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HomeMy WebLinkAbout2089Z STATE OF MINNESOTA v� I,. I Ap� � � �� J UD1STKICT COURT COUNTY OF HENNEPIN URTH,JUDICIAL DISTRICT L In the Matter of, Litt: Condcmr�'4t� -ion,' � by the City of Edina, Minnesota, of Certain Land in Hennepin County FINAL CERTIFICATE for Public Road and Storm Water IN CONDEMNATION System Case No. C -1563 • I, THOMAS S. ERICKSON, city attorney for the City of Edina, petitioner herein, do hereby certify that an estate in fee simple absolute has been taken by the petitioner in the following described real property by eminent domain proceedings pursuant to Minnesota Statutes, Chapter 117, for the purpose of erecting a public road and storm water system: Outlot 1, Heath Glen,- according to the plat there- of on file and of record in the office of the Re- gister of Deeds, in and for Hennepin County, Minnesota. That on the 24th day of April, 1979, the above -named court entered its order granting the petition for the taking of such land and appointed commissioners to ascertain and report the amount of damages sustained by the owners on account of sucn taking; that the commissioners filed their award of damages for the taking of such land; that no appeals have been filed with the court; that all awards made by the commissioners have been paid; and that all necessary proceedings for the taking of such land are now completed in accordance with the provisions of Minnesota Statl.ltes, Chapter 11.7. P Dated at Minneapolis, Minnesota, this day of November, 1979. Subscribed and sworn to before me this 9th day of November, 1979. Notary Public M ,nMMhM,AAAAM AA M MARIT K. WI TER Ir " NOTARY PUULIC i ih,, �.w WHIGHI COUNTY My Commission Expiros Oct. 24, 1965 "r I I I Y'l�omas S. lrick�on City Attorney for the City of Edina, Minnesota 2300 First National Bank Bldg. Minneapolis, Minnesota 55402 t; STATE OF MINNESOTA, COUNTY.,. ENNEPIN Certified to be a true and Correc�'c- of the original on;lile and of record in my office. .nnr u boric ? -:niat (`.T an ii strator DOW 0?3 -O NOV 14-79 10 3 3 $ 003.00% A rv, �? S x c,o o OFFICE OF COUNTY rif CORDi.R M HENNEPIN Co? W ; Y. M!N%;: SCt! CERMI'lt V F'? i 1979 NOV 14 AM If: 23 M i,,r421033 RECCRt;: a T ITLE I NSURANCE COMPANY OF M INNESOTA February 10, 1981 Z 089 Dorsey Law Firm 2300 First National Bank Bldg. Minneapolis, MN 55402 FtECE''t Attn: Barb Dulebohn FEB 10 1987 RE. T.D. 480059 - Braemer Assoc. Documents indicated below are enclosed; Abstract of Title No. Owner's Policy No. KX Mortgagee's Policy No. B1486741 Title Binder Deed, Document No. XX Mortgage, Document No. 4619599 (original) Closing Statement Tax Receipt No. Satisfaction, Document No. Assignment, Document No. Mortgage Note No. Hazard Insurance Policy No. Check in the sum of $ Invoice Yours very truly, TITLE INSURANCE COMPANY OF MINNESOTA BY: Barbara K. Korman Assistant Secretary BKK:jah TIM Form 2058 HOME OFFICE: TITLE INSURANCE BUILDING* MINNEAPOLIS, MINNESOTA 0 (612) 371 -1111 w <, j POLICY NO-B1486741 z C1911 �yC� N AMERICAN LAND TITLE ASSOCIATION LOAN POLICY — 1970 Rev. r� °E° "`MeE� N„ TITLE INSURANCE COMPANY OF MINNESOTA Ta Stock Company, of Minneapolis, Minnesota SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS CONTAINED IN SCHEDULE B AND THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF, TITLE INSURANCE COMPANY OF MINNESOTA, herein called the Company, insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the amount of insurance stated in Schedule A, and costs, attorneys' fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by the insured by reason of: 1. Title to the estate or interest described in Schedule A being vested otherwise than as stated therein; 2. Any defect in or lien or encumbrance on such title; 3. Lack of a right of access to and from the land; 4. Unmarketability of such title; 5. The invalidity or unen force ability of the lien of the insured mortgage upon said estate or interest except to the extent that such invalidity or unen force ability, or claim thereof, arises out of the transaction evidenced by the insured mortgage and is based upon a. usury, or b. any consumer credit protection or truth in lending law; 6. The priority of any lien or encumbrance over the lien of the insured mortgage; 7. Any statutory lien for labor or material which now has gained or hereafter may gain priority over the lien of the insured mortgage, except any such lien arising from an improvement on the land contracted for and commenced subsequent to Date of Policy not financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advance; or 8. The invalidity or unen force ability of any assignment, shown in Schedule A, of the insured mortgage or the failure of said assignment to vest title to the insured mortgage in the named insured assignee free and clear of all liens. IN WITNESS WHEREOF, the said Title Insurance Company of Minnesota has caused its corporate name and seal to be hereunto affixed by its duly authorized officers as of the date shown in Schedule A, the policy to be valid when countersigned by an authorized officer or agent of the Company. TITLE INSURANCE COMPANY OF MINNESOTA President Countersigned: Secretary Authorized Officer or Agent EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy: 1. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land, or the effect of any violation of any such law, ordi- nance or governmental regulation. 2. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the public records at Date of Policy. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured by this policy or acquired the insured mortgage and not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder; (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent insurance is afforded herein as to any statutory lien for labor or material or right thereto). 4. Unenforceability of the lien of the insured mortgage because of failure of the insured at Date of Policy or of any subsequent owner of the indebtedness to comply with applicable "doing business" laws of the state in which the land is situated. Form 209 6/71 Copyright 1969 American Land Title Association e/ ,CAN -1_ O �1 1 /a ''H90G1 n �. PPROV ED MEneE. TITLE INSURANCE POLICY AMERICAN LAND TITLE ASSOCIATION LOAN POLICY — 1970 Rev. Issued through the office of: TITLE INSURANCE COMPANY OF MINNESOTA 400 Second Avenue South Minneapolis, MN 55 401 371 -1111 w'bNINOiON �AN;t, MMTN 6lacOtA WNN8W07wJ OgEOpry jf( io,� sa+'waurm TITLE INSURANCE COMPANY OF MINNESOT Home Office: 400-2nd Ave. So., Minneapolis, Minn. 55401 • 612/371 -11' 001" %Au N 0 ce CONDITIONS AND STIPULATIONS 1. Definition of Terms The following terms when used in this policy mean: (a) "insured ": the insured named in Schedule A. The term "insured" also includes (i) the owner of the indebtedness secured by the insured mortgage and each successor in ownership of such indebtedness (reserving, however, all rights and defenses as to any such successor who acquires the indebtedness by operation of law as distinguished from purchase including, but not limited to, heirs, distributees, devisees, survivors, personal representatives, next of kin or corporate or fiduciary successors that the Company would have had against the successor's transferor), and further in- cludes (ii) any governmental agency or instrumentality which is an insurer or guarantor under an insurance contract or guaranty insuring or guaranteeing said indebtedness, or any part thereof, whether named as an insured herein or not, and (iii) the parties designated in paragraph 2(a) of these Conditions and Stipulations. (b) "insured claimant ": an insured claiming loss or damage hereunder. (c) "knowledge ": actual knowledge, not constructive knowledge or notice which may be imputed to an insured by reason of any public records. (d) "land ": the land described, specifically or by reference in Schedule A, and improvements affixed thereto which by law constitute real property; provided, however, the term "land" does not include any property beyond the lines of the area specifically described or referred to in Schedule A, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing herein shall modify or limit the extent to which a right of access to and from the land is insured by this policy. (e) "mortgage ": mortgage, deed of trust, trust deed, or other security instrument. (f) "public records ": those records which by law impart constructive notice of matters relating to said land. 2. (a) Continuation of Insurance after Acquisition of Title This policy shall continue in force as of Date of Policy in favor of an insured who acquires all or any part of the estate or interest in the land described in Schedule A by foreclosure, trus- tee's sale, conveyance in lieu of foreclosure, or other legal manner which discharges the lien of the insured mortgage, and if the insured is a corporation, its transferee of the estate or interest so acquired, provided the transferee is the parent or wholly owned subsidiary of the insured; and in favor of any governmental agency or instrumentality which acquires all or any part of the estate or interest pursuant to a contract of insurance or guaranty insuring or guaranteeing the indebtedness secured by the insured mortgage; provided that the amount of insurance hereunder after such ac- quisition, exclusive of costs, attorneys' fees and expenses which the Company may become obligated to pay, shall not exceed the least of: (i) the amount of insurance stated in Schedule A; (ii) the amount of the unpaid principal of the indebted- ness as defined in paragraph 8 hereof, plus interest thereon, expenses of foreclosure and amounts advanced to protect the lien of the insured mortgage and secured by said insured mortgage at the time of acquisition of such estate or interest in the land; or (iii) the amount paid by any governmental agency or instrumentality, if such agency or instrumentality is the insured claimant, in the acquisition of such estate or interest in satisfac- tion of its insurance contract or guaranty. (b) Continuation of Insurance after Conveyance of Title The coverage of this policy shall continue in force as of Date of Policy in favor of an insured so long as such insured re- tains an estate or interest in the land, or holds an indebtedness secured by a purchase money mortgage given by a purchaser from such insured, or so long as such insured shall have liability by reason of covenants of warranty made by such insured in any transfer or conveyance of such estate or interest; provided, how- ever, this policy shall not continue in force in favor of any pur- chaser from such insured of either said estate or interest or the indebtedness secured by a purchase money mortgage given to such insured. 3. Defense and Prosecution of Actions — Notice of Claim to be given by an Insured Claimant (a) The Company, at its own cost and without undue delay, shall provide for the defense of an insured in all litigation consisting of actions or proceedings commenced against such insured, or defenses, restraining orders or injunctions interposed against a foreclosure of the insured mortgage or a defense inter- posed against an insured in an action to enforce a contract for a sale of the indebtedness secured by the insured mortgage, or a sale of the estate or interest in said land, to the extent that such litigation is founded upon an alleged defect, lien, encumbrance, or other matter insured against by this policy. (b) The insured shall notify the Company promptly in writing (i) in case any action or proceeding is begun or defense or restraining order or injunction is interposed as set forth in (a) above, (ii) in case knowledge shall come to an insured hereunder of any claim of title or interest which is adverse to the title to the estate or interest or the lien of the insured mortgage, as insured, and which might cause loss or damage for which the Company may be liable by virtue of this policy, or (iii) if title to the estate or interest or the lien of the insured mortgage, as insured, is re- jected as unmarketable. If such prompt notice shall not be given to the Company, then as to such insured all liability of the Com- pany shall cease and terminate in regard to the matter or matters for which such prompt notice is required; provided, however, that failure to notify shall in no case prejuduce the rights of any such insured under this policy unless the Company shall be prejudiced by such failure and then only to the extent of such prejudice. (c) The Company shall have the right at its own cost to institute and without undue delay prosecute any action or pro- ceeding or to do any other act which in its opinion may be neces- sary or desirable to establish the title to the estate or interest or the lien of the insured mortgage, as insured, and the Company may take any appropriate action under the terms of this policy, whether or not it shall be liable thereunder, and shall not thereby concede liability or waive any provision of this policy. (d) Whenever the Company shall have brought any action or interposed a defense as required or permitted by the pro- visions of this policy, the Company may pursue any such litiga- tion to final determination by a court of competent jurisdiction and expressly reserves the right, in its sole discretion, to appeal from any adverse judgment or order. (e) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding, the insured hereunder shall secure to the Company the right to so prosecute or provide defense in such action or proceeding, and all appeals therein, and permit the Com- pany to use, at its option, the name of such insured for such purpose. Whenever requested by the Company, such insured shall give the Company all reasonable aid in any such action or pro- ceeding, in effecting settlement, securing evidence, obtaining witnesses, or prosecuting or defending such action or proceeding, and the Company shall reimburse such insured for any expense so incurred. 4. Notice of Loss — Limitation of Action In addition to the notices required tinder paragraph 3(b) of these Conditions and Stipulations, a statement in writing of any loss or damage for which it is claimed the Company is liable under this policy shall be furnished to the Company within 90 days after such loss or damage shall have been determined and no right of action shall accrue to an insured claimant until 30 days after such (Continued on inside back flap) (Continued from inside front flap) statement shall have been furnished. Failure to furnish such state- ment of loss or damage shall terminate any liability of the Company under this policy as to such loss or damage. S. Options to Pay or Otherwise Settle Claims The Company shall have the option to pay or otherwise settle for or in the name of an insured claimant any claim insured against or to terminate all liability acid obligations of the Company hereunder by paying or tendering payment of the amount of insurance under this policy together with any costs, attorneys' fees and expenses incurred up to the time of such payment or tender of payment by the insured claimant and authorized by the Company. In case loss or damage is claimed under this policy by an insured, the Company shall have the further option to purchase such indebtedness for the amount owing thereon together with all costs, attorneys' fees and expenses which the Company is obligated hereunder to pay. If the Company offers to purchase said indebt- edness as herein provided, the owner of such indebtedness shall transfer and assign said indebtedness and the mortgage and any collateral securing the same to the Company upon payment there- for as herein provided. 6. Determination and Payment of Loss (a) The liability of the Company under this policy shall in no case exceed the least of: (i) the actual loss of the insured claimant; or (ii) the amount of insurance stated in Schedule A, or, if applicable, the amount of insurance as defined in paragraph 2(a) hereof; or (iii) the amount of the indebtedness secured by the insured mortgage as determined under paragraph 8 hereof, at the time the loss or damage insured against hereunder occurs, together with interest thereon; or (b) The Company will pay, in addition to any loss insured against by this policy, all costs imposed upon an insured in litigation carried on by the Company for such insured, and all costs, attorneys' fees and expenses in litigation carried on by such insured with the written authorization of the Company. (c) When liability has been definitely fixed in accordance with the conditions of this policy, the loss or damage shall be payable within 30 days thereafter. 7. Limitation of Liability No claim shall arise or be maintainable under this policy (a) if' the Company, after having received notice of an alleged defect, lien or encumbrance insured against hereunder, by litigation or otherwise, removes such defect, lien or encumbrance or establishes the title, or the lien of the insured mortgage, as insured, within a reasonable time after receipt of such notice; (b) in the event of litigation until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title or to the lien of the insured mortgage, as insured, as provided in paragraph 3 hereof; or (c) for liability voluntarily assumed by an insured in settling any claim or suit without prior written consent of the Company. 8. Reduction of Liability (a) All payments under this policy, except payments made for costs, attorneys' fees and expenses, shall reduce the amount of the insurance pro tanto; provided, however, such pay- ments, prior to the acquisition of title to said estate or interest as provided in paragraph 2(a) of these Conditions and Stipula- tions, shall not reduce pro tanto the amount of the insurance afforded hereunder except to the extent that such payments reduce the amount of the indebtedness secured by the insured mortgage. Payment in full by any person or voluntary satisfaction or release of the insured mortgage shall terminate all liability of the Company except as provided in paragraph 2(a) hereof. (b) The liability of the Company shall not be increased by additional principal indebtedness created subsequent to Date of Policy, except as to amounts advanced to protect the lien of the insured mortgage and secured thereby. No payment shall be made without producing this policy for endorsement of such payment unless the policy be lost or destroyed, in which case proof of loss or destruction shall be fur- nished to the satisfaction of the Company. Liability Noncumulative. If the insured acquires title to the estate or interest in satis- faction of the indebtedness secured by the insured mortgage, or any part thereof, it is expressly understood that the amount of insurance under this policy shall be reduced by any amount the Company may pay under any policy insuring a mortgage here- after executed by an insured which is a charge or lien on the estate or interest described or referred to in Schedule A, and the amount so paid shall be deemed a payment under this policy. 10. Subrogation Upon Payment or Settlement Whenever the Company shall have settled a claim under this policy, all right of subrogation shall vest in the Company unaf- fected by any act of the insured claimant, except that the owner of the indebtedness secured by the insured mortgage may release or substitute the personal liability of any debtor or guarantor, or extend or otherwise modify the terms of payment, or release a portion of the estate or interest from the lien of the insured mortgage, or release any collateral security for the indebtedness, provided such act occurs prior to receipt by the insured of notice of any claim of title or interest adverse to the title to the estate or interest or the priority of the lien of the insured mortgage and does not result in any loss of priority of the lien of the insured mortgage. The Company shall be subrogated to and be entitled to all rights and remedies which such insured claimant would have had against any person or property in respect to such claim had this policy not been issued, and if requested by the Company, such insured claimant shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect such right of subrogation and shall permit the Company to use the name of such insured claimant in any transaction or litigation involving such rights or remedies. If the payment does not cover the loss of such insured claimant, the Company shall be subrogated to such rights and remedies in the proportion which said payment bears to the amount of said loss, but such subroga- tion shall be in subordination to the insured mortgage. If loss of priority should result from any act of such insured claimant, such act shall not void this policy, but the Company, in that event, shall be required to pay only that part of any losses insured against hereunder which shall exceed the amount, if any, lost to the Company by reason of the impairment of the right of subro- gation. 11. Liability Limited to this Policy This instrument together with all endorsements and other instruments, if any, attached hereto by the Company is the entire policy and contract between the insured and the Company. Any claim of loss or damage, whether or not based on negli- gence, and which arises out of the status of the lien of the insured mortgage or of the title to the estate or interest covered hereby or any action asserting such claim, shall be restricted to the pro- visions and conditions and stipulations of this policy. No amendment of or endorsement to this policy can be made except by writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant Secretary, or validating officer or authorized signatory of the Company. 12. Notices, Where Sent All notice required to be given the Company and any state- ment in writing required to be furnished the Company shall be addressed to its Home Office, Minneapolis, Minnesota 55401. Note: This policy valid only if Schedules A and B are attached. ST . 22 CNTY. 053 PROP. 3 TRAN. 410 ISSUED THROUGH THE OFFICE OF: Re -Issue Liability: - -- TITLE INSURANCE COMPANY OF MINNESOTA A TIM MORTGAGE 12/67 FORM 2254 PREMIUM: $7.50 AMOUNT $194,000.00 FILE NO. 480059 POLICY NO. B1486741 SCHEDULE A 1. POLICY DATE January 19, 1981 AT 4:00 P.M. 2. NAME OF INSURED: CITY OF EDINA 3. THE TITLE TO THE FEE SIMPLE ESTATE IN SAID LAND IS, AT DATE HEREOF, VESTED IN: BRAEMAR ASSOCIATES, INC. (a Minnesota Corporation) 4. THE MORTGAGE AND ASSIGNMENTS, IF ANY, COVERED BY THIS POLICY ARE DESCRIBED AS FOLLOWS: Mortgage: Dated: January 9, 1981 Filed: January 19, 1981 As Document No. 4619599 Mortgagor: Braemar Associates, Inc. (a Minnesota Corporation) Mortgagee: City of Edina, a Minnesota municipal corporation To secure an indebtedness of $194,000.00 and any other sums which may become due and payable under the terms thereof. 5. THE LAND REFERRED TO IN THIS POLICY IS THE SAME LAND AS DESCRIBED IN THE MORTGAGE SHOWN AT NO. 4 ABOVE, AND IS FURTHER DESCRIBED AS FOLLOWS: Parcel 1: That part of Outlot 1, HEATH GLEN, according to the recorded plat thereof, Hennepin County, Minnesota, lying Easterly of a line drawn 30 feet Easterly of and parallel with the following described line: Commencing at the intersection of the southerly extension of the centerline of Glasgow Drive as dedicated in said plat of HEATH GLEN, and the centerline of West 78th Street (Old State Highway No. 5); thence northeasterly along the centerline of West 78th Street a distance of 250.9 feet to a point of curve to the right; thence northeasterly along the tangent line of said curve, a distance of 6.32 feet to the point of beginning of the line to be described; thence northwesterly, deflecting to the left 90 degrees, a distance of 210.43 feet to a point of curve to the right with a radius of 238.23 feet and a central angle of 67041'30 "; thence along said curve 281.46 feet to a point of reverse curve; thence along a 250 foot radius curve; concave to the West, to the North line of said Outlot 1 and there terminating. See Page 2 ISSUED THROUGH THE OFFICE OF: TITLE INSURANCE Page 2 COMPANV OF MINNESOTA A Parcel 2: That part of the Southwest Quarter of the Southeast Quarter of Section 8, Township 116, Range 21, Hennepin County, Minnesota, described as beginning at the intersection of the west line of East Half of said Southwest Quarter of the Southeast Quarter of Section 8 with the south line of the north 20 rods (330 feet) of said Southwest Quarter of the Southeast Quarter of Section 8; thence westerly, along said south line of the north 20 rods (330 feet) of the Southwest Quarter of the Southeast Quarter of Section 8, a distance of 0.89 feet, more or less, to the east line of the west 40 rods (660 feet) of said Southwest Quarter of the Southeast Quarter of Section 8; thence southerly, along said east line of the west 40 rods (660 feet) of the Southwest Quarter of the Southeast Quarter of Section 8, a distance of 516.68 feet, more or less, to the northerly right -of -way of West 78th Street, thence easterly along said northerly right -of -way of West 78th Street, a distance of 0.91 feet, more or less, to said west line of the East Half of the Southwest Quarter of the Southeast Quarter of Section 8; thence northerly, along said west line of the East Half of the Southwest Quarter of the Southeast Quarter of Section 8 to the point of beginning. Parcel 3: That part of the East 1/2 of the Southwest 1/4 of the Southeast 1/4 lying North of the North line of State Highway No. 5 and South of the North 20 rods, and West of County Road No. 28, all in Section 8, Township 116, Range 21, Hennepin County, Minnesota, lying westerly of a line described as commencing at the intersection of the west line of said East 1/2 of the Southwest Quarter of the Southeast Quarter of Section 8, with the south line of said north 20 rods (330 feet) of the Southwest Quarter of the Southeast Quarter of Section 8; thence North 89 degrees 51 minutes 34 seconds East assumed bearing, along said south line of the north 20 rods (330 feet), a distance of 182.87 feet to the point of beginning of the line to be described; thence South 00 degrees 08 minutes 26 seconds East a distance of 193.00 feet; thence South 65 degrees 45 minutes 00 seconds West a distance of 115.00 feet; thence South 10 degrees 33 minutes 00 seconds West a distance of 91.60 feet; thence South 34 degrees 47 minutes 00 seconds East a distance of 65.32 feet; thence South 10 degrees 59 minutes 43 seconds East a distance of 102.45 feet, more or less, to the northerly right -of -way of West 78th Street (Old State Highway No. 5) and said line there terminating. All situate in Hennepin County, Minnesota. See Page 3 ISSUED THROUGH THE OFFICE OF: TITLE INSURANCE Page 3 COMPANY WN OF MINNESOTA A SCHEDULE B -1 THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE BY REASON OF THE FOLLOWING: 1. Taxes not yet due and payable and special assessments, if any. 2. Taxes for the year 1981 not paid on which no penalty will accrue if first one -half is paid on or before May 31, 1981 and second one -half is paid on or before October 31, 1981. 3. Non - exclusive easement for roadway and utility purposes reserved in insured mortgage. SCHEDULE B -II IN ADDITION TO THE MATTERS SET FORTH IN PART I OF THIS SCHEDULE, THE TITLE TO THE ESTATE OR INTEREST IN THE LAND DESCRIBED OR REFERRED TO IN SCHEDULE A IS SUBJECT TO THE FOLLOWING MATTERS, IF ANY BE SHOWN, BUT THE COMPANY INSURES THAT THE LIEN OR CHARGE OF THE INSURED MORTGAGE UPON SAID ESTATE OR INTEREST IS PRIOR TO SUCH MATTERS: 1. Mortgage: Dated: December 31, 1980 Filed: January 19, 1981 As Document No. 4619595 Mortgagor: Braemar Associates, Inc. (a Minnesota Corporation) Mortgagee: Harold G. Haglund and E. A. Nieland To secure an indebtedness of $315,000.00 and any other sums which may become due and payable under the terms thereof. 3980K /Mon /kae TITLE INSURANCE COMPANY OF MINNESOTA a Stock Company of Minneapolis, Minnesota ENDORSEMENT To be attached to and become a part of Policy No. b 1486 7 41 The Company hereby insures the Insured against loss or damage which the Insured shall sustain by reason of. 1. Any inaccuracies in the following assurances; unless otherwise expressly set forth or indicated to the contrary in Schedule B: (a) There are no covenants, conditions or restrictions under which the lien of the mortgage referred to in Schedule A can be divested or subordinated or its validity, priority or enforceability other wise impaired; (b) There are no present violations on said land of any enforceable covenants, conditions or restrictions or plat building lines; (c) Any instruments, covenants and restrictions referred to in Schedule B do not provide for an easement over the land or provide for a private assessment or charge; (d) There are no encroachments of existing improvements located on said land onto adjoining land, nor any encroachments onto said land of existing improvements located on adjoining land; (e) There are no encroachments of existing improvements located on said land onto that portion of said land subject to any easement shown in Schedule B. 2. Any future violations on said land of any covenants, conditions or restrictions occurring prior to the acquisition of title to said land by the Insured, provided such violations result in loss of the lien of the mortgage referred to in Schedule A or impair the validity, priority or enforceability of such lien, or result in loss of the title to said estate or interest if the Insured shall acquire title in satisfaction of the indebtedness secured by such mortgage. 3. The entry of any court order or judgment which constitutes a final determination and denies the right to main- tain any existing improvements on said land because of any violation of any covenants, conditions or restrictions or of plat building lines or because of any encroachment thereof over onto adjoining land. Wherever in this endorsement any or all the words "covenants, conditions or restrictions" appear, they shall not be deemed to refer to or to include the terms, covenants, conditions or limitations contained in any lease or declara- tion of condominium referred to in Schedule A. The total liability of the Company under said policy and any endorsement thereto shall not exceed, in the aggregate, the face amount of said policy and costs which the Company is obligated under the Conditions and Stipulations thereof to pay. This endorsement, when countersigned by an authorized officer or agent, is made a part of said policy as of the policy date thereof and is subject to the Schedules, Conditions and Stipulations and Exclusions from Coverage therein con- tained, except as modified by the provisions hereof. cps! 0 1 4 lF s38AX . pis Countersigned: f, - t - � A,)",o Authorized Officer or Agent TIM 1 00XC - 3/68 TITLE INSURANCE COMPANY OF MINNESOTA President Secretary AN g SAW Exempt fr6 4619599 S . o n Tax C �e4 !!! ZOSaj Sy _'� MORTGAGE m THIS INDENTURE ( "Mortgage ") mad , 1981, between BRAEMAR ASSOCIATES, INC., a innesota corporation'- ( "Mortgagor ") and CITY OF EDINA, a Minnesota municipal corpora- tion ("Mortgagee"). WITNESSETH: Mortgagor, in consideration of the sum of One Hundred Ninety -Four Thousand and no /100 Dollars ($194,000.00) in hand paid by Mortgagee, the receipt of which is hereby acknowledged, does hereby grant, bargain, sell and convey unto Mortgagee, its suc- cessors and assigns, forever, the following: A. The tract of land situate in the County of Hennepin, State of Minnesota, described on Schedule A hereto, together with all easements, rights, hereditaments and appur- t tenances now or hereafter belonging or appurtenant to, or in any way appertaining to, said land ( "Mortgaged Land "). B. All buildings, fixtures and other improvements ( "Mortgaged Improvements ") heretofore or hereafter erected on the Mortgaged Land. C. All furniture, furnishings, equipment, supplies and other items of personal property ( "Mortgaged Equipment ") heretofore or hereafter placed on the Mortgaged Land or in the Mortgaged Improvements by or at the instance of Mortgagor and used or useful in connection with the operation of the Mortgaged Land and Mortgaged Improvements. TO,HAVE AND TO HOLD the Mortgaged Land, Mortgaged Improvements and Mortgaged Equipment (collectively, "Mortgaged Premises "), together with all the hereditaments and appurtenances tr thereunto now or hereafter belonging, unto Mortgagee forever. • Mortgagor covenants with Mortgagee that it is lawfully seized } t of the Mortgaged Land and will be lawfully seized of the Mort- gaged Improvements as the same are erected on the Mortgaged Land and of the Mortgaged Equipment as the same is placed in the Mort- gaged Land and in the Mortgaged Improvements; that it has good right to convey the Mortgaged Premises; that the Mortgaged Premises are free from encumbrances except those ( "Permitted Encum- brances") enumerated on Schedule B hereto; that Mortgagee shall quietly enjoy and possess the Mortgaged Premises, and Mortgagor will warrant and defend the title to the Mortgaged Premises against all lawful claims. PROVIDED, NEVERTHELESS, If Mortgagor shall pay or cause to be paid to Mortgagee the principal sum of One Hundred Fifty -Four Thousand and no /100 Dollars ($154,000.00) with interest thereon according to the terms of a promissory note ( "Note ") and the principal sum of Forty Thousand and no /100 Dollars ($40,000.00) with interest thereon according to the terms of a second promissory note ( "Note A "), both bearing even date herewith and both made by Mortgagor, payable to the order of Mortgagee, the last installment of each of which is due January 9, 1986, and shall keep and perform all the covenants and conditions hereof, then this Mortgage shall be null and void, otherwise it shall remain in full force and effect. Mortgagee and any present or future owner or owners of the Mortgaged Premises may, from time-to time, extend, renew or otherwise modify the date or dates-or amount or amounts of payment of the Note or of Note A (herein together called the "Notes ") or Mortgagee may, from time to time, release any part or parts of the Mort- gaged Premises, with or without consideration, and in any such event Mortgagor shall not be released from personal obligation on the Notes. Mortgagor further covenants and agrees: 1. To pay the principal and interest at the time or times and in the manner specified in the Notes. -2- 2. To pay all taxes, assessments and charges of every character heretofore or hereafter levied or charged against the Mortgaged Premises before penalty attaches there- to, and to deliver official receipts therefor to Mortgagee at its request. 3. To keep the Mortgaged Premises in good and tenantable condition, in accordance with all applicable laws, ordinances and regulations, all applicable requirements of insurance underwriters and restrictions of record, if . any. Without limiting the generality of the foregoing, if the Mortgaged Premises are damaged or destroyed by any cause whatsoever (including any casualty for which insurance was not obtained or obtainable), to commence and diligently con- tinue to restore, repair, replace and rebuild the Mortgaged Premises as nearly as possible to its value, condition and character immediately prior to such damage or destruction. 4. To keep the Mortgaged Premises (if and to the extent it is operated, or any part thereof is operated, as an income property) as fully leased as reasonably possible, at reasonable rentals and under written leases in form and sub- stance acceptable to Mortgagee. 5. To indemnify and defend Mortgagee against, and hold it harmless from, all liability, and claims thereof, arising out of, or incidental to, the rights granted to Mort- gagee under this Mortgage or Mortgagee's efforts to exercise said rights, whether resulting from the negligence of Mortgagee or otherwise. 6. To defend Mortgagee and hold it harmless from any action, proceeding or claim affecting the Mortgaged Pre- mises, the lien of this Mortgage or the priority thereof or the value of the Notes. 7. Not to abandon or vacate the Mortgaged Premises or commit or permit waste thereof. -3- a 8. To keep the Mortgaged Premises insured against loss by fire and extended coverage risks, war damage when avail- able and when requested by Mortgagee, and such other risks as Mortgagee from time to time requests and against loss resulting from injuries, deaths and property damage occurring in, on or about the Mortgaged Premises. All policies of insurance shall be in form and substance, in amounts, covering periods of time, issued by a company or companies, and, with respect to policies of hazard insurance, containing loss payable clauses in favor of Mortgagee as its interest may appear, all as from time to time approved by Mortgagee. 9. To deliver promptly to Mortgagee, upon its request, policies, or certificates thereof, of all insurance kept by Mort- gagor which pertain to the Mortgaged Premises; it being understood that all renewal policies, or certificates thereof, shall be delivered to Mortgagee at least ten (10) days before the ex- piration of the old policies. No policy of insurance shall be cancellable or amendable without at least thirty (30) days advance written notice to Mortgagee. 10. To keep the Mortgaged Premises free and clear of all liens and encumbrances whatsoever, whether they are on parity with, superior to, or junior to, the lien of this Mortgage, except (i) Permitted Encumbrances; (ii) mortgages to which this Mortgage is hereafter subordinated pursuant to the terms hereof; (iii) mortgage liens that are not prior to the lien of this Mortgage; and (iv) that if any mechanics', laborers' or materialmen's liens are filed or claimed against all or any part of the Mortgaged Premises, Mortgagor shall have the right to contest, by bona fide and timely proceedings, and without cost to Mortgagee, the validity or amount thereof if Mortgagor first gives security reasonably acceptable to Mortgagee to insure payment thereof and to prevent forfeiture of the Mortgaged Premises by reason of non - payment thereof. Upon settlement or final judgment of any such contest, Mort- gagor immediate"Ly shall pay such lien and satisfy it of record, -4- 0 and if such lien is not so paid and satisfied of record, or if Mortgagee should determine that in jeopardy, then Mortgagee may of record out of such security, to Mortgagor, but Mortgagor sha deficiency, and such deficiency secured by this Mortgage. such lien places its security pay the lien and satisfy -it and return the excess, if any, 11 be and remain liable for any shall be an additional amount 11. To give Mortgagee immediate notice by mail of any damage to the Mortgaged Premises whereupon Mortgagee may, at its option, compromise and settle any loss claim under any policy of hazard insurance then in effect and apply the in- surance proceeds to restore the Mortgaged Premises, it being understood that the lien of this Mortgage and Mortgagor's obligations hereunder, shall not thereby be affected; provided, however, if, when Mortgagee receives such insurance proceeds, there exists an event which constitutes, or which upon notice or lapse of time would constitute, an Event of Default under this Mortgage, the Mortgagee need not apply the insurance pro- ceeds to restore the Mortgaged Premises, but may, at its option, apply the insurance proceeds to reduce the indebtedness hereby secured, it being understood that the lien of this Mortgage and Mortgagor's obligations hereunder, shall not there- by be affected. If this Mortgage is foreclosed, Mortgagee shall have the power to assign to the purchaser at the foreclosure sale any hazard insurance policies then in effect. 12. At the request of Mortgagee, to execute, acknowledge and deliver such further instruments (including, without limitation, financing statements, and all renewals, additions and supplements hereto or to or of such financing state- ments), and do such further acts as may be necessary, de- sirable or proper to carry out more effectively the purposes of this Mortgage and to subject to the lien of this Mortgage all property intended by the terms hereof to be covered. m': 13. To cause this Mortgage, all supplements thereto and all notices thereof, to be recorded and filed and re- recorded and refiled in such manner and in such places as Mortgagee shall, from time to time, reasonably request, and tQ pay all taxes, fees and other charges associated therewith. existence. 14. To keep in full force and effect its corporate 15. To duly and punctually keep and perform all covenants and agreements which it is obliged to keep or per- form under any agreement to which it is a party with respect to the Mortgaged Premises or any part thereof, including;.with- out limitation, all covenants and agreements of any Construction Mortgage (below defined) to which this Mortgage may be subordi- nated pursuant hereto and of any note or other evidence of debt secured by such mortgage or security document. 16. To permit Mortgagee and its representatives, at all reasonable times, to inspect the Mortgaged Premises and to perform the obligations of the Mortgagor hereunder when and if the Mortgagor fails to do so. 17. To pay to Mortgagee, upon receipt of a statement from Mortgagee, any cost, including, without limitation, attorneys' fees, suffered or incurred by Mortgagee in protecting the lien of this Mortgage and its priority and in enforcing its rights under the Notes and this Mortgage, or any of them, whether suit is brought or not. 18. To prohibit (a) the Mortgaged Premises from being used or occupied for any unlawful purpose or in violation of any certificate of occupancy or other permit or certificate or any law, ordinance or regulation affecting the use or occu- pancy of the Mortgaged Premises, or (b) any act to be done, or any condition to exist, or any article to be brought, on the Mortgaged Premises which may be dangerous or which may make void or voidable any insurance then in force with respect to the Mortgaged Premises. -6- 19. To prohibit alterations or additions to the Mortgaged Premises which would materially diminish the value thereof. 20. Should all or any part of the Mortgaged Pre- mises be condemned under the power of eminent domain, all compensation awarded therefor shall be paid directly to Mortgagee and applied to the restoration of the Mortgaged Pre- mises, or, if, when Mortgagee receives such award, there exists an event which constitutes, or which upon notice or lapse of time would constitute, an Event of Default under this Mortgage, then such compensation, at Mortgagee's option, may be applied to reduce the indebtedness hereby secured, and Mortgagee is hereby empowered in the name of Mortgagor to receive and give acquittance according to such award or judgment, whether joint or several. 21. Mortgagor will not apply for or claim any deduction by reason of this Mortgage from the taxable value of the Mortgaged Premises; and will, when due, pay all taxes, except Mortgagee's income taxes, levied or assessed against the Mortgaged Premises, the Mortgagee's interest therein, this Mortgage and /or the indebtedness secured by this Mortgage, without regard to any law now in force or hereafter enacted imposing payment of the whole or any part thereof upon Mort- gagee. Upon violation of the provisions in this paragraph contained or the passage of any law imposing payment of the whole or any portion of the taxes aforesaid upon the Mortgagee or the rendering by a court of competent jurisdiction of a decision that the undertaking by Mortgagor as herein provided to pay such taxes is illegal or inoperative, then the indebted- ness secured hereby, without any deduction, shall, at the option of Mortgagee, become iiunediately due, payable and collectible notwithstanding anything contained in this Mortgage or any law hereafter enacted or the decision of any court. -7- 22. Should Mortgagor fail to keep the Mortgaged Premises in repair or insured or should it commit or permit waste thereof or should it fail to pay insurance premiums, taxes and assessments, liens or encumbrances which it is obliged to do under the provisions of this.Mortgagor or should it fail to keep or perform any of its other obligations under this Mortgage or under the Construction Mortgage or Permanent Mortgage to which this Mortgage may be subordinated, or under any notes or other evidence of debt secured thereby, then Mortgagee, at its option, may make and pay for such repairs, prevent such waste and pay the cost thereof, effect such in- surance and pay premiums therefor, pay such taxes, assessments, liens or encumbrances on the Mortgaged Premises and perform any of the other obligations of Mortgagor under this Mortgage, the Construction Mortgage and notes and debt secured there- by, and pay the cost thereof. .All sums so paid by Mortgagee shall bear interest from the date of such payment at the rate of 12% per annum and such sums and interest thereon shall be an additional lien upon the Mortgaged Premises and a part of the indebtedness secured hereby and shall be payable by Mortgagor to Mortgagee forthwith. 23. Not to develop or improve any or all of the property described on Schedule C attached hereto and hereby made a part hereof (the "Adjoining Land ") until the Notes and all indebtedness secured hereby is paid in full. 24,' In order to further secure the payment of the indebtedness evidenced by the Note and any other indebtedness secured by this Mortgage, Mortgagor hereby grants, assigns, transfers and sets over to Mortgagee, its successors and assigns: (a) all rents, issues and profits (and the right to collect and retain the same) arising out of or incidental to the use of the Mortgaged Premises including, without limitation, rents paid by tenants; and (b) the right to operate and manage the Mortgaged Premises, enter into leases pertaining to all or any part of the Mortgaged Premises, amend, supple- ment and enforce performance under, whether by lawsuit or otherwise, all leases pertaining to any part of the Mortgaged Premises, whether heretofore or hereafter made. Within the limits and in accordance with procedures prescribed by law, Mortgagee shall be entitled to the appointment of a receiver without regard to waste, adequacy of security or solvency of Mortgagor, for the purpose of collecting such rents, issues and profits, operating and managing the Mortgaged Premises and doing such other things as are appropriate in connection therewith. Mortgagee or any receiver appointed as aforesaid may apply or cause to be applied, in such amounts and in such order as Mortgagee in its sole discretion, but within the limits prescribed by law, deems advisable, the afore- said rents, issues and profits to (i) the payment of the fees- of such receiver, if any, (ii) to the repayment of security deposits and interest thereon as required by law, (iii) to the payment, when due, of delinquent or current real estate taxes and special assessments levied or assessed against the Mortgaged Premises, (iv) to the payment, when due, of premiums for insurance required by the terms of this Mortgage, (v) to the cost of keeping the covenants required of a lessor or licen- sor as required by law, (vi) to the payment of expenses for maiptenance of the Mortgaged Premises, (vii) to the payment and performance when due of any and all obligations of Mortgagor under any mortgage or other security document to which this Mortgage may be subordinated, and the payments due under any note or other Qam evidence of debt secured thereby, and (viii) to the amount secured by this Mortgage. If this Mortgage is foreclosed and the period of redemption therefrom expires, all of the aforesaid rents, issues and profits received after the aforesaid sale together with the Mortgaged Premises acquired through foreclosure, shall be the sole property of the purchaser at the foreclosure sale. Notwithstanding the provisions of the immediately preceding paragraph, unless and until an Event of Default oc- curs under this Mortgage, Mortgagor shall be entitled to collect such rents, issues and profits as and when they become due and payable and Mortgagee shall not be entitled to exercise the rights granted to it by the provisions of such paragraph. Mortgagor hereby agrees, and hereby directs, that the respective tenants under leases pertaining to the Mortgaged Premises, or any part thereof, whether heretofore or hereafter made, upon notice from Mortgagee of a default under this Mortgage, shall thereafter pay to Mortgagee all rents and other charges due and to become due under such leases with- out any obligation whatsoever to determine ,whether or not a default does, in fact, exist. Mortgagee covenants and agrees: A. Upon written request of Mortgagor, and if there does not then exist an event which constitutes, or which.upon notice or lapse of time would constitute, an Event of Default under this Mortgage, to execute, as Mortgagee under this Mort- gage, any documents, instruments, conveyances, covenants, con- ditions, declarations, dedications or easements which are neces- sary or desirable (i) to plat, subdivide or develop all or any part of the Mortgaged Land, (ii) to allow the construction of condominium buildings on the Mortgaged Land, (iii) to create one or more condominium regimes on one or more of the lots into which the Mortgaged Land is then subdivided of record, (iv) to submit all or any part of the Mortgaged Land to the provisions of Minnesota Statutes, Chapter 515A, and laws -10- amendatory thereof and supplemental thereto (the "Minnesota Uniform Condominium Act ") and comply with the requirements thereof, (v) to comply with the requirements of the VA, FHA, FHLMC or FNMA in order to secure any of such entities' approval of all or any portion of the Mortgaged Land or Mortgaged Im- provements for mortgage purposes, (vi) to create a non - profit association or other organization to own, manage or operate all or any part of any common areas created under and pursuant to the Minnesota Uniform Condominium Act, (vii) to create any easements necessary or desirable to the development, improvement, construction or sale of all or any part of the Mortgaged Premises or Adjoining Land, including, but not limited to, easements over and across portions of the Mortgaged Land in order to provide in- gress and egress and utilities to other portions of the Mortgaged Land or Adjoining Land, and easements to create a right to use and enjoyment of any of said common areas located in any portion of the Mortgaged Land for the benefit of all other portions of the Mortgaged Land or Adjoining Land, or (viii) to facilitate a plan for the common collection and payment of expenses for the upkeep of any or all of such common areas or any of such condominium buildings. Provided, however, that all of the foregoing shall be done by Mortgagee only if Mortgagee, in its reasonable opinion, then concludes that the act requested (a) will not create or impose any liability or obligation on Mortgagee, (b) will not reduce the value of the Mortgaged Premises below the then unpaid balance of the indebtedness secured hereby and by all mortgages then prior to the lien of this Mortgage, (c) will not adversely affect Mortgagee's ability to foreclose this Mortgage, or acquire title to the Mortgaged Premises by deed or other means in lieu of fore- closure, and (d) will not otherwise adversely affect the in- terest or lien of Mortgagee. And provided further that all of the foregoing shall be done without cost or expense to Mortgagee, including reasonable attorney's fees, and any costs incurred by Mortgagee in connection with review, examination or execution -11- of any documents to be executed by Mortgagee pursuant to this paragraph A, including reasonable attorney's fees, shall be paid to Mortgagee before Mortgagee shall be obligated to exe- cute such documents. B. Upon written request of Mortgagor, and if- there does not then exist an event which constitutes, or which upon notice or lapse of time would constitute, an Event of Default under this Mortgage, and if the Construction Mortgage or Construction Loan (below defined), or Mortgagor, then fulfill and meet all of the following conditions, to subordinate the lien of this Mortgage and the interest of Mortgagee under this Mortgage to the lien and interest created by any one mortgage, assignment of rents, security agreement or other related instruments (hereinafter collectively re- ferred to as the "Construction Mortgage "), required by a construction mortgage lender. The said conditions are: (i) that the Construction Mortgage secures an interim loan (hereinafter referred to as a "Construction Loan ") made solely to provide financing for the development and improve- ment of the Mortgaged Premises by the construction of not more than one twelve (12) unit condominium building and related facilities thereon and for the payment of costs directly related to such development, improvement and con- struction, including but not limited to, architect's, en- gineer's, surveyor's, appraiser's, lawyer's and accountant's fees, real estate taxes and installments of special assess- ments coming due during the construction period, commitment, standby and placement fees and charges incurred in obtaining the Construction Loan and any permanent loans obtained by Mortgagor to pay the Construction Loan, interest on the Construction Loan, title insurance fees and premiums, other insurance premiums, costs of platting and subdividing and costs of all necessary permits, approvals and authorizations, but not including, however, any payments to Mortgagor, or for -12- salary or wages to officers or employees of Mortgagor, or for general overhead or office expense of Mortgagor, or any payments to Mortgagor representing a fee or compensation for Mo'rtgagor's services as a developer, manager, or promoter of any development on the Mortgaged Land, or any payments representing return of corporate or shareholder contributions or profit, however characterized, (ii) that Mortgagee does not thereby incur any personal liability for the payment of any such Construction Mortgage or Construction Loan, or for the performance of any of the terms, covenants, or conditions of such Construction Mortgage or Construction Loan, (iii) that Mortgagor shall pay all expenses in connection with the placement and re- cording of such Construction Mortgage, including all expenses incurred by Mortgagee, including reasonable attorneys' fees, in connection with such subordination, (iv) that such Con- struction Mortgage shall be placed with a national or state . bank, a federal savings and loan association, a financial or lending institution whose loans are, or with respect to real estate are, regulated by state or federal law, an in- surance company authorized to do business in Minnesota, or other lender approved in writing by Mortgagee, (v) that the interest rate payable to the lender under the Construction Mortgage is competitive with and not greater than the rates of interest then charged by other lenders for loans in the principal amount and for the time evidenced by, and with the security given by, such Construction Mortgage, (vi) that such Construction Mortgage shall contain a provision obligating the lender therein to use all proceeds of hazard insurance and all condemnation awards to restore the Mortgaged Premises if Mortgagor is not then in default under the Construction Mortgage, (vii) that Mortgagor expressly convenants and agrees in writing with Mortgagee to keep and perform all of the terms and conditions of such Construction Mortgage and that any default in any of such terms and conditions shall be an -13- Event of Default in this Mortgage, (viii) that such Con- struction Mortgage shall contain a provision obligating the lender to give notice to Mortgagee of any default in the . Construction Mortgage and time in which to cure such default at least equal to the time given to Mortgagor and commencing after Mortgagor's time to cure such default has expired or after actual receipt of such notice from such lender, which- ever is later, (x) that Mortgagor then delivers to Mortgagee purchase agreements fully executed by Mortgagor and bona fide buyers for the bona fide sale of at least six (6) units in the condominium building to be constructed with the Construc- tion Loan; and (xi) that Mortgagor then pays to Mortgagee the sum of $50,000.00 pursuant to the terms of the Note. It is understood and agreed that such purchase agreements will be deemed bona fide even if subject to the following contingencies: (a) the obtaining of mortgage financing by the buyer, (b) the completion of construction of the condominium building, (c) the sale by the buyer of the buyer-9 home, (d) agreements being made with the buyer as to finishing and decorating details in the unit sold, (e) the statutory right to terminate given by the Minnesota Uniform Condominium Act, and (f) such other contingencies as Mortgagee may accept in writing. C. -Upon written request of Mortgagor, and if there does not then exist an event which constitutes, or which upon notice or lapse of time would constitute, an Event of Default under this Mortgage, and if the Second Construction Mortgage (below defined), or Mortgagor, then fulfills and meets all of the following conditions, to subordinate the lien of this Mortgage to the lien and interest created by any one new mortgage, assignment of rents, security agreement or other related instruments (hereinafter collectively called the "Second Construction Mortgage "), required by a construction -14- mortgage lender. The said conditions are: (a) that the con- ditions set out in (i) through (x), inclusive, in paragraph B above relative to the Construction Mortgage are also met and fulfilled relative to the Second Construction Mortgage, and (b) that Mortgagee shall have made principal payments on the Notes in at least the sum of $81,800.00. D. Upon written request of Mortgagor, and if there does not then exist an event which constitutes, or which upon notice or lapse of time would constitute, an Event of Default under this Mortgage, and if the following conditions are ful- filled and met, Mortgagee shall execute and deliver to Mort- gagor a recordable release of this Mortgage as to any single condominium unit on the Mortgaged Land, including that unit's undivided percentage interest in any common areas appurtenant thereto. Said conditions are: (i) that there is then paid to Mortgagee, in exchange for such release, the Closing Pay- ment or Excess Payment, plus interest, as required by the Note or Note A, whichever Closing Payment or Excess Payment is to be then made pursuant to the terms of said Notes,.(ii) that all costs and expenses incurred by Mortgagee in connection with such release, including reasonable attorneys' fees, shall be paid by Mortgagor in exchange for such release, (iii) such release is in connection with, and to enable closing of, a bona fide sale of such condominium unit, and (iv) that said condominium unit is then duly and properly subjected to the Minnesota Uniform Condominium Act and to a Declaration and By -laws filed of record under and pursuant to said Minnesota Uniform Condominium Act. agree: Mortgagee and Mortgagor further covenant and I. It is understood and agreed, anything herein to the contrary notwithstanding, that (i) Mortgagee has no obligation or duty by virtue of this Mortgage to grant Mort- gagor any approvals or permits for platting, subdivision, -15- rezoning, or development of all or any part of the-Mortgaged Premises, (ii) Mortgagee reserves and shall continue to have the same authority and control over, and may impose require- . ments in connection with, the platting, subdivision, rezoning, and development of all or any part of the Mortgaged Premises and Adjoining Land, and location of easements over, under and across the Mortgaged Premises, as it has over, and as it may impose relative to, other land in the City of Edina, and (iii) failure or refusal of Mortgagee to grant any such approvals or permits requested by Mortgagor shall not be a default in or a breach of any provisions of this Mortgage by Mortgagee and shall not subject Mortgagee to any damages or other liability to Mortgagor under or by virtue of this Mortgage. II. The following shall be deemed to be Events of Default under this Mortgage: (a) Mortgagor defaults in one or more of the terms, covenants or conditions to be kept or performed by it under either of the Notes, this Mortgage or other documents evidencing and /or securing the indebtedness secured by this Mortgage; (b) Mortgagor defaults in one or more of the terms, covenants or conditions to be kept or performed by it under any Construction Mortgage or under any note or other evidence of debt secured by any such Construction Mortgage; (c) Mortgagor applies for or consents to the appoint- ment of a receiver, trustee or liquidator or the like for itself and /or for all or substantially all of its assets, or is unable to pay its debts as they mature, or makes a general assignment for the benefit of its creditors, or is adjudi- cated a bankrupt or insolvent, or files a peti- tion to be declared a bankrupt; -16- (d) an order, judgment or decree is entered by a court or governmental agency having jurisdiction, approving a petition seeking reorganization of Mortgagor or appointing a receiver, trustee, li- quidator or the like for Mortgagor and /or for all or substantially all of Mortgagor's assets, and remains in effect and unstayed for a period of thirty (30) consecutive days; and (e) Mortgagor ceases to exist, or ceases to be in good standing under the laws of Minnesota, or ceases to be authorized to transact business in Minnesota, or control of Mortgagor is trans- ferred to a person or persons not currently in control of Mortgagor, or Mortgagor divests it- self of any material interest, legal or equit- able, in the Mortgaged Premises (leases of por- tions of the Mortgaged Premises made in the ordinary course of business and bona fide sales of condominium units on the Mortgaged Land made in the ordinary course of- business, excepted). III. At any time that an Event of Default under this Mortgage continues, Mortgagor shall have the right, without notice, to declare the then unpaid balance of the Notes, including, with- out limitation, the interest thereon, and together with all sums ad- vanced by Mortgagee hereunder, immediately due and payable and Mortgagor hereby authorizes and empowers Mortgagee, its successors and assigns, to foreclose this Mortgage by judicial proceedings or to sell the then unreleased,portions of the Mortgaged Premises at public auction as one tract or otherwise and to convey the same to the purchaser in fee simple in accordance with the statute, and out of the monies arising from such sale to retain all sums secured hereby with interest and all costs and charges of.such foreclosure and the maximum attorney's fees permitted by law, Mortgagor to remain or be liable for any deficiency. -17- Failure to exercise said right or any other rights herein given Mortgagee, however, often, shall not constitute a waiver of the right to exercise such rights thereafter. IV. If Mortgagee proceeds to enforce any right under this Mortgage, whether by foreclosure or otherwise, and the proceedings are discontinued, abandoned or adversely determined, Mortgagor and Mortgagee shall be restored to their former positions and rights hereunder as if such proceedings had not been commenced. V. The provisions of this Mortgage shall be governed by the laws of the State of Minnesota. VI. If Mortgagor now or hereafter includes two or more parties, the obligations hereunder of each such party shall be joint and several. VII. If any provisioD of this Mortgage is for any reason held to be invalid or unenforceable as to all or any part of the Mortgaged Premises, or any improvement now or hereafter located thereon, or any person or circumstance, the application of such provision to any portion of the Mortgaged Premises, or to any such improvement, or to persons or circumstances, other than those as to which it shall be held invalid and unenforceable, shall not be affected thereby, and all provisions of this Mortgage in all other respects shall remain in full force and effect and be valid and enforceable. The provisions of this Mortgage shall inure to the benefit of Mortgagee, its successors and assigns, and shall bind Mortgagor, its successors and assigns. IN TESTIMONY WHEREOF, this Mortgage was duly executed the day and year first above mentioned. BRAEMAR ASSOCIAT S, INC. B � �, Y Its And its STATE OF MINNESOTA ) SS COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of January, 1981, by F an 1114;""' /'V the and of BRAEMAR ASSOCIATES, INC., a Minnesota corporation, on behalf of said corporation. Notary Public ' =.-RA K. KORMAN UBLIC - MINNESOTA -Pk COUNTY ion ExP:res May 19, 1987 -19- All SCHEDULE A TO MORTGAGE (Mortgaged Land) PART I Parcel 1: That part of Outlot 1, HEATH GLEN, according to the recorded . plat thereof, Hennepin County, Minnesota, lying Easterly of a line drawn 30 feet Easterly of and parallel with the.fol- lowing described line: Commencing at the intersection of the southerly extension of the centerline of Glasgow Drive as dedicated in said plat of HEATH GLEN, and the centerline of West 78th Street (Old State Highway No. 5); thence northeasterly along the centerline of West 78th Street a distance of 250.9 feet to a point of curve to the right; thence northeasterly along the tangent line of said curve, a distance of 6.32 feet to the point of beginning of the line to be described; thence northwesterly, de- flecting to the left "90 degrees, a distance of 210.43 feet to a point of curve to the right with a radius of 238.23 feet and a central angle of 67 °41130 "; thence along said curve 281.46 feet to a point of reverse curve; then along a 250 foot radius curve; concave to the West, to the North line of said Outlot 1 and there termi- nating. PART II Parcel 2: That part of the Southwest Quarter of the Southeast Quarter of Section 8, Township 116, Range 21, Hennepin County, Minnesota, described as beginning at the intersection of the west line of the East Half of said Southwest Quarter of the Southeast Quarter of Section 8 with the south line of the north 20 rods (330 feet) of said Southwest Quarter of the Southeast Quarter of Section 8; thence westerly, along said south line of the north 20 rods (330 feet) of the Southwest Quarter of the Southeast Quarter of Section 8, a distance of 0.89 feet, more or less, to the east line of the west 40 rods (660 feet) of said Southwest Quarter of the Southeast Quarter of Section 8; thence southerly, along said east line of the west 40 rods (660 feet) of the Southwest Quarter of the Southeast Quarter of Section 8, a distance of 516.68 feet, more or less, to the northerly right - of -way of West 78th Street, thence easterly along said northerly right -of -way of West 78th Street, a distance of 0.91 feet, more or less, to said west line of the East Half of the Southwest Quarter of the Southeast Quarter of Section 8; thence northerly, along said west line of the East Half of the Southwest Quarter of the Southeast Quarter of Section 8 to the point of beginning; and Parcel 3: That part of the East 1/2 of the Southwest 1/4 of the Southeast 1/4 lying North of State Highway No. 5 and South of the North 20 rods, and West of County Road No. 28 all in Section 8,- Town- ship 116, Range 21, Hennepin County, Minnesota, lying westerly of a line described as commencing at the intersection of the west line of said East 1/2 of the Southwest Quarter of the Southeast Quarter of Section 8, with the south line of said north 20 rods (330 feet) of the Southwest Quarter of the Southeast Quarter of Section 8; thence North 89 degrees 51 minutes 34 seconds East assumed bearing, along said south line of the north 20 rods (330 feet), a distance of 182.87 feet.to the point of beginning of the line to be described; thence South 00 degrees 08 minutes 26 seconds East a distance of 193.00 feet; thence South 65 degrees 45 minutes 00 seconds West a distance of 115.00 feet; thence South 10 degrees 33 minutes 00 seconds West a distance of 91.60 feet; thence South 34 degrees-47 minutes 00 seconds East a distance of 65.32 feet; thence South 10 degrees 59 minutes 43 seconds East a distance of 102.45 feet, more or less, to the northerly right -of -way of West 78th Street (Old State Highway No. 5) and said line there terminating. -2- SCHEDULE B TO MORTGAGE (Permitted Encumbrances) The Permitted Encumbrances shall be the following: 1. Building and zoning laws, ordinances, state and federal regulations; 2. Taxes and special assessments to be paid by. Mortgagor pursuant to the Mortgage to which this Schedule B is attached; 3. Utility and- drainage easements which do not interfere with the proposed development of the Mortgaged Property by Mortgagor; 4. Reservation of any minerals or mineral rights tv the State of Minnesota; and 5. P_ non - exclusive easement for roadway and utility. purposes hereby reserved by mortgagor over and across so much of the mortgaged land as falls within the following described parcel: A strip of land, 28.00 feet in width, lying 14.00 feet on each side of the following described centerline: Commencing at the intersection of the West line of the East l/2 cf the Southwest Quarter of the Southeast .Quarter of Section 8, Township 116, Range 21, with the South line of the North 20 rods (330 feet) of the Southwest Quarter of the Southeast Quarter of said Section 8; thence North fig degrees 51 minutes 34 seconds East., assumed bearing, along said South line of the North 20 rods (330 feet), a distance of 182.fi7 feet; thence South 00 degrees 08 minutes 26 seconds East, a distance of 120.91 feet to the point of beginning of the centerline to be described; thence North 37 degrees 40 minutes 00 seconds West a distance of 79.54 feet; thence northwesterly a distance of 83.62 feet along a tangential curve concave to the southwest, having a radius of 91.30 feet, and a central angle of 52 degrees 28 minutes 26 seconds; thence South 89 degrees 51 M'inutes 34 seconds West, tangent to the last described curve, a distance of 25.00 feet; thence westerly a distance of 39.89 feet along a tangential curve concave to the north, raving a radius of 222.40 feet and a central angle of 10 decrees 16 minutes 38 seconds; thence North 79 decrees 51 minut -es 46 seconds West, tangent to the last described curve, a distance of 21.00 feet to the easterly right -of -way line of Delaney Boulevard and said centerline there termin- ating. r The sidelines of said easement are prolonged or shortened to terminate o^ the easterly right -of -way line of Delaney Boulevard and" the east line of the tract described in Schedule A. SCHEDULE C TO MORTGAGE. (Adjoining Land) All that part of the East 1/4 of the Southwest 1 /4 of the Southeast 1/4 of Section 8, Township 116, Range 21, lying south of the North 20 rods thereof, westerly of the following described Tract A, northerly of the following described Tract B and easterly of the following described Parcel 3: Tract A - a strip of land over and across the Southwest 1/4 of the Southeast 1 /4.of said Section 8-; said strip being all that part of said Southwest- 1/4 of the South- east 1/4 which lies within a distance of 33 feet on each side of the following described centerline: From a point on the centerline of main tract of the Minneapolis, Northfield and southern railway, distant 190 feet North- easterly from the South line of said Section 8;.thence running in a Northwesterly direction at an angle of 60 degrees 44 minutes with said centerline of the main tract for a distance of 485 feet to the point of begin- ning of the centerline being described; thence deflect to the right in a Northeasterly direction at an angle of 65 degrees, 40 minutes for a distance of 800 feet, more or less, to the centerline of Old Township Road along the east line of said Southwest 1/4 of the South- east 1/4 and there terminating. Tract B - a strip of land over and across the Southwest 1/4 of the Southeast 1/4 of Section 8, Township 116, Range 21, such strip being all that part of the above - described tract which lies within a distance of 40 feet on each side of the following described centerline: Be- ginning at a point on the West boundary of the Southeast 1/4 of the Southwest 1/4 of Section 8, distant 14.5 feet North of the Southwest corner thereof; thence running in a Northeasterly direction at an angle of 88 degrees, 27 minutes, with said West boundary for a distance of 796.9 feet; thence deflect to the left on a 4 degree, 00 minutes curve, with a delta angle of 25 degrees, 47 minutes for a distance of 644.6 feet; thence on a tangent to said curve for a distance of 558.2 feet; thence deflect to the right on a 7 degree, 30 minute curve, with a radius of 764.5 feet for a distance of 765 feet and there termi- nating. Parcel 3 - That part of the East 1/2 of the Southwest 1/4 of the Southeast 1/4 lying North of State Highway No. 5 and South of the North 20 rods', and West of County Road No. 28 all in Section &, Township 116, Range 21, Hennepin County, Minnesota, lying westerly of a line described as commencing at the intersection of the west line of said East 1/2 of the Southwest Quarter of the Southeast Quarter of Section 8, with the south line of said north 20 rods (330'feet) of the Southwest Quarter of the Southeast Quarter of Section 8; thence North 89 degrees 51 minutes 34 seconds East, assumed bearing, along said south line of the north 20 rods (330 feet), a distance of 182.87 feet to the point of beginning of the line to be described; thence South 00 degrees 08 minutes 26 seconds East a dis- tance of 193.00 feet; thence South 65 degrees 45 minutes 00 seconds West a distance of 115.00 feet; thence South 10 degrees 33 minutes 00 seconds West a distance of 91.60 feet; thence South 34 degrees 47 minutes 00 seconds East a distance of 65.32 feet; thence South 10 degrees 59 minutes 43 seconds East a.distance of 102.45 feet, more or less to the northerly right -of -way of.West 78th Street (Old State Highway No. 5) and said line there terminating. w ' feet; thence South 34 degrees 47 minutes 00 seconds East a distance of 65.32 feet; thence South 10 degrees 59 minutes 43 seconds East a.distance of 102.45 feet, more or less to the northerly right -of -way of.West 78th Street (Old State Highway No. 5) and said line there terminating. ICY Z&25% JAN 21-81 9 9(9 9 S 024.0020 U-1 OFFICE OF C11UY! C a R M-l-, HENNEPIN Ci 1,101 "Y.KhNi CERTim!" 1981 JAN 21 AN 10: 29 AS DOCUMENT 04619599 �CEPUT I 110)(333 0 V,