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(4) Seller is declared insolvent, is taken over, or otherwise closed by a governmental regulatory agency which has jurisdiction over Seller.
<br />B. Multiple Participants. In the event of multiple participants in the Loan, the participating lender with the then largest share will have the option to assume
<br />administration. If any participant possessing this option does not exercise its right upon the demand of the other participants, the option will then pass to the
<br />participant with the next largest share. Unless otherwise agreed, participants possessing equal shares in the Loan will share equally in administration.
<br />C. Purchaser Rights. Purchaser will have the right to notify and communicate with all Obligors of the Loan, and to direct them to pay any amounts due under
<br />the Loan directly to Purchaser or such other participant assuming administration of the Loan. Seller will join in this notice to Obligor upon request by Purchaser.
<br />Unless otherwise agreed, all remaining terms of this Agreement will survive Seller's removal as administrator until Purchaser's Investment is satisfied in full or
<br />the Loan is repurchased by Seller as provided in this Agreement.
<br />D. Loan Repayment. Upon the occurrence of any of the events in this section, all Payments received from Borrower, whether designated for repayment of the
<br />Loan or undesignated, will be deemed intended for the repayment of the Loan in accordance with this Agreement.
<br />21. ASSIGNMENT. Neither Purchaser nor Seller may sell, pledge, assign, sub - participate, or otherwise transfer its interest in the Loan, Loan security, Loan guaranty
<br />or rights or obligations under this Agreement without the prior written consent of the other party which will not be unreasonably withheld, except that Seller may
<br />sell other participations in the Loan. The duties and benefits of this Agreement will bind and benefit the permitted successors and assigns of Seller and Purchaser.
<br />22. ATTORNEYS' FEES AND COSTS. If any lawsuit or proceeding is brought by Seller or Purchaser to enforce the terms of this Agreement, the unsuccessful party
<br />will pay the prevailing party all its court costs and reasonable attorneys' fees incurred in bringing or defending such action.
<br />23. GENERAL PROVISIONS.
<br />A. Partnership, Joint Venture, Agency, Trust. Purchaser and Seller agree that this Agreement is not intended and is not to be construed to create a partnership,
<br />joint venture, agency, or trust relationship.
<br />B. Sale of Percentage. This Agreement constitutes a sale of a percentage ownership interest in the Loan and will not be construed as an extension of credit by
<br />Purchaser to Seller. If federal or state laws or regulations, or a judicial decision, now or later provides that the purchase of a participation interest is an
<br />extension of credit, Purchaser and Seller agree that this Agreement shall constitute a security agreement under the Uniform Commercial Code and hereby grants
<br />to Purchaser a security interest in the Loan. Purchaser shall have all the rights and remedies of a secured party under the Uniform Commercial Code, including
<br />but not limited to rights upon default. Seller authorizes Purchaser to file one or more financing statements against Seller with respect to the Loan from time to
<br />time.
<br />C. Applicable Law. This Agreement is governed by the laws�.of Minnesota, the United States of America, and to the extent required, by the laws of the
<br />jurisdiction where the Property is located, except to the extents ch state laws are preempted by federal law.
<br />D. Amendment, Integration And Severability. This Agreeme,nt, may not be amended or modified by oral agreement. No amendment or modification of this
<br />Agreement is effective unless made in writing and executed by P`urchas'er and Seller. This Agreement is the complete and final expression of the agreement. If
<br />any provision of this Agreement is unenforceable, then the unenforceable provision will be severed and the remaining provisions will still be enforceable.
<br />E. Remedies. Nothing in this Agreement will be construed to limit Purcha'ser's" or Selle_r's remedies to those described in this Agreement. Purchaser and Seller
<br />are allowed all Remedies at law or in equity.
<br />F. Interpretation. Whenever used, the singular includes the plural and the plural includes the singular. The section headings are for convenience only and are
<br />not to be used to interpret or define the terms of this Agreement.
<br />G. Confidentiality. Purchaser acknowledges that all information relating to the Loan is confidential and solely for Purchaser's use. Purchaser agrees not to share
<br />it with any other party.
<br />24. AGREEMENT TO ARBITRATE. Seller or Purchaser may submit to binding arbitration any dispute, claim or other matter in question between or among Seller and
<br />Purchaser that arises out of or relates to this Transaction (Dispute)', except as otherwise indicated in this section or as Seller and Purchaser agree to in writing. For
<br />purposes of this section, this Transaction includes this Agreement and the other Loan Documents, and proposed loans or extensions of credit that relate to this
<br />Agreement. Seller or Purchaser will not arbitrate any Dispute within any "core proceedings" under the United States bankruptcy laws.
<br />Seller and Purchaser must consent to arbitrate any Dispute concerning a debt secured by real estate at the time of the proposed arbitration. Seller may foreclose or
<br />exercise any powers of sale against real property securing a debt underlying any Dispute before, during or after any arbitration. Seller may also enforce a debt
<br />secured by this real property and underlying the Dispute before, during or after any arbitration.
<br />Seller or Purchaser may, whether or not any arbitration has begun, pursue any self -help or similar remedies, including taking property or exercising other rights under
<br />the law; seek attachment, garnishment, receivership or other provisional remedies from a court having jurisdiction to preserve the rights of or to prevent irreparable
<br />injury to Seller or Purchaser; or foreclose against any property by any method or take legal action to recover any property. Foreclosing or exercising a power of sale,
<br />beginning and continuing a judicial action or pursuing self -help remedies will not constitute a waiver of the right to compel arbitration.
<br />The arbitrator will determine whether a Dispute is arbitrable. A single arbitrator will resolve any Dispute, whether individual or joint in nature, or whether based on
<br />contract, tort, or any other matter at law or in equity. The arbitrator may consolidate any Dispute with any related disputes, claims or other matters in question not
<br />arising out of this Transaction. Any court having jurisdiction may enter a judgment or decree on the arbitrator's award. The judgment or decree will be enforced as
<br />any other judgment or decree.
<br />Seller and Purchaser acknowledge that the agreements, transactions or the relationships which result from the agreements or transactions between and among Seller
<br />and Purchaser involve interstate commerce. The United States Arbitration Act will govern the interpretation and enforcement of this section.
<br />The American Arbitration Association's Commercial Arbitration Rules, in effect on the date of this Agreement, will govern the selection of the arbitrator and the
<br />arbitration process, unless otherwise agreed to in this Agreement or another writing.
<br />25. WAIVER OF TRIAL FOR ARBITRATION. Seller and Purchaser understand that the parties have the right or opportunity to litigate any Dispute through a trial by
<br />judge or jury, but that the parties prefer to resolve Disputes through arbitration instead of litigation. If any Dispute is arbitrated, Seller and Purchaser voluntarily and
<br />knowingly waive the right to have a trial by jury or judge during the arbitration.
<br />SIGNATURES. By signing, Purchaser and Seller agree to the terms contained in this Agreement. Purchaser also acknowledges receipt of a copy of this Agreement.
<br />PURCHASER:
<br />ELK RIVER C DEVELOPM e AU 01
<br />B
<br />RMVEFTEIL15H, EXECUTIVE DIRECTOR
<br />(Attest)
<br />19228 LLC /
<br />Minnesota Participation Certificate & Agreement Initials
<br />MN/ 4XXag068700178200007376018011211Y Wolters Kluwer Financial Services °1996, 2011 Bankers SystemsT" Page
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