lakes Road, Elk River, Minnesota 55330.
3
477333v4 EL185-40
4.7. Collateral Use. The Grantor must use the Collateral only for business purposes.
The Grantor must not use or keep any Collateral for any unlawful purpose or in
violation of any federal, state or local law, statute or ordinance.
4.8. Maintenance of Collateral. The Grantor must maintain all tangible Collateral in
good condition and repair. The Grantor must not commit or permit damage to or
destruction of any of the Collateral. The Grantor must give Secured Party prompt
written notice of any material loss of or damage to any tangible Collateral and of
any other happening or event that materially affects the existence, value or
amount of the Collateral.
4.9. Disposition of Collateral. The Grantor must not sell or otherwise dispose of any
Collateral or any interest in any Collateral without the prior written consent of
Secured Party, except that until the occurrence of an Event of Default (as defined
in Section 5 below), the Grantor may sell any inventory constituting Collateral in
the ordinary course of the Grantor’s business.
4.10. Taxes, Assessments and Liens. The Grantor must promptly pay all taxes and
other governmental charges levied or assessed upon or against any Collateral.
4.11. Records; Access. The Grantor must keep accurate and complete records
pertaining to the Collateral and to the Grantor’s business and financial condition
and will submit to Secured Party all reports regarding the Collateral and the
Grantor’s business and financial condition as and when Secured Party may
reasonably request. During normal business hours, the Grantor must permit
Secured Party and its representatives to examine or inspect any Collateral,
wherever located, and to examine, inspect and copy the Grantor’s books and
records relating to the Collateral and the Grantor’s business and financial
condition.
4.12. Insurance. The Grantor must keep all tangible Collateral insured against risks of
fire (including so-called extended coverage), theft and other risks and in such
amounts as Secured Party may reasonably request, with any loss payable to
Secured Party to the extent of its interest. The Grantor assigns to Secured Party
all money due or to become due with respect to, and all other rights of the Grantor
with respect to, all insurance concerning the Collateral and the Grantor directs the
issuer of any such insurance to pay all such money directly to Secured Party.
4.13. Collection Costs. The Grantor must reimburse Secured Party on demand for all
costs of collection of any of the Obligations and all other expenses incurred by
Secured Party in connection with the perfection, protection, defense or
enforcement of the Security Interest and this Agreement, including all reasonable
attorneys’ fees incurred by Secured Party whether or not any litigation or
bankruptcy or insolvency proceeding is commenced.
4.14. Financing Statements. The Grantor authorizes Secured Party to file one or more
4
477333v4 EL185-40
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the Grantor’ signature where permitted by law,
in each case in such form and substance as Secured Party may determine. The
Grantor shall pay all filing, registration and recording fees and any taxes, duties,
imports, assessments and charges arising out of or in connection with the
execution and delivery of this Agreement, any agreement supplemental hereto,
any financing statements, and any instruments of further assurance.
5. EVENTS OF DEFAULT. Each of the following is an “Event of Default” under this
Agreement: (a) the Grantor, Entity Guarantor, or the Borrower fails to pay any of the
Obligations when due and any applicable grace period lapses without cure by the Grantor
or the Borrower; (b) the Grantor, Entity Guarantor, or the Borrower fails to timely
perform any other Obligation and any applicable grace period lapses without cure by the
Grantor, Entity Guarantor, or the Borrower; (c) any representation made by the Grantor
in this Agreement or in any financial statement or report submitted by the Grantor, the
Entity Guarantor, or the Borrower to Secured Party proves to have been materially false
or misleading when made; (d) the Grantor, the Entity Guarantor, or the Borrower ceases
to conduct its business; (e) the Grantor, the Entity Guarantor, or the Borrower is or
becomes insolvent, however defined; (f) the Grantor, the Entity Guarantor, or the
Borrower voluntarily files, or has filed against it involuntarily, a petition under the United
States Bankruptcy Code; or (g) if the Grantor, the Entity Guarantor, or the Borrower is
dissolved or liquidated.
6. REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event of
Default and at any time thereafter, Secured Party may exercise one or more of the
following rights and remedies: (a) declare any or all unmatured Obligations to be
immediately due and payable without presentment or any other notice or demand and
immediately enforce payment of any or all of the Obligations; (b) require the Grantor to
make the Collateral available to Secured Party at a place to be designated by Secured
Party; (c) exercise and enforce any rights or remedies available upon default to a secured
party under the Uniform Commercial Code as amended from time to time (“UCC”), and,
if notice to the Grantor of the intended disposition of Collateral or any other intended
action is required by law, such notice shall be commercially reasonable if given at least
ten (10) calendar days prior to the intended disposition or other action; and (d) exercise
and enforce any other rights or remedies available to Secured Party by law or agreement
against the Collateral, the Grantor, the Entity Guarantor, or the Borrower, or any other
person or property. Secured Party’s duty of care with respect to Collateral in its
possession will be fulfilled if Secured Party exercises reasonable care in physically
safekeeping the Collateral or, in the case of Collateral in the possession of a bailee or
other third person, exercises reasonable care in the selection of the bailee or other third
person. Mere delay or failure to act will not preclude the exercise or enforcement of any
of Secured Party’s rights or remedies. All rights and remedies of Secured Party are
cumulative and may be exercised singularly or concurrently, at Secured Party’s option.
7. MISCELLANEOUS. The following miscellaneous provisions are a part of this
Agreement:
5
477333v4 EL185-40
7.1. Definitions. Terms not otherwise defined in this Agreement shall have the
meanings ascribed to them, if any, under the UCC and such meanings shall
automatically change at the time that any amendment to the UCC, which changes
such meanings, shall become effective.
7.2. Notices. All notices under this Agreement must be in writing and will be deemed
given when delivered or placed in the United States mail, registered or certified,
postage prepaid, addressed to the respective party at the respective address set
forth below its signature on the signature page to this Agreement. Any party may
change its address for notices under this Agreement by giving written notice to
the other parties.
7.3. Amendments/Waivers. This Agreement may be waived, amended, modified or
terminated and the Security Interest may be released only in a writing signed by
Secured Party. Any waiver signed by Secured Party will be effective only in the
specific instance and for the specific purpose given.
7.4. Applicable Law. This Agreement is governed by the laws of the State of
Minnesota without regard to the conflict of law principles. If any provision of
this Agreement is held unlawful or unenforceable in any respect, such illegality or
unenforceability will not affect other provisions or applications that can be given
effect and this Agreement will be construed and enforced as if the unlawful or
unenforceable provision or application had never been contained in or prescribed
by this Agreement.
7.5. Caption Headings. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions of this
Agreement.
7.6. Integration. This Agreement embodies the entire agreement and understanding
among the parties relative to subject matter hereof and supersedes all prior
agreements and understandings relating to such subject matter.
7.7. Successors and Assigns. This Agreement is binding upon and will inure to the
benefit of the parties and their successors and assigns.
7.8. Counterparts. This Agreement may be executed in several counterparts, each of
which will be an original, and all of which will constitute one and the same
instrument.
S-1
477333v4 EL185-40
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
DIE CONCEPTS, INC:
Die Concepts, Inc,
a Minnesota corporation
By:
Fred Trapp
Its: President
By:
Michael Tracey
Its: Vice President
Address:
18489 Twin Lakes Road
Elk River, MN 55330
Attn: Fred Trapp
S-2
477333v4 EL185-40
SECURED PARTY:
ECONOMIC DEVELOPMENT
AUTHORITY OF THE CITY OF ELK
RIVER
By:
Its:
By:
Its:
Address:
13065 Orono Parkway
Elk River, MN 55330
Attn: Executive Director
A-1
477333v4 EL185-40
EXHIBIT A
LIST OF EQUIPMENT
[Die Concepts to provide]
All of the following property of the Grantor, whether now owned or hereafter acquired and
wherever located: (a) equipment specified below; (b) accessions, additions and improvements to,
replacements of, and substitutions for any of the foregoing; (c) all products and proceeds of any
of the foregoing; and (d) books, records and data in any form relating to any of the foregoing.
Item Description Purchase Price Status
1
477339v4 MJM EL185-40
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the ___ day of ______, 2016, by F & M Properties,
LLC, a Minnesota limited liability company (“Borrower”) and ECONOMIC DEVELOPMENT
AUTHORITY OF THE CITY OF ELK RIVER, a public body corporate and politic of the State
of Minnesota (“Lender”).
RECITALS
A. Lender has agreed to lend to Borrower the sum of up to $185,200.00 (the
“Loan”).
B. The Loan is secured by, among other things, an Mortgage and Assignment of
Rents and Security Agreement and Fixture Financing Statement dated even herewith (the
“Mortgage”) pertaining to certain land described in the Mortgage and improvements thereon
(collectively, the “Property”) owned by Borrower and located in Sherburne County, Minnesota;
the personal guaranties of Michael T. Tracey and Fred M. Trapp; and a Security Agreement in
certain equipment and entity guaranty from Die Concepts, Inc.
C. Lender has refused to make the Loan to Borrower unless this Agreement is
executed and delivered by Borrower.
AGREEMENT
NOW, THEREFORE, in consideration of Lender’s agreement to make the Loan to
Borrower, Borrower hereby warrants and represents to, and covenants and agrees with, Lender as
follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
(a) “Environmental Regulation” means a Law relating to the environment and/or to
human health or safety, or governing, regulating or pertaining to the generation,
treatment, storage, handling, transportation, use or disposal of any Hazardous
Substance.
2
477339v4 MJM EL185-40
(b) “Hazardous Substance” means any substance or material defined in or governed
or regulated by any Environmental Regulation as a dangerous, toxic or hazardous
pollutant, contaminant, chemical, waste, material or substance, and also expressly
includes urea-formaldehyde, polychlorinated biphenyls, dioxin, radon, lead-based
paint, asbestos, asbestos containing materials, nuclear fuel or waste, radioactive
materials, explosives, carcinogens and petroleum products, including but not
limited to crude oil or any fraction thereof, natural gas, natural gas liquids,
gasoline and synthetic gas, and any other waste, material, substance, pollutant or
contaminant the presence of which on, in, about or under the Property would
subject the owner or operator thereof to any damages, penalties, fines or liabilities
under any applicable Environmental Regulation.
(c) “Law” means any federal, state or local law, statute, code, ordinance, rule,
regulation or requirement.
2. Warranties and Representations. Borrower warrants and represents to Lender that
to Borrower’s knowledge, and except as otherwise described in documents identified on
Exhibit A attached hereto:
(a) There is not located on, in, about or under the Property any Hazardous Substances
except for Hazardous Substances of the type ordinarily used, stored or
manufactured in connection with the operation of the Property as it is presently
operated, and such existing Hazardous Substances have been and are used, stored
and manufactured in compliance with all Environmental Regulations.
(b) The Property is not presently used, and has not in the past been used, as a landfill,
dump, disposal facility or gasoline station, or for industrial, manufacturing or
military purposes, or for the storage, generation, production, manufacture,
processing, treatment, disposal, handling, transportation or deposit of any
Hazardous Substances.
(c) There has not in the past been, and no present threat now exists of, a spill,
discharge, emission or release of a Hazardous Substance in, upon, under, over or
from the Property or from any other property which would have an impact on the
Property.
(d) The Property is in compliance with, and there are no past or present
investigations, administrative proceedings, litigation, regulatory hearings or other
actions completed, proposed, threatened or pending, alleging noncompliance with
or violation of, any Environmental Regulations respecting the Property, or
relating to any required environmental permits covering the Property.
(e) Borrower has disclosed to Lender all reports and investigations commissioned by
or in the possession or control of Borrower and relating to Hazardous Substances
and the Property.
(f) There are not now, nor have there ever been, any above ground or underground
storage tanks located in or under the Property. All storage tanks identified on
3
477339v4 MJM EL185-40
Exhibit A have been registered and/or permitted as required by Environmental
Regulations, and evidence of such registration and/or permitting has been given to
Lender. There are no wells on or under the Property, except as identified on
Exhibit A.
3. Covenants and Agreements. Borrower covenants and agrees as follows:
(a) Except for substances normally used for maintenance or operation of the Property
which are used, stored and disposed of in accordance with all applicable
Environmental Regulations and except as identified on Exhibit A, Borrower shall
not, nor shall it permit others to, place, store, locate, generate, produce, create,
process, treat, handle, transport, incorporate, discharge, emit, spill, release,
deposit or dispose of any Hazardous Substance in, upon, under, over or from the
Property. Borrower shall cause all Hazardous Substances found on or under the
Property, which are not permitted under the foregoing sentence, to be properly
removed therefrom and properly disposed of at Borrower’s cost and expense.
Borrower shall not install or permit to be installed any underground storage tank
on or under the Property. Borrower shall give written notice to Lender prior to a
change in the operations on the Property.
(b) In the event that (i) Lender reasonably believes that a violation of an
Environmental Regulation may have occurred in connection with the Property;
(ii) Lender receives notice from Borrower or otherwise has knowledge that an
event described in subparagraph 3(d) has occurred; (iii) Lender reasonably
believes that a representation or warranty of Borrower in Paragraph 2 was untrue
in any material respect when made or has become untrue in any material respect;
(iv) Lender receives notice from Borrower or otherwise has knowledge of a
change in operations on the Property and Lender reasonably believes that the new
operations may entail the presence of more or different Hazardous Substances on
the Property; or (v) Lender reasonably believes that Hazardous Substances are
present on the Property which were not previously known by Lender to be present
on the Property; then, in any such event, Borrower shall at its cost obtain and
deliver to Lender an environmental review, audit, assessment and/or report
relating to the Property or shall have any previously delivered materials updated
and/or amplified, by an engineer or scientist selected by Borrower and acceptable
to Lender; if Borrower fails to do so within forty-five (45) days after such request
is made, Lender shall have the right to do so, in which event Borrower shall
reimburse Lender for the cost incurred by Lender in doing so within ten (10) days
following demand therefor by Lender.
(c) Borrower shall, promptly after obtaining actual knowledge thereof, give notice to
Lender of: (i) any activity in violation of any applicable Environmental
Regulations relating to the Property, (ii) any governmental or regulatory actions
instituted or threatened under any Environmental Regulations affecting the
Property, (iii) all claims made or threatened by any third party against Borrower
or the Property relating to any Hazardous Substance or a violation of any
Environmental Regulations, (iv) discovery by Borrower of any occurrence or
4
477339v4 MJM EL185-40
condition on or under the Property or on or under any real property adjoining or in
the vicinity of the Property which could subject Borrower, Lender or the Property
to a claim under any Environmental Regulations. Any such notice shall include
copies of any written materials received by Borrower.
(d) Any investigation or any remedial or corrective action taken with respect to the
Property shall be done under the supervision of a qualified consultant, engineer or
scientist acceptable to Lender who shall, at Borrower’s cost and at the completion
of such investigation or action, provide a written report of such investigation or
action to Lender. Borrower shall also provide Lender with a copy of any interim
reports prepared in connection with any such investigation or action.
(e) If the Property has, or is suspected to have, asbestos or asbestos containing
materials (“ACM”) which, due to its condition or location or due to any planned
building renovation or demolition, is recommended to be abated by repair,
encapsulation, removal or other action, Borrower shall promptly carry out the
recommended abatement action. If the recommended abatement includes removal
of ACM, Borrower shall cause the same to be removed and disposed of offsite by
a licensed and experienced asbestos removal contractor, all in accordance with
Environmental Regulations. Upon completion of the recommended abatement
action, Borrower shall deliver to Lender a certificate, signed by an officer of
Borrower and the consultant overseeing the abatement action, certifying to Lender
that the work has been completed in compliance with all applicable laws,
ordinances, codes and regulations (including without limitation those regarding
notification, removal and disposal) and that no airborne fibers beyond permissible
exposure limits remain on site.
(f) After an Event of Default (as defined in the Loan Agreement between the
Borrower and the Lender dated an even date herewith), Lender shall have the
right, after ten (10) days’ prior written notice to Borrower, to have an
environmental review, audit, assessment, testing program and/or report with
respect to the Property performed or prepared by an environmental engineering
firm selected by Lender. Borrower shall provide reasonable access to the
Property to such environmental engineering firm during normal business hours to
conduct such review. Borrower shall reimburse Lender for the cost incurred for
each such action within ten (10) days following demand therefor by Lender.
4. Indemnity. The Borrower shall indemnify Lender, any participant of Lender, its
and their directors, officers, employees, agents, contractors, licensees, invitees, and the
respective heirs, legal representatives, successors and assigns of all such persons and parties
(hereinafter collectively referred to as “Indemnified Parties”) against, shall hold the Indemnified
Parties harmless from, and shall reimburse the Indemnified Parties for, any and all loss, damage,
liability, cost and expense directly or indirectly incurred by the Indemnified Parties, including
reasonable attorneys’ and consultants’ fees, resulting from: (a) the presence or discovery of any
Hazardous Substance in, upon, under or over, or emanating from, the Property, whether or not
the Borrower is responsible therefor, and whether or not it was placed, located, deposited or
released by the Borrower, or (b) any violation of any Environmental Regulation, or both (a) and
5
477339v4 MJM EL185-40
(b). Borrower agrees that the Indemnified Parties shall have no responsibility for, and Borrower
hereby releases the Indemnified Parties from responsibility for, damage or injury to human
health, property, the environment or natural resources caused by Hazardous Substances and for
abatement, clean-up, detoxification, removal or disposal of, or otherwise with respect to,
Hazardous Substances. The indemnity contained in this paragraph 4 shall be deemed continuing
for the benefit of the Indemnified Parties, including any purchaser at a foreclosure or other sale
under Mortgage, any transferee of the title from Lender, and any subsequent owner of the
Property, and shall survive the satisfaction or release of the Mortgage, any foreclosure of or other
sale under the Mortgage and/or any acquisition of title to the Property or any part thereof by
Lender, or anyone claiming by, through or under Lender, by deed in lieu of foreclosure or
otherwise, and also shall survive the repayment or any other satisfaction of the Loan.
Notwithstanding the foregoing, the indemnity contained in this paragraph 4 shall not apply with
respect to any loss, damage, liability, cost or expense which Borrower proves by a
preponderance of the evidence was caused solely by or resulted solely from any act or omission
of any person, other than the Borrower or an agent, employee, invitee, guarantor, or contractor of
the Borrower, which occurred after Lender or anyone claiming by, through or under Lender
acquired title to the Property by foreclosure of Mortgage or deed in lieu of foreclosure or
otherwise and control of the Property. Any amounts covered by the foregoing indemnification
shall bear interest from the date incurred at the rate set forth in the promissory note evidencing
the Loan, and shall be payable on demand. Borrower agrees that its obligations under this
Agreement are separate from, independent of, and in addition to its obligations, if any, under the
Mortgage and other documents which secure the Loan.
5. Liability. The liability of Borrower under this Agreement shall not be subject to
any limitations on liability set forth any document evidencing or securing the Loan. Without
limitation, the obligations and liability of Borrower under this Agreement shall in no way be
waived, released, discharged, reduced, mitigated or otherwise affected by Lender’s making of the
Loan with knowledge of the matters described in documents identified on Exhibit A attached
hereto, or of the presence of any Hazardous Substance on, in, about or under the Property or any
property adjoining or in the vicinity of the Property, or of any violation of any Environmental
Regulation or any condition or state of facts or circumstances which with notice or lapse of time
or both might ripen into such a violation, or by any neglect, delay or forbearance of Lender in
demanding, requiring or enforcing payment or performance of the obligations and liability of
Borrower hereunder, or by the receivership, bankruptcy, insolvency or dissolution of Borrower
or any affiliate thereof. No action or proceeding brought or instituted under this Agreement, and
no recovery made as a result thereof, shall be a bar or a defense to any further action or
proceeding under any other agreement. Borrower shall reimburse Lender and the other
Indemnified Parties for all attorneys’ fees and expenses incurred in connection with the
enforcement of the Indemnified Parties’ rights under this Agreement, including those incurred in
any case, action, proceeding or claim under the Federal Bankruptcy Code or any successor
statute.
6. Notices. Any notice or other communication to any party in connection with this
Agreement shall be in writing and shall be sent in accordance with the provisions of the Loan
Agreement.
6
477339v4 MJM EL185-40
7. Governing Law and Construction. The validity, construction and enforceability
of this Agreement shall be governed by the laws of the State of Minnesota, without giving effect
to conflict of laws or principles thereof, but giving effect to federal laws of the United States
applicable to national banks. Whenever possible, each provision of this Agreement and any
other statement, instrument or transaction contemplated hereby or relating hereto, shall be
interpreted in such manner as to be effective and valid under such applicable law, but, if any
provision of this Agreement or any other statement, instrument or transaction contemplated
hereby or relating hereto shall be held to be prohibited or invalid under such applicable law, such
provision shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Agreement or
any other statement, instrument or transaction contemplated hereby or relating hereto.
8. Consent to Jurisdiction. At the option of Lender, this Agreement may be enforced
in any Federal Court or State Court sitting in Sherburne County, Minnesota; and Borrower
consents to the jurisdiction and venue of any such Court and waives any argument that venue in
such forums is not convenient. In the event Borrower commences any action in another
jurisdiction or venue under any tort or contract theory arising directly or indirectly from the
relationship created by this Agreement, Lender at its option shall be entitled to have the case
transferred to one of the jurisdictions and venues above-described, or if such transfer cannot be
accomplished under applicable law, to have such case dismissed without prejudice.
9. Waiver of Jury Trial. Borrower and Lender irrevocably waive any and all right to
trial by jury in any legal proceeding arising out of or relating to this Agreement or any of the
Loan documents (as that term is used in the Loan Agreement) or the transactions contemplated
hereby or thereby.
10. Binding Effect; Gender. This Agreement shall inure to the benefit of Lender, and
the Indemnified Parties, and shall bind Borrower and Borrower’s heirs; executors,
administrators, personal representatives, legal representatives, successors and assigns. The
obligations of Borrower under this Agreement shall be enforceable in all events against
Borrower, its heirs, executors, administrators, personal representatives, legal representatives,
successors and assigns, and each of them, jointly and severally, and shall be enforceable, in the
event of the death of an Borrower, as a claim against his or her estate or otherwise against the
representatives of his or her estate, the heirs-at-law, the devisees and beneficiaries of the total
estate and each of them. The use of any gender herein shall include all other genders.
11. Counterparts. This Agreement may be executed in any number of counterparts,
each executed counterpart constituting an original, but all together only one agreement.
[signature pages follow]
7
477339v4 MJM EL185-40
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
BORROWER
F & M PROPERTIES, LLC
By:
Fred Trapp
Its: ________________
By:
Michael Tracey
Its: ________________
STATE OF MINNESOTA )
) ss.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me on ______________, 2016, by
Fred Trapp and Michael Tracey, __________ and _____________, respectively, of F & M
Properties, LLC, a Minnesota limited liability company, on behalf of the company.
Notary Public
My Commission Expires:
8
477339v4 MJM EL185-40
LENDER:
ECONOMIC DEVELOPMENT
AUTHORITY OF THE CITY OF ELK
RIVER
By:
Its: President
By:
Its: Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me on ______________, 2016, by
____________, the President, and ____________, the Executive Director, of the Economic
Development Authority of the City of Elk River, a public body corporate and politic of the State
of Minnesota, on behalf of the corporation.
Notary Public
My Commission Expires:
This Instrument was drafted by:
Kennedy & Graven, Chartered (JSB)
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, Minnesota 55402
Telephone: (612) 337-9300
477339v4 MJM EL185-40
EXHIBIT A Environmental Disclosure Documents
[Borrower to insert]
1
477336v4 EL185-40
ENTITY GUARANTY
(Microloan)
Elk River, Minnesota
___________, 2016
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, and in consideration of and to induce financial accommodations of any kind, with
or without security, given or to be given or continued at any time and from time to time by the
ECONOMIC DEVELOPMENT AUTHORITY OF THE CITY OF ELK RIVER (the “Lender”)
to or for the account of F & M PROPERTIES, LLC (the “Borrower”), DIE CONCEPTS, INC.
(the “Entity Guarantor”) absolutely and unconditionally guarantees to the Lender the full and
prompt payment when due, whether at maturity or earlier by reason of acceleration or otherwise,
of any and all indebtedness, obligations and liabilities of the Borrower (and any and all
successors of the Borrower) to the Lender, now or hereafter existing, absolute or contingent,
independent, joint, several or joint and several, secured or unsecured, due or to become due,
contractual or tortious, liquidated or unliquidated, arising by assignment or otherwise, including
without limitation all indebtedness, obligations and liabilities owed by the Borrower (and any
and all successors of the Borrower) as a member of any partnership, syndicate, association or
other group, and whether incurred by the Borrower (or any successor of the Borrower) as
principal, surety, endorser, guarantor, accommodation party or otherwise (collectively, the
“Indebtedness”); and the Entity Guarantor agrees to pay on demand all of the Lender’s fees,
costs, expenses and reasonable attorneys’ fees in connection with the Indebtedness, any security
therefor, and this guaranty, plus interest on such amounts at the highest rate then applicable to
any of the Indebtedness.
The Lender may at any time and from time to time, without consent of or notice to the
Entity Guarantor, without incurring responsibility to the Entity Guarantor, without releasing,
impairing or affecting the liability of the Entity Guarantor hereunder, upon or without any terms
or conditions, and in whole or in part: (1) sell, pledge, surrender, compromise, settle, release,
renew, subordinate, extend, alter, substitute, exchange, change, modify or otherwise dispose of
or deal with in any manner and in any order any Indebtedness, any evidence thereof, or any
security or other guaranty therefor; (2) accept any security for, or other guarantors of, any
Indebtedness; (3) fail, neglect or omit to obtain, realize upon or protect any Indebtedness or any
security therefor, to exercise any lien upon or right to any money, credit or property toward the
liquidation of the Indebtedness, or to exercise any other right against the Borrower, the Entity
Guarantor, any other guarantor or any other person; and (4) apply any payments and credits to
the Indebtedness in any manner and in any order. No act, omission or thing, except full payment
and discharge of the Indebtedness, which but for this provision could act as a release or
impairment of the liability of the Entity Guarantor hereunder, shall in any way release, impair or
otherwise affect the liability of the Entity Guarantor hereunder, and the Entity Guarantor waives
any and all defenses of the Borrower pertaining to the Indebtedness, any evidence thereof, and
any security therefor, except the defense of discharge by payment. The failure of any person or
persons to sign this or any other guaranty shall not release, impair or affect the liability of the
Entity Guarantor hereunder. This guaranty is a primary obligation of the Entity Guarantor and
2
477336v4 EL185-40
the Lender shall not be required to first resort for payment of the Indebtedness to the Borrower or
any other person, their properties or estates, or any security or other rights or remedies
whatsoever. The Entity Guarantor shall be and remain liable for any deficiency remaining after
foreclosure of any mortgage or security interest securing the Indebtedness, whether or not the
liability of the Borrower or any other person for such deficiency is discharged pursuant to statute,
judicial decision or otherwise.
The liability of the Entity Guarantor under this guaranty is in addition to and shall be
cumulative with all other liabilities of the Entity Guarantor to the Lender, as guarantor or
otherwise, without any limitation as to amount, unless the writing evidencing or creating such
other liability specifically provides to the contrary. If any payment applied by the Lender to the
Indebtedness is thereafter set aside, recovered, rescinded or required to be returned for any
reason (including without limitation the bankruptcy, insolvency or reorganization of the
Borrower or any other person), the Indebtedness to which such payment was applied shall for the
purposes of this guaranty be deemed to have continued in existence, notwithstanding such
application, and this guaranty shall be enforceable as to such Indebtedness as fully as if such
application had never been made.
The Entity Guarantor waives: (1) notice of acceptance of this guaranty and of the creation
and existence of the Indebtedness; (2) presentment, demand for payment, notice of dishonor,
notice of nonpayment, and protest of any instrument evidencing the Indebtedness; and (3) all
other demands and notices to the Entity Guarantor or any other person and all other actions to
establish the liability of the Entity Guarantor hereunder. The Entity Guarantor consents to the
personal jurisdiction of the state and federal courts located in the State of Minnesota in
connection with any controversy related to this guaranty, waives any argument that venue in
such forums is not convenient, and agrees that any litigation initiated by the Entity Guarantor
against the Lender in connection with this guaranty shall be venued in either the District Court of
Sherburne County, Minnesota, or the United States District Court, District of Minnesota.
All property of the Entity Guarantor, now or hereafter in the possession, control or
custody of or in transit to the Lender for any purpose, including without limitation the balance of
every account of the Entity Guarantor with and each claim of the Entity Guarantor against the
Lender, shall be subject to a lien and security interest in favor of the Lender, as security for all
liabilities of the Entity Guarantor to the Lender, and shall be subject to be set off against any and
all such liabilities, and the Lender may at any time and from time to time at its option and
without notice appropriate and apply any such property toward the payment of any and all such
liabilities. The Entity Guarantor agrees to promptly provide the Lender from time to time with
financial statements of the Entity Guarantor, in form and substance acceptable to the Lender, at
least once every 12 months and as otherwise requested by the Lender. The Entity Guarantor
agrees to promptly provide the Lender from time to time with such other information respecting
the condition (financial and otherwise), business and property of the Entity Guarantor as the
Lender may request, in form and substance acceptable to the Lender.
The Entity Guarantor waives all claims, rights and remedies which the Entity Guarantor
may now have or hereafter acquire against any person at any time now or hereafter liable to
payment of any of the Indebtedness and as to any collateral security, including but not limited to
3
477336v4 EL185-40
all claims, rights and remedies of contribution, indemnification, exoneration, reimbursement,
recourse and subrogation, whether or not such claim, right or remedy arises in equity, under
contract, by statute, under common law or otherwise, whether or not the Indebtedness has been
fully paid, and all payments and recoveries under this guaranty shall be considered equity
investments by the Entity Guarantor in the Borrower; provided, nothing contained in this
guaranty shall deprive the Entity Guarantor of any claim, right or remedy, after the Indebtedness
has been fully paid, against any person other than the Borrower. No delay or failure by the
Lender in exercising any right, and no partial or single exercise thereof shall constitute a waiver
thereof. No waiver of any rights hereunder, and no modification or amendment of this guaranty
shall be effective unless the same is in writing duly executed by the Lender, and each such
waiver, if any, shall apply only with respect to the specific instance involved and shall not impair
or affect the rights of the Lender or the provisions of this guaranty in any other respect at any
other time. This guaranty shall continue until written notice of revocation of this guaranty,
executed by the Entity Guarantor, has been received by the Lender; provided, no revocation of
this guaranty shall affect in any manner any liability of the Entity Guarantor under this guaranty
with respect to Indebtedness arising before the Lender receives such written notice of revocation,
and the sole effect of revocation of this guaranty shall be to exclude from this guaranty
Indebtedness thereafter arising which is unconnected with Indebtedness theretofore arising or
transactions theretofore entered into.
Any invalidity or unenforceability of any provision or application of this guaranty shall
not affect other lawful provisions and applications hereof and to this end the provisions of this
guaranty are declared to be severable. This guaranty shall bind the Entity Guarantor and the
representatives, successors and assigns of the Entity Guarantor, and of each of them respectively,
and shall benefit the Lender, its successors and assigns. This guaranty shall be governed by and
construed in accordance with the laws of the State of Minnesota.
The Entity Guarantor acknowledges and agrees that in accordance with Section 24 of that
certain Loan Agreement between the Borrower and the Lender (the “Loan Agreement”) the
Entity Guarantor shall relocate or create 12 full-time equivalent jobs in Elk River, Minnesota
(the “City”), at the Loan Property at an hourly wage equal to the greater of $15.00 per hour or
150% of the state or federal minimum wage, whichever is greater (the “Jobs”), by the two (2)
year anniversary of the date of closing on the Loan (the “Benefit Date”), will continue operations
in the City and maintain the Jobs for at least 5 years after the Benefit Date, and will comply with
all other applicable terms of Section 24 of the Loan Agreement.
The Entity Guarantor is or will be the occupant of the property located at 18489 Twin
Lakes Road, Elk River, Minnesota 55330 (the “Property”). Borrower is acquiring the Property
and will be leasing it to the Entity Guarantor pursuant to a certain lease agreement (the “Lease”).
Borrower and the Entity Guarantor are under common ownership. The Entity Guarantor
acknowledges and agrees that the Indebtedness is being utilized by Borrower to finance the
relocation to and acquisition and renovation of an existing structure at the Property, and such
relocation, acquisition, and renovation will support the Entity Guarantor’s ability to fulfill its
obligations under the Lease and, therefore, the Entity Guarantor’s obligations under this
Guaranty are proper, valid and enforceable. This Guaranty has been approved by unanimous
consent of the board of governors of the Entity Guarantor.
4
477336v4 EL185-40
THE ENTITY GUARANTOR REPRESENTS, CERTIFIES, WARRANTS AND AGREES
THAT THE UNDERSIGNED HAVE READ ALL OF THIS GUARANTY AND
UNDERSTAND ALL OF THE PROVISIONS OF THIS GUARANTY. THE ENTITY
GUARANTOR ALSO AGREES THAT COMPLIANCE BY THE LENDER WITH THE
EXPRESS PROVISIONS OF THIS GUARANTY SHALL CONSTITUTE GOOD FAITH AND
SHALL BE CONSIDERED REASONABLE FOR ALL PURPOSES.
DIE CONCEPTS, INC.,
a Minnesota corporation
By:
Fred Trapp, President
By:
Michael Tracey, Vice President
1
477331v3 EL185-40
PERSONAL GUARANTY
(Microloan — Michael Tracey)
Elk River, Minnesota
_____________, 2016
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, and in consideration of and to induce financial accommodations of any kind, with
or without security, given or to be given or continued at any time and from time to time by the
ECONOMIC DEVELOPMENT AUTHORITY OF THE CITY OF ELK RIVER (the “Lender”)
to or for the account of F & M PROPERITES, LLC (the “Borrower”), the undersigned
absolutely and unconditionally guaranty to the Lender the full and prompt payment when due,
whether at maturity or earlier by reason of acceleration or otherwise, of any and all indebtedness,
obligations and liabilities of the Borrower (and any and all successors of the Borrower) to the
Lender, now or hereafter existing, absolute or contingent, independent, joint, several or joint and
several, secured or unsecured, due or to become due, contractual or tortious, liquidated or
unliquidated, arising by assignment or otherwise, including without limitation all indebtedness,
obligations and liabilities owed by the Borrower (and any and all successors of the Borrower) as
a member of any partnership, syndicate, association or other group, and whether incurred by the
Borrower (or any successor of the Borrower) as principal, surety, endorser, guarantor,
accommodation party or otherwise (collectively, the “Indebtedness”); and the undersigned agrees
to pay on demand all of the Lender’s fees, costs, expenses and reasonable attorneys’ fees in
connection with the Indebtedness, any security therefor, and this guaranty, plus interest on such
amounts at the highest rate then applicable to any of the Indebtedness.
The Lender may at any time and from time to time, without consent of or notice to the
undersigned, without incurring responsibility to the undersigned, without releasing, impairing or
affecting the liability of the undersigned hereunder, upon or without any terms or conditions, and
in whole or in part: (1) sell, pledge, surrender, compromise, settle, release, renew, subordinate,
extend, alter, substitute, exchange, change, modify or otherwise dispose of or deal with in any
manner and in any order any Indebtedness, any evidence thereof, or any security or other
guaranty therefor; (2) accept any security for, or other guarantors of, any Indebtedness; (3) fail,
neglect or omit to obtain, realize upon or protect any Indebtedness or any security therefor, to
exercise any lien upon or right to any money, credit or property toward the liquidation of the
Indebtedness, or to exercise any other right against the Borrower, the undersigned, any other
guarantor or any other person; and (4) apply any payments and credits to the Indebtedness in any
manner and in any order. No act, omission or thing, except full payment and discharge of the
Indebtedness, which but for this provision could act as a release or impairment of the liability of
the undersigned hereunder, shall in any way release, impair or otherwise affect the liability of the
undersigned hereunder, and the undersigned waives any and all defenses of the Borrower
pertaining to the Indebtedness, any evidence thereof, and any security therefor, except the
defense of discharge by payment. The failure of any person or persons to sign this or any other
guaranty shall not release, impair or affect the liability of the undersigned hereunder. This
guaranty is a primary obligation of the undersigned and the Lender shall not be required to first
2
477331v3 EL185-40
resort for payment of the Indebtedness to the Borrower or any other person, their properties or
estates, or any security or other rights or remedies whatsoever. The undersigned shall be and
remain liable for any deficiency remaining after foreclosure of any mortgage or security interest
securing the Indebtedness, whether or not the liability of the Borrower or any other person for
such deficiency is discharged pursuant to statute, judicial decision or otherwise.
The liability of the undersigned under this guaranty is in addition to and shall be
cumulative with all other liabilities of the undersigned to the Lender, as guarantor or otherwise,
without any limitation as to amount, unless the writing evidencing or creating such other liability
specifically provides to the contrary. If any payment applied by the Lender to the Indebtedness is
thereafter set aside, recovered, rescinded or required to be returned for any reason (including
without limitation the bankruptcy, insolvency or reorganization of the Borrower or any other
person), the Indebtedness to which such payment was applied shall for the purposes of this
guaranty be deemed to have continued in existence, notwithstanding such application, and this
guaranty shall be enforceable as to such Indebtedness as fully as if such application had never
been made.
The undersigned waives: (1) notice of acceptance of this guaranty and of the creation and
existence of the Indebtedness; (2) presentment, demand for payment, notice of dishonor, notice
of nonpayment, and protest of any instrument evidencing the Indebtedness; and (3) all other
demands and notices to the undersigned or any other person and all other actions to establish the
liability of the undersigned hereunder. The undersigned consents to the personal jurisdiction of
the state and federal courts located in the State of Minnesota in connection with any controversy
related to this guaranty, waives any argument that venue in such forums is not convenient, and
agrees that any litigation initiated by the undersigned against the Lender in connection with this
guaranty shall be venued in either the District Court of Sherburne County, Minnesota, or the
United States District Court, District of Minnesota.
All property of the undersigned, now or hereafter in the possession, control or custody of
or in transit to the Lender for any purpose, including without limitation the balance of every
account of the undersigned with and each claim of the undersigned against the Lender, shall be
subject to a lien and security interest in favor of the Lender, as security for all liabilities of the
undersigned to the Lender, and shall be subject to be set off against any and all such liabilities,
and the Lender may at any time and from time to time at its option and without notice
appropriate and apply any such property toward the payment of any and all such liabilities. The
undersigned agrees to promptly provide the Lender from time to time with financial statements
of the undersigned, in form and substance acceptable to the Lender, at least once every 12
months and as otherwise requested by the Lender. The undersigned agrees to promptly provide
the Lender from time to time with such other information respecting the condition (financial and
otherwise), business and property of the undersigned as the Lender may request, in form and
substance acceptable to the Lender.
The undersigned waives all claims, rights and remedies which the undersigned may now
have or hereafter acquire against any person at any time now or hereafter liable to payment of
any of the Indebtedness and as to any collateral security, including but not limited to all claims,
rights and remedies of contribution, indemnification, exoneration, reimbursement, recourse and
3
477331v3 EL185-40
subrogation, whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise, whether or not the Indebtedness has been fully paid,
and all payments and recoveries under this guaranty shall be considered equity investments by
the undersigned in the Borrower; provided, nothing contained in this guaranty shall deprive the
undersigned of any claim, right or remedy, after the Indebtedness has been fully paid, against any
person other than the Borrower. No delay or failure by the Lender in exercising any right, and
no partial or single exercise thereof shall constitute a waiver thereof. No waiver of any rights
hereunder, and no modification or amendment of this guaranty shall be effective unless the same
is in writing duly executed by the Lender, and each such waiver, if any, shall apply only with
respect to the specific instance involved and shall not impair or affect the rights of the Lender or
the provisions of this guaranty in any other respect at any other time. This guaranty shall
continue until written notice of revocation of this guaranty, executed by the undersigned, has
been received by the Lender; provided, no revocation of this guaranty shall affect in any manner
any liability of the undersigned under this guaranty with respect to Indebtedness arising before
the Lender receives such written notice of revocation, and the sole effect of revocation of this
guaranty shall be to exclude from this guaranty Indebtedness thereafter arising which is
unconnected with Indebtedness theretofore arising or transactions theretofore entered into.
Any invalidity or unenforceability of any provision or application of this guaranty shall
not affect other lawful provisions and applications hereof and to this end the provisions of this
guaranty are declared to be severable. This guaranty shall bind the undersigned and the heirs,
representatives, successors and assigns of the undersigned, and of each of them respectively, and
shall benefit the Lender, its successors and assigns. This guaranty shall be governed by and
construed in accordance with the laws of the State of Minnesota.
The undersigned is an owner and member of the Borrower and the undersigned
acknowledges and agrees that the Indebtedness is being utilized by the Borrower to relocate to
and purchase and renovate an existing building on real property located at 18489 Twin Lakes
Road, Elk River, Minnesota 55330 (the “Property”), and such relocation, purchase, and
renovation will materially financially benefit the undersigned and, therefore, the undersigned’s
obligations under this Guaranty are proper, valid and enforceable.
THE UNDERSIGNED REPRESENTS, CERTIFIES, WARRANTS AND AGREES
THAT THE UNDERSIGNED HAS READ ALL OF THIS GUARANTY AND UNDERSTAND
ALL OF THE PROVISIONS OF THIS GUARANTY. THE UNDERSIGNED ALSO AGREES
THAT COMPLIANCE BY THE LENDER WITH THE EXPRESS PROVISIONS OF THIS
GUARANTY SHALL CONSTITUTE GOOD FAITH AND SHALL BE CONSIDERED
REASONABLE FOR ALL PURPOSES.
Michael Tracey
1
477358v2 EL185-40
PERSONAL GUARANTY
(Microloan — Fred Trapp)
Elk River, Minnesota
_____________, 2016
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, and in consideration of and to induce financial accommodations of any kind, with
or without security, given or to be given or continued at any time and from time to time by the
ECONOMIC DEVELOPMENT AUTHORITY OF THE CITY OF ELK RIVER (the “Lender”)
to or for the account of F & M PROPERTIES, LLC (the “Borrower”), the undersigned
absolutely and unconditionally guaranty to the Lender the full and prompt payment when due,
whether at maturity or earlier by reason of acceleration or otherwise, of any and all indebtedness,
obligations and liabilities of the Borrower (and any and all successors of the Borrower) to the
Lender, now or hereafter existing, absolute or contingent, independent, joint, several or joint and
several, secured or unsecured, due or to become due, contractual or tortious, liquidated or
unliquidated, arising by assignment or otherwise, including without limitation all indebtedness,
obligations and liabilities owed by the Borrower (and any and all successors of the Borrower) as
a member of any partnership, syndicate, association or other group, and whether incurred by the
Borrower (or any successor of the Borrower) as principal, surety, endorser, guarantor,
accommodation party or otherwise (collectively, the “Indebtedness”); and the undersigned agrees
to pay on demand all of the Lender’s fees, costs, expenses and reasonable attorneys’ fees in
connection with the Indebtedness, any security therefor, and this guaranty, plus interest on such
amounts at the highest rate then applicable to any of the Indebtedness.
The Lender may at any time and from time to time, without consent of or notice to the
undersigned, without incurring responsibility to the undersigned, without releasing, impairing or
affecting the liability of the undersigned hereunder, upon or without any terms or conditions, and
in whole or in part: (1) sell, pledge, surrender, compromise, settle, release, renew, subordinate,
extend, alter, substitute, exchange, change, modify or otherwise dispose of or deal with in any
manner and in any order any Indebtedness, any evidence thereof, or any security or other
guaranty therefor; (2) accept any security for, or other guarantors of, any Indebtedness; (3) fail,
neglect or omit to obtain, realize upon or protect any Indebtedness or any security therefor, to
exercise any lien upon or right to any money, credit or property toward the liquidation of the
Indebtedness, or to exercise any other right against the Borrower, the undersigned, any other
guarantor or any other person; and (4) apply any payments and credits to the Indebtedness in any
manner and in any order. No act, omission or thing, except full payment and discharge of the
Indebtedness, which but for this provision could act as a release or impairment of the liability of
the undersigned hereunder, shall in any way release, impair or otherwise affect the liability of the
undersigned hereunder, and the undersigned waives any and all defenses of the Borrower
pertaining to the Indebtedness, any evidence thereof, and any security therefor, except the
defense of discharge by payment. The failure of any person or persons to sign this or any other
guaranty shall not release, impair or affect the liability of the undersigned hereunder. This
guaranty is a primary obligation of the undersigned and the Lender shall not be required to first
2
477358v2 EL185-40
resort for payment of the Indebtedness to the Borrower or any other person, their properties or
estates, or any security or other rights or remedies whatsoever. The undersigned shall be and
remain liable for any deficiency remaining after foreclosure of any mortgage or security interest
securing the Indebtedness, whether or not the liability of the Borrower or any other person for
such deficiency is discharged pursuant to statute, judicial decision or otherwise.
The liability of the undersigned under this guaranty is in addition to and shall be
cumulative with all other liabilities of the undersigned to the Lender, as guarantor or otherwise,
without any limitation as to amount, unless the writing evidencing or creating such other liability
specifically provides to the contrary. If any payment applied by the Lender to the Indebtedness is
thereafter set aside, recovered, rescinded or required to be returned for any reason (including
without limitation the bankruptcy, insolvency or reorganization of the Borrower or any other
person), the Indebtedness to which such payment was applied shall for the purposes of this
guaranty be deemed to have continued in existence, notwithstanding such application, and this
guaranty shall be enforceable as to such Indebtedness as fully as if such application had never
been made.
The undersigned waives: (1) notice of acceptance of this guaranty and of the creation and
existence of the Indebtedness; (2) presentment, demand for payment, notice of dishonor, notice
of nonpayment, and protest of any instrument evidencing the Indebtedness; and (3) all other
demands and notices to the undersigned or any other person and all other actions to establish the
liability of the undersigned hereunder. The undersigned consents to the personal jurisdiction of
the state and federal courts located in the State of Minnesota in connection with any controversy
related to this guaranty, waives any argument that venue in such forums is not convenient, and
agrees that any litigation initiated by the undersigned against the Lender in connection with this
guaranty shall be venued in either the District Court of Sherburne County, Minnesota, or the
United States District Court, District of Minnesota.
All property of the undersigned, now or hereafter in the possession, control or custody of
or in transit to the Lender for any purpose, including without limitation the balance of every
account of the undersigned with and each claim of the undersigned against the Lender, shall be
subject to a lien and security interest in favor of the Lender, as security for all liabilities of the
undersigned to the Lender, and shall be subject to be set off against any and all such liabilities,
and the Lender may at any time and from time to time at its option and without notice
appropriate and apply any such property toward the payment of any and all such liabilities. The
undersigned agrees to promptly provide the Lender from time to time with financial statements
of the undersigned, in form and substance acceptable to the Lender, at least once every 12
months and as otherwise requested by the Lender. The undersigned agrees to promptly provide
the Lender from time to time with such other information respecting the condition (financial and
otherwise), business and property of the undersigned as the Lender may request, in form and
substance acceptable to the Lender.
The undersigned waives all claims, rights and remedies which the undersigned may now
have or hereafter acquire against any person at any time now or hereafter liable to payment of
any of the Indebtedness and as to any collateral security, including but not limited to all claims,
rights and remedies of contribution, indemnification, exoneration, reimbursement, recourse and
3
477358v2 EL185-40
subrogation, whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise, whether or not the Indebtedness has been fully paid,
and all payments and recoveries under this guaranty shall be considered equity investments by
the undersigned in the Borrower; provided, nothing contained in this guaranty shall deprive the
undersigned of any claim, right or remedy, after the Indebtedness has been fully paid, against any
person other than the Borrower. No delay or failure by the Lender in exercising any right, and
no partial or single exercise thereof shall constitute a waiver thereof. No waiver of any rights
hereunder, and no modification or amendment of this guaranty shall be effective unless the same
is in writing duly executed by the Lender, and each such waiver, if any, shall apply only with
respect to the specific instance involved and shall not impair or affect the rights of the Lender or
the provisions of this guaranty in any other respect at any other time. This guaranty shall
continue until written notice of revocation of this guaranty, executed by the undersigned, has
been received by the Lender; provided, no revocation of this guaranty shall affect in any manner
any liability of the undersigned under this guaranty with respect to Indebtedness arising before
the Lender receives such written notice of revocation, and the sole effect of revocation of this
guaranty shall be to exclude from this guaranty Indebtedness thereafter arising which is
unconnected with Indebtedness theretofore arising or transactions theretofore entered into.
Any invalidity or unenforceability of any provision or application of this guaranty shall
not affect other lawful provisions and applications hereof and to this end the provisions of this
guaranty are declared to be severable. This guaranty shall bind the undersigned and the heirs,
representatives, successors and assigns of the undersigned, and of each of them respectively, and
shall benefit the Lender, its successors and assigns. This guaranty shall be governed by and
construed in accordance with the laws of the State of Minnesota.
The undersigned is an owner and member of the Borrower and the undersigned
acknowledges and agrees that the Indebtedness is being utilized by the Borrower to relocate to
and purchase and renovate an existing building on real property located at 18489 Twin Lakes
Road, Elk River, Minnesota 55330 (the “Property”), and such relocation, purchase, and
renovation will materially financially benefit the undersigned and, therefore, the undersigned’s
obligations under this Guaranty are proper, valid and enforceable.
THE UNDERSIGNED REPRESENTS, CERTIFIES, WARRANTS AND AGREES
THAT THE UNDERSIGNED HAS READ ALL OF THIS GUARANTY AND UNDERSTAND
ALL OF THE PROVISIONS OF THIS GUARANTY. THE UNDERSIGNED ALSO AGREES
THAT COMPLIANCE BY THE LENDER WITH THE EXPRESS PROVISIONS OF THIS
GUARANTY SHALL CONSTITUTE GOOD FAITH AND SHALL BE CONSIDERED
REASONABLE FOR ALL PURPOSES.
Fred Trapp
1
477330v1 EL185-40
LOAN AGREEMENT
(Blighted Properties Forgivable Commercial/Industrial Loan)
THIS LOAN AGREEMENT (“Agreement”) is made effective as of April ___, 2016, by
and between F & M PROPERTIES, LLC, a Minnesota limited liability company (“Borrower”),
and the HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF
ELK RIVER, a public body corporate and politic of the State of Minnesota (“Lender”).
RECITALS
A. Borrower has applied to Lender for a Blighted Properties Forgivable
Commercial/Industrial Program loan for Borrower’s acquisition of certain real property and
renovation of an existing building located on certain real property at 18489 Twin Lakes Road,
Elk River, Minnesota 55330 (the “Loan Property”) in the principal amount of $75,000.00.
B. Lender is willing to make such loan to Borrower in the principal amount of
$75,000.00 (the “Loan”), subject to all of the terms and conditions of this Agreement.
C. Contemporaneously with the execution hereof, Borrower is 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
$75,000.00.
(ii) The personal guaranty of Fred Trapp, President of Borrower and the
personal guaranty of Michael Tracey, Vice President of Borrower (collectively, the
“Personal Guaranties”);
(iii) A Mortgage and Assignment of Rents and Security Agreement and Fixture
Financing Statement (“Mortgage”). The Mortgage is of even date herewith, is executed
by Borrower, as mortgagor, in favor of Lender, as mortgagee, and covers the Loan
Property as well as a security interest in certain other property described therein; and
(iv) An entity guaranty (the “Entity Guaranty”) of Die Concepts, Inc. (the
“Entity Guarantor”).
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 loan in the principal amount of Seventy-Five Thousand and No/100s Dollars
($75,000.00) (the “Loan”) to be advanced in a single disbursement as hereinafter provided, the
Loan to be evidenced by the Note and secured by the Personal Guaranties, the Mortgage, the
Entity Guaranty, and any other security document required under this Agreement. The Loan
2
477330v1 EL185-40
proceeds will be used only towards the cost of Borrower’s acquisition of the Loan Property and
renovation of an existing building located the Loan Property.
2. Mortgage and Security Interest. The Entity Guarantor has provided Lender third
priority mortgage in the Loan Property acquired by the Entity Guarantor with the proceeds of the
Loan.
3. Title Insurance. ______________ (“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 ensure that
the Mortgage constitutes a second priority lien upon Borrower’s interest in the Loan Property as
contemplated by this Agreement, subject only to a mortgage in favor of CorTrust Bank in the
amount of $540,800.00 (the “First Lien Mortgage”) and a mortgage in favor of Economic
Development Authority of the City of Elk River in the amount of up to $185,200.00 (the
“Second Lien Mortgage”). 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) Personal Guaranties. Deliver to Lender the Personal Guaranties.
(c) Entity Guaranty. Deliver to Lender the Entity Guaranty.
(d) Mortgage. Deliver to Lender the Mortgage, together with evidence that
the Mortgage has been or will be duly filed for record.
(e) Organizational Documents and Resolutions. Deliver to Lender copies of
the (i) articles of organization for Borrower certified by the Minnesota Secretary of State,
(ii) certificate of good standing for Borrower issued by the Minnesota Secretary of State;
(iii) Borrower’s operating agreement, member control agreement and bylaws; and (iv)
certified 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.
(f) Organizational Documents and Resolutions. Deliver to Lender copies of
the (i) articles of incorporation for Entity Guarantor certified by the Minnesota Secretary
of State, (ii) certificate of good standing for Entity Guarantor issued by the Minnesota
Secretary of State; (iii) Entity Guarantor’s bylaws; and (iv) certified resolutions of Entity
Guarantor authorizing the execution and delivery of the Entity Guaranty, and any other
document to be executed by Entity Guarantor pursuant to this Agreement.
3
477330v1 EL185-40
(g) Insurance. Deliver to Lender: (i) a certificate or policy for all insurance
required, under the terms hereof 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.
(h) Compliance with Laws, Etc. Deliver to Lender such evidence as Lender
may require as to the compliance of the Loan Property 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 or planned unit development
applicable to the Loan Property.
(i) 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.
(j) Program Fee. Deliver to Lender the program fee of $2,000; the Lender
acknowledges that the Borrower has previously paid the Lender’s program fee.
(k) 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.
(l) Lease. Deliver to Lender a copy of the lease agreement for the use of the
Loan Property, executed no later than the date of this Agreement, by and between
Borrower, as landlord, and Entity Guarantor, as tenant (the “Lease”).
Lender may waive any of the above requirements in its sole discretion.
5. Disbursement of Loan. Upon receipt by Lender of all of the items required
pursuant to Section 4 above in the form and condition required therein and confirmation from
Title that Title is prepared to issue the mortgagee’s title insurance policy as required herein,
Lender agrees to disburse the Loan proceeds to Borrower.
6. 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 the Loan Property.
4
477330v1 EL185-40
7. 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, acting solely through its municipal or financial advisor, 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 solely to the Lender’s municipal or finance advisor,
as may reasonably be demanded. The Borrower will not be required to provide its books and
records directly to the Lender. Lender and its representatives shall have the right to inspect,
examine and copy all such books and records of Entity Guarantor and Entity Guarantor shall, at
Lender’s request, furnish such information as Lender may reasonably demand.
8. Encumbrances and Transfer. Other than the First Lien Mortgage, the Second Lien
Mortgage and the Lease to the Entity Guarantor, Borrower agrees not to sell, transfer, lease or
convey the Loan Property or any part of it, or any interest therein, or encumber the Loan
Property or any part of it, in any manner, without 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 such prior sale, transfer lease or conveyance. 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 such prior sale, transfer lease or
conveyance.
9. Time of Essence. Time is of the essence in the performance of this
Agreement.
10. Assignability. Borrower shall not assign this Agreement without written consent
of Lender, which consent may be withheld, conditioned or delayed in Lender’s sole discretion.
Lender may freely assign or otherwise transfer (including by participation) all or any part of its
interest in the Loan or any or all of the Loan documents, in Lender’s sole discretion.
11. Miscellaneous Covenants of Borrower. Borrower covenants and agrees with
Lender that, without cost to Lender, Borrower will or will cause Entity Guarantor to:
(a) Performance of Conditions. Promptly keep, perform and comply with all
of the terms, covenants and conditions to be kept and performed by Borrower and/or
Entity Guarantor, as required by the City of Elk River (the “City”) and any other
governmental body having jurisdiction over the Loan Property; keep unimpaired the
rights of Borrower and/or Entity Guarantor under any permit or agreement issued or
made by the City or other governmental body having jurisdiction over the Loan Property;
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, and any contractors under all contracts obtained or
held by Borrower and/or Entity Guarantor in connection with construction or operation of
the Borrower or Entity Guarantor’s businesses.
5
477330v1 EL185-40
(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 and/or
Entity Guarantor in connection with any contracts, documents or agreements referred to
herein without the prior written approval of Lender.
(c) Performance of Note 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 this Agreement, Borrower shall procure and
maintain or cause to be procured and maintained at its sole expense, 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, with coverages and in amounts normally held by owners of property
similar to the Loan Property (as improved) and with companies satisfactory to Lender.
The policy or policies or duly executed certificate or certificates for such insurance and
renewals or replacements thereof shall be deposited with Lender.
(e) Pay Charges. Pay at closing, or within 30 days of written notice from the
Lender, all loan charges including, but not limited to: (i) Lender’s attorneys’ fees; (ii) title
insurance fees, costs and premiums; and (iii) filing fees of any instruments required under
this Agreement.
(f) Default Notices. Provide Lender with a copy of any default notice
received by the Borrower or the Entity Guarantor pursuant to any documents related to
any financing secured by the Loan Property, promptly after receipt of the same.
(g) Continual Operation. At all times while any portion of the Loan remains
outstanding, Borrower will: (i) maintain its status as a for profit entity; (ii) maintain a
positive net worth; and (iii) will operate its business from the Loan Property in a first
class manner.
12. Warranties. Borrower represents and warrants to Lender the following:
(a) The Borrower corporation 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 the Entity Guarantor and have been duly
authorized by all necessary company action on the part of the Borrower and the Entity
Guarantor. This Agreement and the Note, Mortgage, and any other instruments required
hereunder have been duly executed and delivered and are the legal, valid and binding
6
477330v1 EL185-40
obligations of the Borrower and the Entity Guarantor enforceable in accordance with
their respective terms.
(c) No litigation, tax claims or governmental proceedings are pending or
threatened against the Borrower, the Entity Guarantor or the Loan Property, and no
judgment or order of any court or administrative agency is outstanding against the
Borrower, the Entity Guarantor or the Loan Property which would have a material
adverse effect on Borrower, the Entity Guarantor or the Loan Property.
(d) Borrower and the Entity Guarantor have 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 and the Entity Guarantor will file all such
returns and pay all such taxes for the current and future years.
(e) All information, financial or other, which has been submitted by
Borrower, the personal guarantors, and the Entity Guarantor in connection with the Loan
is true, accurate and complete in all material respects.
(f) Entity Guarantor is under common ownership.
(g) Borrower is a “small business” as defined by the U.S. Small Business
Administration.
13. 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. Borrower will
indemnify and hold Lender harmless from any damages Lender may suffer or incur from
Borrower’s breach of its covenant in Section 12(h).
14. Defaults. Each of the following shall constitute an Event of Default:
(a) If Borrower or Entity Guarantor abandons the Loan Property.
(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 and, if such proceedings are
instituted against Borrower, an order, judgment or decree, without the consent of
Borrower appointing a trustee or receiver for Borrower or any part of its 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 thirty (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 thirty (30) days of entry.
7
477330v1 EL185-40
(d) 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 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 or has not caused the Entity Guarantor to take the necessary steps to correct or
cure the same within thirty (30) days after written notice is given by Lender.
(e) 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 satisfaction.
(f) A transfer which violates by Paragraph 9 hereof, Encumbrances and
Transfer, occurs.
(g) Borrower: (i) fails to pay when due any amount due under this Agreement,
the Note, or any other documents listed in Section 3; (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; or (iii) fails to pay any
amount or perform any obligation under any other 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 or Bank, and such failure continues beyond any applicable cure
period.
(h) 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.
(i) A default under the Entity Guaranty, the Mortgage, the Personal
Guaranties, or beyond any applicable notice and cure period.
15. Remedies. 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:
(a) 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
paragraphs (ii) and (iii) of this paragraph shall be deemed to have
been advanced under this Agreement and to be secured by any
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 prosecute and defend all actions or
8
477330v1 EL185-40
proceedings in connection with the Loan Property and do any and
every act which Borrower might do in its own behalf; (B) to perform
each of the terms, covenants and conditions to be kept and
performed by Borrower under any contracts and/or leases obtained
or held by Borrower in connection with the operation of the Loan
Property and any other contracts; (C) without limiting the foregoing,
to perform each of the terms, covenants and conditions to be kept or
performed by Borrower under this Agreement and any other
instrument required under this Agreement; and (D) 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;
(b) cancel this Agreement;
(c) bring appropriate action to enforce such performance and the correction of
such Event of Default;
(d) declare the entire unpaid principal of the Note and all accrued interest
thereon immediately due and payable without notice;
(e) foreclose the Mortgage or any security instrument referred to in this
Agreement and/or exercise any other rights or remedies it may have under the Entity
Guaranty, the Personal Guaranties, the Mortgage, and any other security instruments.
16. Default under Note. 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:
F & M Properties, LLC
18489 Twin Lakes Road
Elk River, MN 55330
Attention: Fred Trapp
If to Lender:
9
477330v1 EL185-40
Housing and Redevelopment Authority in and for the City of Elk River
13065 Orono Parkway
Elk River, Minnesota 55330
Attn: Executive Director
or addressed to any such party at such other address as such party shall hereafter furnish by
notice to the other party. 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. 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.
21. 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.
22. 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.
23. 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.
24. Business Subsidies Act.
(a) In order to satisfy the provisions of Minnesota Statutes, Sections 116J.993
to 116J.995 (the “Business Subsidies Act”), the Borrower acknowledges and agrees that
the amount of the “Business Subsidy” granted to the Borrower under this Agreement is
the amount of the loan, which is $75,000, and that the Business Subsidy is needed
10
477330v1 EL185-40
because the project is not sufficiently feasible for the Borrower to undertake without the
Business Subsidy. The public purpose of the Business Subsidy is to develop
manufacturing facilities, increase the tax base in the City and stimulate the creation and
retention of jobs. In consideration of the Business Subsidy provided for the Borrower’s
acquisition of certain real property and renovation of the existing structure on the Loan
Property, the Borrower represents that pursuant to the terms of the Entity Guaranty, the
Entity Guarantor has agreed to meet following goals (the “Goals”): the Entity Guarantor
shall relocate or create 12 full-time equivalent jobs in Elk River, Minnesota (the “City”),
at the Loan Property at an hourly wage equal to the greater of $15.00 per hour or 150% of
the state or federal minimum wage, whichever is greater (the “Jobs”), by the two (2) year
anniversary of the date of closing on the Loan (the “Benefit Date”).
(b) If none of the Goals are met, the Borrower agree to repay all of the
Business Subsidy to the City, plus interest (“Interest”) set at the greater of 2.00% per
annum or the implicit price deflator defined in Minnesota Statutes Section 275.70,
subdivision 3, accruing from and after the date of closing on the Loan, compounded
semiannually. If the Goals are met in part, the Borrower agrees to 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 12 (i.e. number
of Jobs set forth in the Goals).
(c) The Borrower agrees to: (i) report the Entity Guarantor’s progress on
achieving the Goals to the City 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 City.
The Borrower agrees to file these reports no later than March 1 of each year commencing
March 1, 2017, and within 30 days after the deadline for meeting the Goals. The City
agrees that if it does not receive the reports, it will mail the Entity Guarantor and the
Borrower a warning within one week of the 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 City a penalty of $100 for each subsequent day until the report is filed up to a
maximum of $1,000.
(d) Pursuant to the terms of the Entity Guaranty, the Entity Guarantor has
agreed that it will continue operations in the City and maintain the Jobs for at least 5
years after the Benefit Date.
(e) Other than the loan provided pursuant to this Agreement, there are no
other state or local government agencies providing financial assistance for the project.
(f) There is no parent corporation of the Entity Guarantor or the Borrower.
[Signature Pages follow]
477386v2 EL185-40
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.
F & M PROPERTIES, LLC
By:
Fred Trapp
Its: President
By:
Michael Tracey
Its: Vice President
477386v2 EL185-40
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 IN AND FOR THE CITY OF ELK
RIVER
By:
Name:
Its: President
By:
Name:
Its: Executive Director
1
477376v2 EL185-40
PROMISSORY NOTE
(Blighted Properties Forgivable Commercial/Industrial Loan)
___________, 2016
Amount: $75,000.00 Interest: 2.00%
Maturity: April ___, 2021
FOR VALUE RECEIVED, the undersigned, F & M Properties, LLC, a Minnesota
limited liability company (“Borrower”), promises to pay to the order of the HOUSING AND
REDEVELOPMENT AUTHORITY IN AND FOR 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 April ___, 2021 (“Maturity Date”), the principal sum of
Seventy-Five Thousand and 00/100 Dollars ($75,000.00), 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 (2.00%)
per annum.
This Note is made pursuant to a Loan Agreement, between Borrower and Lender, of even
date herewith (“Loan Agreement”) which provides for the payment of a portion of the cost of
acquisition, renovation and equipping of an existing building on certain Loan Property (as
defined in the Loan Agreement) in the City of Elk River, Minnesota (the “City”). All capitalized
terms which are not otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
Except as provided in the following paragraph, the principal of and accrued interest on
this Note shall be due and payable on April ___, 2021 (the “Note Maturity Date”); provided,
however that the Note is subject to repayment prior to the Note Maturity Date in accordance with
Section 24 of the Loan Agreement.
If as of the Note Maturity Date (a) no Event of Default exists under the Loan Agreement,
(b) the Borrower has acquired the Loan Property and completed the renovation of the existing
building on the Loan Property (as evidenced by a certificate of occupancy from the City), and (c)
the Borrower has created 12 new FTE jobs in the City at the greater of $15.00 per hour or 150%
of state or federal minimum wage, whichever is greater, exclusive of benefits required by law
(the “Jobs”) and maintained the Jobs in the City through the Note Maturity Date and for at least
24 months, then the principal of and interest on this Note shall be deemed paid in full on the
Note Maturity Date.
This Note may be prepaid by the Borrower at any time.
This Note is secured by, among other things a Mortgage, certain Personal Guaranties
made by Fred Trapp and Michael Tracey, and that certain Entity Guaranty made by Die
Concepts, Inc., all of which are made to Lender of even date herewith (collectively, the “Security
2
477376v2 EL185-40
Documents”). All of the terms and conditions contained in the Security Documents 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.
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 Security
Documents, 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.
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.
[Signature Page Follows]
S-3
477376v2 EL185-40
IN WITNESS WHEREOF, the undersigned has caused this Note to be effective as of the
day and year first above written.
F & M PROPERTIES, LLC
a Minnesota limited liability company
By:
Fred Trapp
Its: President
By:
Michael Tracey
Its: Vice President
1
477384v3 EL185-40
MORTGAGE
AND
ASSIGNMENT OF RENTS
AND
SECURITY AGREEMENT
AND
FIXTURE FINANCING STATEMENT
(Blighted Properties Forgivable Commercial/Industrial Loan)
This Mortgage and Assignment of Rents and Security Agreement and Fixture Financing
Statement (“Mortgage”) is made as of April ___, 2016, by F & M Properties, LLC, a Minnesota
limited liability company (“Mortgagor”), in favor of the HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF ELK RIVER, a public body corporate and politic
of the State of Minnesota (“Mortgagee”).
THE MAXIMUM AMOUNT SECURED BY THIS MORTGAGE IS $75,000.00 OF
PRINCIPAL INDEBTEDNESS, TOGETHER WITH ALL INTEREST ACCRUING
THEREON AND ANY AMOUNTS WHICH MAY BE ADVANCED BY MORTGAGEE IN
PROTECTION OF THE MORTGAGED PREMISES OR THE LIEN OF THIS MORTGAGE.
RECITALS
A. Mortgagor has executed and delivered to Mortgagee a Promissory Note effective
as of the date hereof in the principal amount of $75,000.00 and bearing interest at the rate set
forth therein, with principal being due and payable as set forth therein and with all principal and
interest, if not sooner paid or forgiven, being due and payable on April ___, 2021 (the
Promissory Note as the same may be renewed, extended, replaced, modified or amended is
herein called the “Note”). The proceeds of the Note are being utilized to pay a portion of the
costs of the acquisition, renovation and equipping of an existing structure on the Mortgaged
Property (as defined below).
B. Contemporaneous herewith, Mortgagor has entered into that certain loan
agreement (the “Loan Agreement”) setting forth the terms and conditions of Mortgagor and
Lender’s obligations with relation to this loan facility.
2
477384v3 EL185-40
C. Mortgagor is the landlord under that certain unrecorded leased dated _____,
20__, with Die Concepts, Inc. (the “Entity Guarantor”), as tenant leasing a portion of the
Mortgaged Property to the Entity Guarantor.
D. As a condition of providing the loan pursuant to the Loan Agreement, Lender
required that Mortgagor’s obligations under the Loan Agreement be secured by this Mortgage.
NOW THEREFORE, in consideration of the Recitals and for the purpose of securing the
payment and performance of all of Mortgagor’s obligations under the Loan Agreement
(collectively “Obligations”); and to secure the performance of all covenants, conditions and
agreements herein and in the Loan Agreement, Mortgagor does hereby mortgage, grant, bargain,
sell, release and convey unto Mortgagee, with power of sale, forever all of Mortgagor’s right,
title and interest in all the tracts or parcels of land lying and being in Sherburne County,
Minnesota, legally described in Exhibit A hereto, (hereinafter the “Land”), whether now owned
or hereafter acquired, together with: (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; and (ii) all of the buildings,
structures and other improvements now standing or at any time hereafter constructed or placed
upon the Land; and (iii) 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 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; and (iv) all additions, accessions, increases, parts, fittings, accessories,
replacements, substitutions, betterments, repairs and proceeds to any and all of the foregoing;
and (v) all hereditaments, easements, appurtenances, estates, rents, issues, profits, condemnation
awards, proceeds of policies of insurance and other rights and interests now or hereafter
belonging or in any way pertaining to the Land or to any building or improvement now or
hereafter located thereon; and (vi) all leases or other occupancy agreements now or hereafter in
effect in any way appertaining to the Land or to any building or improvement now or hereafter
located thereon, including, without limitation, all cash and security deposits, advance rentals and
deposits or payments of a similar nature (“Leases”), and all Rents (as herein defined) (all of the
foregoing, together with the Land, hereinafter being referred to as the “Property” or “Mortgaged
Property”),
TO HAVE AND TO HOLD the Mortgaged Property unto Mortgagee forever;
PROVIDED, NEVERTHELESS, that this Mortgage is given upon the express condition
that if Mortgagor shall cause to be paid and performed all of the Obligations, and shall also keep
and perform all and singular the covenants herein contained on the part of Mortgagor to be kept
and performed, then the Mortgage and the estate hereby granted shall cease and be and become
void and shall be released of record at the expense of Mortgagor; otherwise this Mortgage shall
be and remain in full force and effect.
MORTGAGOR REPRESENTS, WARRANTS AND COVENANTS to and with
Mortgagee that Mortgagor has good right and full power and authority to execute this Mortgage
and to mortgage the Mortgaged Property; that the Mortgaged Property is free from all liens and
encumbrances except a mortgage in favor of CorTrust Bank in the amount of $540,800.00 (the
3
477384v3 EL185-40
“First Lien Mortgage”) and a mortgage in favor of Economic Development Authority of the City
of Elk River in the amount of up to $185,200.00 (the “Second Lien Mortgage”) and those other
certain permitted encumbrances identified in Exhibit B hereto (the “Permitted Encumbrances”);
that Mortgagee shall quietly enjoy and possess the Mortgaged Property; that Mortgagor will
warrant and defend the title to the Mortgaged Property against all claims, whether now existing
or hereafter arising. The covenants and warranties of this paragraph shall survive foreclosure of
this Mortgage and shall run with the Land.
AND IT IS FURTHER COVENANTED AND AGREED AS FOLLOWS:
ARTICLE ONE
GENERAL COVENANTS, AGREEMENTS, WARRANTIES
1.1. Payment of Obligations; Observance of Covenants. Mortgagor will duly pay and
perform its Obligations and will perform all other agreements and covenants by Mortgagor to be
performed hereunder.
1.2. Payment of Impositions. Mortgagor agrees to pay, before a penalty might attach
for nonpayment thereof, all taxes, assessments, water and sewer charges, and other fees, taxes
and charges of whatsoever nature levied upon or assessed or placed against the Mortgaged
Property (collectively “Impositions”). Mortgagor will likewise pay all taxes, assessments and
other charges, levied upon or assessed, placed or made against, or measured by, this Mortgage,
or the recordation hereof, or the Obligations, provided that Mortgagor shall not be obliged to pay
such tax, assessment or charge if such payment would be contrary to law or would result in the
payment of an usurious rate of interest on the Obligations. Mortgagor shall promptly furnish to
Mortgagee all notices received by Mortgagor of amounts due under this Section and upon
Mortgagee’s request, shall deliver proper receipts evidencing the payment of such amounts. In
the event of a judicial decree or legislative enactment after the date of this Mortgage, providing
that any such imposition may not be lawfully paid by Mortgagor, or in the event that the payment
of any such imposition by Mortgagor would result in the payment of a usurious rate of interest
on the Obligations, the Obligations, together with interest, shall become immediately due and
payable, or, at Mortgagee’s option, Mortgagee may pay any amount or portion of such
Imposition as renders the Obligations unlawful or usurious, in which event Mortgagor shall
concurrently therewith pay the remaining lawful and non-usurious portion or balance of said
Imposition.
1.3. Payment of Operating Costs; Prior Mortgages and Liens. Mortgagor agrees that it
will pay, or cause to be paid, all operating costs and expenses of the Mortgaged Property; keep
the Mortgaged Property free from mechanics’ and material suppliers’ and other liens, subject to
Mortgagor’s right to contest in good faith as set forth in Section 1.4 hereof; will keep the
Mortgaged Property free from levy, execution or attachment and will immediately pay when due
all indebtedness which may be secured by mortgage, lien or charge on the Mortgaged Property
and upon request will exhibit to Mortgagee satisfactory evidence of such payment and discharge.
4
477384v3 EL185-40
1.4. Contest of Impositions, Liens and Levies. Mortgagor shall not be required to pay,
discharge or remove any Imposition, lien or levy so long as Mortgagor shall in good faith contest
the same or the validity thereof by appropriate legal proceedings which shall operate to prevent
the collection of the levy, lien or Imposition so contested and the sale of the Mortgaged Property,
or any part thereof to satisfy the same; provided, however, that Mortgagor, prior to the date such
levy, lien or Imposition is due and payable or, in the case of a mechanic’s lien or other
involuntary lien within (30) days after the same shall have been filed, shall have given such
reasonable security as may be demanded by Mortgagee to ensure such payments and any
penalties and interest that may accrue thereon and prevent any sale or forfeiture of the
Mortgaged Property by reason of such nonpayment. Any such contest shall be prosecuted with
due diligence and Mortgagor shall promptly after final determination thereof pay the amount of
any such levy, lien or Imposition so determined, together with all interest and penalties, which
may be payable in connection therewith. Notwithstanding the provisions of this Section,
Mortgagor shall, and Mortgagee may (but shall have no obligation to), pay any such levy, lien or
Imposition notwithstanding such contest if in the reasonable opinion of Mortgagee, the
Mortgaged Property is in jeopardy or in danger of being forfeited or foreclosed.
1.5. Maintenance and Repairs; Inventory. Mortgagor agrees that it will keep and
maintain (or cause to be kept and maintained) the Mortgaged Property in good condition and
repair, free from any waste or misuse, and will comply with all requirements of law, municipal
ordinances and regulations, restrictions and covenants affecting the Mortgaged Property and its
use, and will promptly repair or restore any buildings, improvements or structures now or
hereafter on the Mortgaged Property which may become damaged or destroyed. Mortgagor
further agrees that without the prior consent of Mortgagee it will not remove from the Mortgaged
Property any fixtures or any personal property that is included in the Mortgaged Property unless
the same is immediately replaced with like fixtures or personal property of at least equal value,
or is otherwise removable under Section 6.1 hereof; or expand any improvements on the
Mortgaged Property, erect any new improvements or make any material alterations in any
improvements which will materially alter the basic structure, materially and adversely affect the
market value or materially change the existing architectural character of the Mortgaged Property.
Mortgagor agrees that it will complete within a reasonable time any buildings now or at any time
in the process of erection on the Mortgaged Property. Mortgagor agrees not to acquiesce in any
rezoning classification, modification or restriction affecting the Mortgaged Property without
Mortgagee’s prior written consent. Mortgagor agrees that it will not abandon the Mortgaged
Property. Upon request of Mortgagee, Mortgagor shall deliver to Mortgagee an inventory in
detail reasonably acceptable to Mortgagee of any personal property owned by Mortgagor that is
included in the Mortgaged Property pursuant to the terms hereof together with a certification by
Mortgagor that said inventory is a true and complete schedule of the personal property to be
included in the Mortgaged Property pursuant to the terms hereof. Such inventory shall list any
conditional sales contracts and other title retention arrangements to which such personal property
may be subject.
5
477384v3 EL185-40
1.6. Insurance.
(a) So long as the Obligations remain unpaid, Mortgagor shall, at its own cost,
maintain or cause to be maintained with insurers of recognized responsibility acceptable
to Mortgagee the following insurance:
(i) hazard and fire insurance on the improvements now existing or
hereafter constructed on the Land insuring against loss by fire, hazards included
in the term “extended coverage,” loss by vandalism or malicious mischief, and
such other hazards, casualties and contingencies as may be required by
Mortgagee, on the basis of replacement cost without a coinsurance clause, in an
amount equal to the full replacement cost thereof (without deduction for
depreciation) or such additional amounts and for such periods as may be required
by Mortgagee;
(ii) comprehensive general public liability insurance covering the
liability of Mortgagor against claims for bodily injury, death or property damage
occurring on or about the Mortgaged Property in such minimum amounts and
limits as Mortgagee may require but in no event, less than $2,000,000.00
combined single limit per occurrence and naming Mortgagee as an additional
insured;
(iii) insurance covering the Mortgaged Property against loss or damage
by explosion, rupture or bursting of steam boilers, steam pipes, steam turbines,
steam engines or pressure vessels or fly wheels located on or a part of the
Mortgaged Property and providing for full repair and full replacement cost
coverage; and
(iv) such other forms of insurance in such minimum amounts as
Mortgagee may reasonably require or as may be required by law.
Mortgagor shall pay or cause to be paid all premiums on insurance required
hereunder by making payment directly to the insurer. Mortgagee shall have the
right to hold the policies and renewals thereof, and Mortgagor shall promptly
furnish to Mortgagee all such policies, renewals thereof, renewal notices and all
paid-premium receipts received by it. All policies of insurance and any and all
refunds of unearned premiums are hereby assigned to Mortgagee as additional
security for the payment of the Obligations secured hereby. In the event of
foreclosure of this Mortgage, all right, title and interest of Mortgagor in and to
any insurance policies then in force shall pass to the purchaser at the foreclosure
sale.
(b) The policies of all such insurance shall have mortgagee and loss payable
provisions in favor of Mortgagee. All such insurance shall be in form acceptable to
Mortgagee, shall provide for at least thirty (30) days’ prior written notice of cancellation,
termination or modification thereof to Mortgagee, shall permit Mortgagee to make
6
477384v3 EL185-40
premium payments to prevent cancellation, and shall provide that no act or negligence of
Mortgagor or of any occupant of the Mortgaged Property, and no occupancy or use of the
Mortgaged Property for purposes more hazardous than permitted by the terms of the
policy, will affect the validity or enforceability of such insurance as against Mortgagee.
In the event of loss under such insurance Mortgagor shall give prompt notice to the
insurance carrier and Mortgagee; Mortgagor shall duly make proof of loss, and shall
immediately furnish to Mortgagee a copy of such proof of loss.
(c) Subject to the rights of the mortgagee under the First Lien Mortgage and
the Second Lien Mortgage which has priority over this Mortgage, Mortgagee is
authorized and empowered to settle, collect and receive all fire and hazard insurance
proceeds, to apply such proceeds to all expenses (including reasonable attorneys’ fees)
reasonably incurred by Mortgagee in collecting the same and, at Mortgagee’s option and
in its sole discretion, apply the balance of said proceeds (“Net Proceeds”) to payment of
the Obligations or make the Net Proceeds available for the repair and restoration of the
Mortgaged Property; provided, however, Mortgagor may settle claims without
Mortgagee’s consent if the loss is less than $5,000.00 and no Event of Default exists at
the time of settlement. Mortgagor shall apply any such proceeds to the repair and
restoration of the Mortgaged Property. So long as no Event of Default exists, any
settlement of a fire and hazard insurance claim of more than $5,000.00 shall require the
consent of Mortgagor, which consent will not be unreasonably withheld.
(d) If Mortgagee elects to apply the Net Proceeds to repair and restoration of
the Mortgaged Property (i) the Net Proceeds shall be held by Mortgagee and at
Mortgagee’s election may be disbursed either by Mortgagee or a disbursing agent
selected by Mortgagee and paid by Mortgagor, (ii) upon Mortgagee’s request prior to
disbursement of any Net Proceeds or thereafter, from time to time, Mortgagor will
deposit with Mortgagee such amounts in excess of remaining Net Proceeds as Mortgagee
reasonably determines is required to complete the repair and restoration, (iii) the Net
Proceeds and any funds deposited by Mortgagor shall be held and disbursed in
accordance with sound construction loan disbursement practices, including, but not
limited to, approval of the plans and specifications, appraisal, its other conditions for
disbursement of draw requests and inspection of the work, and such other reasonable
conditions as Mortgagee may impose and (iv) any Net Proceeds not so applied to repair
and restoration shall be applied to the payment of the Obligations. If an Event of Default
occurs prior to full disbursement, any undisbursed portion of the Net Proceeds and any
funds deposited by Mortgagor with Mortgagee may at Mortgagee’s option be applied to
the Obligations.
1.7. Inspection. Mortgagee, or its agents, shall have the right to enter upon the
Mortgaged Property during ordinary business hours for the purposes of inspecting the Mortgaged
Property or any part thereof. Mortgagee shall have no duty, however, to make such inspection.
Mortgagee, or its agents, shall also have the right during ordinary business hours to examine the
books and records of Mortgagor pertaining to the Mortgaged Property and to make extracts
therefrom and copies thereof. The parties agree that Mortgagee’s right to inspect the books and
records of Mortgagor, as described in this provision, relates solely to the Mortgaged Property.
7
477384v3 EL185-40
1.8. Protection of Mortgagee’s Security. If Mortgagor fails to perform any of the
covenants and agreements contained in this Mortgage and such failure shall continue beyond any
applicable notice and cure period contained in Article Two hereof or if any action or proceeding
is commenced which does or may adversely affect the Mortgaged Property or the interest of
Mortgagor or Mortgagee therein, or the title of Mortgagor thereto, then Mortgagee, at
Mortgagee’s option, may perform such covenants and agreements, defend against such action or
proceeding, or otherwise act as Mortgagee deems necessary to protect its interest. In the event
that, after damage to or destruction of the Mortgaged Property or condemnation of a portion of
the Mortgaged Property or a sale under threat thereof, the proceeds are used to restore the
Mortgaged Property, and the insurance, sale or condemnation proceeds which are paid to
Mortgagee are not sufficient to pay for such restoration, Mortgagee may nevertheless effect the
restoration. Any amounts disbursed or costs incurred by Mortgagee pursuant to this Section,
including interest and reasonable attorney’s fees, shall become additional Obligations of
Mortgagor secured by this Mortgage. All amounts disbursed or costs incurred by Mortgagee
pursuant to this paragraph shall be payable upon demand, and shall bear interest from the date of
disbursement or incurrence at the rate set forth in the Note unless payment of interest at such rate
would be contrary to law, in which event such amounts shall bear interest at the highest rate
permitted by law. Mortgagee shall, at its option, be subrogated to any encumbrance, lien, claim
or demand, and to all the rights and securities for the payment thereof, paid or discharged with
the principal sum secured hereby or by Mortgagee under the provisions hereof, and any such
subrogation rights shall be additional and cumulative security for this Mortgage. Nothing
contained in this Section shall require Mortgagee to incur any expense or do any act hereunder,
and Mortgagee shall not be liable to Mortgagor for any damages or claims arising out of action
taken by Mortgagee pursuant to this paragraph.
1.9. Hazardous Materials. Mortgagor hereby represents and warrants to Mortgagee
that the Mortgaged Property has not at any time been used for storage, transfer, transportation or
disposal of hazardous substances, hazardous wastes, pollutants, contaminants or similar
substances (collectively “Hazardous Substances”), or for the discharge of the same into the
environment in violation of any law, regulation, or judicial or administrative order or judgment;
and the Mortgaged Property is not contaminated by, and does not contain, any Hazardous
Substances. Mortgagor will not use or permit the use of the Mortgaged Property for such
purposes. Mortgagor will fully indemnify Mortgagee and defend Mortgagee against any claims,
losses, damages, actions, costs and expenses of any kind, including without limitation, court
costs and reasonable attorneys’ fees, in connection with any Hazardous Substances now or
hereafter located on the Mortgaged Property or any other violation of any federal, state or local
environmental statute, ordinance, rule or regulation (“Environmental Laws”). This indemnity
shall not apply to the extent that the willful act or omission of the Mortgagee contributes to the
actual or threatened discharge, dispersal, release, storage, treatment, generation, disposal or
escape of the Hazardous Substances. The indemnity provisions of this Section shall survive the
foreclosure or other termination of this Mortgage.
Without limiting the generality of the foregoing, Mortgagor agrees that upon the discovery
of a release or threatened release of Hazardous Substances on or from the Mortgaged Property, it
will promptly, diligently and without cost to Mortgagee, proceed to remediate all contamination
8
477384v3 EL185-40
in accordance with all applicable laws, ordinances, rules and regulations, and the requirements of
all governmental authorities having jurisdiction, and otherwise to the satisfaction of Mortgagee.
A failure to do so shall constitute a default by Mortgagor under this Mortgage.
1.10. Escrows. Upon the request of Mortgagee after the occurrence of an Event of
Default (whether or not such Event of Default is subsequently cured), Mortgagor shall deposit
with Mortgagee, on the first day of each and every month, commencing with the date the first
payment shall be due on the Note which is after the date of such request, a deposit to pay the
Impositions and insurance premiums (collectively “Charges”) in an amount equal to:
(a) One-twelfth (1/12) of the Impositions next to become due upon the
Mortgaged Property; provided, however, that, in the case of the first such deposit, there
shall be deposited in addition an amount as estimated by Mortgagee which, when added
to monthly deposits to be made thereafter as provided for herein, shall assure that there
will be sufficient funds on deposit to pay the Impositions as they come due; plus
(b) One-twelfth (1/12) of the annual premiums on each policy of insurance
required to be maintained hereunder; provided that with the first such deposit there shall
be deposited, in addition, an amount equal to one-twelfth (1/12) of such annual insurance
premiums multiplied by the number of months elapsed between the date premiums on
each policy are last paid to and including the date of deposit.
The amount of such deposits shall be based upon Mortgagee’s reasonable estimate as to the
amount of Impositions and premiums of insurance next to be payable. Mortgagee will, upon
timely presentation to Mortgagee by Mortgagor of the bills therefor, pay the Charges from such
deposits. In the event the deposits on hand shall not be sufficient to pay all of the Charges when
the same shall become due from time to time, or the prior deposits shall be less than the currently
estimated monthly amounts, then Mortgagor shall pay to Mortgagee on demand any amount
necessary to make up the deficiency. The excess of any such deposits shall be returned to
Mortgagor or credited towards subsequent Charges, at the discretion of Mortgagee. If an Event
of Default shall occur under the terms of this Mortgage, Mortgagee may, at its option, without
being required so to do, apply any deposits on hand to the Obligations, in such order and manner
as Mortgagee may elect. When the Obligations have been fully paid, any remaining deposits
shall be returned to Mortgagor as its interest may appear. All deposits are hereby pledged as
additional security for the Obligations, shall be held for the purposes for which made as herein
provided, may be held by Mortgagee and may be commingled with other funds of Mortgagee,
shall be held without any allowance of interest thereon, and shall not be subject to the decision or
control of Mortgagor. Mortgagee shall not be liable for any act or omission made or taken in
good faith. In making any payments, Mortgagee may rely on any statement, bill or estimate
procured from or issued by the payee without inquiry into the validity or accuracy of the same.
If the taxes shown in the tax statement shall be levied on property more extensive than the
Mortgaged Property, Mortgagee shall be under no duty to seek a tax division or apportionment of
the tax bill, and any payment of taxes based on a larger parcel shall be paid by Mortgagor, and
Mortgagor shall expeditiously cause a tax subdivision to be made.
9
477384v3 EL185-40
1.11. Compliance with Code. Mortgagor covenants that when completed the
Mortgaged Property shall comply with all applicable restrictions, conditions, codes, ordinances,
regulations and laws of the City of Elk River (the “City”) and other governmental bodies having
jurisdiction over the Mortgaged Property, including, without limitation, the Americans with
Disabilities Act and those related to environmental protection. Mortgagor has NOT commenced
construction of the Improvements.
10
477384v3 EL185-40
ARTICLE TWO
EVENTS OF DEFAULT
Each of the following occurrences shall constitute an Event of Default hereunder:
2.1. Failure to pay. Mortgagor’s failure to pay any amount due under the Loan
Agreement or any other amount required to be paid by Mortgagor hereunder when due.
2.2. Other Performance Failure. The Mortgagor’s or Entity Guarantor’s failure to duly
observe or perform any of the other terms, conditions, covenants or agreements required to be
observed or performed by Mortgagor hereunder or by Entity Guarantor in the Entity Guaranty
and the continuation of such failure for a period of thirty (30) days after Mortgagee gives
Mortgagor written notice of such failure.
2.3. Breach of Warranty of Title. Subject to Mortgagor’s right to contest in good faith
as set forth in Section 1.4 hereof, the breach of any warranty of title or any other warranty made
by Mortgagor hereunder.
2.4. Misrepresentation. The making of any material misstatement in any financial
statement or report submitted to Mortgagee by or on behalf of Mortgagor.
2.5. Foreclosure. The institution of a foreclosure or other enforcement proceedings by
the holder of any other lien on the Mortgaged Property (without hereby implying Mortgagee’s
consent to any mortgage or other lien).
2.6. Sale of Property. The sale, assignment, conveyance, mortgage, encumbrance,
lease or transfer of: (i) Mortgagor’s interest in the Mortgaged Property or any part thereof, or any
interest therein; or (ii) any transfer in ownership or control of Mortgagor, without the prior
written consent of Mortgagee, which consent may be granted or withheld by Mortgagee at its
sole discretion.
2.7. Breach of Prior Mortgages, Other Agreements, etc. Any default or breach under
the First Lien Mortgage, the Second Lien Mortgage any other note, mortgage or other obligation
of Mortgagor or Borrower now held or hereafter acquired by Mortgagee or City, or any other
failure to comply with the terms and conditions thereof and the continuance thereof beyond any
applicable notice and/or cure period contained therein.
11
477384v3 EL185-40
ARTICLE THREE
ACCELERATION AND FORECLOSURE; OTHER REMEDIES
Upon any Event of Default, Mortgagee may, at its option, exercise one or more of the
following rights and remedies (and any other rights and remedies available to it):
3.1. Acceleration. Mortgagee may declare immediately due and payable all
unmatured Obligations secured by this Mortgage, and the same shall thereupon be immediately
due and payable, without notice or demand.
3.2. UCC Remedies. Mortgagee shall have and may exercise with respect to all
fixtures and any personal property included in 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.
3.3. Foreclosure; Action or Advertisement. Mortgagee 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 to the full extent
of Mortgagor’s interest and, out of the proceeds arising from such sale, to pay all Obligations
secured hereby with interest, and all legal costs and charges of such foreclosure and the
maximum attorneys’ fees permitted by law, which costs, charges and fees Mortgagor agrees to
pay. Any real estate or interest or estate sold hereunder may be sold in one parcel, as an entirety,
or in such parcels and in such manner or order as Mortgagee, in its sole discretion, may elect. In
case of any sale of the Mortgaged Property pursuant to any judgment or decree of any court or at
public auction or otherwise in connection with the enforcement of any of the terms of this
Mortgage, Mortgagee, its successors and assigns, may become the purchaser, and for the purpose
of making settlement for or payment of the purchase price, shall be entitled to deliver over and
use any sum then due under the Entity Guaranty and any claims for interest accrued and unpaid
thereon, together with all other sums, with interest, advanced and unpaid hereunder, and all
statutory charges for such foreclosure including maximum attorney’s fees allowed by law in
order that there may be credited as paid on the purchase price the sum then due under the Note
and all other sums, with interest, advanced and unpaid hereunder, and all charges and expenses
of such foreclosure including maximum attorneys’ fees allowed by law.
3.4. Receiver. Mortgagee shall be entitled as a matter of right without notice and
without giving bond and without regard to the solvency or insolvency of Mortgagor, or waste of
the Mortgaged Property or adequacy of the security of the Mortgaged Property, to apply for the
appointment of a receiver, in accordance with the statutes and law made and provided. The
receiver shall collect the rents, and all other income of any kind; manage the Mortgaged Property
so to prevent waste; execute leases within or beyond the period of receivership, pay all expenses
for normal maintenance of the Mortgaged Property and perform the terms of this Mortgage and
apply the rents, issues and profits as permitted by Minnesota Statutes, Section 576.25 in the
following order to (i) payment of the reasonable fees of said receiver, (ii) application of tenant
security deposits as required by Minnesota Statutes Section 504B.178, (iii) payment when due of
12
477384v3 EL185-40
prior or current real estate taxes or special assessments with respect to the Mortgaged Property
or, if this Mortgage so requires, to the periodic escrow for the payment thereof, (iv) the payment
when due of premiums for insurance of the type required by this Mortgage or, if this Mortgage
so requires, to the periodic escrow for the payment thereof; and (v) as further provided in any
Assignment of Rents executed by Mortgagor as further security for the Obligations (whether
included in this Mortgage or separate instrument), including but not limited to applying the same
to the costs and expenses of the receivership, including reasonable attorneys’ fees, to the
repayment of the Obligations and to the operation, maintenance, upkeep and repair of the
Mortgaged Property, including payment of taxes and payments of premiums of insurance.
Mortgagor does hereby irrevocably consent to such appointment.
3.5. Specific Performance. Mortgagee may bring suit for specific performance of any
covenant or warranty hereunder.
3.6. Forbearance and Other Rights of Mortgagee. Any delay by Mortgagee in
exercising any right or remedy hereunder, or otherwise afforded by law or equity, shall not be a
waiver of or preclude the exercise of such right or remedy or any other right or remedy
hereunder or at law or in equity. The failure of Mortgagee to exercise any option to accelerate
maturity of the Obligations secured by the Mortgage, the forbearance by Mortgagee before or
after the exercise of such option, or the withdrawal or abandonment of proceedings provided for
by this Mortgage shall not be a waiver of the right to exercise such option or to accelerate the
maturity of such Obligations by reason of any past, present or future event which would permit
acceleration. The procurement of insurance or the payment of taxes or other liens or charges by
Mortgagee shall not be a waiver of Mortgagee’s right to accelerate the maturity of the
Obligations. Mortgagee’s receipt of any awards, proceeds or damages shall not operate to cure
or waive default by Mortgagor. Mortgagee may at any time, without notice, release any person
liable for payment of any Obligations, extend the time or agree to alter the terms of payment of
any of the Obligations, accept additional security of any kind, release any plat or map of the
Mortgaged Property or the creation of any easement thereon or any covenants restricting use or
occupancy thereof, or agree to alter or amend the terms of this Mortgage in any way. No such
release, modification, addition or change shall affect the liability of any person other than the
person so released, for payment of any Obligations, nor affect the priority and lien status of this
Mortgage upon any property not so released.
13
477384v3 EL185-40
ARTICLE FOUR
ASSIGNMENT OF RENTS
4.1. Assignment. As security in addition to the lien of this Mortgage upon the
Property, Mortgagor hereby grants, transfers and assigns to Mortgagee all of the right, title and
interest of Mortgagor in and to all Leases and all rents, income, profits, revenues, royalties,
bonuses, rights, accounts, contract rights, general intangibles and benefits (all of which are
sometimes hereinafter referred to as “Rents”), now or hereafter accruing or owing by reason of a
Lease of any or all of the Property.
4.2. Covenants of Performance. To protect the security of this Assignment,
Mortgagor warrants, covenants and agrees:
(a) to faithfully abide by, perform and discharge each and every obligation,
covenant and agreement under any Leases to be performed by Mortgagor thereunder; to
give prompt written notice to Mortgagee of any notice of default on the part of Mortgagor
with respect to any Lease received from a tenant thereunder; to enforce or secure short of
termination of any Lease the performance of each and every obligation, covenant,
condition and agreement of the Leases by the tenants thereunder to be performed; not to
borrow against, pledge or assign any of the Rents, or anticipate the Rents; not to waive,
excuse, condone or in any manner release or discharge any tenant thereunder of or from
the obligations, covenants, conditions and agreements to be performed under the Lease or
to permit the tenant to assign its interest in the Lease unless required to do so by the terms
of the Lease; not to terminate the Leases or accept a surrender thereof or a discharge of
the tenant unless required to do so by the terms of the Lease; not to consent to a
subordination of the interest of the tenant thereunder to any party other than Mortgagee
and then only if specifically required to do so by Mortgagee;
(b) at Mortgagor’s sole cost and expense, to appear in and defend any action
or proceeding arising under, growing out of or in any manner connected with the Leases
or the obligations, duties or liabilities of Mortgagor and tenants thereunder, and to pay all
costs and expenses of Mortgagee, including attorneys’ fees in a reasonable sum, in any
such action or proceeding in which Mortgagee may appear or with respect to which it
may incur costs;
(c) that Mortgagor has the full right and title to assign the Rents; that at the
date of this Mortgage there exist no Leases which now or in the future affect the
Mortgaged Property which have not been disclosed to Mortgagee in writing; and that
there is no outstanding assignment or pledge of the Leases or Rents; and
(d) to furnish to Mortgagee, at Mortgagee’s written request, a complete list of
all Leases and security deposits made thereunder as to any part of the Mortgaged
Property, showing the type of lease, the name of the tenant, the monthly rental, the date to
which paid, the term of the Lease, the date of occupancy, and the date of expiration and
any and every special premium, concession or inducement granted to the tenant.
14
477384v3 EL185-40
4.3. Assignment Absolute. This Assignment is absolute and is effective immediately.
Notwithstanding the foregoing, until an Event of Default, as defined in ARTICLE TWO above,
has occurred, Mortgagor may receive, collect and enjoy the Rents. Upon or at any time after an
Event of Default has occurred, Mortgagee may at its option, without notice:
(a) in the name, place and stead of Mortgagor (i) enter upon, manage and
operate the Mortgaged Property, or retain the services of an independent contractor to
manage and operate the same, (ii) make, enforce, modify and accept surrender of the
Leases, (iii) obtain or evict tenants, demand, collect, sue for, receive and give
acquittances for, fix or modify Rents and enforce all rights of Mortgagor under the
Leases, and (iv) perform any and all other acts that may be necessary or proper to protect
the security of this Assignment; provided always, however, that until the end of any
redemption period available to Mortgagor after any foreclosure of this Mortgage
Mortgagee shall continue to deal with the Leases on the Property in a reasonable
businesslike manner, recognizing and protecting Mortgagor’s continuing rights during
such period to retake possession and control of the Mortgaged Property upon paying the
appropriate redemption price, and to resume the management of such Leases;
(b) give or require Mortgagor to give notice to any and all tenants under the
Leases authorizing and directing the tenants to pay all Rents due under the Leases
directly to Mortgagee; and
(c) apply for, and Mortgagor hereby consents to, the appointment of a
receiver of the Mortgaged Property.
4.4. Application of Rents.
(a) All Rents collected by Mortgagee, or by a receiver, shall be held and
applied by Mortgagee in its reasonable discretion, in accordance with applicable law,
including, without limitation to: (i) payment of all reasonable fees of the receiver, if any,
approved by the court; (ii) the repayment when due of all tenant security deposits
pursuant to the provisions of Minnesota Statutes Section 504B.178; (iii) payment of all
delinquent or current real estate taxes and special assessments payable with respect to the
Property or, if this Mortgage so requires, to the periodic escrow for the payment thereof;
(iv) payment of all premiums then due for the insurance required by the provisions of this
Mortgage or, if this Mortgage so requires, to the periodic escrow for the payment thereof;
(v) payment of expenses incurred for normal maintenance of the Mortgaged Property.
(b) Any amounts remaining after such application shall be applied as follows:
(i) if received prior to any foreclosure sale of the Mortgaged Property
to Mortgagee for payment of the indebtedness secured by this Mortgage, but no
such payment made after acceleration of the indebtedness shall affect such
acceleration; and
15
477384v3 EL185-40
(ii) if received during or with respect to a period after a foreclosure
sale of the Mortgaged Property:
(1) if the purchaser at the foreclosure sale is not Mortgagee,
first to Mortgagee to the extent of any deficiency of the sale proceeds to
repay the indebtedness secured by this Mortgage, second to the purchaser
as a credit to the redemption price, but if the Mortgaged Property is not
redeemed, then to the purchaser of the Mortgaged Property;
(2) if the purchaser at the foreclosure sale is Mortgagee, first to
Mortgagee to the extent of any deficiency of the sale proceeds to repay the
indebtedness secured by this Mortgage and the balance to be retained by
Mortgagee as a credit to the redemption price, but if the Mortgaged
Property is not redeemed, then to Mortgagee, whether or not such
deficiency exists.
4.5. Continuing Effect. The rights and powers of Mortgagee under this Assignment
and the application of the Rents shall continue and remain in full force and effect both before and
after commencement of any action or procedure to foreclose this Mortgage, after any foreclosure
sale of Mortgagor’s interest in the Property in connection with the foreclosure of this Mortgage,
and until expiration of the period of redemption from any such foreclosure sale, whether or not
any deficiency from the unpaid balance of the Obligations exists after such foreclosure sale.
4.6. Mortgagee Not Obligated. Mortgagee shall not be obligated by this Assignment
for the control, care, management or repair of the Mortgaged Property, nor for the carrying out of
any of the terms and conditions of the Leases; nor shall this Assignment operate to make
Mortgagee responsible or liable for any waste committed on the Mortgaged Property by the
tenants or any other party, or for any dangerous or defective condition of the Mortgaged
Property, or for any violation of Environmental Laws or for any negligence in the management,
upkeep, repair or control of the Mortgaged Property resulting in any loss or any injury or death to
any person.
4.7. Hold Harmless. Mortgagor shall and does agree to indemnify and to hold
Mortgagee harmless of and from any and all liability, loss or damage which it may or might
incur under or by reason of this Assignment, and of and from any and all claims and demands
whatsoever which may be asserted against it by reason of any alleged obligations or undertakings
on its part to perform or discharge any of the terms, covenants or agreements contained in the
Leases; provided, however, that such indemnification shall not apply if the same arises out of
Leases intentionally breached by Mortgagee which were made by Mortgagor in the ordinary
course of managing the Mortgaged Property and prior to the time Mortgagee obtained the right
to possess and manage the Mortgaged Property, or if the same arises out of the negligent or
willful act of Mortgagee in operating and using the Mortgaged Property. Should Mortgagee
incur any such liability, loss or damage under any Lease or by reason of this Assignment, or in
the defense of any such claims or demands, the amount thereof, including costs, expenses, and
reasonable attorneys’ fees, shall be secured hereby and Mortgagor shall reimburse Mortgagee
therefor immediately upon demand. Mortgagee shall give Mortgagor notice of any such claim
16
477384v3 EL185-40
and Assignor shall have the opportunity to defend Mortgagee in connection therewith with
counsel reasonably acceptable to Mortgagee; provided Mortgagee’s failure to give such notice
and opportunity to defend shall not affect Mortgagor’s obligations under this Section except to
the extent Mortgagor is actually prejudiced by such failure.
4.8. Authorization to Tenants. The tenants under any of the Leases are hereby
irrevocably authorized and directed to recognize the claims of Mortgagee or its assigns
hereunder without investigating the reason for any action taken by Mortgagee, or the validity or
the amount of indebtedness owing to Mortgagee, or the existence of any such event of default, or
the application of the Rents to be made by Mortgagee. Mortgagor hereby irrevocably directs and
authorizes each tenant to pay to Mortgagee all sums due under its Lease and consents and directs
that said sums shall be paid to Mortgagee without the necessity for a judicial determination that
any such event of default has occurred or that Mortgagee is entitled to exercise its rights
hereunder, and to the extent such sums are paid to Mortgagee, Mortgagor agrees that the tenants
shall have no further liability to Mortgagor for the same. The sole signature of Mortgagee shall
be sufficient for the exercise of any rights under this Assignment and the sole receipt of
Mortgagee for any sums received shall be a full discharge and release therefor to the tenants or
occupants of the Mortgaged Property.
4.9. Mortgagee Attorney-in-Fact. Mortgagor hereby irrevocably appoints Mortgagee
as its agent and attorney in fact, which appointment is coupled with an interest, to exercise any
rights or remedies hereunder and to execute and deliver during the term of this Assignment such
instruments as Mortgagee may deem necessary to make this Assignment and any further
assignment effective.
4.10. Mortgagee Not in Possession. Nothing herein contained and no actions taken
pursuant to this Assignment shall be construed as constituting Mortgagee a “Mortgagee in
Possession.”
17
477384v3 EL185-40
ARTICLE FIVE
CONDEMNATION
5.1. Notice. Mortgagor will give Mortgagee prompt notice of any action, actual or
threatened, in condemnation or eminent domain, direct or inverse.
5.2. Awards. Subject to any obligations under the First Lien Mortgage and the Second
Lien Mortgage, which have priority over this Mortgage, Mortgagor hereby assigns, transfers, and
sets over to Mortgagee the entire proceeds of any award or payment which becomes payable by
reason of any taking of or damage to the Mortgaged Property, or any part or appurtenance
thereof, either temporarily or permanently, in or by condemnation or other eminent domain
proceedings or by reason of sale under threat thereof, or in anticipation of the exercise of the
right of condemnation or other eminent domain proceedings. Mortgagor will file or prosecute in
good faith and with due diligence what would otherwise be its claim in any such award or
payment and cause the same to be collected and paid over to Mortgagee, and Mortgagor
irrevocably authorizes and empowers Mortgagee, which power is coupled with an interest and is
irrevocable, in the name of Mortgagor or otherwise, in the event that Mortgagor fails to do so, to
file and prosecute any such claim and to collect, receipt for and retain the same. The proceeds of
the award or payment, after deducting all reasonable costs, attorneys’ fees and other expenses
which may have been incurred by Mortgagee in collection thereof, at the sole discretion of
Mortgagee, may be released to Mortgagor, applied to restoration of the Mortgaged Property or
applied to the payment of any part of the Obligations, in such order of application as Mortgagee
may determine. If proceeds are made available to be applied to restoration, they shall be held
and disbursed in accordance with Paragraph 1.6(d) hereof.
ARTICLE SIX
UNIFORM COMMERCIAL CODE
6.1. Security Interest. This Mortgage shall constitute a security agreement as defined
in the Uniform Commercial Code with respect to, and Mortgagor hereby grants Mortgagee a
security interest in, all of fixtures and any personal property included in the Mortgaged Property
and substitutions therefor and proceeds thereof. Mortgagor hereby authorizes Mortgagee to file
one or more financing statements, covering such fixtures and personal property (in a form
satisfactory to Mortgagee) which Mortgagee may reasonably consider necessary or appropriate
to perfect its security interest. Mortgagor also authorizes Mortgagee to file amendments to
financing statements, and terminations of financing statements filed by other secured parties, all
with respect to all fixtures and personal property included in the Mortgaged Property, in such
form and substance as Mortgagee, in its reasonable discretion, may determine. Mortgagor will
pay to Mortgagee, on demand, the amount of any and all costs and expenses (including
reasonable attorneys’ fees and legal expenses) paid or incurred by Mortgagee in connection with
the exercise of any right or remedy referred to in this Section. In any instance where Mortgagor
in its sound discretion determines that any item subject to a security interest under this Mortgage
has become: (i) inadequate, obsolete, worn out, or (ii) unsuitable, undesirable or unnecessary for
18
477384v3 EL185-40
the operation of the Mortgaged Property, Mortgagor may, at its expense, remove and dispose of
it and substitute and install other items not necessarily having the same function, provided, that
such removal and substitution shall not impair the operating utility and unity of the Mortgaged
Property. With respect to items which are a part of the Mortgaged Property, all items substituted
for such items shall become a part of the Mortgaged Property and subject to the lien of this
Mortgage. Any amounts received or allowed Mortgagor upon the sale or other disposition of the
removed items of property shall be applied against the cost of acquisition and installation of the
substituted items. Nothing herein contained shall be construed to prevent any tenant or subtenant
from removing from the Mortgaged Property trade fixtures, furniture and equipment installed by
it and removable by tenant under its terms of any one or more of the Leases, on the condition,
however, that Mortgagor shall assure the repair of any and all damages to the Mortgaged
Property resulting from or caused by the removal thereof. Mortgagee acknowledges that no
items of personal property are included in the Mortgaged Property.
6.2. Fixture Filing. From the date of its recording, this Mortgage shall be effective as
a financing statement 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 Mortgagor:
F & M Improvements, LLC
18489 Twin Lakes Road
Elk River, MN 55330
Attention: Fred Trapp
(b) Name and address of Secured Party:
Housing and Redevelopment Authority in and for the City of Elk River
13065 Orono Parkway
Elk River, MN 55330
Attention: Executive Director
(c) This document covers goods which are or are to become fixtures.
(d) The real estate to which such fixtures are or are to be attached is that
described in Exhibit A attached hereto.
19
477384v3 EL185-40
ARTICLE SEVEN
MISCELLANEOUS
7.1. Mortgagee’s Remedies Cumulative. All remedies of Mortgagee are distinct and
cumulative to any other right or remedy under this Mortgage or afforded by law or equity, and
may be exercised concurrently or independently, as often as the occasion therefore arises.
7.2. Successors and Assigns Bound; Captions. The covenants and agreements herein
contained shall bind, and the rights hereunder shall inure to, the respective heirs, legal
representatives, successors and assigns of Mortgagee and Mortgagor. The captions and headings
of the Sections of this Mortgage are for convenience only and are not to be used to interpret or
define the provisions hereof.
7.3. Notices. Any notice from Mortgagee to Mortgagor under this Mortgage shall be
deemed to have been given by Mortgagee and received by Mortgagor, when delivered personally
to an officer of Mortgagor or three (3) days after the date it is mailed by certified mail addressed
as follows:
F & M Improvements, LLC
18489 Twin Lakes Road
Elk River, MN 55330
Attention: Fred Trapp
7.4. Governing Law; Severability. This Mortgage shall be governed by the laws of the
State of Minnesota. In the event that any provision or clause of this Mortgage conflicts with
applicable law, such conflict shall not affect other provisions of this Mortgage which can be
given effect without conflicting provisions and to this end the provisions of this Mortgage are
declared to be severable.
7.5. Counterparts. This Mortgage may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute one instrument.
7.6. Waiver of Appraisement, Homestead, Marshaling. Mortgagor hereby waives the
benefit of any homestead, appraisement, evaluation, stay and extension laws now or hereinafter
in force. Mortgagor hereby waives any rights available with respect to marshaling of assets so as
to require the separate sales of any portion of the Mortgaged Property or to require Mortgagee to
exhaust its remedies against a specific portion of the Mortgaged Property before proceeding
against the other.
7.7. Subsequent Agreements. Any agreement hereafter made by Mortgagor and
Mortgagee pursuant to this Mortgage shall be superior to the rights of the holder of any
intervening lien or encumbrance.
[Signature Page follows]
S-1
477384v3 EL185-40
Signature Page to Mortgage
IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be duly executed as of
the day and year first written.
F & M IMPROVEMENTS, LLC,
a Minnesota limited liability company
By:
Fred Trapp
Its: President
By:
Michael Tracey
Its: Vice President
STATE OF MINNESOTA )
) ss.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me on ______________, 2016, by
Fred Trap and Michael Tracey, President and Vice President, respectively, of F & M
Improvements, LLC, a Minnesota limited liability company, on behalf of the limited liability
company.
Notary Public
My Commission Expires:
This Instrument was drafted by:
Kennedy & Graven, Chartered (JSB)
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, Minnesota 55402
Telephone: (612) 337-9300
A-1
477384v3 EL185-40
EXHIBIT A Legal Description
B-2
477384v3 EL185-40
EXHIBIT B
Permitted Encumbrances
(1) Access Easement
(2) Lease
1
477380v2 EL185-40
ENTITY GUARANTY
(Blighted Properties Forgivable Commercial/Industrial Loan)
Elk River, Minnesota
___________, 2016
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, and in consideration of and to induce financial accommodations of any kind, with
or without security, given or to be given or continued at any time and from time to time by the
HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF ELK
RIVER (the “Lender”) to or for the account of F & M PROPERTIES, LLC (the “Borrower”),
DIE CONCEPTS, INC. (the “Entity Guarantor”) absolutely and unconditionally guarantees to
the Lender the full and prompt payment when due, whether at maturity or earlier by reason of
acceleration, forgiveness, or otherwise, of any and all indebtedness, obligations and liabilities of
the Borrower (and any and all successors of the Borrower) to the Lender, now or hereafter
existing, absolute or contingent, independent, joint, several or joint and several, secured or
unsecured, due or to become due, contractual or tortious, liquidated or unliquidated, arising by
assignment or otherwise, including without limitation all indebtedness, obligations and liabilities
owed by the Borrower (and any and all successors of the Borrower) as a member of any
partnership, syndicate, association or other group, and whether incurred by the Borrower (or any
successor of the Borrower) as principal, surety, endorser, guarantor, accommodation party or
otherwise (collectively, the “Indebtedness”); and the Entity Guarantor agrees to pay on demand
all of the Lender’s fees, costs, expenses and reasonable attorneys’ fees in connection with the
Indebtedness, any security therefor, and this guaranty, plus interest on such amounts at the
highest rate then applicable to any of the Indebtedness.
The Lender may at any time and from time to time, without consent of or notice to the
Entity Guarantor, without incurring responsibility to the Entity Guarantor, without releasing,
impairing or affecting the liability of the Entity Guarantor hereunder, upon or without any terms
or conditions, and in whole or in part: (1) sell, pledge, surrender, compromise, settle, release,
renew, subordinate, extend, alter, substitute, exchange, change, modify or otherwise dispose of
or deal with in any manner and in any order any Indebtedness, any evidence thereof, or any
security or other guaranty therefor; (2) accept any security for, or other guarantors of, any
Indebtedness; (3) fail, neglect or omit to obtain, realize upon or protect any Indebtedness or any
security therefor, to exercise any lien upon or right to any money, credit or property toward the
liquidation of the Indebtedness, or to exercise any other right against the Borrower, the Entity
Guarantor, any other guarantor or any other person; and (4) apply any payments and credits to
the Indebtedness in any manner and in any order. No act, omission or thing, except full payment
and discharge of the Indebtedness, which but for this provision could act as a release or
impairment of the liability of the Entity Guarantor hereunder, shall in any way release, impair or
otherwise affect the liability of the Entity Guarantor hereunder, and the Entity Guarantor waives
any and all defenses of the Borrower pertaining to the Indebtedness, any evidence thereof, and
any security therefor, except the defense of discharge by payment. The failure of any person or
persons to sign this or any other guaranty shall not release, impair or affect the liability of the
Entity Guarantor hereunder. This guaranty is a primary obligation of the Entity Guarantor and
2
477380v2 EL185-40
the Lender shall not be required to first resort for payment of the Indebtedness to the Borrower or
any other person, their properties or estates, or any security or other rights or remedies
whatsoever. The Entity Guarantor shall be and remain liable for any deficiency remaining after
foreclosure of any mortgage or security interest securing the Indebtedness, whether or not the
liability of the Borrower or any other person for such deficiency is discharged pursuant to statute,
judicial decision or otherwise.
The liability of the Entity Guarantor under this guaranty is in addition to and shall be
cumulative with all other liabilities of the Entity Guarantor to the Lender, as guarantor or
otherwise, without any limitation as to amount, unless the writing evidencing or creating such
other liability specifically provides to the contrary. If any payment applied by the Lender to the
Indebtedness is thereafter set aside, recovered, rescinded or required to be returned for any
reason (including without limitation the bankruptcy, insolvency or reorganization of the
Borrower or any other person), the Indebtedness to which such payment was applied shall for the
purposes of this guaranty be deemed to have continued in existence, notwithstanding such
application, and this guaranty shall be enforceable as to such Indebtedness as fully as if such
application had never been made.
The Entity Guarantor waives: (1) notice of acceptance of this guaranty and of the creation
and existence of the Indebtedness; (2) presentment, demand for payment, notice of dishonor,
notice of nonpayment, and protest of any instrument evidencing the Indebtedness; and (3) all
other demands and notices to the Entity Guarantor or any other person and all other actions to
establish the liability of the Entity Guarantor hereunder. The Entity Guarantor consents to the
personal jurisdiction of the state and federal courts located in the State of Minnesota in
connection with any controversy related to this guaranty, waives any argument that venue in
such forums is not convenient, and agrees that any litigation initiated by the Entity Guarantor
against the Lender in connection with this guaranty shall be venued in either the District Court of
Sherburne County, Minnesota, or the United States District Court, District of Minnesota.
All property of the Entity Guarantor, now or hereafter in the possession, control or
custody of or in transit to the Lender for any purpose, including without limitation the balance of
every account of the Entity Guarantor with and each claim of the Entity Guarantor against the
Lender, shall be subject to a lien and security interest in favor of the Lender, as security for all
liabilities of the Entity Guarantor to the Lender, and shall be subject to be set off against any and
all such liabilities, and the Lender may at any time and from time to time at its option and
without notice appropriate and apply any such property toward the payment of any and all such
liabilities. The Entity Guarantor agrees to promptly provide the Lender from time to time with
financial statements of the Entity Guarantor, in form and substance acceptable to the Lender, at
least once every 12 months and as otherwise requested by the Lender. The Entity Guarantor
agrees to promptly provide the Lender from time to time with such other information respecting
the condition (financial and otherwise), business and property of the Entity Guarantor as the
Lender may request, in form and substance acceptable to the Lender.
The Entity Guarantor waives all claims, rights and remedies which the Entity Guarantor
may now have or hereafter acquire against any person at any time now or hereafter liable to
payment of any of the Indebtedness and as to any collateral security, including but not limited to
3
477380v2 EL185-40
all claims, rights and remedies of contribution, indemnification, exoneration, reimbursement,
recourse and subrogation, whether or not such claim, right or remedy arises in equity, under
contract, by statute, under common law or otherwise, whether or not the Indebtedness has been
fully paid, and all payments and recoveries under this guaranty shall be considered equity
investments by the Entity Guarantor in the Borrower; provided, nothing contained in this
guaranty shall deprive the Entity Guarantor of any claim, right or remedy, after the Indebtedness
has been fully paid, against any person other than the Borrower. No delay or failure by the
Lender in exercising any right, and no partial or single exercise thereof shall constitute a waiver
thereof. No waiver of any rights hereunder, and no modification or amendment of this guaranty
shall be effective unless the same is in writing duly executed by the Lender, and each such
waiver, if any, shall apply only with respect to the specific instance involved and shall not impair
or affect the rights of the Lender or the provisions of this guaranty in any other respect at any
other time. This guaranty shall continue until written notice of revocation of this guaranty,
executed by the Entity Guarantor, has been received by the Lender; provided, no revocation of
this guaranty shall affect in any manner any liability of the Entity Guarantor under this guaranty
with respect to Indebtedness arising before the Lender receives such written notice of revocation,
and the sole effect of revocation of this guaranty shall be to exclude from this guaranty
Indebtedness thereafter arising which is unconnected with Indebtedness theretofore arising or
transactions theretofore entered into.
Any invalidity or unenforceability of any provision or application of this guaranty shall
not affect other lawful provisions and applications hereof and to this end the provisions of this
guaranty are declared to be severable. This guaranty shall bind the Entity Guarantor and the
representatives, successors and assigns of the Entity Guarantor, and of each of them respectively,
and shall benefit the Lender, its successors and assigns. This guaranty shall be governed by and
construed in accordance with the laws of the State of Minnesota.
The Entity Guarantor acknowledges and agrees that in accordance with Section 24 of that
certain Loan Agreement between the Borrower and the Lender (the “Loan Agreement”) the
Entity Guarantor shall relocate or create 12 full-time equivalent jobs in Elk River, Minnesota
(the “City”), at the Loan Property at an hourly wage equal to the greater of $15.00 per hour or
150% of the state or federal minimum wage, whichever is greater (the “Jobs”), by the two (2)
year anniversary of the date of closing on the Loan (the “Benefit Date”), will continue operations
in the City and maintain the Jobs for at least 5 years after the Benefit Date, and will comply with
all other applicable terms of Section 24 of the Loan Agreement.
The Entity Guarantor is or will be the occupant of the property located at 18489 Twin
Lakes Road, Elk River, Minnesota 55330 (the “Property”). Borrower is acquiring the Property
and will be leasing it to the Entity Guarantor pursuant to a certain lease agreement (the “Lease”).
Borrower and the Entity Guarantor are under common ownership. The Entity Guarantor
acknowledges and agrees that the Indebtedness is being utilized by Borrower to acquire the
Property and to renovate an existing structure at the Property, and such acquisition and
renovation will support the Entity Guarantor’s ability to fulfill its obligations under the Lease
and, therefore, the Entity Guarantor’s obligations under this Guaranty are proper, valid and
enforceable. This Guaranty has been approved by unanimous consent of the board of governors
of the Entity Guarantor.
4
477380v2 EL185-40
THE ENTITY GUARANTOR REPRESENTS, CERTIFIES, WARRANTS AND AGREES
THAT THE ENTITY GUARANTOR HAS READ ALL OF THIS GUARANTY AND
UNDERSTANDS ALL OF THE PROVISIONS OF THIS GUARANTY. THE ENTITY
GUARANTOR ALSO AGREES THAT COMPLIANCE BY THE LENDER WITH THE
EXPRESS PROVISIONS OF THIS GUARANTY SHALL CONSTITUTE GOOD FAITH AND
SHALL BE CONSIDERED REASONABLE FOR ALL PURPOSES.
DIE CONCEPTS, INC.,
a Minnesota corporation
By:
Fred Trapp, President
By:
Michael Tracey, Vice President
1
477375v1 EL185-40
PERSONAL GUARANTY
(Blighted Properties Forgivable Commercial/Industrial Loan — Michael Tracey)
Elk River, Minnesota
April ___, 2016
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, and in consideration of and to induce financial accommodations of any kind, with
or without security, given or to be given or continued at any time and from time to time by the
HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF ELK
RIVER (the “Lender”) to or for the account of F & M PROPERITES, LLC (the “Borrower”), the
undersigned absolutely and unconditionally guaranty to the Lender the full and prompt payment
when due, whether at maturity or earlier by reason of acceleration or otherwise, of any and all
indebtedness, obligations and liabilities of the Borrower (and any and all successors of the
Borrower) to the Lender, now or hereafter existing, absolute or contingent, independent, joint,
several or joint and several, secured or unsecured, due or to become due, contractual or tortious,
liquidated or unliquidated, arising by assignment or otherwise, including without limitation all
indebtedness, obligations and liabilities owed by the Borrower (and any and all successors of the
Borrower) as a member of any partnership, syndicate, association or other group, and whether
incurred by the Borrower (or any successor of the Borrower) as principal, surety, endorser,
guarantor, accommodation party or otherwise (collectively, the “Indebtedness”); and the
undersigned agrees to pay on demand all of the Lender’s fees, costs, expenses and reasonable
attorneys’ fees in connection with the Indebtedness, any security therefor, and this guaranty, plus
interest on such amounts at the highest rate then applicable to any of the Indebtedness.
The Lender may at any time and from time to time, without consent of or notice to the
undersigned, without incurring responsibility to the undersigned, without releasing, impairing or
affecting the liability of the undersigned hereunder, upon or without any terms or conditions, and
in whole or in part: (1) sell, pledge, surrender, compromise, settle, release, renew, subordinate,
extend, alter, substitute, exchange, change, modify or otherwise dispose of or deal with in any
manner and in any order any Indebtedness, any evidence thereof, or any security or other
guaranty therefor; (2) accept any security for, or other guarantors of, any Indebtedness; (3) fail,
neglect or omit to obtain, realize upon or protect any Indebtedness or any security therefor, to
exercise any lien upon or right to any money, credit or property toward the liquidation of the
Indebtedness, or to exercise any other right against the Borrower, the undersigned, any other
guarantor or any other person; and (4) apply any payments and credits to the Indebtedness in any
manner and in any order. No act, omission or thing, except full payment and discharge of the
Indebtedness, which but for this provision could act as a release or impairment of the liability of
the undersigned hereunder, shall in any way release, impair or otherwise affect the liability of the
undersigned hereunder, and the undersigned waives any and all defenses of the Borrower
pertaining to the Indebtedness, any evidence thereof, and any security therefor, except the
defense of discharge by payment. The failure of any person or persons to sign this or any other
guaranty shall not release, impair or affect the liability of the undersigned hereunder. This
guaranty is a primary obligation of the undersigned and the Lender shall not be required to first
2
477375v1 EL185-40
resort for payment of the Indebtedness to the Borrower or any other person, their properties or
estates, or any security or other rights or remedies whatsoever. The undersigned shall be and
remain liable for any deficiency remaining after foreclosure of any mortgage or security interest
securing the Indebtedness, whether or not the liability of the Borrower or any other person for
such deficiency is discharged pursuant to statute, judicial decision or otherwise.
The liability of the undersigned under this guaranty is in addition to and shall be
cumulative with all other liabilities of the undersigned to the Lender, as guarantor or otherwise,
without any limitation as to amount, unless the writing evidencing or creating such other liability
specifically provides to the contrary. If any payment applied by the Lender to the Indebtedness is
thereafter set aside, recovered, rescinded or required to be returned for any reason (including
without limitation the bankruptcy, insolvency or reorganization of the Borrower or any other
person), the Indebtedness to which such payment was applied shall for the purposes of this
guaranty be deemed to have continued in existence, notwithstanding such application, and this
guaranty shall be enforceable as to such Indebtedness as fully as if such application had never
been made.
The undersigned waives: (1) notice of acceptance of this guaranty and of the creation and
existence of the Indebtedness; (2) presentment, demand for payment, notice of dishonor, notice
of nonpayment, and protest of any instrument evidencing the Indebtedness; and (3) all other
demands and notices to the undersigned or any other person and all other actions to establish the
liability of the undersigned hereunder. The undersigned consents to the personal jurisdiction of
the state and federal courts located in the State of Minnesota in connection with any controversy
related to this guaranty, waives any argument that venue in such forums is not convenient, and
agrees that any litigation initiated by the undersigned against the Lender in connection with this
guaranty shall be venued in either the District Court of Sherburne County, Minnesota, or the
United States District Court, District of Minnesota.
All property of the undersigned, now or hereafter in the possession, control or custody of
or in transit to the Lender for any purpose, including without limitation the balance of every
account of the undersigned with and each claim of the undersigned against the Lender, shall be
subject to a lien and security interest in favor of the Lender, as security for all liabilities of the
undersigned to the Lender, and shall be subject to be set off against any and all such liabilities,
and the Lender may at any time and from time to time at its option and without notice
appropriate and apply any such property toward the payment of any and all such liabilities. The
undersigned agrees to promptly provide the Lender from time to time with financial statements
of the undersigned, in form and substance acceptable to the Lender, at least once every 12
months and as otherwise requested by the Lender. The undersigned agrees to promptly provide
the Lender from time to time with such other information respecting the condition (financial and
otherwise), business and property of the undersigned as the Lender may request, in form and
substance acceptable to the Lender.
The undersigned waives all claims, rights and remedies which the undersigned may now
have or hereafter acquire against any person at any time now or hereafter liable to payment of
any of the Indebtedness and as to any collateral security, including but not limited to all claims,
rights and remedies of contribution, indemnification, exoneration, reimbursement, recourse and
3
477375v1 EL185-40
subrogation, whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise, whether or not the Indebtedness has been fully paid,
and all payments and recoveries under this guaranty shall be considered equity investments by
the undersigned in the Borrower; provided, nothing contained in this guaranty shall deprive the
undersigned of any claim, right or remedy, after the Indebtedness has been fully paid, against any
person other than the Borrower. No delay or failure by the Lender in exercising any right, and
no partial or single exercise thereof shall constitute a waiver thereof. No waiver of any rights
hereunder, and no modification or amendment of this guaranty shall be effective unless the same
is in writing duly executed by the Lender, and each such waiver, if any, shall apply only with
respect to the specific instance involved and shall not impair or affect the rights of the Lender or
the provisions of this guaranty in any other respect at any other time. This guaranty shall
continue until written notice of revocation of this guaranty, executed by the undersigned, has
been received by the Lender; provided, no revocation of this guaranty shall affect in any manner
any liability of the undersigned under this guaranty with respect to Indebtedness arising before
the Lender receives such written notice of revocation, and the sole effect of revocation of this
guaranty shall be to exclude from this guaranty Indebtedness thereafter arising which is
unconnected with Indebtedness theretofore arising or transactions theretofore entered into.
Any invalidity or unenforceability of any provision or application of this guaranty shall
not affect other lawful provisions and applications hereof and to this end the provisions of this
guaranty are declared to be severable. This guaranty shall bind the undersigned and the heirs,
representatives, successors and assigns of the undersigned, and of each of them respectively, and
shall benefit the Lender, its successors and assigns. This guaranty shall be governed by and
construed in accordance with the laws of the State of Minnesota.
The undersigned is an owner and member of the Borrower and the undersigned
acknowledges and agrees that the Indebtedness is being utilized by the Borrower to acquire and
renovate an existing building on real property located at 18489 Twin Lakes Road, Elk River,
Minnesota 55330 (the “Property”), and such acquisition and renovation will materially
financially benefit the undersigned and, therefore, the undersigned’s obligations under this
Guaranty are proper, valid and enforceable.
THE UNDERSIGNED REPRESENTS, CERTIFIES, WARRANTS AND AGREES
THAT THE UNDERSIGNED HAS READ ALL OF THIS GUARANTY AND UNDERSTAND
ALL OF THE PROVISIONS OF THIS GUARANTY. THE UNDERSIGNED ALSO AGREES
THAT COMPLIANCE BY THE LENDER WITH THE EXPRESS PROVISIONS OF THIS
GUARANTY SHALL CONSTITUTE GOOD FAITH AND SHALL BE CONSIDERED
REASONABLE FOR ALL PURPOSES.
Michael Tracey
1
477374v1 EL185-40
PERSONAL GUARANTY
(Blighted Properties Forgivable Commercial/Industrial Loan — Fred Trapp)
Elk River, Minnesota
April ____, 2016
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, and in consideration of and to induce financial accommodations of any kind, with
or without security, given or to be given or continued at any time and from time to time by the
HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF ELK
RIVER (the “Lender”) to or for the account of F & M PROPERTIES, LLC (the “Borrower”), the
undersigned absolutely and unconditionally guaranty to the Lender the full and prompt payment
when due, whether at maturity or earlier by reason of acceleration or otherwise, of any and all
indebtedness, obligations and liabilities of the Borrower (and any and all successors of the
Borrower) to the Lender, now or hereafter existing, absolute or contingent, independent, joint,
several or joint and several, secured or unsecured, due or to become due, contractual or tortious,
liquidated or unliquidated, arising by assignment or otherwise, including without limitation all
indebtedness, obligations and liabilities owed by the Borrower (and any and all successors of the
Borrower) as a member of any partnership, syndicate, association or other group, and whether
incurred by the Borrower (or any successor of the Borrower) as principal, surety, endorser,
guarantor, accommodation party or otherwise (collectively, the “Indebtedness”); and the
undersigned agrees to pay on demand all of the Lender’s fees, costs, expenses and reasonable
attorneys’ fees in connection with the Indebtedness, any security therefor, and this guaranty, plus
interest on such amounts at the highest rate then applicable to any of the Indebtedness.
The Lender may at any time and from time to time, without consent of or notice to the
undersigned, without incurring responsibility to the undersigned, without releasing, impairing or
affecting the liability of the undersigned hereunder, upon or without any terms or conditions, and
in whole or in part: (1) sell, pledge, surrender, compromise, settle, release, renew, subordinate,
extend, alter, substitute, exchange, change, modify or otherwise dispose of or deal with in any
manner and in any order any Indebtedness, any evidence thereof, or any security or other
guaranty therefor; (2) accept any security for, or other guarantors of, any Indebtedness; (3) fail,
neglect or omit to obtain, realize upon or protect any Indebtedness or any security therefor, to
exercise any lien upon or right to any money, credit or property toward the liquidation of the
Indebtedness, or to exercise any other right against the Borrower, the undersigned, any other
guarantor or any other person; and (4) apply any payments and credits to the Indebtedness in any
manner and in any order. No act, omission or thing, except full payment and discharge of the
Indebtedness, which but for this provision could act as a release or impairment of the liability of
the undersigned hereunder, shall in any way release, impair or otherwise affect the liability of the
undersigned hereunder, and the undersigned waives any and all defenses of the Borrower
pertaining to the Indebtedness, any evidence thereof, and any security therefor, except the
defense of discharge by payment. The failure of any person or persons to sign this or any other
guaranty shall not release, impair or affect the liability of the undersigned hereunder. This
guaranty is a primary obligation of the undersigned and the Lender shall not be required to first
2
477374v1 EL185-40
resort for payment of the Indebtedness to the Borrower or any other person, their properties or
estates, or any security or other rights or remedies whatsoever. The undersigned shall be and
remain liable for any deficiency remaining after foreclosure of any mortgage or security interest
securing the Indebtedness, whether or not the liability of the Borrower or any other person for
such deficiency is discharged pursuant to statute, judicial decision or otherwise.
The liability of the undersigned under this guaranty is in addition to and shall be
cumulative with all other liabilities of the undersigned to the Lender, as guarantor or otherwise,
without any limitation as to amount, unless the writing evidencing or creating such other liability
specifically provides to the contrary. If any payment applied by the Lender to the Indebtedness is
thereafter set aside, recovered, rescinded or required to be returned for any reason (including
without limitation the bankruptcy, insolvency or reorganization of the Borrower or any other
person), the Indebtedness to which such payment was applied shall for the purposes of this
guaranty be deemed to have continued in existence, notwithstanding such application, and this
guaranty shall be enforceable as to such Indebtedness as fully as if such application had never
been made.
The undersigned waives: (1) notice of acceptance of this guaranty and of the creation and
existence of the Indebtedness; (2) presentment, demand for payment, notice of dishonor, notice
of nonpayment, and protest of any instrument evidencing the Indebtedness; and (3) all other
demands and notices to the undersigned or any other person and all other actions to establish the
liability of the undersigned hereunder. The undersigned consents to the personal jurisdiction of
the state and federal courts located in the State of Minnesota in connection with any controversy
related to this guaranty, waives any argument that venue in such forums is not convenient, and
agrees that any litigation initiated by the undersigned against the Lender in connection with this
guaranty shall be venued in either the District Court of Sherburne County, Minnesota, or the
United States District Court, District of Minnesota.
All property of the undersigned, now or hereafter in the possession, control or custody of
or in transit to the Lender for any purpose, including without limitation the balance of every
account of the undersigned with and each claim of the undersigned against the Lender, shall be
subject to a lien and security interest in favor of the Lender, as security for all liabilities of the
undersigned to the Lender, and shall be subject to be set off against any and all such liabilities,
and the Lender may at any time and from time to time at its option and without notice
appropriate and apply any such property toward the payment of any and all such liabilities. The
undersigned agrees to promptly provide the Lender from time to time with financial statements
of the undersigned, in form and substance acceptable to the Lender, at least once every 12
months and as otherwise requested by the Lender. The undersigned agrees to promptly provide
the Lender from time to time with such other information respecting the condition (financial and
otherwise), business and property of the undersigned as the Lender may request, in form and
substance acceptable to the Lender.
The undersigned waives all claims, rights and remedies which the undersigned may now
have or hereafter acquire against any person at any time now or hereafter liable to payment of
any of the Indebtedness and as to any collateral security, including but not limited to all claims,
rights and remedies of contribution, indemnification, exoneration, reimbursement, recourse and
3
477374v1 EL185-40
subrogation, whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law or otherwise, whether or not the Indebtedness has been fully paid,
and all payments and recoveries under this guaranty shall be considered equity investments by
the undersigned in the Borrower; provided, nothing contained in this guaranty shall deprive the
undersigned of any claim, right or remedy, after the Indebtedness has been fully paid, against any
person other than the Borrower. No delay or failure by the Lender in exercising any right, and
no partial or single exercise thereof shall constitute a waiver thereof. No waiver of any rights
hereunder, and no modification or amendment of this guaranty shall be effective unless the same
is in writing duly executed by the Lender, and each such waiver, if any, shall apply only with
respect to the specific instance involved and shall not impair or affect the rights of the Lender or
the provisions of this guaranty in any other respect at any other time. This guaranty shall
continue until written notice of revocation of this guaranty, executed by the undersigned, has
been received by the Lender; provided, no revocation of this guaranty shall affect in any manner
any liability of the undersigned under this guaranty with respect to Indebtedness arising before
the Lender receives such written notice of revocation, and the sole effect of revocation of this
guaranty shall be to exclude from this guaranty Indebtedness thereafter arising which is
unconnected with Indebtedness theretofore arising or transactions theretofore entered into.
Any invalidity or unenforceability of any provision or application of this guaranty shall
not affect other lawful provisions and applications hereof and to this end the provisions of this
guaranty are declared to be severable. This guaranty shall bind the undersigned and the heirs,
representatives, successors and assigns of the undersigned, and of each of them respectively, and
shall benefit the Lender, its successors and assigns. This guaranty shall be governed by and
construed in accordance with the laws of the State of Minnesota.
The undersigned is an owner and member of the Borrower and the undersigned
acknowledges and agrees that the Indebtedness is being utilized by the Borrower to acquire and
renovate an existing building on real property located at 18489 Twin Lakes Road, Elk River,
Minnesota 55330 (the “Property”), and such acquisition and renovation will materially
financially benefit the undersigned and, therefore, the undersigned’s obligations under this
Guaranty are proper, valid and enforceable.
THE UNDERSIGNED REPRESENTS, CERTIFIES, WARRANTS AND AGREES
THAT THE UNDERSIGNED HAS READ ALL OF THIS GUARANTY AND UNDERSTAND
ALL OF THE PROVISIONS OF THIS GUARANTY. THE UNDERSIGNED ALSO AGREES
THAT COMPLIANCE BY THE LENDER WITH THE EXPRESS PROVISIONS OF THIS
GUARANTY SHALL CONSTITUTE GOOD FAITH AND SHALL BE CONSIDERED
REASONABLE FOR ALL PURPOSES.
Fred Trapp
1
477383v1 MJM EL185-40
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of the ___ day of April, 2016, by F & M Properties,
LLC, a Minnesota limited liability company (“Borrower”) and HOUSING AND
REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF ELK RIVER, a public body
corporate and politic of the State of Minnesota (“Lender”).
RECITALS
A. Lender has agreed to lend to Borrower the sum of up to $75,000.00 (the “Loan”).
B. The Loan is secured by, among other things, an Mortgage and Assignment of
Rents and Security Agreement and Fixture Financing Statement dated even herewith (the
“Mortgage”) pertaining to certain land described in the Mortgage and improvements thereon
(collectively, the “Property”) owned by Borrower and located in Sherburne County, Minnesota.
C. Lender has refused to make the Loan to Borrower unless this Agreement is
executed and delivered by Borrower.
AGREEMENT
NOW, THEREFORE, in consideration of Lender’s agreement to make the Loan to
Borrower, Borrower hereby warrants and represents to, and covenants and agrees with, Lender as
follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
(a) “Environmental Regulation” means a Law relating to the environment and/or to
human health or safety, or governing, regulating or pertaining to the generation,
treatment, storage, handling, transportation, use or disposal of any Hazardous
Substance.
(b) “Hazardous Substance” means any substance or material defined in or governed
or regulated by any Environmental Regulation as a dangerous, toxic or hazardous
pollutant, contaminant, chemical, waste, material or substance, and also expressly
includes urea-formaldehyde, polychlorinated biphenyls, dioxin, radon, lead-based
2
477383v1 MJM EL185-40
paint, asbestos, asbestos containing materials, nuclear fuel or waste, radioactive
materials, explosives, carcinogens and petroleum products, including but not
limited to crude oil or any fraction thereof, natural gas, natural gas liquids,
gasoline and synthetic gas, and any other waste, material, substance, pollutant or
contaminant the presence of which on, in, about or under the Property would
subject the owner or operator thereof to any damages, penalties, fines or liabilities
under any applicable Environmental Regulation.
(c) “Law” means any federal, state or local law, statute, code, ordinance, rule,
regulation or requirement.
2. Warranties and Representations. Borrower warrants and represents to Lender that
to Borrower’s knowledge, and except as otherwise described in documents identified on
Exhibit A attached hereto:
(a) There is not located on, in, about or under the Property any Hazardous Substances
except for Hazardous Substances of the type ordinarily used, stored or
manufactured in connection with the operation of the Property as it is presently
operated, and such existing Hazardous Substances have been and are used, stored
and manufactured in compliance with all Environmental Regulations.
(b) The Property is not presently used, and has not in the past been used, as a landfill,
dump, disposal facility or gasoline station, or for industrial, manufacturing or
military purposes, or for the storage, generation, production, manufacture,
processing, treatment, disposal, handling, transportation or deposit of any
Hazardous Substances.
(c) There has not in the past been, and no present threat now exists of, a spill,
discharge, emission or release of a Hazardous Substance in, upon, under, over or
from the Property or from any other property which would have an impact on the
Property.
(d) The Property is in compliance with, and there are no past or present
investigations, administrative proceedings, litigation, regulatory hearings or other
actions completed, proposed, threatened or pending, alleging noncompliance with
or violation of, any Environmental Regulations respecting the Property, or
relating to any required environmental permits covering the Property.
(e) Borrower has disclosed to Lender all reports and investigations commissioned by
or in the possession or control of Borrower and relating to Hazardous Substances
and the Property.
(f) There are not now, nor have there ever been, any above ground or underground
storage tanks located in or under the Property. All storage tanks identified on
Exhibit A have been registered and/or permitted as required by Environmental
Regulations, and evidence of such registration and/or permitting has been given to
Lender. There are no wells on or under the Property, except as identified on
Exhibit A.
3
477383v1 MJM EL185-40
3. Covenants and Agreements. Borrower covenants and agrees as follows:
(a) Except for substances normally used for maintenance or operation of the Property
which are used, stored and disposed of in accordance with all applicable
Environmental Regulations and except as identified on Exhibit A, Borrower shall
not, nor shall it permit others to, place, store, locate, generate, produce, create,
process, treat, handle, transport, incorporate, discharge, emit, spill, release,
deposit or dispose of any Hazardous Substance in, upon, under, over or from the
Property. Borrower shall cause all Hazardous Substances found on or under the
Property, which are not permitted under the foregoing sentence, to be properly
removed therefrom and properly disposed of at Borrower’s cost and expense.
Borrower shall not install or permit to be installed any underground storage tank
on or under the Property. Borrower shall give written notice to Lender prior to a
change in the operations on the Property.
(b) In the event that (i) Lender reasonably believes that a violation of an
Environmental Regulation may have occurred in connection with the Property;
(ii) Lender receives notice from Borrower or otherwise has knowledge that an
event described in subparagraph 3(d) has occurred; (iii) Lender reasonably
believes that a representation or warranty of Borrower in Paragraph 2 was untrue
in any material respect when made or has become untrue in any material respect;
(iv) Lender receives notice from Borrower or otherwise has knowledge of a
change in operations on the Property and Lender reasonably believes that the new
operations may entail the presence of more or different Hazardous Substances on
the Property; or (v) Lender reasonably believes that Hazardous Substances are
present on the Property which were not previously known by Lender to be present
on the Property; then, in any such event, Borrower shall at its cost obtain and
deliver to Lender an environmental review, audit, assessment and/or report
relating to the Property or shall have any previously delivered materials updated
and/or amplified, by an engineer or scientist selected by Borrower and acceptable
to Lender; if Borrower fails to do so within forty-five (45) days after such request
is made, Lender shall have the right to do so, in which event Borrower shall
reimburse Lender for the cost incurred by Lender in doing so within ten (10) days
following demand therefor by Lender.
(c) Borrower shall, promptly after obtaining actual knowledge thereof, give notice to
Lender of: (i) any activity in violation of any applicable Environmental
Regulations relating to the Property, (ii) any governmental or regulatory actions
instituted or threatened under any Environmental Regulations affecting the
Property, (iii) all claims made or threatened by any third party against Borrower
or the Property relating to any Hazardous Substance or a violation of any
Environmental Regulations, (iv) discovery by Borrower of any occurrence or
condition on or under the Property or on or under any real property adjoining or in
the vicinity of the Property which could subject Borrower, Lender or the Property
to a claim under any Environmental Regulations. Any such notice shall include
copies of any written materials received by Borrower.
4
477383v1 MJM EL185-40
(d) Any investigation or any remedial or corrective action taken with respect to the
Property shall be done under the supervision of a qualified consultant, engineer or
scientist acceptable to Lender who shall, at Borrower’s cost and at the completion
of such investigation or action, provide a written report of such investigation or
action to Lender. Borrower shall also provide Lender with a copy of any interim
reports prepared in connection with any such investigation or action.
(e) If the Property has, or is suspected to have, asbestos or asbestos containing
materials (“ACM”) which, due to its condition or location or due to any planned
building renovation or demolition, is recommended to be abated by repair,
encapsulation, removal or other action, Borrower shall promptly carry out the
recommended abatement action. If the recommended abatement includes removal
of ACM, Borrower shall cause the same to be removed and disposed of offsite by
a licensed and experienced asbestos removal contractor, all in accordance with
Environmental Regulations. Upon completion of the recommended abatement
action, Borrower shall deliver to Lender a certificate, signed by an officer of
Borrower and the consultant overseeing the abatement action, certifying to Lender
that the work has been completed in compliance with all applicable laws,
ordinances, codes and regulations (including without limitation those regarding
notification, removal and disposal) and that no airborne fibers beyond permissible
exposure limits remain on site.
(f) After an Event of Default (as defined in the Loan Agreement between the
Borrower and the Lender dated an even date herewith), Lender shall have the
right, after ten (10) days’ prior written notice to Borrower, to have an
environmental review, audit, assessment, testing program and/or report with
respect to the Property performed or prepared by an environmental engineering
firm selected by Lender. Borrower shall provide reasonable access to the
Property to such environmental engineering firm during normal business hours to
conduct such review. Borrower shall reimburse Lender for the cost incurred for
each such action within ten (10) days following demand therefor by Lender.
4. Indemnity. The Borrower shall indemnify Lender, any participant of Lender, its
and their directors, officers, employees, agents, contractors, licensees, invitees, and the
respective heirs, legal representatives, successors and assigns of all such persons and parties
(hereinafter collectively referred to as “Indemnified Parties”) against, shall hold the Indemnified
Parties harmless from, and shall reimburse the Indemnified Parties for, any and all loss, damage,
liability, cost and expense directly or indirectly incurred by the Indemnified Parties, including
reasonable attorneys’ and consultants’ fees, resulting from: (a) the presence or discovery of any
Hazardous Substance in, upon, under or over, or emanating from, the Property, whether or not
the Borrower is responsible therefor, and whether or not it was placed, located, deposited or
released by the Borrower, or (b) any violation of any Environmental Regulation, or both (a) and
(b). Borrower agrees that the Indemnified Parties shall have no responsibility for, and Borrower
hereby releases the Indemnified Parties from responsibility for, damage or injury to human
health, property, the environment or natural resources caused by Hazardous Substances and for
abatement, clean-up, detoxification, removal or disposal of, or otherwise with respect to,
Hazardous Substances. The indemnity contained in this paragraph 4 shall be deemed continuing
5
477383v1 MJM EL185-40
for the benefit of the Indemnified Parties, including any purchaser at a foreclosure or other sale
under Mortgage, any transferee of the title from Lender, and any subsequent owner of the
Property, and shall survive the satisfaction or release of the Mortgage, any foreclosure of or other
sale under the Mortgage and/or any acquisition of title to the Property or any part thereof by
Lender, or anyone claiming by, through or under Lender, by deed in lieu of foreclosure or
otherwise, and also shall survive the repayment or any other satisfaction of the Loan.
Notwithstanding the foregoing, the indemnity contained in this paragraph 4 shall not apply with
respect to any loss, damage, liability, cost or expense which Borrower proves by a
preponderance of the evidence was caused solely by or resulted solely from any act or omission
of any person, other than the Borrower or an agent, employee, invitee, guarantor, or contractor of
the Borrower, which occurred after Lender or anyone claiming by, through or under Lender
acquired title to the Property by foreclosure of Mortgage or deed in lieu of foreclosure or
otherwise and control of the Property. Any amounts covered by the foregoing indemnification
shall bear interest from the date incurred at the rate set forth in the promissory note evidencing
the Loan, and shall be payable on demand. Borrower agrees that its obligations under this
Agreement are separate from, independent of, and in addition to its obligations, if any, under the
Mortgage and other documents which secure the Loan.
5. Liability. The liability of Borrower under this Agreement shall not be subject to
any limitations on liability set forth any document evidencing or securing the Loan. Without
limitation, the obligations and liability of Borrower under this Agreement shall in no way be
waived, released, discharged, reduced, mitigated or otherwise affected by Lender’s making of the
Loan with knowledge of the matters described in documents identified on Exhibit A attached
hereto, or of the presence of any Hazardous Substance on, in, about or under the Property or any
property adjoining or in the vicinity of the Property, or of any violation of any Environmental
Regulation or any condition or state of facts or circumstances which with notice or lapse of time
or both might ripen into such a violation, or by any neglect, delay or forbearance of Lender in
demanding, requiring or enforcing payment or performance of the obligations and liability of
Borrower hereunder, or by the receivership, bankruptcy, insolvency or dissolution of Borrower
or any affiliate thereof. No action or proceeding brought or instituted under this Agreement, and
no recovery made as a result thereof, shall be a bar or a defense to any further action or
proceeding under any other agreement. Borrower shall reimburse Lender and the other
Indemnified Parties for all attorneys’ fees and expenses incurred in connection with the
enforcement of the Indemnified Parties’ rights under this Agreement, including those incurred in
any case, action, proceeding or claim under the Federal Bankruptcy Code or any successor
statute.
6. Notices. Any notice or other communication to any party in connection with this
Agreement shall be in writing and shall be sent in accordance with the provisions of the Loan
Agreement.
7. Governing Law and Construction. The validity, construction and enforceability
of this Agreement shall be governed by the laws of the State of Minnesota, without giving effect
to conflict of laws or principles thereof, but giving effect to federal laws of the United States
applicable to national banks. Whenever possible, each provision of this Agreement and any
other statement, instrument or transaction contemplated hereby or relating hereto, shall be
interpreted in such manner as to be effective and valid under such applicable law, but, if any
6
477383v1 MJM EL185-40
provision of this Agreement or any other statement, instrument or transaction contemplated
hereby or relating hereto shall be held to be prohibited or invalid under such applicable law, such
provision shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Agreement or
any other statement, instrument or transaction contemplated hereby or relating hereto.
8. Consent to Jurisdiction. At the option of Lender, this Agreement may be enforced
in any Federal Court or State Court sitting in Sherburne County, Minnesota; and Borrower
consents to the jurisdiction and venue of any such Court and waives any argument that venue in
such forums is not convenient. In the event Borrower commences any action in another
jurisdiction or venue under any tort or contract theory arising directly or indirectly from the
relationship created by this Agreement, Lender at its option shall be entitled to have the case
transferred to one of the jurisdictions and venues above-described, or if such transfer cannot be
accomplished under applicable law, to have such case dismissed without prejudice.
9. Waiver of Jury Trial. Borrower and Lender irrevocably waive any and all right to
trial by jury in any legal proceeding arising out of or relating to this Agreement or any of the
Loan documents (as that term is used in the Loan Agreement) or the transactions contemplated
hereby or thereby.
10. Binding Effect; Gender. This Agreement shall inure to the benefit of Lender, and
the Indemnified Parties, and shall bind Borrower and Borrower’s heirs; executors,
administrators, personal representatives, legal representatives, successors and assigns. The
obligations of Borrower under this Agreement shall be enforceable in all events against
Borrower, its heirs, executors, administrators, personal representatives, legal representatives,
successors and assigns, and each of them, jointly and severally, and shall be enforceable, in the
event of the death of an Borrower, as a claim against his or her estate or otherwise against the
representatives of his or her estate, the heirs-at-law, the devisees and beneficiaries of the total
estate and each of them. The use of any gender herein shall include all other genders.
11. Counterparts. This Agreement may be executed in any number of counterparts,
each executed counterpart constituting an original, but all together only one agreement.
[signature pages follow]
S-1
477383v1 MJM EL185-40
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
BORROWER
F & M PROPERTIES, LLC
By:
Fred Trapp
Its: President
By:
Michael Tracey
Its: Vice President
STATE OF MINNESOTA )
) ss.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me on ______________, 2016, by
Fred Trapp and Michael Tracey, President and Vice President, respectively, of F & M Properties,
LLC, a Minnesota limited liability company, on behalf of the company.
Notary Public
My Commission Expires:
S-2
477383v1 MJM EL185-40
LENDER:
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY
OF ELK RIVER
By:
Its: President
By:
Its: Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF ________ )
The foregoing instrument was acknowledged before me on ______________, 2016, by
____________, the President, and ____________, the Executive Director, of the Housing and
Redevelopment Authority in and for the City of Elk River, a public body corporate and politic of
the State of Minnesota, on behalf of the corporation.
Notary Public
My Commission Expires:
This Instrument was drafted by:
Kennedy & Graven, Chartered (JSB)
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, Minnesota 55402
Telephone: (612) 337-9300
A-1
477383v1 MJM EL185-40
EXHIBIT A
Environmental Disclosure Documents [Borrower to insert]
�j
City of
Elk
River
Resolution 16-
A Resolution of the City of Elk River Approving Loan Agreement for Die
Concepts Project
WHEREAS, the City Council (the "Council") of the City of Elk River (the "City") has
received a proposal from F & M Properties, LLC (the `Borrower") that the Economic
Development Authority of the City of Elk River (the "EDA") enter into Loan Agreement (the
"Loan Agreement") and related documents in connection with a loan to the Borrower in the
amount of $185,200 (the "Loan") pursuant to the FDA's NEcroloan Program (the
"Program").
WHEREAS, the EDA has approved the Loan and the Loan Agreement on this same date
and a copy of the Loan Agreement is on file with the City Clerk.
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Elk River as
follows:
Section 1. Business Subsidy.
1.01. The Loan constitutes a business subsidy within the meaning of Minnesota
Statutes, Section 116J.993 to 116J.995 (the `Business Subsidy Act"), and the Loan Agreement
includes a"business subsidy agreement" as required under the Business Subsidy Act.
1.02. The City has adopted a Business Subsidy Policy (the "Subsidy Policy"), which
sets the general criteria for all types of subsidies granted by the EDA, all as required under the
Business Subsidy Act.
1.03. On the date hereof, the City held a public hearing on the Loan in accordance
with the Business Subsidy Act.
Section 2. Consent.
2.01 In accordance with Section 116J.994, Subd. 3(d) of the Business Subsidy Act, the
City hereby approves the Loan Agreement and consents to the EDA entering into the Loan
Agreement and related documents with the Borrower.
2.02 The City hereby approves the Loan in accordance with the Loan Agreement in
substantially the form on file with the City's Economic Development Director together such
modifications thereof, deletions therefrom and additions thereto as may be necessary and
appropriate and approved by legal counsel to the EDA and by the President and Executive
Director of the EDA prior to executing said documents and the City further; and said officers are
hereby authorized to approve said changes on behalf of the EDA. The execution of any
NAfUREJ
instrument by the President and Executive Director shall be conclusive evidence of the approval
of such document in accordance with the terms hereof.
Passed and adopted this 18I day of April 2016.
John J. Dietz,Mayor
ATTEST:
Tina Allard, City Clerk
NAWREI
City of
Elk -�-�
River
Resolution Approving Loan Agreement (Die Concepts Project)
WHEREAS, the City Council (the "Council") of the City of Elk River (the "City") has received a
proposal from F&M Properties, LLC (the `Borrower") that the Housing and Redevelopment
Authority in and for the City of Elk River (the "HRA") enter into Loan Agreement (the "Loan
Agreement") and related documents in connection with a loan to the Borrower in the amount of
$75,000 (the "Loan") pursuant to the HRA's Blighted Properties Forgivable Commercial/Industrial
Loan Program (the "Program").
WHEREAS, the HRA has approved the Loan and the Loan Agreement on this same date and a
copy of the Loan Agreement is on file with the City Clerk.
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Elk River as follows:
Section 1. Business Subsidy.
1.01. The Loan constitutes a business subsidy within the meaning of Minnesota Statutes,
Section 116J.993 to 116J.995 (the `Business Subsidy Act"), and the Loan Agreement includes a
"business subsidy agreement" as required under the Business Subsidy Act.
1.02. The City has adopted a Business Subsidy Policy (the "Subsidy Policy'), which sets the
general criteria for all types of subsidies granted by the HRA, all as required under the Business Subsidy
Act.
1.03. On the date hereof, the City held a public hearing on the Loan in accordance with the
Business Subsidy Act.
Section 2. Consent.
2.01 In accordance with Section 116J.994, Subd. 3(d) of the Business Subsidy Act, the City
hereby approves the Loan Agreement and consents to the HRA entering into the Loan Agreement and
related documents with the Borrower.
2.02 The City hereby approves the Loan in accordance with the Loan Agreement in
substantially the form on file with the City's Economic Development Director together such
modifications thereof, deletions therefrom and additions thereto as may be necessary and appropriate
and approved by legal counsel to the HRA and by the President and Executive Director of the HRA
prior to executing said documents and the City further; and said officers are hereby authorized to
approve said changes on behalf of the HRA. The execution of any instrument by the President and
Executive Director shall be conclusive evidence of the approval of such document in accordance with
the terms hereof.
POWERED 0Y
NAfUREJ
Passed and adopted by the City Council of the City of Elk River this 18th day of April,2016.
John J. Dietz,Mayor
ATTEST:
Tina Allard,City Clerk
POWERED 0Y
A..
:.y, 4411 '• `, �11�� i � ��
1;ilkll lliJl!! 1 �•�� -�"�C II
I Cilli �.
I'''ll
is Ma
PIN�1 Dt ,i i _ Ids'}' f� .•� "'+�
P3-
1
SII V� ... � I � ��
t�c — � ..
_.
i
,�•
�� . .
� �;:k�.r fir_ 4�;
y