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HomeMy WebLinkAbout2008-07-08 Ltr - Attachement 2-34p° 0 Washington County, MN Office of the County Recorder Property Records & Taxpayer Services K Yirr 1 (.'r }rhid County Recorder Molly 0 Rourke, Auditor Treasurer Receipt #: 56336 Date: 12/13/2007 MRT $46,000.00 Conservation Fee: $5.00 Receipt#: 56154 MTG Exempt from Tax $46.00 11 7781887 111 Certified Filed and/or recorded on: 12/11/2007 4 :32 PM 1181887 Certificate #: 64781 Office of the Registrar of Titles Return to: Property Records & Taxpayer Services FIRST AMERICAN TITLE- NICOLLET MALL Washington County, MN 19 0 MIDWEST PLAZA WEST 801 NICOLLET MALL Kevin J Corbid, County Recorder MINNEAPOLIS MN 55402 SPACE ABOVE THIS LINE FOR RECORDER'S USE This Mortgage contains after acquired property provisions and constitutes a fixture financing statement under Minnesota Statutes, Section 336.9-313. 2103613v2 The maximum principal indebtedness secured by this Mortgage is $20,000,000. COMBINATION MORTGAGE, SECURITY AGREEMENT, FIXTURE FINANCING STATEMENT AND ASSIGNMENT OF LEASES AND RENTS This COMBINATION MORTGAGE, SECURITY AGREEMENT, FIXTURE FINANCING STATEMENT AND ASSIGNMENT OF LEASES AND RENTS dated as of December 1, 2007 (the "Mortgage "), is executed and delivered by VSSA CARE CENTER, LLC, a Minnesota limited liability company (the "Mortgagor ") to PIPER JAFFRAY LENDING LLC, a Delaware limited liability company (the "Lender" and the "Mortgagee "). Recitals: 1. At the request of the Mortgagor, the City of Oak Park Heights, Minnesota, (the "City ") has agreed to issue its $20,000,000 Tax Exempt Loan Participation Notes (Boutwells Landing Care Center Project) Series 2007A and 2007E (the "Notes ") pursuant to a Servicing and Intercreditor Agreement of even date herewith between the City and the Lender (the "Servicing Agreement ") to finance site improvements and construction of a 108 -unit skilled nursing facility in the City (the "Project ") which Project is owned by the Mortgagor. 2. The proceeds of the Notes will be loaned by the City to the Mortgagor pursuant to the Loan Agreement of even date herewith (the "Loan Agreement ") among the City, the Mortgagor and the Lender. 3. Pursuant to the Servicing Agreement, the City will assign its interests in the Loan Agreement (except for certain rights to indemnity, payment of fees and expenses and repayment of advances) and in the Collateral Documents (as defined in the Loan Agreement) to the Lender as security for repayment of the Notes. NCSML1MPLS (JOY) RETURN TO: First American Title Insurance Company 1900 Midwest Plaza West 801 N icol Let Mali Minneapolis, MN 55402 4. The Lender is authorized by the Servicing Agreement to receive certain rights and collateral including the Mortgaged Property (as hereafter defined) and any and all other property conveyed, mortgaged, assigned or transferred, or in which a security interest is granted, by (among others) the Mortgagor, and to hold and apply such rights and collateral pursuant to the provisions of the Servicing Agreement. 5. The Mortgagor has agreed to mortgage and grant a security interest in the Mortgaged Property, as defined herein and as further described in Exhibit A hereto, to secure its obligations under the Loan Agreement, including its obligation to make Loan Repayments (as defined in the Loan Agreement) at times and in amounts sufficient to pay when due the principal and purchase price of and interest on the Notes. NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged; in consideration of the purchase and acceptance of the Notes by the Lender; and to secure the due and punctual payment of any and all liabilities of the Mortgagor under the Loan Agreement, including (without limitation) all Loan Repayments payable thereunder, and the payment of all fees and expenses and advances of the City and the Lender under the Loan Agreement, the Servicing Agreement, this Mortgage and any other Collateral Documents (as defined in the Loan Agreement), the Mortgagor does hereby grant, bargain, sell, convey, and warrant and assign to the Mortgagee, its permitted successors and assigns a lien on and security interest in, and does hereby mortgage and pledge unto the Mortgagee, its successors and assigns, forever, with power of sale, the following: I. All of its right, title and interest in and to the tracts, parcels and interests in land described in Exhibit A hereto (the "Land ") and the buildings, structures and other improvements now standing or at any time hereafter constructed or placed upon the Land (the "Buildings "), including but not limited to (i) all building materials, supplies and equipment now or hereafter located on the Land and suitable or intended to be incorporated in any building, structure, or other improvement located or to be erected on the Land, (ii) all heating, plumbing and lighting apparatus, motors, engines and machinery, electrical equipment, incinerator apparatus, air conditioning equipment, water and gas apparatus, pipes, faucets, and all building service equipment and other fixtures of every description which are now or may hereafter be placed or used upon the Land or in any building or improvement now or hereafter located thereon, (iii) all additions, accessions, increases, parts, fittings, accessories, replacements, substitutions, betterments, repairs and proceeds to and of any and all of the foregoing, and (iv) all hereditaments, easements, appurtenances, estates, and other rights and interests now or hereafter belonging to or in any way pertaining to the Land or to any building or improvement now or hereafter located thereon. I1. All furnishings, furniture, equipment and all other tangible personal property of any nature whatever now or hereafter located in the Buildings or elsewhere on the Land to the extent financed by the Notes, including all additions, accessions, increases, parts, fittings, accessories, 2]03613v2 2 replacements, substitutions, betterments, repairs and proceeds to and of any and all such property, excluding any items released or disposed of in accordance with the Loan Agreement. All rents, issues, condemnation awards, insurance proceeds, and similar revenues and income arising from the ownership of the Land, the Buildings and the Equipment and all proceeds and products thereof (herein collectively called "Revenues and Income "). To Have and To Hold the Land, Buildings and Equipment (the "Mortgaged Property "), and the Revenues and Income thereof, together with all privileges, hereditaments and appurtenances thereunto now or hereafter belonging, or in anywise appertaining, and the proceeds thereof, unto the Mortgagee, its successors and assigns forever, In Trust Nevertheless, upon the terms and trust as part of the rights and collateral assigned by the City to the Lender under the Servicing Agreement, Provided, nevertheless, that these presents are upon the express condition that if the Mortgagor shall pay all Loan Repayments under the Loan Agreement and cause to be paid the principal of and interest on the Notes, and if the Mortgagor shall strictly observe and perform all of the terms, covenants and conditions contained in the Loan Agreement and this Mortgage, then this Mortgage and the estate, right and interest of the Mortgagee in and to the Mortgaged Property, and the Revenues and Income thereof, shall cease and be and become void and of no force and effect, and shall be satisfied at the Mortgagor's expense, otherwise to remain in full force and effect. The Mortgagor and the Mortgagee further agree as follows: 1. Definitions. Terms used in this Mortgage not otherwise defined in this Mortgage, but defined in the Loan Agreement or the Servicing Agreement, shall have the same meaning as in the Loan Agreement or the Servicing Agreement unless the context clearly indicates a contrary meaning. 2. Amount and Iaturi of Dotes° Loan l�.e a eats m . The parties represent and agree as follows: (a) The Series 2007A Note shall be in the principal amount of $10,000,000 and the Series 2007B Note shall be in the principal amount of $10,000,000 and the final maturity thereof shall be December 1, 2035 for the Series 2007A Note and December 31, 2036 for the Series 2007B Note, subject to the optional prepayment of the Notes as further set forth in the Servicing Agreement. (b) Loan Repayments are required to be made monthly by the Mortgagor in order to pay principal and purchase price of, and interest of the Notes when and as the same shall become due, or when required to be redeemed, as more fully provided in the Loan Agreement and the Servicing Agreement. 2103613v2 3 3. AddjtjaI Under the Loan Agreement, the Mortgagor will be obligated, in addition to the Loan Repayments described above, to pay all required p y quired rebate payments to the United States in respect of the Notes, the reasonable fees and expenses of the Lender fees and expenses of the City and any advances by the City or the Lender to meet obligations of the Mortgagor for (among other things) taxes, special assessments, utility charges, insurance premiums, and liens in connection with the Mortgaged Property and also to provide indemnity to the City, all as more fully provided in the Loan Agreement, which obligations are additional indebtedness intended to be secured by this Mortgage. 4. Release of Pro er . Property included in the Mortgaged Property may be released from the lien of this Mortgage and easements may be granted as provided in the Loan Agreement and the Servicing Agreement. 5. warrant of Title• Permitted Emu lmbrances. The Mortgagor does hereby covenant, represent and warrant that it is the lawful owner of and has good right and lawful authority to grant, bargain, sell, convey, warrant, mortgage, assign and pledge the Mortgaged Property and Revenues and Income thereof as provided herein; that the Mortgagor is and will continue to be well and truly seized of good and marketable title to the Mortgaged Property; that the Mortgaged Property and Revenues and Income thereof are and shall remain free and clear of all mortgages, liens, pledges, charges and encumbrances, excepting, with respect to the Land, Permitted Encumbrances, and excepting, with respect to any equipment, furnishings or other personal property, liens or security interests existing on the date hereof or hereafter arising with respect to any security interest granted in connection with purchase money acquisitions of such personal property; and that the Mortgagor does warrant and will defend the title to the Mortgaged Property and Revenues and Income thereof against all claims and demands whatsoever not permitted hereunder or under the Loan Agreement. "Permitted Encumbrances" shall mean Permitted Encumbrances as defined in the Loan Agreement and Servicing Agreement or as permitted by the Loan Agreement, including those encumbrances identified in Exhibit B hereto. 6. Events of Default. Remedies. If any Event of Default as defined in the Loan Agreement shall occur and be continuing, or if any Event of Default as defined in the Servicing Agreement shall occur and be continuing, the Mortgagee shall have authority (i) to accelerate the Loan Repayments and to declare the Notes immediately due and payable as provided in the Loan Agreement and the Servicing Agreement, and (ii) to pursue one or more of the remedies provided for in the Loan Agreement and the Servicing Agreement respectively, and in lieu thereof or addition thereto, one or more of the following remedies and provisions for foreclosure or enforcement of this Mortgage: (a) The Mortgagee may proceed to protect and enforce its rights by a suit or suits in equity or at law, either for the specific performance of any covenant or agreement contained herein or in aid of the execution of any power herein granted, or for the foreclosure of this Mortgage, or for the enforcement of any other appropriate legal or equitable remedy. (b) The Mortgagee shall have and may exercise with respect to all personal property and fixtures which are part of the Mortgaged Property all the rights and remedies accorded upon default to a secured party under the Uniform Commercial Code, as in effect in the 2]03613v2 4 State of Minnesota. If notice to the Mortgagor of intended disposition of such ro ert is p p Y required by law in a particular instance, such notice shall be deemed commercially reasonable if given (in the manner specified in the Loan Agreement and the Servicing Agreement) at least ten ( calendar days prior to the date of intended disposition. (c) The Mortgagee shall be entitled, without notice, except that which is required by law, and without any showing of waste of the Mortgaged Property, inadequacy of the Mortgaged Property as security, or insolvency of the Mortgagor, to the appointment of a receiver of the rents and profits of the Mortgaged Property including those past due, as ermitted b p by Minnesota Statutes, Section 576.01. The Mortgagee or any receiver shall be entitled to receive and dispose of the Revenues and Income of the Mortgaged Property and to sue for and recover any account or other item of Revenues and Income from the Mortgagor or any account debtor or other third person. Subject to any order of a court appointing a receiver or otherwise having jurisdiction of the rights and collateral assigned under the Servicing Agreement, the Mortgagee in its discretion may apply the Revenues and Income received by it as follows: (i) to the application of tenant security deposits, as required by Minnesota Statutes, Section 504B.178, (ii) to the payment when due of prior or current real estate taxes or special assessments with respect to the Mortgaged Property, or the periodic escrow for the payment of the taxes or special assessments, (iii) to the payment when due of premiums for insurance of the types required by the Loan Agreement or this Mortgage, or the periodic escrow for the payment of the P remiums (iv) to the just and reasonable compensation of the Mortgagee for its own services and for the services of counsel, agents and employees by it properly engaged and employed, ( v ) to the reimbursement of advances made by the Mortgagee pursuant to the provisions of the Loan Agreement or this Mortgage, (vi) to the payment of the indebtedness secured hereby, Y (vii) to the expenses of operating the Mortgaged Property and conducting the business thereof, and (viii) to the repair, maintenance, renewal, replacement or alteration of the Mortgaged Property. Y (d) The 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 in fee simple and to apply the pp Y proceeds arising from such sale, first, as provided in the Servicing Agreement, to the payment of the indebtedness secured thereby and hereby, including all reasonable expenses, liabilities and advances of the Mortgagee and the Notes and interest thereon and Loan Repayments relatin relating thereto, and all legal costs and charges of such foreclosure, which costs, charges and fees the Mortgagor agrees to pay, and, second, to the payment of any obligations of the Mortgagor to the City under the Loan Agreement, and, third, to return any surplus to the Mortgagor or such other person as may be entitled thereto. Such sale shall be made at public auction and at such place or places and at such time or times and upon such notice as the Mortgagee may be advised b Y by counsel to be consistent with the laws applicable thereto, and upon such terms as the Mortgagee or the public officer conducting such sale may fix. Any such sale made pursuant to judicial proceedings or advertisement shall be made either as an entirety or in such parcels as may be directed by the court or as the Mortgagee in its sole discretion may determine. The or Mort a g g for it and all persons and corporations hereafter claiming through or under it, does hereby expressly waive and release all right to have the properties and rights comprised in the Mortgaged Property or in the rights and collateral assigned under the Servicing Agreement marshaled upon any foreclosure or other enforcement hereof. The Mortgagee or public officer 2103613v2 5 conducting such sale from time to time may adjourn any such sale to be made by it b Y by announcement at the time and place appointed for such sale or for such adjourned sale or sales, and without further notice or publication it may make such sale at the time to which the same shall be so adjourned, but in the event of such adjournment or adjournments, sale shall be made within any limitation of time or number of adjournments prescribed by law and in any event, within six months from the date of sale fixed in the advertisement or court order, unless notice of sale on some later date shall be given again in the manner provided b y law. (e) Upon any foreclosure sale, the Lender may bid for and purchase the rights and collateral assigned under the Servicing Agreement or any part thereof and upon compliance with the terms of sale may hold, retain and possess and dispose of such ro ert in their or its p P Y own absolute right without further accountability, and any purchaser at i any may, such sale ma in rn paying the purchase money, tun any of such Notes or claims for interest in lieu of cash to the amount which shall, upon distribution of the net proceeds of such sale, be payable thereon. (0 Upon the completion of any sale or sales made under or b virtue of this Y Mortgage and the Servicing Agreement, the Mortgagee shall execute and deliver, or cause to be executed and delivered, to the accepted purchaser or purchasers the property sold with good and sufficient transfers, assigning and transferring all its right, title and interest in and to the properties sold. The Mortgagee and its successor or successors are hereby appointed the true and lawful its pP ful attorney or attorneys irrevocable of the Mortgagor in its name and stead or in the name of the Mortgagee to make all necessary assignments, transfers and deliveries of the ro ert thus P p �' sold, and for that purpose, - the Mortgagee and its successors may execute all necessary ary instruments of assignment and transfer, and may substitute one or more persons with like power, 9 the Mortgagor hereby ratifying and confirming all that said attorney or attorneys or such Y y substitute or substitutes shall lawfully do by virtue hereof. Nevertheless, the Mortgagor, if so requested in writing by the Mortgagee, shall ratify and confirm any such sale or sales by executing and delivering to the Mortgagee or to such purchaser or purchasers all such instruments as may be advisable, in the judgment of the Mortgagee, for the purpose and as may be designated in such request. (g) Upon any sale made under the power of sale hereby granted or under judgment or decree in any judicial proceedings for the foreclosure or otherwise for the enforcement of this Mortgage or the Servicing Agreement, the receipt of the Mortgagee or of the officer making such sale shall be a sufficient discharge to the purchaser or urchasers at any sale p y for the purchase money, and such purchaser or purchasers, their assigns or personal � P representatives shall not, after paying such purchase money and receiving such receipt of the Mortgagee or of such officer therefor, be obliged to see to the application of such P urchase money, or be in anywise answerable for any loss, misapplication, or nonapplication thereof. (h) The Mortgagor does hereby expressly consent to sale of the Mortgaged Property by advertisement pursuant to Minnesota Statutes, Chapter 580, which P rovides for sale after service of notice thereof upon the occupant of the Mortgaged Property and publication of p Y P said notice for six weeks in the county in which the Mortgaged Pro Property is located, p Y notwithstanding that service might not be made upon the Mortgagor personally, that no � y� hearing of any type is required in connection with the sale. Except as required by the aforesaid P � Y statutory provision, the Mortgagor hereby expressly waives any and all rights to notice of sale of 2]03613v2 6 the Mortgaged Property and any and all rights to a hearing of any type in connection with the sale of the Mortgaged Property. (i) In case of any Event of Default as aforesaid, to the extent that such rights may then lawfully be waived, neither the Mortgagor nor anyone claiming through or under it shall or will set up, claim, or seek to take advantage of any appraisement, valuation, stay, extension or redemption laws now or hereafter in force in any locality where any of the Mortgaged Property may be situated, in order to prevent or hinder the enforcement or foreclosure of this Mortgage or the Servicing Agreement, or the absolute sale of the Mortgaged Property, or the final and absolute putting into possession thereof, immediately after such sale, of the purchaser or purchasers thereat. (j) Any sale made under the power of sale granted hereby or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Mortgage or the Servicing Agreement shall, if and to the extent then permitted by law, operate to divest all right, title, interest, claims and demand whatsoever, either at law or in equity, of the Mortgagor of, in and to the property so sold, and be a perpetual bar both at law and in equity against the Mortgagor and against any and all persons, firms or corporations claiming or who may claim the property sold, or any part thereof, from, through or under the Mortgagor. 7. Possession of Mort. Unless a Default on the part of the Mortgagor shall exist under the Loan Agreement or an Event of Default shall exist under the Loan Agreement or the Servicing Agreement, the Mortgagor shall be entitled to the possession and disposition of the Mortgaged Property and the Revenues and Income thereof subject, however, to the rights of the Lender to the possession and disposition of the Funds provided for in the Loan Agreement and the Servicing Agreement. 8. Further Assurances. As provided in the Loan Agreement, the Mortgagor shall execute, deliver, file and record at its expense such supplements to this Mortgage, financing statements or other documents as may be required in the opinion of counsel, including (without limitation) any supplement to this Mortgage to particularly describe any properties which have been or are intended to become subject to the lien hereof. 9. Amendments. This Mortgage may be amended only as provided in the Loan Agreement and the Servicing Agreement, provided that Exhibit A may be amended to reflect the legal description as plotted without obtaining the consent of the Mortgagor and the Mortgagee. 10. Loan A reement and the Servicin A regiment control. Any provision in this Mortgage which is inconsistent with the Loan Agreement or the Servicing Agreement or any provision thereof shall be interpreted as if such provision were not contained herein and as if the provisions of the Loan Agreement and the Servicing Agreement had been fully incorporated herein. In all cases of inconsistency, and in case of any amendment of or supplement to the Loan Agreement or the Servicing Agreement, entered into in accordance with the provisions thereof, the provisions of the Loan Agreement (as amended and supplemented) and the Servicing Agreement (as amended and supplemented) shall control. Reference is hereby made to copies of the Loan Agreement and the Servicing Agreement to be placed on file at the offices of the Mortgagor and the Lender and at the office of the City Administrator. 2103613v2 7 1 1. "i�xtu re F iijj . From the date of its recording, this Mortgage shall be effective as a financing statement filed as a fixture filing with respect to all goods constituting p art of the Mortgaged Property which are or are to become fixtures related to the real estate described herein. For this purpose, the following information is set forth: a. Name and Address of Debtor: VSSA Care Center, LLC c/o Presbyterian Homes and Services 2845 Hamline Avenue North, Suite 200 Roseville, MN 55113 Attn: Chief Financial Manager Employer ID Number: 20- 4000957 b. Name and Main Office Address of Secured Party: Piper Jaffray Lending LLC 800 Nicollet Mali 13 Floor Minneapolis, MN 55402 Attn: Public Finance Department c. This document covers goods which are or are to become fixtures. 12. _ Assi nmen of Y.eases an�i Items. The Mortgagor does hereby grant, transfer and assign to the Mortgagee (the "Assignment ") all of the right, title and interest of the Mortgagor in and to (i) any and ail present or future leases or tenancies, whether written or oral, covering or affecting any or all of the Mortgaged Property (all of which, together with any and all extensions, modifications and renewals thereof, are hereinafter collectively referred to as the "Leases" and each of which is referred to as a "Lease"), and (ii) all rents, profits and other income or payments of any kind due or payable or to become due or payable to or by the Mortgagor as the result of any use, possession or occupancy of all or any portion of the Mortgaged Property or as the result of the use of or lease of any personal property constituting a part of the Mortgaged Property (all of which are hereinafter collectively referred to as "Rents "), but not including any general revenues, income or accounts receivable of the Mortgagor, and whether the Rents accrue before or after foreclosure of the Mortgage or during the periods of redemption thereof, all for the purpose of securing: (a) Ali indebtedness under the Loan Agreement and all other sums secured by this Mortgage and Assignment; and (b) Performance and discharge of each and every obligation, covenant and agreement of the Mortgagor contained herein and in the Loan Agreement. 13. Covenant. The Mortgagor warrants and covenants that it is and will remain the absolute owner of the Rents and Leases free and clear of all liens and encumbrances other than the lien granted herein and Permitted Encumbrances; that it has not heretofore assigned or otherwise encumbered its interest in any of the Rents or Leases to any person other than as set forth in the Permitted Encumbrances; that it has the right under applicable law, under the Leases, 2103613v2 8 and otherwise to execute and deliver this Assignment and keep and perform all of its obligations hereunder; that it will warrant and defend the Leases and Rents against all adverse claims, whether now existing or hereafter arising. 14. Performance of Leases. The Mortgagor will faithfully abide by, perform and discharge each and every obligation, covenant and agreement which it is now or hereafter becomes liable to observe or perform under any present or future Lease, and, at its sole cost and expense, enforce or secure the performance of each and every obligation, covenant, condition and agreement to be performed by the tenant under each and every Lease, subject to such waivers or extensions of time as may be granted by Mortgagor, provided that Mortgagee shall have the right, at any time, to rescind any such waiver or extension of time. The Mortgagor will observe and comply with all provisions of law applicable to the operation and ownership of the Mortgaged Property. The Mortgagor will at its sole cost and expense, appear in and defend any action or proceeding arising under, growing out of or in any manner connected with any Lease or the obligations, duties or liabilities of the Mortgagor or any tenant thereunder. 15. Collection of Rents. Unless permitted by the Mortgagee, the Mortgagor will not collect or accept any Rents for the use or occupancy of the Mortgaged Property for more than one month in advance. Resident entrance deposits or security deposits shall not be deemed Rents for purposes of this paragraph. 16. Protectin the S ecurity of This Assignment. Should the Mortgagor fail to perform or observe any covenant or agreement contained in this Assignment, then the Mortgagee, but without obligation to do so and without releasing the Mortgagor from any obligation hereunder, may make or do the same in such manner and to such extent as the Mortgagee may deem appropriate to protect the security hereof, including, specifically, without limiting its general powers, the right to appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Mortgagee, and also the right to perform and discharge each and every obligation, covenant and agreement of the Mortgagor contained in the Leases and in exercising any such powers to pay necessary costs and expenses, employ counsel and pay reasonable attorneys' fees. The Mortgagor will pay immediately upon demand all sums expended by the Mortgagee under the authority of this Assignment, together with interest thereon, and the same shall be added to said indebtedness and shall be secured hereby. 17. Present Assignment. This Assignment shall constitute a perfected, absolute and present assignment, provided that the Mortgagor shall have the right to collect, but not prior to accrual (except as permitted by paragraph 15 above), all of the Rents, and to retain, use and enjoy the same unless and until an Event of Default shall occur under the Loan Agreement or the Mortgage or the Mortgagor shall have breached any warranty or covenant in this Assignment. Any Rents which accrue prior to an Event of Default under the Loan Agreement or this Mortgage but are paid thereafter shall be paid to the Mortgagee. 18. Survival of Obli ation to Com.1 With Mort' a e and this Assi nment. All of the Mortgagor's obligations under this Mortgage and Assignment shall survive foreclosure of this Mortgage and the Mortgagor covenants and agrees to observe and comply with all terms and conditions of this Mortgage and Assignment and to preclude any Event of Default from 2103613v2 9 occurring under the Loan Agreement or the Mortgage throughout any period of redemption after foreclosure of the Mortgage. 19. Additional Remedies. Upon the occurrence of any Event of Default specified in the Loan Agreement, the Servicing Agreement or herein, the Mortgagee may, at its option, in addition to any remedies set forth in Section 6, at any time: (a) in the name, place and stead of the Mortgagor and without becoming a mortgagee in possession (i) enter upon, manage and operate the Mortgaged Property or retain the services of one or more independent contractors to manage and operate all or ariy part of the Mortgaged Property, (ii) make, enforce, modify and accept surrender of the Leases; (iii) obtain or evict tenants, collect, sue for, fix or modify the Rents and enforce all rights of the 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. (b) with or without exercising the rights set forth in subparagraph (a) above, give or require the Mortgagor to give, notice to any or all tenants under the Leases authorizing and directing the tenants to pay all Rents under the Leases directly to the Mortgagee. (c) without regard to waste, adequacy of the security or solvency of the Mortgagor, apply for, and the Mortgagor hereby consents to, the appointment of a receiver of the Mortgaged Property, whether or not foreclosure proceedings have been commenced under the Mortgage, and if such proceedings have been commenced, whether or not a foreclosure sale has occurred. The exercise of any of the foregoing rights or remedies and the application of the rents, profits and income pursuant to Section 20 shall not cure or waive any Event of Default (or notice of default) under the Mortgage or invalidate any act done pursuant to such notice. 20. A iication of Rents Profits and Income. All Rents collected by the Mortgagee or the receiver each month shall be applied as provided hereinabove. The rights and powers of the Mortgagee under this Assignment and the application of Rents under this Section 20 shall continue until expiration of the redemption period from any foreclosure sale, whether or not any deficiency remains after a foreclosure sale. 21. No I iabili for Mort a ee The Mortgagee shall not be obligated to perform or discharge, nor does it hereby undertake to perform or discharge, any obligation, duty or liability of the Mortgagor under the Leases. This Assignment shall not operate to place upon the Mortgagee responsibility for the control, care, management or repair of the Mortgaged Property P y or for the carrying out of any of the terms and conditions of the Leases. The Mortgagee shall not be responsible or liable for any waste committed on the Mortgaged Property, for any dangerous or defective condition of the Mortgaged Property, for any negligence in the management, upkeep, repair or control of the Mortgaged Property or for failure to collect the Rents. 22. Mortgagor's Indemnification. The Mortgagor shall and does hereby agree to indemnify and to hold the Mortgagee harmless of and from any and , y nd ail claims, demands, liability, loss or damage (including all costs, expenses, and reasonable attorney's fees in the defense thereof) asserted against, imposed on or incurred by the Mortgagee in connection with or 2103613v2 10 as a result of this Assignment or the exercise of any rights or remedies under this Assignment or under the Leases or by reason of any alleged obligations or undertakings of the Mortgagee to perform or discharge any of the terms, covenants or agreements contained in the Leases which do not result from Mortgagee's own gross negligence or willful misconduct. Should the Mortgagee incur any such liability, the amount thereof, together with interest thereon, shall be secured hereby and the Mortgagor shall reimburse the Mortgagee therefor immediately upon demand. 23. Authorization to Tenants. Upon notice from the Mortgagee that it is exercising the remedy set forth in Section 19(b) of this Assignment, the tenants under the Leases are hereby irrevocably authorized and directed to pay to the Mortgagee all sums due under the Leases, and the Mortgagor hereby consents and directs that said sums shall be paid to the Mortgagee without the necessity for a judicial determination that a default has occurred hereunder or that the Mortgagee is entitled to exercise its rights hereunder, and to the extent such sums are paid to the Mortgagee, the Mortgagor agrees that the tenant shall have no further liability to the Mortgagor for the same. The signature of the Mortgagee alone shall be sufficient for the exercise of any rights under this Assignment and the receipt of the Mortgagee alone for any sums received shall be a full discharge and release therefor to any such tenant or occupant of the Mortgaged Property. Checks for all or any part of the Rents collected under this Assignment shall upon notice from the Mortgagee be drawn to the exclusive order of the Mortgagee. 24. Mort a ee an Attorne -In -Pact. The Mortgagor hereby irrevocably appoints the Mortgagee, and its successors and assigns, as its agent and attorney -in -fact, which appointment is coupled with an interest, with the right but not the duty to exercise any rights or remedies hereunder and to execute and deliver during the term of this Assignment such instruments as the Mortgagee may deem appropriate to make this Assignment and any further assignment effective, including without limiting the generality of the foregoing, the right to endorse on behalf and in the name of the Mortgagor all checks from tenants in payment of Rents that are made payable to the Mortgagor. 25. Mort a ee Not a Mart a ee in Possession. Nothing herein contained and no actions taken pursuant to this Assignment shall be construed as constituting the Mortgagee a mortgagee in possession. 21O3613v2 26. S ecific Assi n neat of Leases. The Mortgagor will transfer and assign to the Mortgagee, upon written notice by Mortgagee, any and all specific Leases that the Mortgagee requests. Such transfer or assignment by the Mortgagor shall be upon the same or substantially the same terms and conditions as are herein contained, and the Mortgagor will properly file or record such assignments, at the Mortgagor's expense, if requested by the Mortgagee. 27. Unenforceable Provisions Severable. All rights, powers and remedies provided herein may be exercised only to the extent that the exercise thereof does not violate any applicable law, and are intended to be limited to the extent necessary so that they will not render this Assignment invalid, unenforceable or not entitled to be recorded, registered or filed under any applicable law. If any term of this Assignment shall be held to be invalid, illegal or unenforceable, the validity of other terms hereof shall in no way be affected thereby. It is the intention of the parties hereto, however, that this Assignment shall confer upon the Mortgagee 11 the fullest rights, remedies and benefits available pursuant to Minnesota Statutes, Section 559.17 and Section 576.01, Subdivision 2. 28. Successors and Assigns. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to the respective successors and assigns of the Mortgagor and the Mortgagee, including any purchaser at a foreclosure sale. 29. Captions; Amendments; Notices The captions and headings of the paragraphs of this Assignment are for convenience only and shall not be used to interpret or define the provisions of this Assignment. This Assignment may be amended only in a writing signed by the Mortgagor and the Mortgagee, in accordance with the provisions of the Servicing Agreement. 2103613v2 12 STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) 2103613v2 VSSA CARE CENTER, LLC By: / Its: Treasurer /Chief Financial Manager The foregoing instrument was acknowledged before me this day of December, 2007 by Mark Meyer, being the Treasurer /Chief Financial Manager of VSSA Care Center, LLC, a Minnesota limited liability company on behalf of sai com I . ny, who is to me personally known. S-1 This instrument was drafted by: BRIGGS AND MORGAN, PROFESSIONAL ASSOCIATION (TJH) 2200 IDS Center 80 S. Eighth Street Minneapolis, Minnesota 55402 Tract A, Registered Land Survey Number 2)03613v2 EXHIBIT A Legal Description A-1 , Washington County, Minnesota. EXHIBIT B Permitted Encumbrances 1. Real estate taxes and special assessments not yet due and payable in 2007 and thereafter. 2. Easements for drainage and utility purposes as shown on the recorded p lat of BOUTWELLS LANDING recorded as Document No. 1086519. 3. Public Walkway and Bike Path Basement an Agreement, Dated June 11, 2002, recorded August 6, 2002 as Document No. 1115052, and the easements, obligations, terms, restrictions and conditions set forth therein. 4. Terms and conditions of unrecorded Developer's Agreement dated December 30, 1998, by and between Valley Senior Services Alliance and the City of Oak Park Heights, as amended by First Amendment dated July 26, 1999 and Second Amendment dated May 5, 2000. S. Easements, terms and conditions of 2007 Developer's Agreement Main Campus Addition of Care Center Facility dated - 2007, by and between Valley Senior Services Alliance and the City of ak Park Heights, recorded �� °° 1/-457 as Document No. iigagl) . 6. Joint Easement and Maintenance Agreement dated A2-4-07 , recorded /2 �j. , as Document Number f 3/$ ,and the easements, obligations, terms, restrictions and conditions set forth there n. 7. Payment in Lieu of Taxes Agreement dated ) �D recorded /,2 p// 07 , as Document No. 21036]3v2 B-1