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EDA RES 20-12\- ECONOMIC DEVELOPMENT AUTHORITY oF TIrE CITY Or ELK RrVER COT'NTY OF SHERBURNE STATE OF MII\NESOTA RESOLUTION NO. 20.12 RESOLUTION APPROVING SUBORDINATION AGREEMENT Section 1. Recitals. 1.01 On September 13, 2013, the Board of Commissioners (the "Board") of the Economic Development Authority of the City of Elk River (the "EDA") heretofore provided a microloan in the amount of $74,999 (the "Original Loan") to Alan Arnold Corporation, a Minnesota corporation (referred to as "Borrower") which was secured by a corporate guarantee of Yankee Doodle Enterprises, LLC, a Minnesota limited liability company (the "Mortgagor"), pursuant to the EDA Energy Efficiency Improvement Program (the'?rogram"), pursuant to an Energy Efficiency Improvement Program Loan Agreement, dated Septernber 10, 2013 (the *2013 Loan Agreement"), between the Borrower and the EDA. 1.02. On August 28,2018, the EDA provided an additional loan in the amount of $19,175.00 (the "I.{ew Loan" and together with the Original Loan, the "Loan") pursuant to the Program to the Borrower for a total loan amount of $59,657.91 in accordance with an Amended and Restated Energy Efficiency Improvement Program Loan Agreement, dated August 28,2018 (the "series 2018 Loan Agreement and together with the Series 2013 Loan Agreement, the "Loan Agreement"), between the Borrower and the EDA, which amended and restated the Series 2013 Loan Agreement. 1.03. The Loan is secured bV (i) an Amended and Restated Mortgage and Assignment of Rents and Security Agreement and Fixture Financing Statement (the "Mortgeg€"), dated August 28,2018, provided by the Mortgagor in favor of the EDA; (ii) an Amended and Restated Promissory Note, dated August 28, 2018, from the Borrower to the EDA; (iii) a Security Agreement, dated September 10,2013, from Borrower to the Lender providing a security interest in certain equipment purchased with the proceeds of the Original Loan; (iv) a Personal Guaranty, dated August 28,2018, from Brian Brehmer to the EDA; (v) a Personal Guaranty, dated August 28,2018, from Nancy Brehmer to the EDA; and (vi) a Personal Guaranty, dated August 28, 2018, from Allen Meyer; and (vii) a Corporate Guaranty, dated August 28, 2018, from the Mortgagor to the EDA. 1.04. The Borrower and the Mortgagor requested a loan from Byline Bank (the "Bank") in the amount of $474,000.00 and the Bank has required, as a condition to making the loan, that the Borrower and Mortgagor obtain from the EDA a Mortgage Subordination Agreement (the "Subordination Agreement") in favor of the Bank providing for the subordination of the Mortgage to the Bank's mortgage with respect to the additional financing, copies of which are on file with the Executive Director. NOW THEREFORE, BE IT RESOLVED by the Board of Commissioners (the "Board") of the Economic Development Authority ofthe City of Elk River (the "EDA") as follows: ELl85\5n693396.v1 \- 1 Section 2. Approval of Subordination AgreefiIent. 2.01. The Subordination Agreeme,nt as presented to the EDA is hereby in all respects approved, in substantially the form submitted, together with any related documents necessary in connection therewith, and the President and Executive Director are hereby authorized and directed to execute the Subordination Agreement on behalf of the EDA and to carry out on behalf of the EDA, the EDA's obligations thereunder. 2.02. The approval hereby grven to the Subordination Agreement includes approval of such additional details therein as may be necessary and appropriate and 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 prior to executing said documents; and said officers are hereby authorized to approve said changes on behalf of the EDA. 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. ln the event of abse,lrce or disability of said officers, any of the documents authorized by this Resolution to be executed may be executed without further act or authorization of the Board by any duly designated acting official, or by such other officer or officers of the Board 6, h the opinion of the City Attomey, may act in their behalf. Approved by the Board of Commissioners of the Economic Development Authority of the City of Elk River this 21st day of Dece,mber, 2020. z>-s-- trfs*- President ATTEST: Executive Director EL185\5n693396.v1 a 4-//* MORTGAGE SUBORDINATION AGREEMENT THIS MORTGAGE SUBORDINATION AGREEMENT ("Agreement") is made this 21 day of December, 2020, by and between Byline Bank, an Illinois banking corporation ("Lender"), and the Economic Development Authority of the City of Elk River, a public body corporate and politic of the State of Minnesota ("Creditor"). RECITALS A. On September 10, 2013, Yankee Doodle Enterprises, LLC, a Minnesota limited liability company ("Borrower"), executed and delivered to Creditor, that certain promissory note in the original principal amount of Seventy -Four Thousand Nine Hundred Ninety -Nine and 00/100 Dollars ($74,999.00), as amended from time to time ("Creditor Note"), which is secured by that certain Mortgage and Assignment of Rents and Security Agreement and Fixture Financing Statement, dated September 10, 2013, and recorded on September 18, 2013, as Document No. 49208, in the Office of the County Recorder, in and for Sherburne County, Minnesota, as amended by that certain First Amendment to Mortgage and Assignment of Rents and Security Agreement and Fixture Financing Statement, dated May 4, 2017, and filed as Document Number 838218 in the Office of the County Recorder of Sherburne County, Minnesota and as Document Number 53611 in the Office of the Registrar of Titles of Sherburne County, Minnesota, and as amended and restated by that certain Amended and Restated Mortgage and Assignment of Rents and Security Agreement and Fixture Financing Statement, dated August 28, 2018 and recorded on October 1, 2019, as Document No. 879553, in the Office of the County Recorder, in and for Sherburne County, Minnesota and as Document Number 56464 in the Office of the Registrar of Titles of Sherburne County, Minnesota, all in favor of Creditor (collectively, the "Creditor Mortgage"), encumbering all of that certain real property legally described on Exhibit "A" attached hereto and made a part hereof ("Premises"). The principal amount outstanding on Creditor Note as of the date hereof is thirty four thousand three hundred twenty one and 31/100 Dollars ($34,321.31). B. On December 21, 2020, Borrower executed and delivered to Lender that certain U.S. Small Business Administration note in the original principal amount of Four Hundred Seventy -Four Thousand and 00/100 Dollars ($474,000.00) ("Lender Note"), which is secured, in part, by that certain mortgage, assignment of leases and rents, security agreement and financing 1 statement dated December 2020, and recorded on . as Document No. , in the Office of the County Recorder, in and for Sherburne County, Minnesota, and recorded on as Document Number in the Office of the Registrar of Titles of Sherburne County, Minnesota, and encumbers the Premises ("Lender Mortgage"). C. In order to induce Lender to advance funds pursuant to Lender Note, Lender has required Creditor to execute this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows: 1. Recitals. The above -stated recitals are true and correct and are incorporated herein by reference. 2. Subordination. Creditor acknowledges and agrees that Creditor's right, title and interest in and to Creditor Mortgage and the Premises is and shall remain subordinate and junior to the lien of Lender Mortgage. 3. Debt Subordination. The payment of all indebtedness by Borrower to Creditor under Creditor Note is hereby expressly subordinated to the extent and in the manner hereinafter set forth to the payment in full of all indebtedness owed to Lender pursuant to Lender Note. Lender agrees that so long as Borrower is not in default in any respect on any principal and interest payments due under Lender Note, Creditor may demand, receive and accept principal and interest payments from Borrower with respect to Creditor Note. In the event Borrower is in default, and for so long as such default may continue, in any respect of the payments due under Lender Note, without Lender's prior written consent, Creditor shall not demand, receive or accept any principal and/or interest payment from Borrower with respect to Creditor Note. In the event that Creditor shall receive any payment on the indebtedness evidenced by Creditor Note which Creditor is not entitled to receive under the provisions of this Section 3, Creditor shall hold the amount so received in trust for Lender and shall forthwith turn over such payment to Lender in the form received (except for the endorsement of Creditor where necessary) for application to them existing indebtedness owed to Lender (whether due or not due), in such manner of application as Lender may deem appropriate. 4. Actions. Creditor shall not commence any action or proceeding against Borrower to recover all or any part of the unpaid principal amount of Creditor Note without obtaining Lender's prior written consent. 5. Rights of Lender. Lender may, at any time, and from time to time, without the consent of or notice to Creditor, without impairing or releasing any of its rights, or any of the obligations of Creditor hereunder: (a) change the interest rate or change the amount of payment or extend the time of payment or renew or otherwise alter the terms of Lender Note or any instrument evidencing the same in any manner; (b) sell, exchange, release or otherwise deal with all or any part of the Premises; (c) release anyone liable in any manner for the payment or PA collection of the indebtedness evidenced by Lender Note or any part thereof; (d) exercise or refrain from exercising any right against Borrower or others (including, but not limited to, Creditor); and (e) apply any such sums received by Lender, by whomsoever paid and however realized, to the indebtedness evidenced by Lender Note in such manner as Lender shall deem appropriate. 6. No Waiver. No waiver shall be deemed to be made by Lender of any of its rights hereunder unless the same shall be in writing signed on behalf of Lender, and each such waiver, if any, shall be a waiver only with respect to the specific matter of matters to which the waiver relates and shall in no way impair the rights of Lender or the obligations of Creditor to Lender in any other respect at any other time. 7. Binding A eement. This Agreement and every part hereof shall be binding upon Creditor and upon Creditor and upon the heirs, legal representatives,, successors and assigns of Creditor from and after the date of its execution and delivery to Lender irrespective of whether this or any similar agreement is executed by any other creditor of Borrower. 8. Governing Law. This Agreement is made and is to be construed under the laws of the State of Minnesota. The unenforceability or invalidity of any provision or provisions of this Agreement as to persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other persons or circumstances, and all provisions, in all other respects, shall remain valid and enforceable. 9. Counted}arts. This Agreement may be signed in multiple counterparts, each of which shall be an original and facsimile signatures shall be treated as originals. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK AND THE FOLLOWING PAGES ARE THE SIGNATURE AND NOTARY PAGES AND EXHIBIT "A". 3 Byline Bank (an Illinois banking corporation) Name: Its: STATE OF MINNESOTA ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , by , the of Byline Bank, an Illinois banking corporation, on behalf of the banking corporation. Notary Public This is a signature and notary page to that certain Mortgage Subordination Agreement dated December , 2020. 2 Economic Development Authority of the City of Elk River (a public body corporate and politic of the State of Minnesota) Name: 3:�A Al I & Z- P. /✓E 7 4 Its: /',' ES I j& ft-AXr STATE OF MMNESOTA ) {��� /��� ) ss. COUNTY OF ``D i�Jtxre ) The for oing instrument was acknowledged before me � p� S{day of r- aQaQ by�'rV� 1 the -Si 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 public body. Public This is a signature and notary page to that certain Mortgage Subordination Agreement dated December ,A 10, 2020. ACKNOWLEDGMENT AND CONSENT The undersigned Borrower referred to in the foregoing Agreement, hereby acknowledges receipt of a copy of the foregoing Agreement and agrees to all of the terms and provisions thereof, and agrees to and with Lender named therein that the undersigned shall make no payment of the indebtedness evidenced by Creditor Note therein described nor consent to or participate in any act whatsoever which payment or act is in violation of any of the provisions of said Agreement. The undersigned hereby authorizes Lender, without notice to the undersigned, to declare all of the indebtedness evidenced by Lender Note to be due and payable forthwith upon any violation by the undersigned of any of the provisions of said Agreement. Yankee Doodle Enterprises, LLC (a Minnesota limited liability company) Brian Brehmer Its: Chief Manager STATE OF MINNESOTA ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , by Brian Brehmer, the Chief Manager of Yankee Doodle Enterprises, LLC, a Minnesota limited liability company, on behalf of the limited liability company. Notary Public THIS INSTRUMENT WAS DRAFTED BY- ANASTASI JELLUM 14985 60t' Street North Stillwater, MN 55082 (651) 439-2951 TSB/21979 This is a signature and notary page of the Acknowledgment and Consent to that certain Mortgage Subordination Agreement dated December , 2020. 0 EXHIBIT "A « LEGAL DESCRIPTION The following described real property located in the County of Sherburne and State of Minnesota: Parcel 1: That part of the Southeast Quarter of the Northwest Quarter and of the Northeast Quarter of the Southwest Quarter of Section 32, Township 33, Range 26, Sherburne County, Minnesota lying northerly of the northerly line of Old Highway No. 10 which is known as the Elk River to Big Lake Road and lying Southeasterly of US Highway No. 10 as now laid out and traveled and lying west of a line described as follows: Commencing at the northwest corner of said Northeast quarter of the Southwest Quarter; thence south along the west line of said Northeast Quarter of the Southwest Quarter, a distance of 11.15 feet to said northerly line of Old Highway 10 which is known as Elk River to Big Lake Road; thence east along said northerly line deflecting 87 degrees 45 minutes 39 seconds left, a distance of 347.23 feet to the beginning of said line to be described; thence north deflecting 92 degrees 20 minutes 59 seconds left, a distance of 333.18 feet to the southeasterly line of said US Highway No. 10 and said line there terminating. All of the above land has been platted as: Yankee Doodle Crossing, part of Lot 1, Block 1. Except Outlot A of Yankee Doodle Crossing. Torrens property. Parcel 2: All of the following which lies within Lot 1, Block 1, Yankee Doodle Crossing: That part of the following described property: That part of the West Half of the Northeast Quarter of the Southwest Quarter of Section 32, Township 33, Range 26, Sherburne County, Minnesota, that lies: 1) Southerly of the Westerly extension of the Northerly right of way line of Main Street as dedicated on the recorded plat of GOSPODOR'S ORONO LAKE ADDITION. AND 2) Northerly of the center line of Old U.S. Highway No. 10. That lies Northwesterly of Line A. That part of the following described property: All that part of the West Half of the Northeast Quarter of the Southwest Quarter of Section 32, Township 33, Range 26, Sherburne County, Minnesota, lying Southerly of the center line of Old U.S. Highway No. 10, and Northerly of the Westerly extension of the Southerly right of way line of Main Street as dedicated in the plat of GOSPODOR'S ORONO LAKE ADDITION according to said plat on file and of record in the office of the County Recorder, Sherburne County, Minnesota. 7 That lies Northwesterly of Line A. AND That part of the following described property: All that part of the West Half of the Northeast Quarter of the Southwest Quarter of Section 32, Township 33, Range 26, Sherburne County, Minnesota, described as follows: Commencing at the Northwest corner of said West Half of the Northeast Quarter of the Southwest Quarter; thence South 00 degrees 48 minutes 04 seconds East, assumed bearing, along the West line of said West Half of the Northeast Quarter of the Southwest Quarter, a distance of 377.74 feet to the point of beginning of the land to be hereinafter described; thence North 64 degrees 33 minutes 16 seconds East a distance of 205.29 feet; thence Northeasterly a distance of 192.39 feet along a tangential curve concave to the Northwest having a radius of 513 feet and a central angle of 21 degrees 29 minutes 15 seconds; thence Northeasterly and Easterly along a reverse curve concave to the Southeast, to the intersection with the Westerly extension of the Southerly right of way line of Main Street as dedicated in the plat of GOSPODOR'S ORONO LAKE ADDITION according to said plat on file and of record in the office of the County Recorder, Sherburne County, Minnesota, said curve being tangent to the last described curve and tangent to said Westerly extension of the Southerly right of way line; thence North 88 degrees 33 minutes 43 seconds West, along said Westerly extension of the Southerly right of way line a distance of 548.71 feet to the intersection with said West line of the West Half of the Northeast Quarter of the Southwest Quarter; thence South 00 degrees 48 minutes 04 seconds East, along said West line, a distance of 300.67 feet to said point of beginning. That lies Northwesterly of Line A. Line A is described as follows: Commencing at the Northwest corner of said West Half of the Northeast Quarter of the Southwest Quarter; thence on an assumed bearing of South 00 degrees 48 minutes 04 seconds East, along the West line of said West Half of the Northeast Quarter of the Southwest Quarter, a distance of 264.22 feet to the point of beginning of said line; thence North 65 degrees 05 minutes 40 seconds East, a distance of 132.74 feet; thence North 68 degrees 17 minutes 36 seconds East, a distance of 102.95 feet; thence North 60 degrees 38 minutes 59 seconds East, a distance of 68.90 feet; thence North 54 degrees 35 minutes 15 seconds East, a distance of 50.92 feet; thence North 52 degrees 33 minutes 24 seconds East, a distance of 21.11 feet; thence 228.34 feet Northeasterly along a tangential curve concave Southeasterly having a radius of 336.55 feet to the Westerly extension of the Northerly right of way line of said Main Street and said line there terminating. Abstract Property Commonly known as: 13374 US Hwy 10 NW, Elk River, MN 55330 Tax Key No.: 75-853-0105 This is Exhibit "A" to that certain Mortgage Subordination Agreement dated December , 2020.