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The Dubuque Racing Association (DRA) Financing documents of the improvement projects planned for Chaplain Schmitt Island for Informational Purposes Only Copyrighted September 18, 2023 City of Dubuque Consent Items # 017. City Council Meeting ITEM TITLE: The Dubuque Racing Association (DRA) Financing documents of the improvement projects planned for Chaplain Schmitt Island for I nformational Purposes Only SUMMARY: The Dubuque Racing Association (DRA) has provided the additional documents involved in the DRA's financing of the improvement projects planned for Chaplain Schmitt Island. SUGGESTED Suggested Disposition: Receive and File DISPOSITION: ATTACHMENTS: Description Type DRA Financing Documents_ Letter 09152023 Staff Memo Executed Credit Agreement Supporting Documentation Executed Phase I Note Supporting Documentation Executed Schmitt Island Term Note Supporting Documentation Executed Security Agreement Supporting Documentation Executed Special Power of Attorney Supporting Documentation Executed Certificate and Indemnification Regarding Supporting Documentation Hazardous Materials Executed Assignment of Plans and Specifications and Supporting Documentation Architect's Agreement Executed Assignment of Standard Form General Supporting Documentation Contractor Agreement Executed Assignment of Amended and Restated Supporting Documentation Operating Agreement Executed Construction Loan Disbursing Agreement Supporting Documentation Executed DI Note Supporting Documentation Dubuque Crenna M.Brumwell,Esq. THE CITY OF All•�nerfw Cfry City Attorney ,�", '"�°'�� Suite 330,Harbor View Place U� E �� 300 Main Street zoo�•zoirzoi3 Dubuque,Iowa 52001-6944 MaSte1'�7teCL OYl th2 M2SS15S1�1�72 2017*2019 (563)589-4381 office (563)583-1040 fax cbrumwel(c�cityofdubuque.or� To: Mayor Brad M. Cavanagh and City Council Members DATE: September 15, 2023 RE: DRA Financing Documents The DRA has provided the additional documents involved in the DRA's financing of the improvement projects planned for Chaplain Schmitt Island. These documents do not require City approval and are provided for informational purposes only. These items will appear on the Consent Agenda as receive and file. Sincerely, Crenna Brumwell City Attorney T MidW�estane �% Ba n k� CREDIT AGREEMENT SY AND BETWEEN DUBUQUE RACING ASSOCIATION,LTD.,AN IOWA NON-PROI+IT CORPORATION, AS SORROWER, AND MIDWEST O1VE BANI{ AS LEND�R DATED AS OF OCTOBER 20.2023 TABLE OF CONTENTS ARTICLE I DEFINITIONS; CONS�'RUCTION......................................................................2 1.1 GENERAL TERMS. .............................................................................................................2 1.2 GAAP.............................................................................................................................24 1.3 HEAD�1vGS.......................................................................................................................25 1.4 PLURAL TERMS...............................................................................................................25 1.5 T�ME. ..............................................................................................................................25 1.6 GOVERNING LAW............................................................................................................25 1.7 CONSTRUCTION. .............................................................................................................25 1.8 ENTIRE AGREEMENT.......................................................................................................25 1.9 CALCULATION OF INTEREST AND FEES. ..........................................................................25 1.10 REFERENCES...................................................................................................................25 1.11 OTHER INTERPRETIVE PROVISIONS.................................................................................26 1.12 RovrrDnvG......................................................................................................................26 1.13 AMENDMENT AND RESTATEMENT. .................................................................................26 ARTICLE II CREDIT FACILITIES ........................................................................................26 2.1 LOAN FACILITIES...................:........................................................................................26 2.2 FE�S................................................................................................................................28 2.3 PREPAYMENTS................................................................................................................29 2.4 OTHER PAYMENT TERMS................................................................................................32 2.5 Loarr AccotRVTs;NoTEs...............................................................................................32 2.6 LOAN FiJNDING...............................................................................................................33 2.7 TAXES ON PAYMENTS.....................................................................................................33 2.8 SECURITY. ......................................................................................................................34 ARTICI,E III CONDITIONS PRECEDENT...........................................................................35 3.1 INITIAL CONDITIONS PRECEDENT. ................................................................................35 3.2 CONDITIONS PRECEDENT TO EACH CREDIT EVENT........................................................39 3.3 ANY CONSTRUCTION CREDIT EVENT..............................................................................40 3.4 F�raL CorrsTRucTioN Loarr.........................................................................................41 ARTICLE IV REPRESENTATIONS AND WARRANTIES.................................................42 4.1 REPRESENTATIONS AND WARRANTIES. ..........................................................................42 4.2 REAFFIRMATION. ............................................................................................................48 ARTICLEV COVENANTS.......................................................................................................48 5.1 AFFIRMATIVE COVENANTS.............................................................................................48 5.2 NEGATIVE COVENANTS. .................................................................................................57 5.3 FINANCIAL COVENANTS. ...........................................:....................................................64 ARTICLE VI EVENTS OF DEFAULT....................................................................................64 6.1 EVENTS OF DEFAULT......................................................................................................64 6.2 REMEDI�S.......................................................................................................................67 6.3 ADDITIONAL PROVISIONS CONCERNING PHASE I CASINO PROJECT................................68 ARTICLEVII [RESERVED].....................................................................................................69 i ARTICLE VIII MISCELLANEOUS.........................................................................................69 8.1 NoTICEs. ........................................................................................................................69 8.2 ExPENSEs. ......................................................................................................................69 8.3 INDEMNIFICATION...........................................................................................................70 8.4 WAIVERS;AMENDMENTS. ..............................................................................................71 8.5 SUCCESSORS AND ASSIGNS.............................................................................................72 8.6 SETOFF;LIMITATIONS ON SETOFF; SECURITY INTEREST.................................................74 8.7 NO THIRD-PARTY RIGHTS. .............................................................................................74 8.8 PARTIAL INVALIDITY.......................................................... ..................75 .......................... 8.9 7URY TRIAL.....................................................................................................................75 8.10 CONFIDENTIALITY. .........................................................................................................75 8.11 COUNTERPARTS..............................................................................................................75 8.12 CONSENT TO JURISDICTION.............................................................................................75 8.13 RELATIONSHIP OF PARTIES. ............................................................................................76 8.14 TIME IS OF THE ESSENCE. ...............................................................................................76 8.15 WAIVER OF PtINITIVE DAMAGES. ...................................................................................76 8.16 USA PATRIOT AcT......................................................................................................76 8.17 NOTICE. ..........................................................................................................................77 ii LIST OF SCHEDITLES Schedule I Existing Change Orders Schedule 4.1(g) Litigation Schedule 4.1(h)(i) Real Property Schedule 4.1(k) Multi-Employer Plans Schedule 4.1(0) Subsidiaries Schedule 4.1(u) Insurance Schedule 4.1(v) Agreements with Affiliates Schedule 4.1(aa) Closing Date Contractors Schedule 5,1(d) Insurance Requirements Schedule 5.2(a) Existing Indebtedness Schedule 5,2(b) Existing Liens Schedule 5,2(e) Investinents LIST OF EXHIBITS Exhibit A Schmitt Island Term Loan Note Exhibit B Phase I Note Exhibit C Compliance Certificate i w CREDIT AGREEMENT This CREDIT AGREEMENT (this "A�reement") is dated as of October 20, 2023, by and between DuBuOUE RACING ASSOCIATION, LTD., an Iowa Non-Profit Corporation ("DRA" or "Borrower"), and MIDW�STONE SANK(the"Lender"). RECITALS A. Borrower wishes to borrow from Lender (i) in the form of a term loan, the aggregate principal ainount of up to One Million Nine Hundred Thirty-Nine Thousand Three Hundred Seventy-Five and 09/100 Dollars ($1,939,375.09) (the "Schmitt Island Term Loan"), (ii)in the form of a construction loan, the principal amount of Twenty-Seven Million Seven Hundred Seventy-Seven Thousand Eight Hundred Twenty-One Dollars ($27,777,821) (the"Phase I Construction Loan"); and(iii)in the form of a term loan,the principal amount of Twenty-Seven Million Seven Hundred Seventy-Seven Thousand Eight Hundred Twenty-One Dollars ($27,777,821) (the"Phase I Term Loan"). B. Lender(s/b/ml AMERICAN TRUST&SAVINGS BANK)previously provided Borrower a loan to be used for the purchase of the Hilton Garden Inn, Houlihan's restaurant, and substantially a11 of the assets related thereto (the "Existinp� Hilton Garden Loan"), as evidenced by that certain Business Loan Agreement dated as of June 13, 2014, as amended from time to time (the "Existing Hilton Garden Loan A�reement"), C. Lender previously provided Borrower a loan to fund the improvements known as the Schmitt Island Memorial (the "Existing Schmitt Island Tenn Loan"), as evidenced by that certain Promissory Note dated as of October 31, 2018, (the"Existing Schmitt Island Term Loan A�reement"). D. Lender previously extended to Borrower a Line of Credit(including a letter of credit sub- facility available thereunder)in the ainount of Three Million Dollars ($3,000,000.00) (the"Existing Line of Credit")as evidenced by that certain Business Loan Agreement dated as of April 1,2023 (the"Existin� Line of Credit A�reement"). E. The purpose of the Schmitt Island Term Loan is to refinance the Existing Schmitt Island Term Loan to fund the improvements known as the Schmitt Island Memorial. F. The purpose of the Phase I Construction Loan is to finance the capital improvement proj ect known as Phase I Casino Project as more particularly described herein. G. The purpose of the Phase I Tenn Loan is to convert the Phase I Constniction Loan into a ter�n loan after the completion of the Phase I Casino Project. H. Defined terms used herein,not specifically defined elsewhere in this Agreement,shall have the meanings provided in Section 1.1 hereof. AGREEMENTS 1 In consideration of the tenns and conditions contained in this Agreement and of any loans or extensions of credit made to or for the benefit of Borrower by Lender hereunder, the parties agree as follows: ARTICLE I DEFINITIONS; CONSTRUCTION 1.1 General Tenns.W1ien used in this Agreement,the following ter�ns shall have the following meanings: "Affiliate" shall mean, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially or as a trustee, guardian or other fiduciary, ten percent(10%) or more of any class of Equity Securities of such Person, (b) each Person that controls, is controlled by or is under common control with such Person or any Affiliate of such Person or (c) each of such Person's officers, directors, managers, joint venturers and partners; rovided, however, that in no case shall any of the following Persons be deemed to be an Affiliate of Borrower for purposes of this Agreement: (i) Lender; (ii) the City of Dubuque, Iowa; or(iii) Schmitt Island Development Corporation. For the purpose of this definition, "control" of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies,whether through the ownership of voting securities,by contract or otherwise. "A�reement"shall mean this Credit Agreement. "Amphitheater" sha11 mean any amphitheater constructed on the property adjacent to the Leased Premises or any other portion of Chaplain Schmitt Island. "Anti-Corruntion Laws" shall have the meaning given to that term in Section 4.1(wZ(ii�. "Anti-Terrorism Law" shall mean each of: (a}the Executive Order; (b) the Patriot Act; (c)the Money Laundering Control Act of 1986, 18 U.S.C. §§ 1956& 1957;and(d) any other Governmental Rule now or hereafter enacted to inonitor, deter or otherwise prevent terrorism or the funding or support of terrorism, including, without limitation, economic or financial sanctions or trade embargoes imposed, administered or enforced from tiine to time by (i)the U.S, government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Departinent of State,or(ii)the United Nations Security Council,the European Union,any European Union member state or Her Majesty's Treasury of the United Kingdom(collectively, "Sanctions"). "A�proved Fund" shall mean any Fund that is administered or managed by (a) Lender, (b) an Affiiiate of Lender or(c) an entity or an Affiliate of an entity that administers or manages Lender. "Architect"shall mean each licensed architect, space planner or design professional that Borrower may engage from time to time to design any portion of the Phase I Casino Project, including the preparation of the Plans and Specifications therefor. "Assignee Lender" shall have the meaning given to that term in Section 8.5(c). "Assignment"shall have the meaning given to that term in Section 8.5(c). 2 "Assigninent A�reeinent"shall have the meaning given to that term in Section 8.5(c). "Assi�nment Effective Date"shall have,with respect to each Assignment Agreement,the meaning set forth therein. "Assi�nment of Architect's A�reement" shall mean that certain Assignment of Plans and Specifications and Architect's Agreement executed by DRA in favor of Lender (and consented to and acicnowledged by the Architect)in form and substance satisfactory to Lender. "Assignment of Construction Contracts" shall mean that certain Assignment of Construction Contracts executed by DRA in favor of Lender (and consented to and acknowledged by each contractor party to a Construction Contract) in form and substance satisfactory to Lender. "Assignment of General Contractor A�reement" shall mean that certain Assignment of General Contractor Agreement executed by DRA in favor of Lender(and consented to and acknowledged by the General Contractor)in form and substance satisfactory to Lender. `Borrower"shall have the meaning given to such term in the introductory paragraph hereof. "Borrowin�" shall mean a Schmitt Island Terin Loan Borrowing, a Phase I Construction Loan Borrowing, or a Phase I Term Loan Borrowing, as the context may require. "Business Dav" shall mean any day on which commercial banlcs are not authorized or required to close in Dubuque, Iowa. "Capital Asset" shall mean, with respect to any Person, any tangible fixed or capital asset owned or leased (in the case of a Finance Lease)by such Person,or any expense incurred by such Person that is reqLtired by GAAP to be reported as a non-current asset on such Person's balance sheet. "Capital Expenditures" shall inean, with respect to any Person and any period, all amounts expended by such Person during such period to acquire or to construct Capital Assets(inchtding renewals, improveinents and replacements, but excluding repairs in the ordinary course) coinputed in accordance with GAAP (including all amounts paid or accrued on Finance Leases and other Indebtedness incurred or assumed to acquire Capital Assets). "Casino Real PropertX"shall mean the real property legally described as Lot 1 of Chaplain Schmitt Island in the City of Dubuque, Iowa, according to the Plat recorded as Instrument#2023-7679,records of Dubuque County,Iowa. "_Change of Control" shall mean the occurrence of any one or more of the following: (a) at any time after the Closing Date Borrower ceases to be the owner, directly or indirectly, of at least one hundred percent(100%) of the outstanding voting Stocic of Borrower; (b) except as expressly peimitted under the terms of this Agreement, Borrower consolidates with or merges into another Person or conveys,transfers or leases all or substantially all of its property to any Person in one or a series of transactions, or any Person consolidates with or merges into a Borrower, 3 in either event pursuant to a transaction in which the outstanding Stock of a Borrower is reclassified or changed into or exchanged for cash, securities or other property; or (c) except as otherwise expressly permitted under the terms of this Agreement,Borrower shall cease to own and control, directly or indirectly, all of the economic and voting rights associated with all of the outstanding Stock of each of Borrower's Subsidiaries. For the purpose of this de�nition, "control" of a Person shall mean the possession, directly or indirectly,of the power to direct or cause the direction of its management or policies,whether through the ownership of voting securities,by contract or otherwise. "Chan�e of Law" shall mean the occurrence, after the date of this Agreement, of any of the following: (a)the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law,rule,regulation or treaty or in the administration,interpretation,implementation or application thereof by any Governmental Authority or(c)the making or issuance of any request, rule, guideline or directive (whether or not having the force of law)by any Governmental Authority. "Closing Date" shall mean the tiine and Business Day on which the consummation of all of the transactions contemplated in Section 3.1 occurs. "Code"shall mean the United States Internal Revenue Code of 1986, as amended. "Collateral"shall mean all property in which Lender has a Lien to secure the Obligations. "Commitment(s)" shall mean the Schinitt Island Term Loan Commitment, the Phase I Construction Loan Commitment, and the Phase I Term Loan Commitment. "Completion Date" shall inean the date on which the Phase I Casino Project is fully completed (including all "punch-list"items) as described in the Plans and Specifications. "Compliance Certificate" shall have the meaning given to that term in Section 5.1(a)(iv). "Confidential Information" shall mean information delivered to Lender by or on behalf of Borrower pursuant to the Credit Documents that is proprietary in nature and that is clearly marlced or labeled as being confidential information of Borrower;provided;however,that such term does not include information that (a)was publicly lcnown or otherwise lu7own to the receiving party prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by the receiving party or any person acting on its behalf, (c) otherwise becomes known to the receiving party other than through disclosure by or on behalf of Borrower or(d) constitutes financial statemerits delivered to Lender under Section 5.1(a)that are otherwise publicly available. "Construction Bud�et" shall mean the projections and budgets, prepared by Borrower or General Contractor setting forth the total fees, costs and expenses anticipated to be incurred in connection with the completion of the Phase I Casino Project (together with all material supporting contracts) (as such projections and budgets may be revised from time to time in accordance with the provisions of this Agreement). The Construction Budget shall, �mong other things, break out furniture, fixture, and equipment and related costs from the other costs of the Phase I Casino Project. The initial Construction 4 Budget shall be the document titled the "AIA Document G701-2017 — Change Order" dated as of September 13,2023 and provided to Lender prior to the Closing Date. "Construction Consultant" shall mean Primus Companies, Inc. and their representatives or any other construction consultant selected by Lender. "Constniction Contract"shall mean each construction contract entered into by Borrower for work related to the construction of any portion of the Phase I Casino Project, which must be in form and substance reasonably satisfactory to Lender, as amended, supplemented or otherwise inodified from time to time in accordance with the terms thereof and hereof. "Construction Loan Disbursin�Agreement"shall mean that certain Construction Loan Disbursing Agreement, dated as of the Closing Date, among First American Title Company, Lender and DRA. "Construction Pro�ress Report" shall mean a report, in form and substance acceptable to Lender, prepared by the Construction Consultant describing the progress of construction of the Phase I Casino Project. "Contingent Obli ag tion" shall mean, with respect to any Person, (a) any Guaranty Obligation of that Person; and (b) any direct or indirect obligation or liability, contingent or otherwise, of that Person (i)in respect of any Surety Instrument issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings or payments, (ii) as a partner or joint venturer in any partnership or joint venture, (iii) to purchase any materials, supplies or other property from, or to obtain the services of, another Person if the relevant contract or other related document or obligation requires that payment for such inaterials, supplies or other property, or for such services, shall be made regardless of whether delivery of such materials,supplies or other property is ever made or tendered,or such services are ever perfonned or tendered,or(iv) in respect to any Rate Contract that is not entered into in connection with a bona fide hedging operation that provides offsetting benefits to such Person, The amount of any Contingent Obligation shall (subject, in the case of GLtaranty Obligations, to the last sentence of the definition of"Guaranty Obligation")be deemed equal to the maxiinum reasonably anticipated liability in respect thereof, and shall, with respect to item(b)(iv) of this de�nition be marked to marlcet on a current basis. "Contractual Obli ag tion" of any Person shall mean, any indenture, note, lease, loan agreement, security, deed of tiust, mortgage, security agreement, guaranty, instrument, contract, agreement or other form of contractual obligation or undertalcing to which such Person is a party ar by which such Person or any of its property is bound. "Control" shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person,whether through the ability to exercise voting power, by contract or otherwise. The terms"Controlling"and"Controlled", and the term"Control"when used as a verb,have meanings correlative thereto. "Control A�reement" shall inean a control agreement among Borrower, a depository bank, a securities intermediary or a commodity intennediary, as the case may be, and Lender, in form and substance reasonably acceptable to Lender. 5 "Credit Documents" shall mean and include this Agreeinent, the Notes, the Security Documents, the Environmental Indemnity Agreement,each Notice of Borrowing,and all other documents,instniments and agreeinents delivered to Lender pursuant to Sections 3.1, 3_2, 3_3 or 3_4 and all other docuinents, instruinents and agreements delivered by Borrower to Lender in connection with this Agreement, including, without limitation, any amendments, consents or waivers, as the same may be amended, restated, supplemented or modified from time to time. "Credit Event" shall mean (i)the making of any Loan, (ii) each release of any Deposited Loan Funds. "Debtor Relief Laws" shall mean the Bankruptcy Code of the United States of America, and all other applicable liquidation, conservatorship, bankruptcy, moratoriuin, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Govermnental Rules from tiine to time in effect affecting the rights of creditors generally. "Default" shall mean an Event of Default or any event or circumstance not yet constituting an Event of Default which, with the giving of any notice or the lapse of any period of time or both, would becoine an Event of Default. "Default Rate"sha11 have the meaning given to that term in Section 2.5(c). "Deposited Loan Funds" shall mean the proceeds of the Loans advanced on the Disbursement Deposit Date and deposited in the Disbursement Account. "Desipnated Person" shall mean any Person who (i) is named on the list of Specially Designated Nationals or Blocked Persons maintained by the U.S. Department of the Treasury's Office of Foreign Assets Control and/or any other similar lists maintained by the U.S. Department of the Treasury's Office of Foreign Assets Control pursuant to authorizing statute,executive order or regulation,(ii) (A)is a Person whose property or interest in property is blocked or subject to blocking pursuant to Section 1 of the Executive Order or any related legislation or any other siinilar executive order(s} or (B) engages in any dealings or transactions prohibited by Section 2 of the Executive Order or is otherwise associated with any such Person in any manner violative of Section 2 of the Executive Order or(iii) (X)is an agency of the government of a country, (Y) an organization controlled by a country, or (Z) a Person resident in a country that is subject to a sanctions program identified on the list maintained by the U.S. Department of the Treasury's Office of Foreign Assets Control, or as otherwise published from time to time, as such program may be applicable to such agency, organization or Person, "_Development Mana�" shall mean Ben Mammina Development Group, LLC and its representatives or any other development manager selected by Borrower. "_Development Management A�reement" shall mean the Agreement Between Architect and Developinent Manager dated February 28,2023. "Disburseinent Account"shall mean a demand deposit account maintained at Lender in the DRA's name, subject to an�ccount control agreement in form and substance satisfactory to Lender. "Disbursement Deposit Date"shall mean the Phase I Construction Loai1 Conversion Date. 6 "Distributions" shall inean the declaration or (without duplication) payment of any distributions or dividends(in cash,property or obligations) on, or other payinents on account of, or the setting apart of money for a sinking or other analogous fund for, or the purchase, repurchase, redemption, retirement or other acquisition of, any Equity Securities of any Person or of any warrants, options or other rights to acquire the same(or to malce any payments to any Person, such as "phantoin inembership" or"phantom stocic"payments or similar payments,where the ainount is calculated with reference to the fair marlcet or equity value of any Person), but excluding distributions or dividends payable by a Person solely in common inembership or common shares of Equity Securities of such Person, "Dollars"and"$" shall mean the lawful cun ency of the United States of America and, in relation to any payment under this Agreement, saine day or immediately available funds. "DRA" shall have the meaning given to such term in the introductory paragraph hereof. "DRA Leasehold Mort�age" shall mean that certain Leasehold Mortgage, Fixture Filing and Security Agreement with Absolute Assignment of Leases and Rents, dated as of the Closing Date, executed by DRA in favor of Lender. "DRA Equity Contributions"means cash and capital contributions suitable to Lender, which inay include the proceeds of that certain loan by and between Borrower and Dubuque Initiatives dated as of the Closing Date,but shall not include the proceeds of a Loan provided by Lender hereunder,in the amount of Nine Million Two Hundred Fifty-Nine Thousand Two Hundred Seventy-Four and 00/100 Dollars ($9,259,274.00) which must be expended on Phase I Casino Project costs and expenses by Borrower as set forth in Section 3.3(b) and Section 5.2(s�(vii�. "Draw Packa�e"shall inean the documents and other items required to be provided to Lender,the Constriiction Consultant, and/or the Title Company, as applicable, pursuant to the Construction Loan Disbursing Agreement. "Eli�ible Assi n�ee_" shall inean an Affiliate of Lender or an Approved Fund, in each case, to the extent that such Affiliate or Approved Fund is not in the saine line of business as Borrower), "En ineer" shall mean each licensed civil, stn.ictural, mechanical, electrical, soils, environmental or other engineer that Borrower may engage from time to time to perform any engineering services with respect to any portion of the Phase I Casino Project. "Envirorunental Dama�es"shall mean all claims,judgments,damages,losses,penalties,liabilities (including strict liability), costs and expenses, including costs of investigation, remediation, defense, settlement and attorneys' fees and consultants' fees and any diminution in the value of the security afforded to Lenders with respect to any real property owned or used by Borrower),that are incurred at any time (a) as a result of the existence or potential existence of any Hazardous Materials upon, about or beneath any real property owned by or leased by Borrower or migrating or threatening to inigrate to or from such real property regardless of whether or not caused by or within the control of Borrower, (b) arising from any investigation, mitigation, monitoring, manageinent, removal, reporting, proceeding or remediation of any location at which Borrower or any predecessors are alleged to have directly or indirectly disposed of Hazardous Materials or (c) arising in any manner whatsoever out of any violation of Hazardous Materials Laws by Borrower or with respect to the Casino Real Property. 7 "Environmental Indemnitv A�reement" shall mean that certain Certificate and Indemnification Regarding Hazardous Substances,dated as of the Closing Date,executed by Borrower in favor of Lender. `Bquity Securities"of any Person shall mean(a) all common stock,preferred stock,participations, shares, partnership interests, limited liability coinpany interests or other equity interests in and of such Person (regardless of how designated and whether or not voting or non- voting) and (b) all warrants, options and other rights to acquire any of the foregoing. "ERISA"shall mean the Einployee Retirement Income Security Act of 1974. "ERISA Affiliate" shall inean any Person which is treated as a single employer with Borrower under Sections 414(b) and (c) of the IRC (and Sections 414(m) and (o) of the IRC for purposes of the provisions relating to Section 412 of the IRC). `Bvent of Default"shall have the meaning given to that term in Section 6.1. "Excluded Assets"shall mean and include(a)the Gaming License,(b) any and all funds on deposit in the Debt Payment Reserve Fund (as defined in the Schmitt Island Lease), (c) any and all fiinds held by Borrower in a fiduciary or pass through capacity including, without limitation, all taxes, fees, and funds paid and/or remitted to Borrower,in its capacity as qualified sponsoring organization under the Iowa Code with respect to any casino(including Q Casino and Diamond Jo)and/or licensor with respect to any license to conduct advance sports wagering, which taxes, fees and funds are required to be remitted to a Governmental Authority, (d) all rights, title, interests, and benefits of Bonower under, in and to that certain Lease Agreement dated as of September 19, 2023, between the City of Dubuque, Iowa and Borrower with respect the real property legally described as Lots 2 and 3 of Chaplain Sclunitt Island in the City of Dubuque,Iowa, according to the Plat recorded as Instniment#2023-7679,records of Dubuque County, Iowa, (e) any other`Bxcluded Assets"as defined in the Security Agreement, and(� all attendant rights and benefits related to and/or arising in connection with any and each of the foregoing. "Excludecl Swap Obli ag tion" shall mean, with respect to any gliarantor, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such guarantor of, or the grant by such guarantor of a security interest to secure,such Swap Obligation(or any guaranty thereo fl is or becomes illegal under the Cominodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereo� by virtue of such guarantor's faihlre for any reason to constitute an "eligible contract participant" as defined in the Coinmodity Exchange Act and the reglllations thereunder at the time the gllaranty of such guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal. `Bxcluded Taxes"shall me�n any of the following Taxes imposed on or with respect to Lender or required to be withheld or deducted from a payinent to Lender, (a)Taxes imposed on or measured by net income(however denominated), franchise Taxes, and branch profits Taxes,in each case, (i)imposed as a result of Lender being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office lacated in, the jurisdiction imposing such Tax (or any political subdivision thereo� or (ii)that are Other Connection Taxes, {b)in the case of a Lender, U.S. federal 8 withholding Taxes imposed on amounts payable to or for the account of Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) Lender acquires such interest in the Loan or Commitment or (ii)Lender changes its lending office, and (c) any U.S. federal withholding Taxes imposed under FATCA. "Executive Order" shall mean Executive Order No. 13224 on Terrorist Financings: - Blocicing Property and Prohibiting Transactions With Persons Who Commit, Threaten To Coinmit, or Support Terrorism issued on 23''`i of September,2001. "Existing Credit A�reements" shall mean the Existing Hilton Garden Credit Agreement, the Existing Schmitt Island Promissory Note, and the Existing Line of Credit Agreement. "Existing Hilton Garden Credit A�reement" shall have the meaning given to that term in the recitals hereof. "Existing Hilton Garden Loan"shall have the meaning given to that term in the recitals hereof. "Existing Hilton Garden Securitv A�reement" shall mean that certain Security Agreement, dated June 13, 2014, as amended, among Borrower and Lender. "Existin�Line of Credit" shall have the meaning given to that terin in the recitals hereof. `Bxisting Line of Credit A�reement" shall have the meaning given to that term in the recitals hereof, "Existin Loan" shall mean the Existing Hilton Garden Loan, the Existing Schmitt Island Term Loan, and the Existing Line of Credit. "Existing Schmitt Island Promisso .r�"shall have the meaning given to that term in the recitals hereof. "Existin� Schinitt Island Term Loan" shall have the meaning given to that term in the recitals hereof. "FASB ASC" shall mean the Accounting Standards Codification of the Financial Accounting Standards Board. "FATCA"means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regzilations or official interpretations thereof and any agreeinent entered into pursuant to Section 1471(b)(1) of the Code. "Federal Reserve Board"shall mean the Board of Governors of the Federal Reserve System. "Finance Leases" shall mean any and all lease obligations that, in accordance with GAAP, are required to be capitalized on the books of a lessee,provided,however, GAAP notwithstanding, any lease for slot machines or gaming tables which are (i) freely terminable by Borrower with no more than 9 thirty(30) days' notice and (ii)the rent for which is either (a) a per diem amount, or (b) a percentage of the machine take, shall not be Finance Leases for purposes of this Agreement. "Financial Contract"shall mean(1) an agreement(including tenns and conditions incorporated by reference therein)which is a rate swap agreement,basis swap, forward rate agreement, cominodity swap, commodity option, equity or equity index swap, bond option, interest rate option, foreign exchange agreement, rate eap agreement, rate floor agreeinent, rate collar agreement, currency swap agreement, cross-currency rate swap agreeinent, currency option, and other similar agreement (including any option to enter into any of the foregoing; (2) any combination of the foregoing;or(3) a master agreement for any of the foregoing together with all amendments and supplements "Financial Stateinents" shall mean, with respect to any accounting period for any Person, statements of income and cash flows (and, in the case of financial statements in respect of a fiscal year, statements of retained earnings, or stocicholders' equity or members' equity or partners' capital) of such Person for such period, and a balance sheet of such Person as of the end of such period, setting forth in each case in comparative form figures for the corresponding period in the preceding fiscal year if such period is less than a full fiscal year or, if such period is a full fiscal year, corresponding figures from the preceding annual audited financial statements and, in each case, corresponding figures from the comparable budgeted and projected figures for such period, all prepared in reasonable detail and in accordance with GAAP. "Fund"shall mean any Person(other than a natural person)that is(or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business. "GAAP" shall mean generally accepted accounting principles and practices as in effect in the United States of America from time to tiine, consistently applied. "Gamin�Authorities"shall mean,collectively,the Iowa Racing and Gaming Commission and any other Governmental Authorities which enforce Gaining Laws. "Gaming Facilities"shall mean: (a) the casino, hotel, and entertainment complex, commonly lcnown as the "Q Casino" as of the Closing Date and located in Dubuque County, Iowa and all ather Property owned by Borrower which is c�irectly ancillary thereto or used in coruiection therewith, inchiding any hotels, resorts, card clubs, theaters,parking facilities,recreational vehicle parlcs,tiineshare operations,retail shops,restaurants,other buildings, land, and other recreation and entertainment facilities and related equipment, in each case, to the extent located on the Casino Real Property; (b) the Phase I Casino Project,both prior to and from and after completion. "Gamin Laws" shall mean all statutes, niles, regulations, ordinances, codes, administrative or judicial orders or decrees or other laws pursuant to which any Gaming Authority or other Governmental Authority possesses regL�latory, licensing or permit authority over gambling, gaining or casino activities conducted by Borrower within its jurisdiction. 10 "Gamin�License"shall mean,collectively,any and all Goverrunental Authorizations(i)necessary to enable Borrower to engage in the casino, gambling or gaming business, including the operation of racetracks, and the conduct of pari-mutual wagering and other gaming activities at such racetracks or otherwise continue to conduct its business, or (ii)required by any Governmental Authority or under any Gaming Law. "Gaming Operations"shall mean the operation of casino,gambling or gaming business,inchiding the operation of racetracics, and the conduct of pari-mutual wagering and other gaining activities at such racetracics or otheitivise at the Casino Real Property. "General Contractor" shall inean Conlon Constniction Co. or any other general contractor that Borrower may engage from time to time to construct any portion of the Phase I Casino Project. "General Contractor Agreement"shall mean the Agreement Between Owner and Contractor dated November 1, 2022,by and-between Conlon Constniction Co. as the General Contractor and Borrower. "Governmental Authoritv"shall inean any international,domestic or foreign national,state or local goverrnnent, any political subdivision thereof, any departinent, agency, authority or bureau of any of the foregoing, or any other entity exercising axecutive, legislative,judicial, regulatory, tax or administrative functions of or pertaining to government, including, without limitation, the Iowa Racing and Gaming Commission, the Federal Trade Commission, the Federal Deposit Insurance Corporation, the Federal Reserve Board, the Comptroller of the Currency, any central bank or any comparable authority and any supra-national bodies such as the European Union or the European Central Bank. "Governmental Authorization" shall mean any pertnit, license, registration, approval, finding of suitability, authorization, plan, directive, order, consent, exemption, waiver, consent order or consent decree of or from, or notice to, action by or filing with, any Goveriunental Authority (including any Gaming Authority). "Governmental Char�es" shall mean, with respect to any Person, all levies, assessments, fees, claiins or other charges imposed by any Governmental Authority upon such Person or any of its property or otherwise payable by such Person. "Governmental Rule" shall inean any law, rule, regulation, ordinance, order, code interpretation, judgment, decree, directive, Governmental Authorization, guidelines, policy or similar form of decision of any Governmental Authority(including any Gaining Laws). "Guarantv Obli a�tion" shall mean, with respect to any Person, any direct or indirect liability of that Person with respect to any indebtedness, lease, dividend, letter of credit or other obligation (the "primary obligations")of another Person(the"primary obligor"),including any oUligation of that Person, whether or not contingent, (a)to purchase, repurchase or otherwise acquire such primary obligations or any property constituting clirect or indirect security therefor, or(b)to advance or provide funds (i) for the payment or discharge of any such primary obligation, or(ii)to maintain working capital or equity capital of the priinary obligor or otherwise to maintain the net worth or solvency or�ny balance sheet item,level of income or financial condition of the primary obligor, or(c)to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to inake payment of such primary obligation,or(d) otherwise to assure or hold harmless the holder of any such primary obligation against loss iYi respect thereof, provided that the term "Guaranty 11 Obligation" shall not include enclorsements for collection or deposit in the orclinary course of business. The amount of any Guaranty Obligation shall be deemed equal to the stated or detertninable amount of the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if indeterminable, the maximum liability in respect thereof. "Hazardous Materials" shall mean: (a) any material, substance, chemical, gas, vapor or waste which is de�necl as a "hazardous waste," "hazardous material," "hazardous substance," "extremely hazardous waste," "restricted hazardous waste," "containinant," "pollutant," "toxic waste" or "toxic substance"under any provision of Hazardous Materials Laws or any other formulations intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproduction toxicity, "TCLP toxicity" or "EP toxicity" or words of siinilar import under any provision of Hazardous Materials Laws; (b) any asbestos or asbestos containing materials in any form that is or could become friable,tremolite, anthophylite, actinolite; (c) any solvents, degreasers, heavy metals, refrigerants, nitrates, urea formaldehyde, polychlorinated biphenyls, dioxins, petroleuin and petroleum products and derivatives,fiiel additives, ethanol,bio-fiiels,methyl tertiary butyl ether, per- and polyfluoroalkyl substances; and (d) any other product, byproduct, coinpottnd, substance, chemical, material, waste; solid, liquid, gaseous or thermal initant; greenhouse gas; carbon emission; atomic, molecular and macromolecular nanomaterials; and microbial material whose presence, characteristics, nature, quantity, intensity, existence, use, manufacture, possession, handling, disposal, transportation, spill, Release, threatened Release, Remedial Action or effect, either by itself or in combination with other materials is or is allegedly: (x) injurious, dangerous, toxic, hazardous to human health, safety or welfare or any other poi�tion of the environment or natural resources; (y) is now or at any time in the future becomes regulated, defined, listed,prohibited, controlled, studied or monitored in any manner by any Governmental Authority or Hazardous Materials Laws; or (z) a basis for liability, responsibility, or duty owed to any Governmental Authority or private or public third party. "Hazardous Materials Laws" shall inean any applicable present or future regional, state, federal and local laws, statutes, regulations, rules, ordinances and the like, as well as consent orders, administrative orders, enforcement actions and other governmental written directives, agency guidance materials and common law relating to flood control or the protection of the environment,natural resources or human health and safety, including, without limitation: (i) envirorunental matters, including, without limitation, those relating to fines, injunctions, penalties, damages, contribution, cost recovery compensation, losses or injuries resulting from or relating to any Release, threatened Release, intnision, or migration of any Hazardous Materials; (ii)the generation, use, storage, treatment, transportation, disposal,management,monitoring,reporting,of Hazardous Materials or the Release or threatened Release of Hazardous Materials; or (iii) occupational safety and health or industrial hygiene; in any manner applicable to Indeinnitor or to any of its real properties; including, without liinitation, the Federal Water Pollution Control Act(33 U.S,C. § 1251, et seq., as amended), the Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq., as amended), , the Comprehensive Environmental Response, Compe�isation, and Liability Act (42 U.S.C. § 9601 et seq., as amended), the Toxic Substances Control Act (15 U.S.C. § 2601, et sec�., as amended), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq.), the Clean Air Act (42 U.S.C. § 7401, et seq., as amended), the Occupational Safety and Health Act (29 U.S.C. § 651, et seq., as amended), the Emergency Planning and Coinmunity Right-to- Know Act (42 U.S.C. § 11001, et seq,, as amended), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 136 et seq., as amended), the Rivers and Harbors Act (33 U.S.C. § 401, et seq., as amended), the Endangered Species Act(16 U.S.C, § 1531, as amended),the Safe Drinlcing Water Act,42 USC 300f et, seq.,as ainended, and all analogous state laws,including, without limitation, Chapter 455 B 12 of the Iowa Code and the Uniform Fire Code (1988 Edition), and all rules and regulations promulgated thereunder, froin time to time, as ainended, by any state or federal agency or any other governmental organization or agency having jurisdiction over any of the Real Property; all as recodified, amended or supplemented. The term "Hazardous Materials Laws" also includes, without limitation, any present and future federal, state and local laws, statutes ordinances,rules,regulations anc�the like, as well as coinmon law conditioning transfer of real property upon a negative declaration or other approval of a governmental authority of the environmental condition of the Real Property; requiring notification or disclosure of the Release or threatened Release of Hazardous Materials or other environmental condition of the Real Property to any Governmental Authority or other Person, whether or not in connection with transfer of title to or interest in property; imposing conditions or requirements in connection with any Permit. "Hilton Letter Agreement" shall mean that certain letter of consent dated June 13, 2014, from Hilton Garden Inns Franchise, LLC to Lender(s/b/m/American Tnist& Savings Bank). "Hilton Franchise A�reement" shall mean that certain Hilton Franchise Agreement dated July 3, 2023 by and between DRA and Hilton Franchise Holding, LLC. "Indebtedness" of any Person shall mean,without duplication: (a) All obligations of such Person evidenced by notes, bonds, debentures or other siinilar instruments and all other obligations of such Person for borrowed money (including the Loans and obligations to repurchase receivables and other assets sold with recourse); (b) All obligations of such Person for the deferred purchase price of property or services (including obligations under letters of credit and other credit facilities which secure or finance such purchase price), except for trade accounts arising in the ordinary course of such Person's business payable on terms customary in the trade); (c) All obligations of such Person under conditional sale or other title retention agreements with respect to property acquired by such Person (to the extent of the vahie of such property if the rights and remedies of the seller or Lender under such agreement in the event of default are limited solely to repossession or sale of such property); (d) All obligations of such Person as lessee under or with respect to Finance Leases and synthetic leases and all other off-balance sheet financing; (e) All obligations of such Person, contingent or otherwise, under or with respect to Surety Instruments; (� All obligations of such Person arising under acceptance facilities or under facilities for the discount of accounts receivable of such Person; (g) All Contingent Obligations of such Person; (h) If any Rate Contract to which such Person is a party is terminated, all obligations of such Person(including the related Termination Value)under all such terminated Rate Contracts; 13 (i) All obligations of such Person with respect to letters of credit,whether drawn or undrawn, contingent or otherwise; (j) All Swap Indebtedness including all principal and interest together with all other indebtedness and costs and expenses for which Borrower is responsible under the Phase I Note, or under any of the Credit Documents, or under any of the Swap Transaction Documents. Specifically, without limitation,the indebtedness and obligations of the Bor��ower shall also include all assessinents,losses,fees and costs of any lcind or nature incurred by Lender under any and all Swap Transaction Docuinents by and between Borrower and Lender,which arise,directly or indirectly,as a result of Borrower's prepayment of the principal ainount of the Phase I Note, in whole or in part, whether voluntary or involuntary. (k) All Guaranty Obligations of such Person with respect to the obligations of other Persons of the types described in clauses (a) - (k) above; and (1) All obligations of other Persons("priinary obligors")of the types described in clauses(a) - (lc) above to the extent secured by (or for which any holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Lien on any property (including accounts and contract rights)of such Person,even though such Person has not assumed or become liable for the payment of such obligations (and, for purposes of this clause(i), the amount of the Indebtedness of such Person shall be deemed to be the lesser of(x)the ainount of all obligations of such primary obligors so secured by(or for which any holder of such obligations has an existing right, contingent or otherwise, to be secured by) the property of such Person and(y)the value of such property). To the extent not included above, "Indebtedness" shall include all Obligations. "Indemnified Taxes"shall mean(a)Taxes,other than Excluded Taxes,imposed on or with respect to any payment inade by or on account of any obligation of Borrower under any Credit Document and (b)to the extent not otherwise described in(a), Other Taxes. "Indemnitees" shall have the meaning given to that term in Section 8.3. "Interest Ex ense" shall mean, for any period, the sum, fox Borrower (determined on a consolidated basis without duplication in accordance with GAAP), of the following: (a) all interest, fees, charges and related expenses payable during such period to any Person in connection with Indebtedness or the deferred purchase price of assets that are treated as interest in accordance with GAAP, (b)the portion of rent actually paid during such period under Finance Leases that should be treated as interest in accordance with GAAP and(c)the net amounts payable(or minus the net amounts receivable)under Rate Contracts accrued during such period(whether or not actually paid or received during such period), "InvestmenY' of any Person shall mean (a) any loan or advance of funds by such Person to any other Person(other than advances to employees of such Person for moving and travel expenses, drawing accounts and similar expenditures in the ordinary course of business consistent with past practice), any purchase or other acquisition of any Equity Securities or Indebtedness of any other Person, any capital contribution by such Person to or any other investinent by such Person in any other Person (including (x) any Guaranty Obligations of such Person with respect to any obligations of any other Person and (y) any payments made by such Person on account of obligations of any other Person) or (b) any acquisition of real property;provided,however,that Investments shall not include(i) accounts receivable or other indebtedness owed by customers of such Person (other than Borrower) which are current assets 14 and arose from sales of inventory in the ordinary course of such Person's business consistent with past practice or (ii)prepaid expenses of such Person incurred and prepaid in the ordinary course of business consistent with past practice. For avoidance of doubt, the parties acknowledge and agree that an advance of funds, capital contribution or other traiisfer of property by Borrower (whether in the form of cash or otherwise)to any Person,to the extent such advance,contribution,or other transfer constitutes a charitable distribution by Borrower required by (i)the tenns of the Schmitt Island Lease and/or (ii) Iowa law, as it pertains to Borrower in its capacity as a qualified sponsoring organization, shall not, for purposes of this Agreement, constitute or be deemed to be an Investinent. "Joint Venture" shall mean a joint venture, limited liability company, corporation, partnership, other entity or other legal arrangement (whether created pursuant to a contract or conducted through a separate legal entity) fonned by Borrower and one or more other Persons, "Lender"shall have the meaning given to such term in the introductory paragraph hereof and shall inchide Lender's successors and assigns. "Lender Bank Products" shall mean each and any of the following types of services or facilities extended to Borrower by Lender: (a) commercial credit cards; (b) cash management services (including treasury management services, purchasing card services, daylight overdrafts, inulticurrency accounts, merchant card services, controlled disbursement services, ACH transactions, and interstate depository networlc services), and(c)returned items and foreign exchange services and facilities. For the avoidance of doubt,this defiuition shall include all such services or facilities extended prior to the Closing Date, "Lender Rate Contract(s)" shall mean one or more Rate Contracts between Borrower and one or more Lender Rate Contract Counterparties with respect to the Indebtedness evidenced by this Agreement and/or the Existing Credit Agreeinents, on terms acceptable to Borrower and any Lender Rate Contract Counterparty that is a party to such Rate Contract. The Obligations arising under a Lender Rate Contract shall be secured by the Liens created by the Security Documents to the extent set forth in Section 2.12(a), For the avoidance of doubt, this definition shall include all such Rate Contracts entered into prior to the Closing Date. "_Lender Rate Contract CounterpartX"shall mean any Lender or Affiliate of a Lender that is a party to a Lender Rate Contract. "License Revocation"shall mean the loss,revocation, failure to renew,termination or suspension of any Gaming License isstiied by any Gaming Authority covering any Gaming Facility or any portion of the gaining activity of Borrower. "Licenses" shall mean, collectively, any and all licenses (inchiding provisional licenses and applicable gaining licenses), certificates of need, accreditations, perinits, franchises, rights to conduct business, approvals (by a Governmental Authority or otherwise), consents, qualifications, operating authority and any other authorizations. "Lien" shall mean, with respect to any property, any security interest, mortgage, pledge, lien, charge or other encumbrance in, of, or on such property or the income therefrom, including, without limitation, the interest of a vendor or lessor under a conditional sale agreement, Finance Lease or other title retention�greement,or any agreement to provide any of the foregoing,and the filing of any financing 15 statement or similar instrument under the Uniform Coinmercial Code or coinparable law of any jurisdiction. "Loan" shall mean the Schinitt Island Term Loan, the Phase I Construction Loan, or the Phase I Tenn Loan(or, as the context inay require, a portion of thereo�. "Loan Account"shall have the meaning given to that term in Section 2.5(a). "Management A�reements" shall mean any other management agreeinent or similar agreement between Borrower and a Management Company. "M1na�ement Com ap nies" shall mean any Person engaged by Borrower or any Affiliate thereof to manage a Gaming Facility, "Margin Stocic" shall have the meaning given to that term in Reglilation U issued by the Federal Reserve Board. "Material Adverse Effect" shall mean any event or circumstance that has or could reasonably be expected to have a inaterial adverse effect on (a)the assets, liabilities, financial condition, business operations, or performance of Bonower(talcen as a whole); (b)the ability of Borrower to pay or perform the Obligations in accordance with the terms of this Agreement and the other Credit Documents; (c) the rights and remedies of Lender under this Agreement,the other Credit Documents or any related document, instruinent or agreement; (d)the value of the Collateral, Lender's security interest in the Collateral,or the perfection or priority of such security interests; (e)the validity or enforceability of any of the Credit Docuinents, or(� the use, occupancy or operation of any Gaming Facility or any inaterial portion thereof. "Material Contract"shall mean(i)the Schmitt Island Lease,(ii) the Operating Agreement,(iii)the Construction Budget, (iv)the General Contractor Agreement, (v) each Constniction Contract, (vi)the Architect's Agreement, (vii)the Development Management Agreement, (viii)the Plans and Specifications, (ix)the Swap Transaction Documents, (x)the Construction Loan Disbursing Agreement, and (xi) any agreement or arrangement to which Borrower is a party (other than the Credit Documents) with respect to which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect. "Material Documents" shall mean the (i) articles of incorporation, certificate of incorporation, certificate of organization, limited liaUility company agreement, by-laws and other organizational documents of Borrower and (ii)Material Contracts. "Maturitv"shall mean,with respect to any Loan,interest,fee or other amount payable by Borrower under this Agreement or the other Credit Documents, the date such Loan, interest, fee or other ainount becomes due, whether upon the stated maturity or due date,upon acceleration or otherwise. "Maturitv Date"shall mean(a) for Obligations in respect of Sclunitt Island Term Loan,the Schmitt Island Tenn Loan Maturity Date, (b) for Obligations in respect of Phase I Construction Loan, the Phase I Constr�.iction Loan Conversion Date, and (c) for Obligations in respect of the Phase I Term Loan, the Phase I Term Loan Maturity Date. 16 "Negative Pledge" shall mean a Contractual Obligation which contains a covenant binding on Borrower that prohibits Liens on any Property constituting Collateral, other than (a) any such covenant contained in a Contractual Obligation granting or relating to a particular Permitted Lien which affects only the Property that is the subject of such Permitted Lien and (b) any such covenant that does not apply to Liens securing the Obligations. For avoidance of doubt, the parties hereto expressly acicnowledge and agree that the term Negative Pledge, as used in this Agreement, shall not be applicable to any of the Excluded Assets. "Net Condemnation Proceeds"shall mean an amount equal to: (a) any cash payments or proceeds received by Borrower or Lender as a result of any condeinnation or other taking or teinporary or permanent requisition of any property, any interest therein or right appurtenant thereto, or any change of grade affecting any property, as the result of the exercise of any right of condemnation or eininent domain by a Governmental Authority (including a transfer to a Governmental Authority in lieu or anticipation of a condemnation), minus (b) (i) any actual and reasonable costs incurred by Borrower in cormection with any such condemnation or taking(including reasonable fees and expenses of counsel), and(ii)provisions for all taxes payable as a result of such condemnation, without regard to the consolidated results of operations of Borrower, taken as a whole. "Net Insurance Proceeds" shall mean an amount equal to: (a) any cash payments or proceeds received by Borrower or Lender under any casualty policy in respect of a covered loss thereunder with respect to any property,minus(b) (i) any actual and reasonable costs incurred by Borrower in connection with the adjustment or settlement of any claims of Borrower in respect thereof(inchiding reasonable fees and expenses of counsel) and (ii)provisions for all taxes payable as a result of such event without regard to the consolidated results of operations of Borrower, taken as a whole. "Net Proceeds"shall mean: (a) With respect to any sale of any asset or property by any Person, (i)the aggregate consideration received by such Person from such sale, minus(ii)the sum of(A)the�ctual amount of the reasonable fees and commissions payable to Persons other than such Person or any Affiliate of such Person,the reasonable legal expenses and other costs and expenses directly related to such sale that are to be paid by such Person and (B)the amount of any Indebtedness (other than the Obligations) which is secured by such asset and is required to Ue repaid or prepaid by such Person as a result of such sale; (b) With respect to any issuance or incurrence of any Indebtedness by any Person, (i)the aggregate consideration received by such Person from such issuance or incurrence, minus (ii)the suin of (A) the actual amount of the reasonable fees and commissions payable by such Person other than to any of its Affiliates and(B)the reasonable legal expenses and the other reasonable costs and expenses directly related to such issuance or incurrence that are to be paid by such Person other than to any of its Affiliates; and (c) With respect to any issuance of �quity Securities by any Person, (i) the aggregate consideration received by such Person from such issuance, minus(ii) the suin of(A)the actual amount of the reasonable fees and commissions payable by such Person other than to any of its Affiliates and(B)the reasonable legal expenses and the other reasonable costs and expenses directly related to such issuance that are to be paid by such Person other than to any of its Affiliates. 17 "Non-Whollv-Owned Subsidiary" shall mean a direct or indirect Subsidiary of Borrower that is not a Wholly-Owned Subsidiary. "Note"shall mean the Sclunitt Island Term Loan Note or the Phase I Note. "Notice" shall have the ineaning set forth in Section 8.1(bl. "Obli atg ions" shall mean and include (a) all loans, advances, debts, liabilities and obligations, howsoever arising, owed or owing by Borrower to Lender of every lcind and description (whether or not evidenced by any note or instriiment and whether or not for the payment of money), direct or indirect, absolute or contingent, due or to becoine due, now existing or hereafter arising pursuant to the ter�ns of this Agreement or any of the other Credit Documents, including without limitation all interest(including interest that accrues after the commencement of any banlcruptcy or other insolvency proceeding by or against Borrower, whether or not allowed or allowable), fees, charges, expenses, reasonable attorneys' fees and reasonable accountants' fees chargeable to and payable by Borrower hereunder and thereunder and (b) any and all obligations, howsoever arising, owed or owing by Borrower to Lender under or in connection with any Lender Rate Contract or Lender Banlc Product( rovided that if any such Lender Party ceases to be a Lender or an Affiliate of a Lender hereunder, such obligations under this clause(b) shall be limited to those that relate to any transaction entered into under any such Lender Rate Contract or any Lender Bank Product extended or provided prior to the date such party ceased to be a Lender or an Affiliate of a Lender);provided that"Obligations"shall exchide all Excluded Swap Obligations. "Opening Date" shall mean the first date on which the Phase I Casino Project is substantially completed(other than"punch-list"items) and open to the public as an operating casino with substantially all of the material facilities and amenities described in the Plans and Specifications. "Operating A�reement" shall mean that certain Operating Agreement dated January 1, 2019, by and between by and between Dubuque Racing Association, Ltd. and Diainond Jo, LLC, which provides for certain annual payments by Diamond Jo, LLC to DRA. "Other Connection Taxes" shall mean, with respect to Lender, Taxes imposed as a result of a present or foriner connection between Lender and the jurisdiction imposing such Tax (other than connections arising from Lender having executed, delivered,become a party to,performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document). "Other Taxes"shall mean all present or future stamp, court or documentary,intangible,recording, filing or similar Taxes that arise from any payment made under, froin the execution, delivery, perfor�nance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Docuinent, except any such Taxes that are Other Connection Taxes imposed with respect to an assigninent(other than an assignment made pursuant to Section 2.13(b)). "Participant"shall have the meaning given to that ter�n in Section 8.5(b). "Participation Seller"shall have the meaning given to that term in Section 8.5(h). 18 "Patriot Act"shall mean the Uniting and Strengthening Ainerica by Providing Appropriate Tools Required to Intercept and Obstruct Terrorisin Act of 2001, Public Law 107-56 (commonly known as the USA Patriot Act). "Permit" shall inean any permit, approval, license, certification, authorization, letter, notice, clearance, consent,waiver,closure, exemption,decision or other action required under or issued,granted, given, autliorized by or made pursuant to Hazardous Materials Laws, together with any amendinents or renewals thereof. "Permitted Indebtedness"shall have the meaning given to that term in Section 5.2(a). "Pennitted Liens"shall have the meaning given to that term in Section 5.2(b). "Person" shall inean and include an individual, a partnership, a corporation(including a business trust), a non-profit corporation, a joint stocic company, an unincorporated association, a limited liability company, a joint venture, a trtist or other entity or a Governmental Authority. "Phase I Casino Project" shall mean the improvements to be constn.icted in accordance with the Pl�ns and Specifications in Dubuque County, Iowa and described in the Plans and Specifications, including without limitation: (i)the temporary relocation of the casino floor to the fonner dog track betting area, (ii)upgrading HVAC systems in current casino, (iii)paved parking areas, including lighting and entry and exit ways and (iv)related facilities and appurtenances (including, without limitation, curbs, grading,storm and sanitary sewers,paving, sidewalks,landscaping,hardscaping,sprinlclers,electric lines, gas lines, telephone lines, cable television lines, fiber optic lines, pipelines and other utilities) necessary to make the Casino Real Property suitable for the construction and operation of a casino thereon. The construction and completion of the Phase I Casino Project inclucles the equipping, fiirnishing and opening of the Phase I Casino Project to the public and"constniction of the Phase I Casino Project,""completion of the Phase I Casino Project" and "total project costs of the Phase I Casino Project" and similar phrases shall include the construction, equipping, fiirnishing and opening of the Phase I Casino Project to the public prior to and as of the date construction is completed. "Phase I Construction Loan" shall mean each advance made by Lender pursuant to Section 2.1(a)(iii�. "Phase I Construction Loan Borrowin�" shall mean a borrowing by Borrower consisting of the Phase I Construction Loan made by Lender to Borrower. "Phase I Constn.iction Loan Commitment" shall mean, at any time, up to Twenty-Seven Million Seven Hundred Seventy-Seven Thousand Eight Hundred Twenty-One Dollars ($27,777,821), provided, however, at no time shall the total amount of the Loans exceed seventy-five percent(75%) of the total Phase I Casino Project Costs based upon the Construction Budget or seventy-five percent(75%) of the Appraised Vahie of the Real Property Collateral and the Gaming Operations. "Phase I Constn.iction Loan Conversion Date"shall mean May 1, 2025. "Phase I Constniction Loan Rate"means the per annzcm rate of interest determined on the basis of the Prime Rate as reported in the"Money Rates"section of The Wall Street Journal or a substitute source reasonably deterinined by Lender in the event such source is no longer available.The Phase I Constrltction 19 Loan Rate will initially be the Prime Rate as of the date of the Phase I Note, and will be adjusted effective on the date any change in such rate is reported. "Phase I Note"shall have the meaning given to that ter�n in Section 2.5(c). "Phase I Terin Loan Borrowin�" shall mean a borrowing by Borrower consisting of the Phase I Tenn Loan inade by Lender to Borrower "Phase I Term Loan Commitment" shall mean, at any time, up to Twenty-Seven Million Seven Hundred Seventy-Seven Thousand Eight Hundred Twenty-One Dollars ($27,777,821), provided, however, at no time shall the total amount of the Loans exceed seventy-five percent (75°/o) of the total Phase I Casino Project Costs based upon the Construction Budget or seventy-five percent(75%) of the Appraised Value of the Real Property Collateral and the Gaming Operations, "_Phase I Term Loan Maturity Date"shall mean, May 1, 2035. "Phase I Term Loan Rate"means the per cznnum variable rate of interest equal to 250 basis points above the 1-month Term SOFR converted to a fixed rate at the execution of the interest rate swap agreement. Borrower may choose to enter into a forward lock interest rate swap with Lender in order to protect Borrower from adverse moveinents in interest rates (SOFR). Such interest rate swap must be executed in conjunction with closing of the Phase I Term Loan. "Plans and Specifications" shall inean the drawings, plans, specifications, construction plan and timetable prepared by the Architect for DRA in connection with the Phase I Casino Project, (as may be amended to reflect the existing change orders set forth on Schedule I), as the same may be further amended,supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof, all of which plans and specifications describe and show the constn.iction of the Phase I Casino Project and the labor and materials necessary for the construction thereof. "Prime Rate" shall mean the per annzam rate of interest(rounded upwards to the nearest 1/100 of one percent)most recently reported in the"Money Rates"section of The Wall Street Journal or a substitute source reasonably determined by Lender in the event such source is no longer available. "Rate Contract" shall mean any agreement with respect to any swap, cap, collar, hedge, forward, fiiture or derivative transaction or option or similar agreement involving,or settled by reference to,one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing rislc or value or any similar transaction or any combination of these transactions, including any"swap agreeinent"(as defined in 11 U.S.C. § 101). "Real PropertX"shall mean that real property described on Schedule 4.1(h)(i). "Real Propertv Securitv Documents" shall mean (a)the Schmitt Island Lease, (b)the Leasehold Mortgage, and (c)the Schinitt Island Lease Subordination Agreement. "Recei tp Date"shall have the meaning given to t11at term in Section 2.3�c (iii�. "Release s " shall mean any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials 20 into the indoor or outdoor environment(including,without limitation,the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Materials), or into or out of any Real Property, stnicture, vessel or vehicle, including,without limitation,the inovement of any Hazardous Materials into or through the air, soil, soil gas, surface water, groundwater or other media. "Remedial Action"shall inean action, incluciing any capital expenditures, required or voluntarily undertaken to (a) cleanup, abate,remove,respond, contain, reinediate,initigate, treat, cap or in any other way address, respond to or alter any Hazardous Materials or any Release of any Hazardous Materials; (b)prevent the Release or to ininimize the further Release of any Hazardous Materials so it does not migrate or endanger or threaten to endanger public health, safety,welfare or the environment; (c)perform pre-remedial evaluations, assessments, studies and investigations,post-remedial inonitoring, assessments and care concerning any Release of Hazardous Materials; (d)re-open any closed or completed action to respond to any Hazardous Materials Release; (e)bring all operations conducted into compliance with Hazardous Materials Laws; or (� assess, investigate, evaluate, study, restore, replace or compensate for any injured or damaged portion of natural resources or the environment. "Re�uirement of Law" applicable to any Person shall mean (a)the articles or certificate of incorporation, certificate of organization, limited liability company agreement, by-laws or other organizational or governing documents of such Person, (b) any Governmental Rule applicable to such Person,(c) any Governmental Authorization granted by or obtained from any Governmental Authority or under any Governmental Rule for the benefit of such Person or(d)any judgment,decision,award,decree, writ or determination of any Governmental Authority or arbitrator, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. "Responsible Officer"shall mean,with respect to Borrower,the chief executive officer,president, chief financial officer or director of finance of Borrower.Any document delivered hereunder that is signed by a Responsible Officer and any request or other communication conveyed telephonically or otherwise by a Responsible Officer shall be conclusively presLuned to have been authorized by all necessary corporate,company,partnership and/or other action on the part of Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of Borrower. "Sale and Leaseback" shall mean, with respect to any Person,the sale of Property owned by such Person (the "Seller") to another Person (the `Buyer"), together with the substantially concurrent leasing of such Property by the Buyer to the Seller. "Schmitt Island Lease"shall mean that certain Amended and Restated Lease Agreement, dated as of September 19, 2023, by and between Borrower and the City of Dubuque, Iowa with respect to the Casino Real Property. "_Schmitt Island Lease Subordination Agreement" shall mean that certain Subordination Agreement, dated as of October 20, 2023,by and among Borrower, Lender, Dubuque Initiatives, and the City of DubLtque, Iowa. "Schmitt Island Term Loan" shall mean each advance made by Lender pursuant to Section 2.1(a�(i). "Schmitt Island Term Loan Borrowin�" shall mean a borrowing by Borrower consisting of the Schmitt Island Term Loans made by Lender to Borrower. 21 "Schmitt Island Term Loan Rate" means the per^annum rate of interest equal to the five(5) year Treasury Note plus 1.75%, to be fixed within fourteen(14) days of the Closing Date. "Schmitt Island Term Loan Commitment" shall inean, at any time, One Million Nine Hundred Thirty-Nine Thousand Three Hundred Seventy-Five Dollars and Nine Cents($1,939,375.09). "Schinitt Island Term Loan Maturit.�ate"shall mean April 1,2029. "Schmitt Island Term Loan Note"shall have the meaning given to that tenn in Section 2.5(b). "Securitv A�reement" shall inean that certain Security Agreement, dated as of the Closing Date, among Borrower and Lender, "Security Documents" shall mean and include the Security Agreement, each Real Property Security Docuinent, the Assignment of Architect's Agreement, each Assignment of Constniction Contracts, the Assignment of General Contractor Agreement, the Hilton Letter Agreement, each pledge agreement or security agreement delivered in accordance with Section 5.1(i), and all other instniments, agreements, certificates, opinions and documents (including Uniform Commercial Code financing statements and fixture filings) delivered to Lender in connection with any Collateral or to secure the Obligations under the Credit Docuinents. "Solvent" shall mean, with respect to any Person on any date, that on such date (a)the fair value of the property of such Person is greater than the fair value of the liabilities (including contingent, subordinated, inatured and unliquidated liabilities) of such Person, (b) the present fair saleable value of the assets of such Person is greater than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person has not incurred or is not about to incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities become due in the ordinary course of such Person's activities and (d) such Person is not engaged in or about to engage in business or transactions for which such Person's property would constitute an unreasonably small capital. "Subordinated Obli ations" shall mean, as of any date of determination (without duplication), (a) any Management Fees and (b) any other Indebtedness of Borrower on that date which has been subordinated in right of payment to the Obligations in a manner reasonably satisfactory to Lender and contains such other protective terms with respect to senior debt (such as amount, maturity, amortization, interest rate, covenants, defaults,remedies,payment blocicage and tenns of subordination)as Lender may reasonably require. "Subsidiarv"of any Person shall inean(a) any corporation of which more than fifty percent(50%) of the issued and outstanding Equity Securities having ordinary voting power to elect a majority of the board of directors of such corporation(irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency) is at the tiine directly or indirectly owned or controlled by such Person,by such Person and one or more of its other Subsidiaries or by one or inore of such Person's other Subsidiaries, (b) any partnership,joint venture, liinited liability company or other association of which more than 50% of the Equity SecLtrities having the power to vote, direct or control the management of such partnership,joint venture or other association is at the time owned and controlled by such Person, by such Person and one or more of the other Subsidiaries or by one or more of such Person's other Subsidiaries or(c) any other Person included 22 in the Financial Statements of such Person on a consolidatecl basis. Unless otherwise indicated in this Agreement, "Subsidiary" shall mean a Subsidiary of Borrower. "Surety Instruments"shall inean all letters of credit(inchiding standby and commercial),banker's acceptances,bank guaranties, shipside bonds, surety bonds and similar instruments. "Swap Indebtedness"shall mean indebtedness, liabilities, fees, costs, assessments, or obligations, now existing or hereafter arising, due or to become due, absolute or contingent, of Bor�ower to Lender under any Swap Transaction, Swap Transaction Documents, or Financial Contract. "Swap Transactions"or a"Swap"and/or"Swap Transaction"shall mean one or more agreements between Borrower and Lender with respect to any interest rate swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to,one or more interest rates, currencies,commodities,equity or debt instniments or securities,or economic,financial or pricing inclices or measures of economic, financial or pricing risk of value. "Swap Transaction Documents" shall mean any and all documents related to any Swap Transactions by and between the Borrower and Lender, including but not limited to the following: 2002 Multicurrency-Cross Border version of the ISDA Master Agreement, the Schedule to the Master Agreement, any Credit Support Annexes, any Swap Trade Confirination, Risk Disclosure Statement, Eligible Contract Participant Verification Fonn,Financial Contracts,and all such other related documents as Lender may require. All such Swap Transaction Documents shall be in form and content, and include such terms and conditions, as required by Lender and/or its legal counsel. "Swap Obli ag tion" shall mean with respect to any guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a "swap" within the ineaning of Section 1 a(47) of the Commodity Exchange Act. "Taxes" shall mean all present or fiiture taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, inchiding any interest, additions to tax or penalties applicable thereto. "Terin SOFR" shall mean the One Month Term SOFR published by CME Group Benclunark Administration Limited (or a successor administrator designated by the relevant authority) on the Reset Date. If the Lender determines in good faith (which determination shall be conclusive, absent manifest error) that: (A) adequate and fair means do not exist for ascertaining Term SOFR; (B) Term SOFR does not accurately reflect the cost to the Lender of the Loan; or (C) a Regulatory Change (as hereinafter defined) shall, in the reasonable determination of the Lender, make it unlawful or commercially unreasonable for the Lender to use Term SOFR as the index for purposes of detennining the Phase I Term Loan Rate,then: (i)Term SOFR shall be replaced with an alternative or successor rate or index chosen by the Lender in its reasonable discretion;and(ii) the Margin may also be adjusted by Lender in its reasonable discretion, giving due consideration to marlcet convention for determining rates of interest on comparable loans and any related changes to the Swap Transaction Documents. "Regulatory Change" shall mean a change in any applicable law, treaty, rule, regulation or guideline, or the interpretation or administration thereof, by the administrator of the relevant benchmark or its regulatory supervisor, any goverrunental authority, central banlc or other fiscal, monetary, or other authority having jurisdiction over Lender or its lending office. 23 "Termination Value" shall mean, in respect of any one or more Rate Contracts, after talcing into account the effect of any legally enforceable netting agreement relating to such Rate Contracts,(a) for any date on or after the date such Rate Contracts have been closed out and termination value(s) deterinined in accordance therewith, such termination value(s),and(b) for any date prior to the date referenced in clause (a)the amount(s) determined as the marlc to marlcet value(s) for such Rate Contracts, as deterinined by Lender based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Rate Contracts which may include any Lender. "Title Company" shall mean: (�) First American Title Insurance Company or (b) such siiccessor title coinpany selected by Lender from tiine to time, as applicable. "Total Debt"shall mean, as of any date of deterinination, all Indebtedness of or attributable to the Borrower as of such date. � "Unused Phase I Construction Loan Commitment"shall mean,at any time,the positive remainder, if any, of (a)the Total Phase I Construction Loan Commitment on the Closing Date minus (b)the aggregate amount of all Phase I Construction Loan advanced from and after the Closing Date. "United States" and"U.S." shall mean the United States of Ainerica. "Wholly-Owned Subsidiary" shall mean any Person in which 100% of the Equity Securities of each class having ordinary voting power, and 100% of the Equity Securities of every other class, in each case, at the time as of which any detennination is being made, is owned, beneficially and of record, by DRA, or by one or more Wholly-Owned Subsidiaries of DRA, or both. "Withholding Agent"shall mean Borrower and Lender. 1.2 GAAP. Unless otherwise indicated in this Agreement or any other Credit Document, all accounting terms used in this Agreement or any other Credit Docuinent shall be construed, and all accounting and financial computations hereunder or thereunder shall be computed, in accordance with GAAP applied in a consistent manner with the principles used in the preparation of the Financial Statements of Borrower referred to in Section 4.1(i). Notwithstanding the other provisions of this Section 1.2, for purposes of cletermining compliance with any covenant(including the computation of any financial covenant)contained herein,Indebtedness and other liabilities of Borrower shall be deemed to be carried at 100% of the outstanding principal ainount thereof, and, to the extent applicable, the effects of FASB ASC 825 (and FASB ASC 470-20, if applicable) on financial liabilities shall be disregarded. If GAAP changes,as applicable,during the term of this Agreement such that any covenants contained herein would then be required or permitted to be calculated in a different manner or with different components, other than changes in GAAP that require items to be included in the definition of Indebtedness that were not so required before such change in GAAP, Borrower and Lender agree to negotiate in good faith to amend this Agreement in such respects as are necessary to conform those covenants as criteria for evaluating Borrower' financial condition to substantially the same criteria as were effective prior to such change in GAAP; rop vided,however, that,until Borrower and Lender so amend this Agreement, all such covenants shall be calculated in accordance with GAAP, as in effect immediately prior to such change in GAAP. 24 1.3 Headin�s.The table of contents,captions and section headings appearing in this Agreeinent are included solely for convenience of reference and ar•e not intended to affect the interpretation of any provision of this Agreement. 1.4 Plural Terms, All ter�ns defined in this Agreement or any other Credit Docuinent in the singular form shall have coinparable meanings when used in the plural form and vice versa. 1.5 Time. All references in this Agreement and each of the other Credit Documents to a time of day shall mean Dubuque, Iowa time,unless otherwise indicated. 1.6 Governin�Law. This Agreement and, unless otherwise expressly provided in any such Credit Document, each of the other Credit Documents shall be governed by and constnied in accordance with the laws of the State of Iowa without reference to conflicts of law rules, The scope of the foregoing governing law provision is intended to be all-encompassing of any and all disputes that may be brought in any court or any mediation or arbitration proceeding and that relate to the subject matter of the Credit Docuinents, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. 1.7 Construction. This Agreement is the result of negotiations among, and has been reviewed by Borrower and Lender and their respective counsel.Accordingly,this Agreement shall be deemed to be the product of all parties hereto, and no ambiguity shall be construed in favor of or against Borrower or Lender, 1,8 Entire A�reement.This Agreement and each of the other Credit Documents,taken together, constitute and contain the entire agreement of Borrower and Lender and supersede any and all prior agreements, negotiations, correspondence, understandings and communications among the parties, whether written or oral,respecting the subj ect matter hereof. 1.9 Calculation of Interest and Fees.All calculations of interest and fees under this Agreement and the other Credit Documents for any period (a) shall include the first day of such period and exclude the last day of such period; rovided that any Loan or other Obligation that is repaid on the same day on which it is made shall bear interest for one day and(b) shall be computed on an actua1360-day basis;that is,by applying the ratio of the�pplicable interest rate over a year of 3 60 days,multiplied by the outstanding principal balance,multiplied by the actual nuinber of days the principal balance is outstanding,All interest payable pursuant to this Agreement is computed using this method. 1.10 References. (a) References in this Agreement to "Recitals," "Sections," "Paragraphs," `Bxhibits", and "Schedules" are to recitals, sections, paragraphs, exhibits, and schedules herein and hereto unless otherwise indicated. (b) References in this Agreement or any other Credit Document to any document, instrument or agreement (i) shall include all exhibits, schedules, annexes and other attachinents hereto or thereto, (ii) shall include all documents, instruments or agreements issued or executed in replacement thereof if such replacement is permitted hereby or thereby, and(iii) shall mean such document,instrument or agreement, or replacement or predecessor thereto, as amended, restated, modified and supplemented 25 from time to time and in effect at any given time if such amendment, restateinent, inodification or suppleinent is permitted hereby or thereby. (c) References in this Agreement or any other Credit Document to any Governmental Rule (i) shall inchide any successor Goverrunental Rule, (ii) shall include all rules and reg�.ilations promulgated under such Goverrnnental Rule (or any successor Governmental Rule), and (iii) shall inean such Goverrunental Rule (or successor Gover��unental Rule) and such rules and regulations, as amended, restated,modified, codified or reenacted from time to time and in effect at any given tiine. (d) References in this Agreement or any other Credit Document to any Person in a pai-ticular capacity(i) shall include any sLtccessors to and permitted assigns of such Person in that capacity and(ii) shall exclude such Person individually or in any other capacity. 1.11 Other Inter�retive Provisions.The words"hereof,""herein"and"hereunder"and words of similar import when used in this Agreement or any other Credit Document shall refer to this Agreement or such other Credit Docuinent, as the case may be, as a whole and not to any particular provision of this Agreement or such other Credit Document, as the case may be. The words "include"and"including" and worcis of similar iinport when used in this Agreement or any other Credit Document shall not be constriied to be limiting or exclusive and shall be deemed to be followed by the phrase"without limitation". In the event of any inconsistency between the terms of this Agreeinent and the terms of any other Credit Document, the terms of this Agreement shall govern. 1.12 Roundint�. Any financial ratios required to be maintained by Borrower pursuant to this Agreement shall be calculated by dividing the appropriate coinponent by the other coinponent, carrying the result to one place more than the number of places by which such ratio is expressed in this Agreement and rounding the result up or down to the nearest number(with a round-up if there is no nearest number) to the nuinber of places by which such ratio is expressed in this Agree�nent. 1,13 Amendrnent and Restatement. It is intended by the parties hereto that except as expressly stated herein or amended hereby, each Existing Credit Agreetnent and the other Credit Documents are ratified and confirmed as remaining unmodified and iil full force and effect as of the Closing Date with respect to all obligations thereunder; it being understood that it is the intent of the parties hereto that this Agreeinent does not constitute a novation of rights, obligations and liabilities of the respective parties existing under each Existing Credit Agreement and such rights, obligations and liabilities shall continue and remain outstanding, except to the extent amended or modified in accordance with their respective terms, after the Closing Date. On the Closing Date, each Credit Document that was in effect immediately prior to the Closing Date shall continue to be effective until such time as it is terminated in accordance with its terms. For the avoidance of doLtbt, Borrower confirms that the Security Docuinents secure the Obligations as defined in this Agreement. Prior to the Closing Date, all Credit Documents (as defined in each of the Existing Credit Agreements) shall remain in full force in effect in accordance with their existing terms. ARTICLE II CREI)IT FACILITIES 2.1 Loan Facilities. (a) Availability of Loans. 26 (i) Schmitt Island Term Loan Availabilitv. On the terins and subject to the conditions of this Agreement, Lender agrees to advance to Borrower on the Closing Date the Schmitt Island Tenn Loan in a principal ainount equal to the Schmitt Island Term Loan Commitment. (ii) Phase I Construction Loan Availabilitv. On the terms and subject to the conditions of this Agreement, Lender agrees to advance to Borrower from time to time during the period beginning on the Closing Date up to and including the Disbursement Deposit Date (such period shall be referred to herein as the"Construction Phase") such loans in Dollars as Borrower may request under this Section 2,1(a)(ii) (individually, a "Phase I Construction Loan"); provided, however, that (x) the aggregate amount of all Phase I Construction Loans made by Lender during the Constniction Phase shall not exceed Lender's Phase I Construction Loan Commitment.Borrower inay not reborrow the principal amount of a Phase I Construction Loan after repayment or prepayment thereof. (iii) Phase I Term Loan Availabilitv. At the end of the Construction Phase, the Phase I Construction Loan shall automatically convert to a term loan(the"Phase I Term Loan"), with the Phase I Term Loan to commence on Disbursement Deposit Date and to mature on the Phase I Term Loan Maturity Date. (iv) Disbursement Debosit Date. Notwithstanding anything to the contrary herein, (x) on the Disbursement Deposit Date, Borrower shall be deemed to have requested a Phase I Constr�iction Loan in the amount of the Unused Phase I Construction Loan Commitment on such date, (y) the malcing of such Phase I Construction Loan contemplated by this subsection(iv)shall not be subject to the conditions precedent set forth in Sections 3.2(a), or 3_3 and (z)the proceeds of such Phase I Construction Loan contemplated by this subsection(iv) shall be deposited in the Disbursement Account and the disbursement thereof shall be subject to the terms and conditions set forth in Sections 3.2, 3_3, andlor 3.4 (as applicable). (b) Draw Request/Release of Funds. (i) Borrower shall request each Phase I Construction Loan Borrowing by delivering the Draw Package to Lender, the Construction Consultant, and/or the Title Company, as applicable,and otherwise complying with the provisions of the Constniction Loan Disbursing Agreeinent. (c) Interest Rates.Borrower shall pay interest on the unpaid principal ainount of each Loan from the date of such Loan until paid in fiill, at one of the following rates per cznnun2: (i) The outstanding principal of the Schmitt Island Term Loan shall bear interest at the Schmitt Island Term Loan Rate. (ii) The outstanding principal balance of the Phase I Constriiction Loan shall bear interest at the Phase I Constniction Loan Rate. (iii) The outstanding principal balance of the Phase I Term Loan shall Uear interest at the Phase I Term Loan Rate. (d) Scheduled Pavments. 27 (i) Schmitt Island Term Loan. Commencing on the first(1Sf) monthly anniversary of the first(1St)full month following the Closing Date,which date shall be December 1,2023, and contirniing on the same date each month thereafter until the Schmitt Island Term Loan Maturity Date, Borrower shall make monthly payinents of principal and interest on the Schinitt Island Term Loan based on a seventy-four(74) inonth amortization schedule. Borrower shall also malce a final payment of all outstanding principal, accrued interest, and all other amounts due and owing with respect to the Schmitt Island Term Loan on the Schmitt Island Term Loan Maturity Date or the date on which the Schmitt Island Term Loan is accelerated as provided herein. Borrower agrees that Lender is authorized to debit Borrower's accounts with Lender for all payments of principal and interest without notice to Borrower. Whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of tiine shall in such case be included in the computation of payment of interest on the Schmitt Island Term Loan Note. (ii) Phase I Construction Loan. Commencing on the first(lst) monthly anniversary of the first(1S�)full inonth following the Closing Date,which date shall be December l,2023, and continuing on the same date each month thereafter,Borrower shall malce monthly payments of accrued interest only on the outstanding principal balance of the Phase I Construction Loan,outstanding from time to time during the Construction Phase until the Phase I Construction Loan Conversion Date, at which time the last interest only payment shall be inade. (iii) Phase I Term Loan. At the end of the Construction Phase the Phase I Construction Loan shall automatically convert to a term loan until the Phase I Term Loan Maturity Date, with the Phase I Term Loan to commence upon the expiration of the Construction Phase and to mature on the Phase I Term Loan Maturity Date (the "Phase I Term Loan Term"). Coinmencing on the first(lst) monthly anniversary of the first(lst) full month following the end of the Construction Phase, which date shall be June 1, 2025, and continuing on the same date each month thereafter during the remainder of the Phase I Term Loan Tenn, Borrower shall malce monthly payments of principal and interest on the Phase I Term Loan based on a twenty(20)year anzortization schedule. Borrower shall also make a final payment of all principal,interest, and all other ainounts due and owing on the Phase I Term Loan Maturity Date or the date on which the Phase I Term Loan is accelerated as provided herein. Borrower agrees that Lender is authorized to debit Borrower's accounts with Lender for all payinents of principal and interest without notice to Borrower.Whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, such payment may be inade on the next succeeding Business Day, and such extension of time shall in such case be included in the comptttation of payment of interest on the Phase I Note. 2.2 Fees. (a) Sclunitt Island Term Loan Fee. In consideration of Lender's agreement to inake the Schinitt Island Term Loan evidenced by Sclunitt Island Term Loan Note, Borrower shall pay Lender an origination fee of Three Hundred and no/100 Dollars ($300.00) (the "Schmitt Island Tenn Loan Origination Fee"). The Schmitt Island Term Loan Origination Fee is in addition to all other fees, costs, and expenses payable by the Borrower with respect to the Loan. (b) Phase I Construction Loan Fee.In consideration of Lender's agreement to malce the Phase I Construction Loan evidenced by the Phase I Note,on the Closing Date,Borrower shall pay Lender an origination fee of 0.50% of the ainount of the Phase I Construction Loan Commitment (the "Phase I 28 Construction Loan Ori�;ination Fee"). The Phase I Construction Loan Origination Fee is in addition to all other fees, costs, and expenses payable by the Borrower with respect to the Phase I Construction Loan. (c) Phase I Term Loan Fee.In consideration of Lender's agreement to malce the Phase I Term Loan evidenced by the Phase I Note,Borrower shall pay Lender an origination fee of 0.25% of the Phase I Term Loan payable to Lender upon the funding of the Phase I Term Loan(the"Phase I Term Loan Origination Fee"). The Phase I Term Loan Origination Fee is in addition to all other fees, costs, and expenses payable by the Borrower with respect to the Phase I Tenn Loan. (d) Lender Fees; Other Fees. In addition to the origination fees set forth in this Section 2.2 Borrower shall pay to Lender any fees set forth in any fee letter. 2.3 Prepayments. (a) Terms of All Preba.�ments. (i) Upon the prepayinent of any Loan (whether such prepayment is an optional prepayment under Section 2,3(b), a mandatory prepayment required by Section 2.3(c) or a mandatory prepayment required by any other provision of this Agreement or the other Credit Documents, including a prepayment upon acceleration), Borrower shall pay, if a prepayment is made upon acceleration,to Lender all accrued interest and fees to the date of such prepayment on the amount prepaid. Any prepayment shall be without prejudice to Borrower's obligations under any Rate Contract, which shall remain in full force and effect subject to the terins of such Rate Contract (including provisions that may require a reduction, modification or early tennination of a swap transaction, in whole or in part, in the event of such prepayment, and may require Borrower to pay any fees or other amounts for such reduction, modification or early termination), and no such fees or amounts shall be deemed a penalty hereunder or otherwise. (ii) Prepayment of the principal ainount of the Phase I Note,in whole or in part, whether voluntary or invohintary, will be subject to payment by Borrower to Lender of all assessments, losses, fees and costs of any kind or nature incurred by Lender under any and all Swap Transaction Documents (as defined herein)by and between Borrower and Lender,which arise, directly or indirectly, as a result of stich prepayment. Moreover, at no time during the term of the Phase I Term Loan may the then principal balance of the Phase I Term Loan be less than the then remaining notional amount of the Swap, and any prepayment of the Phase I Note below the notional amount will require an equivalent reduction in the notional �inount under the Swap Transaction Documents. This prepayment penalty provision is only applicable if the Borrower and Lender have entered into a Swap Transaction evidenced by a separate Swap Transaction Documents. (b) Optional Pre�a}nllents. (i) Schmitt Island Terin Loan Prepavments.Borrower may at its option,at any time upon thirty(30) days'prior written notice to Lender,prepay the Schmitt Island Term Loan,in whole or in part, provided that Borrower shall pay a prepayment fee as follows: (i)if the prepayment is made prior to the first anniversary of the Closing Date, a prepayment fee equal three percent(3.0%) of the outstanding principal balance of the Sclunitt Island Term Loan, (ii)if the prepayment is made on or after the first anniversary of the Closing Date but before the second anniversary of the Closing Date, a prepayment fee equal to two percent(2.0%) of the outstanding principal balance of the Sclunitt Island 29 Term Loan, (iii)if the prepayinent is made on or after the second anniversary of the Closing Date a prepayment fee equal to one percent(1.0%) of the outstanding principal balance of the Sclunitt Island Term Loan. The forgoing prepayinent fees are only applicable in the event the Sclunitt Island Tenn Loan is refinanced or paid off by any financial institution other than Lender. No ainounts prepaid inay be reborrowed. (ii) Phase I Construction Loan Pre�a.�.Borrower may at its option,at any time upon thirty(30)days'prior written notice to Lender,prepay the Phase I Construction Loan,in whole or in part,provided that Borrower shall pay a prepayment fee in an amount equal to three percent(3.0%) of the Phase I Construction Loan Commitment. The forgoing prepayment fees are only applicable in the event the Phase I Construction Loan is refinanced or paid off by any financial institution other than Lender. No amounts prepaid may be reborrowed. (iii) Phase I Term Loan Prepa,�. Borrower may at its option, at any tiine upon thirty(30) days' prior written notice to Lender, prepay the Phase I Term Loan, in whole or in part, provided that Borrower shall pay a prepayment fee as follows:At the tiine of a full or partial prepayment, Lender will calculate the then current swap rate for the remaining term of the interest rate swap ("Replacement Rate"). If the Replacement Rate is below the contractual rate stated in the Swap Transaction Documents,a breakage amount equal to the present value of the difference in the Replacement Rate and the contractual rate over the remaining life of the Swap Transaction Document(s) — applied to the outstanding notional schedule— will be required. Conversely, if the Replacement Rate is above the contractual rate a reverse calculation will occur and Lender will pay Borrower the present value of the difference in the Replaceinent Rate and the contractual rate over the remaining life of the Swap Transaction Docuinent(s)—applied to the outstanding notional schedule. This calculation will be applied to whatever portion of the swap is being terminated. Partial prepayments are permitted. (c) Mandator��e�avments.Borrower shall prepay the Obligations as follows; (i) If, at any time after the Closing Date, Borrower issl�es or incurs any Indebtedness for borrowed money,inchiding Indebtedness evidenced by notes,bonds, debentures or other similar instniments but excluding Permitted Indebtedness, Borrower shall, immediately after such issuance or incurrence, prepay the outstanding Obligations in the manner set forth in Section 2.3(d), in each case, in an aggregate principal amount equal to one hundred percent(100%) of the Net Proceeds of such Indebtedness,unless otherwise waived in writing by Lender. (ii) If, at any tiine after the Closing Date, Borrower issues or sells any Equity Securities or receives any capital contributions, Borrower shall, immediately after such issuance or sale of Equity Securities or receipt of such capital contributions, prepay the outstanding Obligations in the manner set forth in Section 2.3(dl, in each case, in an aggregate principal amount equal to One Hundred Percent(100%) of the Net Proceeds realized or received by Borrower or any Subsidiary of Borrower from such sale or issuance,unless otherwise waived in writing by Lender;provided,that,in any event, prior to undertalcing any sale or issuance of any Equity Securities as described in this Section 2.3 c ii ,Borrower must provide Lender at least thirty(30)Business Days written notice of such proposed sale or issu�nce. (iii) Not later than ten(10) Business Days following the date of receipt (each a "Receipt Date")by Borrower(or Lender) of any Net Insurance Proceeds or Net Condemnation Proceeds, 30 Borrower shall prepay the outstanding Obligations in the manner set forth in Section 2.3(d)in an ainount equal to the aggregate amount of the sum of such Net Insurance Proceeds and Net Condemnation Proceeds.Notwithstanding the foregoing, Borrower shall not be required to make a prepayment pursuant to this clause(iii)with respect to any particular Net Insurance Proceeds or Net Condeinnation Proceeds if Borrower advises Lender in writing within ten(10) Bitsiness Days after the related Receipt Date that Borrower intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds were derived to the extent (A) such Net Insurance Proceeds and Net Condemnation Proceeds are in fact committed to be utilized to repair, restore or replace such assets pursuant to one or more contracts providing for such repair,restoration or replacement that is executed by Borrower and the relevant counterparty(ies) within ninety(90) days after the related Receipt Date, (B) such repair, restoration or replacement is completed within one hundred eighty(180) days after the related Receipt Date, and(C)the Net Insurance Proceeds or Net Condemnation Proceeds are sufficient to defray the entire cost of such repair, restoration or replacement or if not, Borrower has deposited with Lender good funds equal to the difference between the cost of such repair,restoration or replacernent and the ainount of Net Insurance Proceeds or Net Condeinnation Proceeds deposited with Lender, and such funds and proceeds will be held by Lender and disbursed under procedures established by Lender in good faith for application to such repair, restoration or replacement,or(II)immediately prepay the Obligations in the amount and in the manner described in the first sentence of this clause(iii). If, at any time after the occurrence of a Receipt Date and prior to the completion of the corresponding repair, restoration or replacement, the applicable period provided in clause(A) or (B) of the preceding sentence shall elapse without execution of the related contract(in the case of clause (A))or the coinpletion of the related repair, restoration or replacement (in the case of clause(B)), or Borrower shall fail to provide and deposit the funds and proceeds required under clause(C) above, or an Event of Default shall occur, then Borrower shall immediately prepay the Obligations in the amount and in the manner described in the first sentence of this clause(iii). If Borrower has provided the written notice contemplated by the prior sentence, then until such Net Insurance Proceeds or Net Condemnation Proceeds are needed to pay for the related repair, restoration or replacement such proceeds shall be held by Lender as Collateral.No right to apply proceeds to repair, restoration, or replacement shall exist if any such repair, restoration or replacement cannot reasonaUly be completed prior to one hundred eighty(180) days before the Phase I Term Loan Maturity Date. (iv) Borrower shall deliver to Lender, at the time of each prepayment required under this Section 2.3(c), (A) a certificate signed by a Responsible Officer of Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (B) to the extent practicable, at least three(3) days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and prineipal amount of each Loan to be prepaid. In the event that Borrower shall subsequently determine that the actual amount required to be prep�id was greater than the ainount set forth in such certificate, Borrower shall proinptly make an additional prepayment of the Loans in an amount equal to the amount of such excess, and Borrower shall concurrently therewith deliver to Lender a certificate signed by a Responsible Officer of Borrower demonstrating the derivation of the additional amount resulting in such excess, (d) A�plication of Loan Prepa, ents, All prepayinents under Section 2.3(c) shall be applied to (i) the Existing Hilton Garden Loan, (ii)the Phase I Construction Loan, and (iii) the Phase I Term Loan as directed by Borrower; rovided, however, that if an Event of Default has occurred �nd is continuing,such prepayments shall be applied as determined by Lender in its reasonable discretion. 31 2.4 Other Payment Terms. (a) Place and Manner. All payments to be made by Borrower under this Agreement or any other Credit Document shall be inade in Dollars without condition or deduction for any counterclaim, defense, recoupinent, offset or setoff. Borrower shall make all payments due to Lender under this Agreement or any other Credit Document by payments to Lender at Lender's office located at the address specified in Section 8.1, Borrower shall malce all payinents under this Agreement or any other Credit Docuinent in lawful money of the United States and in same day or immediately available funds not later than 12:00 noon on the date due. (b) Date. Whenever any payment due hereunder shall fall due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of interest or fees, as the case may be. (c) Default Rate.Upon the occurrence�and during the continuation of any Event of Default other than an Event of Default described in Section 6.1 �t or�, at the option of Lender, from and after the date of such Event of Default (or such later date designated by Lender) until the time when such Event of Default shall have been cured or waived in writing by Lender, Borrower shall pay interest on the aggregate, outstanding amount of all Obligations hereunder, inchiding, but not limited to Obligations in respect Swap Indebtedness (excluding Obligations in respect of Lender Rate Contracts and Lender Bank Products) at a pe�^ annum rate equal to the otherwise applicable Interest Rate plus five perceiit(5.00%) (the "Default Rate") payable on demand. Upon the occurrence and during the continuation of an Event of Default described in Section 6.1 �f or�until the time when such Event of Default shall have been cured or waived in writing by Lender, Borrower shall pay interest on the aggregate, outstanding amount of all Obligations hereunder, including, but not limited to Obligations in respect Swap Indebtedness (exchtding Obligations in respect of Lender Rate Contracts and Lender Bank Products) at a per annum rate equal to the Default Rate (such Default Rate becoming effective on such date of occurrence of such Event of Default without notice and shall be immediately due and payable without notice or demand). Overdue interest shall itself bear interest at the Default Rate, and shall be compounded with the principal Obligations daily, to the fiillest extent pernzitted by applicable Governmental Rules. (d) Application of Pavments, All payments hereunder shall be applied first to unpaid fees, costs, and expenses then due and payable under this Agreement or the other Credit Documents, second to accrued interest then due and payable under this Agreement or the other Credit Docuinents and finally to reduce the principal ainoLult of outstanding Loans. The proceeds of the Collateral will be applied as set forth in Section 6.2. Notwithstanding anything in this Agreement to the contrary, interest in excess of the maximum amount pennitted by applicable Laws shall not accrue or be payable hereunder or under the Notes, and any, amount paid as interest hereunder or under the Notes which would otherwise be in excess of such maximum permitted amount shall instead be treated as a payment of principal. 2.5 Loan Accounts;Notes. (a) Loan Accounts.The obligation of Borrower to repay the Loans made to it Uy Lender and to pay interest thereon at the rates provided herein shall be evidenced by an account or accottnts 32 maintained by Lender on its boolcs (individually, a "Loan Account"). Lender shall record in its Loan AccoLuits (i)the date and amount of each Loan made by Lender, (ii)the interest rates applicable to each such Loan and the effective dates of all changes thereto, (iii)the date and amount of each principal and interest payment on each Loan,and(iv) such other information as such Lender may determine is necessary for the computation of principal and interest payable to it by Borrower hereunder; rovided,however, that any failure by a Lender to make, or any error by any Lender in making, any such notation shall not affect Borrower's Obligations. The Loan Accounts shall be conclusive absent manifest error as to the matters noted therein. (b) Schmitt Island Term Loan. The Schmitt Island Term Loan shall be evidenced by a promissory note substantially in the form of Exhibit A(the"Schmitt Island Term Loan Note")which note shall be (i)payable to the order of Lender, (ii) in the amount of the Schinitt Island Term Loan Commitment, (iii) dated the Closing Date or such other date acceptable to Lender, and (iv) otherwise appropriately completed. (c) Phase I Construction Loan. The Phase I Construction Loan shall be evidenced by a proinissory note substantially in the form of Exhibit B(the"Phase I Note")which note shall be(i)payable to the order of Lender, (ii)in the amount of the Phase I Construction Loan Coinmitinent, (iii) dated the Closing Date or such other date acceptable to Lender, and(iv) otherwise appropriately completed. (d) Phase I Term Loan.The Phase I Term Loan shall be evidenced by the Phase I Note, provided, however, if requested by Lender, the Phase I Term Loan shall be evidenced by a further promissory note in a form acceptable to Lender which note shall be (i)payable to the order of Lender, (ii)in the amount of the Phase I Term Loan Commitment, (iii) dated the Closing Date ar such other date acceptable to Lender, and(iv)otherwise appropriately completed. 2.6 Loan Fundin�. (a) Funding and Disbursement to Borrower. Lender shall, on the date of each Borrowing or on such date as required by the Construction Loan Disbursing Agreement, make available in same day or immediately available funds of such Borrowing. Upon satisfaction of the applicable conditions set forth in Section 3.1 and Sections 3.2, 3_3 and/or 3_4 (as applicable): (i) For the Schmitt Island Term Loan, the loan proceeds thereof shall be used to refinance the Existing Schmitt Island Term Loan on the Closing Date; (ii) For a Phase I Construction Loan, except as provided in Section 2.1(a (iv), prior to the full coinpletion of the Phase I Casino Project and the payment of all costs in respect thereof, Lender shall promptly make all such Phase I Construction Loan funds available to Title Company for disbursement in accordance with the terms of the Construction Loan Disbursing Agreement. 2.7 Taxes on Pa, inents. (a) Pavments Free of Taxes. Any and all payments by or on account of any obligation of Borrower under any Credit Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such 33 deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by Borrower shall be increased as necessary so that after such deduction or withholding has been made(including such deductions and withholdings applicable to additional suins payable under this Section) Lender receives an amount equal to the sum it would have received had no such deduction or withholding been made. (b) Pavment of Other Taxes. Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law,or at the option of Lender timely reimburse it for the payment of, any Other Taxes. (c) Indemnification by Borrower. Borrower shall indemnify Lender, within ten (10) Business Days after deinand therefor, for the full amount of any Indemnified Taxes payable or paid by Lender or required to be withheld or deducted from a payment to Lender and any reasonable expenses arising therefrom or with respect thereto,whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by Lender shall be conclusive absent manifest error. (d) Evidence of Pavments. As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority pursuant to this Section 2.7, Borrower shall deliver to Lender the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Lender. (e) Survival. Without prejudice to the survival of any other agreement contained herein, the agreeinents and obligations contained in this Section 2.7 shall survive the payinent in full of principal, interest and all other Obligations hereunder. (� Tax Returns. Nothing contained in this Section 2.7 shall require Lender to make available any of its tax returns or any other information that it reasonably deems to be confidential or proprietary. 2.8 Securitv. (a) Securitv Documents. The Loans, together with all other Obligations, shall be secured by the Liens granted by Borrower under the Security Documents (or, in the case of any Real Property Security Docuinent, the Obligations described in such Real Property Security Document and subject to any limitation specifically set forth therein, if any). (b) Further Assurances. Borrower shall deliver to Lender such mortgages, deeds of trust, security agreements, pledge agreements, lessor consents and estoppels (containing appropriate mortgagee and lender protection language), control agreements, and other instruments, agreeinents, certificates, opinions and documents (inchiding Uniforin Commercial Code financing statements and fixture filings and landlord waivers) as Lender may request to: (i) grant, perfect, maintain, protect and evidence security interests in favor of Lender, in any or all present and firture property of Borrower other than the Excluded Assets,prior to the Liens or other interests of any Person, except for Permitted Liens; and 34 (ii) otherwise establish, maintain, protect and evidence the rights provided to Lender,pursuant to the Security Documeilts. (iii) Borrower shall fiilly cooperate with Lender and perforin all additional acts requested by Lender to effect the purposes of this Section 2.8. ARTICLE III CONDITIONS PRECEDENT 3.1 Initial Conditions Precedent. Notwithstanding any other provisions contained in this Agreement,as a condition precedent to any obligations of Lender under this Agreement to make the Loans, all of the following shall have occurred,to Lender's satisfaction, on or before the first advance thereof, (a) Borrower shall have delivered or caused to be clelivered all of the following to Lender,in form and substance satisfactory to Lender: (i) This Agreement; (ii) The Schmitt Island Term Loan Note; (iii) The Phase I Note; (iv) The Security Agreement; (v) The Schmitt Island Lease; (vi) The Swap Transaction Documents; (vii) The Leasehold Mortgage; (viii) The Schmitt Island Lease Subordination Agreement; (ix) The Title Policy for the Leasehold Mortgage; (x) The Environmental Indemnity Agreement; (xi) The Construction Loan Disbursing Agreement,duly executed by the parties thereto; (xii) The Assignment of Architect's Agreement fiilly executed and delivered by Borrower and, to the extent available as of the Closing Date, the Architect; (xiii) The Assigmnent of Constniction Contracts fully executed and delivered by Borrower and, to the extent available as of the Closing Date, each contractor; (xiv) The Assignment of General Contractor Agreement fully executed and delivered by Borrower and, to the extent available as of the Closing Date, the General Contractor; 35 (xv) The Assigrunent of the Amended and Restated Operating Agreement by and between DRA and Diamond Jo,LLC, fitlly executed and delivered by Borrower; (xvi) Preliininary title opinion(and for all advances other than the initial advance the final title opinion) froin Borrower's counsel certifying title to the Leasehold Mortgage; (xvii) Satisfactory evidence of utilities,roads, and access; (xviii) The appraisal required by Lender. (b) Or�anizational Documents. (i) The Articles of Incorporation of Borrower,certified as of a recent date prior to the Closing Date by the Secretary of State(or comparable official)of Borrawer's state of incorporation; (ii) A certificate of the Secretary of Borrower, dated the Closing Date, certifying that(A) attached thereto is a tri.ie and correct copy of the Articles of Incorporation of Borrower and the Bylaws of Borrower as in effect on the Closing Date; (B) attached thereto are true and correct copies of resolutions duly adopted by the board of directors of Borrower and continuing in effect, which authorize the execution, delivery and performance by Borrower of the Credit Documents executed or to be executed by Borrower and the consummation of the Transactions; and(C)there are no proceedings for the dissolution or liquidation o�Borrower; and (iii) Certificates of good standing for Borrower,certified as of a recent date prior to the Closing Date by the Secretary of State of Iowa. (c) Financial Stateinents, Financial Condition, Etc. (i) A copy of the most recent interim stateinents Financial Statements of Borrower and its Subsidiaries (prepared on a consolidated and consolidating basis), certified by a Responsible Officer of Borrower to present fairly the financial condition, results of operations and other information reflected therein and to have been prepared in accordance with GAAP (subject to normal year-end audit adjustments); (ii) A copy of, and Lender's satisfactory review of, the projected financial statements of Borrower by fiscal year for each of the fiscal years tluough the Phase I Term Loan Maturity Date, inchiding, in each case, projected balance sheets, statements of income and retained earnings and statements of cash flow of Borrower, all in reasonable detail, reflecting the Borrower's compliance with each of the covenants set forth in Section 5.3 of this Agreement, all prepared by a financial officer of Borrower; and (iii) Such other financial,business and other information regarding Borrower as Lender may reasonably request. (d) Collateral Docuinents. (i) Such endorsements as Lencler may require in connection with the Title Policy; 36 (ii) Uniform Cominercial Code search certificates from jurisdiction of incorporation of Borrower reflecting no other financing statements or filings which evidence Liens of other Persons in the Collateral which are prior to the Liens granted to Lender in this Agreement, the Security Documents, and the other Credit Documents, except for any such prior Liens (a)which are expressly permitted by this Agreement to be prior or (b) for which Lender has received a termination statement or and has made a satisfactory arrangement concerning the termination of such Liens; (iii) Such other documents, instruinents and agreements as Lender inay reasonably request to establish and perfect the Liens granted to Lender in this Agreement, the Security Documents, and the other Credit Documents; (iv) Borrower shall have complied with FIRREA (and any banking regulations associated therewith or enacted to implement FIRREA in the lending context) and all other legal requirements for the malcing of the extensions of credit herettnder (including, without liinitation, acknowledging receipt of results of flood zone reports, maintenance of necessary flood insurance in amounts and where required under applicable law); (v) Such other evidence as Lender may reasonably request to establish that the Liens granted to Lender in this Agreement, the Security Documents, and the other Credit Documents are or upon the proper filings shall be perfected and prior to the Liens of other Persons in the Collateral,except for any such Liens which are expressly permitted by this Agreement to be prior; (vi) An ALTA survey of the Property underlying the Phase I Casino Project, certified in a manner acceptaUle to Lender; (vii) Lender's receipt and approval of all applicable environmental studies and reports for the Phase I Casino Project(including a Phase I report and if recommended, a Phase II report), issued by environmental consultants reasonably acceptable to Lender in form and substance reasonably acceptable to Lender; and (viii) Lender's receipt of confirmation (which confirmation shall be reasonably acceptable to Lender) that Borrower is in compliance with all applicable Mitigation Requirements (as defined in Environmental Indemnity Agreement). (e) O inion. A favorable written opinion from O'Connor and Thomas, P.C., counsel for Borrower, dated the Closing Date, addressed to Lender for the benefit of Lender, covering such legal matters as Lender may reasonably request and otherwise in form and substance satisfactory to Lender. (� Other Items. (i) Evidence reasonably satisfactory to Lender that the Iowa Racing and Gaming Commission has approved this Agreement and the other Credit Documents; (ii) Evidence reasonably satisfactory to Lender that the City of Dubuque has approved this Agreement and the other Credit Documents; (iii) Lender shall have completed all due diligence concerning Borrower and its assets,in scope and with results in all respects satisfactory to Lender in Lender's sole discretion; 37 (iv) Such assurances as Lender deems appropriate that the relevant Gaming Authorities have approved the transactions contemplated by the Credit Documents to the extent that such approval is required by applicable Gaming Laws; (v) Since December 31, 2022, no event or circumstance shall have occurred that has resulted or is reasonably lilcely to result in a material adverse change in the business, assets, liabilities, operations,performance or condition(financial or otherwise)of Borrower(talcen as a whole); (vi) There shall not exist any pending or threatened action, suit, investigation or proceeding, which, if adversely determined, could materi�lly and adversely affect Borrower, any transaction contemplated hereby or the ability of Borrower to perform its obligations under the Credit Docuinents or the ability of Lender to exercise its rights thereunder; (vii) There s11a11 not exist (A) any order, decree,judgment, ruling or injunction which restrains any part of the consummation of the transactions contemplated under this Agreement in the inanner contemplated by the Credit Documents (or any documents executed in connection therewith); or (B) any litigation pending or threatened against Borrower as of the Closing Date which could have a Material Adverse Effect; (viii) There shall not exist any material adverse change or material disruption in the financial,banking or capital markets that,in the judgment of Lender,has materially impaired,or could reasonably be expected to materially impair, the participation of any component of the credit facilities provided hereunder; (ix) A certificate of a Responsible Officer, addressed to Lender and dated the Closing Date, certifying that: (A) The representations and warranties set forth in Article IV and in the , other Credit Documents are true and correct in all material respects as of such date (except to the extent that such representation and warranty is qualified by inateriality, in which case such representation and warranty must be true in all respects) as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true and correct in all material respects (except to the extent that such representation aild warranty is qttalified by inateriality, in which case such representation and warranty must be true in all respects) as of such date); and (B) No Default has occurred and is continuing as of such date; (C) Borrower has obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable to have been obtained prior to the Closing Date in connection with the transactions herein and the continuecl operation of the business conducted by Borrower in substantially the s�me manner as conducted prior to the Closing Date. Each such Governmental Authorization or consent is in full force and effect, except in a case where the failure to obtain or maintain a Governmental Authorization or consent, either individually or in the aggregate, could not have a Material Adverse Effect. All applicable waiting periods have expired withottt any action being talcen or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Credit Documents. No action, request for stay, petition for review or rehearing, 38 reconsideration, or appeal with respect to any of the foregoing is pending, and the time for a.ny applicable Governmental Authority to talce action to set aside its consent on its own motion has expireci; and (D) No temporary restraining order, preliminary or permanent injunction or other order preventing Borrower or Lender from entering into this Agreement or the other Credit Documents or consulnmating the transactions contemplated hereby or thereby shall have been issued by any court of competent jurisdiction or other Governmental Authority having authority over any such Person and remains in effect,and no applicable Governmental Rules shall be enacted or deemed applicable to the Credit Documents by a Governmental Authority having authority over any such Person that makes the closing of the Credit Documents or any extensions of credit thereunder illegal. (x) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect. (xi) Borrower shall have provided the documentation and other information to Lender that is required by regulatory authorities under applicable"lalow your customer"and anti-money- laundering rules and regulations, including, without limitation, the Patriot Act, in each case which are requested at least ten(10) days prior to the Closing Date; (xii) All fees and expenses payable to Lender on or prior to the Closing Date shall have been paid to Lender as of the Closing Date; (xiii) All fees and expenses of counsel to Lender invoiced through the Closing Date shall have been paid as of the Closing Date; and (xiv) Such other evidence as Lender inay reasonably request to establish the accuracy and coinpleteness of the representations and warranties and the coinpliance with the terms and conditions contained in this Agreement and the other Credit Documents. 3.2 Conditions Precedent to Each Credit Event. The occurrence of each Credit Event (including the initial Borrowing) is subject to the further conditions that: (a) On the date such Credit Event is to occur and after giving effect to such Credit Event,the following shall be true and correct: (i) The representations and warranties of Borrower set forth in Article IV and in the other Credit Documents are true and correct in all material respects(except to the extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as if made on such date (except for representations and warranties expressly made as of a specified date, which shall be true and correct in all material respects (except to the extent that such representation and warranty is qualified by materiality, in which case such representation and warranty inust be tn.ie in all respects) as of such date); (ii) No Default has occurred and is continuing or will result from such Credit Event; and 39 (iii) No material adverse change in the business, assets, liabilities, operations, performance or condition (financial or otherwise) of Borrower has occurred. The submission by Borrower to Lender of each Notice of Borrowing shall be deemed to be a representation and warranty by Borrower that each of the statements set forth above in this Section 3.2(a) is true and correct as of the date of such document. 3.3 Any Construction Credit Event.In addition to any applicable conditions precedent set forth elsewhere in this Article III, and after giving effect to the requested Loans, the obligation of Lender to make advances under the Phase I Construction Loan is subject to the following conditions precedent, unless Lender, in its sole and absolute discretion, agrees otherwise: (a) Prior to the date the initial Phase I Construction Loan Borrowing is requested, Lender shall have received true and correct copies of(i) all material architectural contracts and the Plans and Specifications for the construction of the Phase I Casino Project, as well as all material engineering and other analyses prepared and all Construction Contracts entered into with respect thereto, in each case, which are in effect as of the date of such initial request and(ii)the Construction Budget in effect as of the date of such initial request,the form, substance and scope of which shall be acceptable to Lender and the Construction Consultant; (b) All DRA Equity Contributions required to have been made as of the date of such Loan sha11 have been inade; (c) Borrower shall have delivered the Draw Package and complied with the terms of the Construction Loan Disbursing Agreement; and (d) To the extent not delivered as of the Closing Date or updated or modified since such delivery, Lender shall have received and approved in form and substance satisfactory to Lender: (i)if requested by Lender, a soils report for the Casino Real Property and Phase I Casino Project; (ii)two (2) sets of the Plans and Specifications, certified as complete by the architect that prepared them, together with evidence of all necessary or appropriate approvals of governmental agencies (and to include a customary suminary with respect to the of the Plans and Specifications, a suininary of the approved revised contract amount(s) and a summary of all changes and updates); and (iii)if requested by Lender,copies of all building permits and similar permits,licenses,approvals,development agreements and other authorizations of goverrunental agencies or private parties required in connection with the development of the Casino Real Property and Phase I Casino Project; (e) The total project costs (inclusive of pre-opening expenses, capitalized interest and financing fees) for the Phase I Casino Project shall not actually exceed or be projected to exceed (as reasonably determined by Lender, in consultation with the Construction Consultant) Fifty-One Million Tluee Hundred Eight Thousand Seven Hundred Seventy-Five Dollars ($51,308,775.00) (including, without limit�tion, all amounts spent through the Closing Date); (� With respect to the malcing of any Loans, (i)Lender shall have received such endorsements, in form and content satisfactory to Lender, to the Title Policy as Lender may require and (ii) all applicable conditions in the Construction Loan Disbursing Agreement shall have been satisfied; and 40 (g) To the extent not previously delivered, Lender shall have received(x) an executed counterpart consent to the Assignment of Architect's Agreement and the Assignment of General Contractor Agreement executed and delivered by each applicable party in for�n and substance satisfactory to Lender (to the extent not delivered as of the Closing Date) and (y) an Assigninent of Construction Contract, if any, executed and delivered by each contractor in form and substance satisfactory to Lender. 3.4 Final Construction Loan. In addition to any applicable conditions precedent set forth elsewhere in this Article III, and after giving effect to the requested Loans (or disbursement of Deposited Loan Funds), the obligation of Lender to malce the Loan and the obligation of Lender to disburse any Deposited Loan Funds in each case, for the payinent of final costs of the Phase I Casino Project (including payment of then unpaid retention amounts), is subject to the following conditions precedent (unless Lender, in its sole and absolute discretion, agrees otherwise): (a) Receipt of evidence, satisfactory to Lender, that the Phase I Casino Project has been constructed prior to the Completion Date and in accordance with the Plans and Specifications; (b) Lender shall have received AIA Form G704 (Certificate of Substantial Coinpletion) or other document satisfactory to Lender executed by each Architect, General Contractor, and DRA; (c) Lender shall have received a notice of completion in recordable form and otherwise in form and substance satisfactory to Lender, executed by DRA, and Lender is authorized, at its option, to record such notice of completion in the official records of Dubuque County, Iowa; (d) Evidence satisfactory to Lender of lien free coinpletion of the Phase I Casino Project or that the statutory lien filing period has expired including, without limitation, either evidence that no claim of lien or stop notice has been filed or Lender has received releases with respect to the same; (e) Lender shall have received the�nal certificate of occupancy or the local equivalent thereof issued by all applicable Governmental Authorities with regard to all portions of the Phase I Casino Project in form and substance satisfactory to Lender; (fl Lender shall have received an officer's certificate of DRA certifying that the termination of the construction relating to the Phase I Casino Project has occurred and that the Phase I Casino Project is in compliance with the General Contractor Agreement, each Construction Contract and the Plans and Specifications; (g) Lender shall have received such endorsements, in form and content reasonably satisfactory to Lender, to the Title Policy as Lender may require and all applicable conditions in the Constr�iction Loan Disbursing Agreement shall have been satisfied; (h) The Phase I Casino Project is in a condition (including the installation of fixtures, fiirnishings and equipment)to receive patrons in the ordinary course of business; and (i) Lender shall have received, in form and substance reasonably satisfactory to Lender, inspection reports and such other assurances, certificates, documents or consents related to the Phase I Casino Project as Lender inay reasonably require. 41 ARTICLE IV REPRESENTATIONS AND WARRANTIES 4.1 Representations and Warranties. In order to induce Lender to enter into this Agreement and the other Credit Documents,Borrower hereby represents and warrants to Lender as follows and agrees that each of said representations and warranties shall be deemed to survive until full, complete and indefeasible payment and performance of the Obligations and shall apply anew to each Borrowing hereunder: (a) Due Formation, Qualification, Etc. Boi•rower(i)is an Iowa non-profit corporation, duly organized,validly existing and in good standing under the laws of its jurisdiction of incorporation or formation;(ii)has the power and authority to own,lease and operate its properties and carry on its business as now conducted; and (iii)is duly qualified, licensed to do business and in good standing as a foreign corporation,partnership,limited liability company or other organization,as applicable,in each jurisdiction where its ownership, lease or operation of property or the conduct of its business requires sitch qualification or license and where the failure to be so qualified or licensed,individually or in the aggregate could have a Material Adverse Effect. (b) Authoritv. The execution, delivery and performance by Borrower of each Credit Document executed, or to be executed, by Borrower and the consummation of the transactions contemplated thereby (i) are within the power Borrower and (ii)have been duly authorized by all necessary actions on the part Borrower. (c) Enforceabilitv. Each Credit Document executed, or to be executed, by Borrower has been, or will be, duly executed and delivered by Borrower and constitutes, or will constitute, a legal, valid and binding obligation of Borrower, enforceable against Borrower in accordance with its terms, except as liinited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors' rights generally and general principles of equity. (d) Non-Contravention. The execution and delivery by Borrower of the Credit Documents executed by Borrower and the performance and consurnmation of the transactions (including the use of Loan proceeds) contemplated thereby do not(i)violate any Requirement of Law applicable to Borrower; (ii)violate any provision of, or result in the breach or the acceleration of, or entitle any other Person to accelerate (whether after the giving of notice or lapse of time or both), any Contractual Obligation of Borrower; (iii)result in the creation or imposition of any Lien(or the obligation to create or impose any Lien)upon any property, asset or revenue of Borrower(except such Liens as may be created in favor of Lender pursuant to this Agreement or the other Credit Documents), (iv)result in a revocation, tennination or other material restriction on any Licenses material to the business, operations or properties of Borrower, (v)result in the termination or otherwise materially adversely affect any Material Document, or(vi)violate any provision of any existing law, rule, regulation, order, writ, injunction or decree of any court or Governmental Authority to which it is subject,in each case except where such breach or violation could not reasonably be expected to result in a Material Adverse Effect. (e) Approvals. (i) No consent, approval, order or authorization of, or registration, declaration or filing with, any Governmental Authority or other Person is required in connection with the borrowing 42 of Loans, the granting of Liens under the Credit Documents, the execution and delivery of the Credit Documents (or any documents executed in connection therewith) executed by Borrower or the performance or consummation of the transactions contemplated hereby and thereby, except for those which have been made or obtained and are in fiill force and effect. (ii) The execution, delivery and performance by Borrower of the Credit Documents to which it is a party and the consuinmation of the transactions contemplated by the Credit Documents do not and will not result in any License Revocation. (iii) All Gaming Licenses and other Governmental Authorizations have been duly obtained and are in full force and effect without any known conflict with the rights of others and free from any unduly burdensome restrictions (excepting restrictions which apply generally to Gaming Licenses and other Governmental Authorizations), except where any such failure to obtain such Gaming Licenses or Governmental Authorizations or any such conflict or restriction could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. Borrower has not received any written notice or other written communications from any Gaming Authority or Governmental Authority regarding (i) any revocation, withdrawal, suspension, termination or modification of, or the imposition of any material conditions with respect to, any Gaming License or Goverrunental Authorization,or(ii) any other limitations on the conduct of business by Borrower,except where any such revocation, withdrawal, suspension, terinination, modification, imposition or limitation could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. (iv) No Goverrunental Authorization is required for either (x) the pledge or grant by Borrower as applicable of the Liens purported to be created in favor of Lender in connection herewith or any other Credit Doculnent or(y)the exercise by Lender of any rights or remedies in respect of any Collateral (whether specifically granted or created pursuant to any of the Security Docuinents or created or provided for by any Governmental Rule),except for(1)such Governmental Authorizations that have been obtained and are in full force and effect and fully disclosed to Lender in writing, and(2) filings or recordings contemplated in connection with this Agreement or any Security Document. (fl No Violation or Defaiilt. To its knowledge, Borrower is not in violation of or in default with respect to (i) any Requirement of Law applicable to Borrower(including applicable Gaming Laws, Regulations T, U and X, and the •Anti-Terrorism Laws) or (ii) any Contractual Obligation of Bonower (nor is there any waiver in effect which, if not in effect, could result in such a violation or default), where, in each case, such violation or default could reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing,Borrower(A)has not,to its knowledge, violated any Hazardous Materials Laws, (B) does not have, to its lcnowledge, any liability under any Hazardous Materials Laws, or(C)has not received notice or other communication of an investigation or, to its knowledge, is not under investigation by any Governinental Authority having authority to enforce Hazardous Materials Laws, where such violation, liability or investigation could reasonably be expected to have a Material Adverse Effect. No Detault has occurred and is continuing. Borrower is in material compliance with all applicable Gaming Laws. (g) Liti ag tion. Except as set forth in Schedule 4.1(�), no actions (including derivative actions),suits,proceedings(including arbitration proceedings or mediation proceedings)or investigations are pending (including, without limitation, any investigation by any G�ming Authority), or, to the lcnowledge of Borrower, threatened against Borrower at law or in equity in any court, arbitration 43 proceeding or before any other Goverrunental Authority which(i) could reasonably be expected to (alone or in the aggregate)have a Material Adverse Effect or(ii) seelc to enjoin, either directly or indiz•ectly, the execution, delivery or performance by Borrower of the Credit Documents (or any documents executed in connection therewith) or the transactions contemplated thereby or the construction of the Phase I Casino Proj ect. (h) Real Propertv, Etc. Schedule 4.1(h)(i) (as supplemented from time to time by Borrower in a notice delivered pursuant to Section 5.1(a)(ix)) sets forth, as of the Closing Date and as of the date by which Section 5,1(a)(ix�, requires such supplement to be delivered by Borrower, each fee interest in real property owned by Borrower and each leasehold interest in real property leased by Borrower, Borrower owns and has good and marketable title to, or a valid leasehold interest in, all its properties and assets as reflected in the most recent Financial Statements delivered to Lender(except those assets and properties disposed of in the ordinary course of business or otherwise in compliance with this Agreement since the date of such Financial Statements) and all respective assets and properties acquired by Borrower since such date(except those disposed of in the ordinary course of business or otherwise in compliance with this Agreement), except in each case, sucll defects in title that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.The Collateral is subject to no Lien, except for Permitted Liens. Borrower has complied in all material respects with all material obligations under all material leases to which it is a party and enjoys peaceful and undisturbed possession under such leases. (i) Financial Statements. Borrower has delivered to Lender Borrower's Financial Stateinents for the fiscal year ended December 31,2022,which Financial Statements(i) are in accordance with the boolcs and records of Borrower and have been inaintained in accordance with good business practice; (ii)have been prepared in conformity with GAAP; and(iii) fairly present in all material respects the financial conditions and results of operations of Borrower as of the date thereof and for the period covered thereby. Borrower has no Contingent Obligations, liability for taxes or other outstanding obligations which, in any such case, are material in the aggregate, except as disclosed in the Financial Statements delivered to Lender pursuant to clause(i), (ii), or(iii)of Section 5.1(a). (j) Creation, Perfection and Priority of Liens. (i) As of the Closing Date, (x) the execution and delivery of the Sectu�ity Documents by Borrower, together with the filing of any Uniform Commercial Code financing statements delivered to Lender for filing and recording, and as of the date delivered,the recording of any Real Estate Security Documents delivered to Lender for recording (but not yet recorded), are effective to create in favor of Lender, as security for the Obligations, a valid and perfected first priority Lien on all of the Collateral as of the Closing Date (subject only to Permitted Liens), and (y) all filings and other actions necessary or desirable to perfect and maintain the perfection and first priority status of such Liens have been duly made or taken and remain in full force and effect. In the case of deposit accounts and accounts with any securities intermediary maintained in the United States and pledged to Lender under the Security Agreement,the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of Borrower in such Collateral, as security for the Obligations, prior and superior to the Lien of any other Person. (ii) Each of the Real Property Security Documents is effective to create in favor of Lender a legal,valid,binding, and enforceable Lien on, and security interest in, Borrower's right, title and interest in and to the real property subject thereto and proceeds thereof, and, each such Real Property 44 Security Docuinent shall constitute a fiilly perfected Lien on, and security interest in, all right, title and interest of the grantors thereof in such real property and proceeds thereof, as security for the Obligations, prior and superior in right to any other Person(except with respect to Permitted Liens). (k) ERISA. Except as set forth on Schedule 4.1(lc): (i) Neither Borrower nor any ERISA Affiliate has any liability with respect to any post-retireinent benefit under any einployee welfare plan(as defined in Section 3(1)of ERISA),other than liability for health plan continuation coverage described in Part 6 of Title I(B) of ERISA, which liability for health plan continuation coverage could not have a Material Adverse Effect. (1) Mar�in Stock;Other Re�ulations.Borrawer does not own any Margin Stock which, in the aggregate, would constitute a substantial part of the assets of Borrower, and not more than 25% of the value (as determined by any reasonable method) of the assets of Borrower is represented by Margin Stocic, and no proceeds of any Loan will be used, whether directly or indirectly, to purchase, acquire or carry any Margin Stock or to extend credit, directly or indirectly, to any Person for the purpose of purchasing or carrying any Margin Stocic. Borrower is not subject to regulation under the Investinent Company Act of 1940,the Federal Power Act,the Interstate Coinmerce Act,any state public utilities code or to any other Governmental Rule limiting its ability to inci�r indebtedness. (m) Trademarks, Patents, Cop�ghts and Licenses. Borrower possesses and either owns, or has the right to use to the extent required, all necessary trademarks, trade names, copyrights, patents, patent rights and licenses which are material to the conduct of its respective businesses as now operated. Borrower conducts its businesses without infringement or, to Borrower's knowledge, claim of infi-ingeinent of any trademark, trade naine, trade secret, service mark,patent, copyright, license or other intellectual property rights of any other Person,except where such infringement or claim of infringeinent could not have a Material Adverse Effect. There is no infringement or, to Borrower's knowledge, claim of infringement by others of any material trademark, trade name, trade secret, service mark, patent, copyright, license, or other intellectual property right of Borrower. Each of the patents,trademarks, trade names, service marks, and copyrights owned by Borrower which is registered with any Governmental Authority is set forth on the schedules to the Security Agreement. (n) Governmental Char es. Borrower has timely filed or caused to be timely filed with the appropriate taxing authorities all tax returns which are required to be filed by it. The tax returns accurately reflected all liabilities for taxes of Borrower for the periods covered thereby. Borrower has paid,or made provision for the payment of, all taxes and other Governmental Charges which have or may have become due pursuant to said returns or otherwise and all other indebtedness, except such Governmental Charges or indebtedness, if any, which are being contested in good faith by appropriate proceedings and as to which adequate reserves (determined in accordance with GAAP) have been established. All taxes which Borrower was required by law to withhold or collect in connection with amounts paid or owing to any employee,independent contractor, creditor, stockholder or other third party have been duly withheld or collected,and have been timely paid over to the proper authorities to the extent due and payable. Borrower has not executed or filed with the Internal Revenue Service or any other Govermnental Authority any agreement or other document extending, or having the effect of extending, the period for assessment or collection of any taxes or Governmental Charges. 45 (o) Subsidiaries, Etc. Schedule 4.1(0l (as supplemented by Borrower in a notice delivered pursuant to Section 5.1fa)(viii�) sets forth each of the Subsidiaries of Borrower, its jurisdiction of organization, the classes of its Equity Securities, the number of Equity Securities of each such class issued and otittstanding,the percentages of Equity Securities of each such class owned directly or indirectly by Borrower and whether Borrower owns such Equity Securities directly or, if not, the Subsidiaiy of Borrower that owns such Equity Securities and the number of Equity Securities and percentages of Equity Securities of each such class owned directly or indirectly by Borrower. Except as set forth on Schedule 4,1(0) (as supplemented as set forth above), Bonower does not currently have any Subsidiaries. All of the outstanding Equity Securities of each such Subsidiary indicated on Schedule 4.1(0) as owned by Borrower are owned beneficially and of record by Borrower free and clear of all adverse claims. Each of the Subsidiaries of Borrower is organized under the laws of the United States or any state thereof. (p) Solvency, Etc. Borrower is Solvent and, after the execution and delivery of the Credit Docuinents and the consummation of the transactions contemplated thereby,will be Solvent. (q) Labor Matters. There are no disputes presently subject to grievance procedure, arbitration or litigation under any of the collective bargaining agreements, employment contracts or employee welfare or incentive plans to which Borrower is a party, and there are no strikes,lockouts,work stoppages or slowdowns,or,to the knowledge of Borrower,jurisdictional disputes or organizing activities occurring or threatened which alone or in the aggregate could have a Material Adverse Effect. (r) No Material Adverse Effect. Between December 31, 2022 and the date of this Agreement, no event has occurred and no condition exists which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. (s) Accuracv of Infonnation Furnished; Material Documents. (i) The Credit Docuinents and the other certificates, statements and information (excluding projections) furnished by Borrower to Lender in connection with the Credit Documents and the transactions conteinplated thereby, talcen as a whole, do not contain any untrue statement of a material fact and do not omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. All projections furnished by Borrower to Lender in connection with the Credit Doclunents and the transactions contemplated thereby have been prepared on a basis consistent with the historica.l financial statements described above,except as described therein,have been based upon reasonable assuinptions and represent, as of their respective dates of presentations, Borrower's good faith and reasonable estimates of the future perfoi7nance of Boi�rower, and Borrower has no reason to believe that such estimates and assumptions are not reasonable. (ii) The copies of the Material Documents which have been delivered to Lender in accordance with Section 3.1 are true, correct and coinplete copies of the respective originals thereof, as in effect on the Closing Date, and no amendments or modifications have been made to the Material Docuinents, except as set forth by docuinents delivered to Lender in accordance with said Section 3.1 or as otherwise permitted under Section 5.2(m�. None of the Material Documents have been ter�ninated and each of the Material Documents is in full force and effect, Borrower is not in default in the observance or perfonnance of any of its material obligations under the Material Docuinents, and Borrower has taleen all action required to be talcen as of the Closing Date to keep unimpaired its rights thereunder. 46 (t) Brokerage Cominissions. No person is entitled to receive any brokerage commission, finder's fee or siinilar fee or payment in connection with the extensions of credit contemplated by this Agreement as a result of any agreeinent entered into by Borrower. (u) Policies of Insurance. The properties of Borrower are insured with financially sound and reputable insurance companies not Affiliates of Borrower, in such ainounts, with such deductibles and covering such risks as are customarily carried by colnpanies engaged in similar businesses and owning or leasing similar properties in localities where Borrower operates. Schedule 4.1(u) sets forth a true and complete listing of all insurance maintained by Borrower as of the Closing Date. Such insurance has not been terminated and is in full force and effect, and Borrower has taken all action required to be taken as of the date of this Agreement to lceep unimpaired its rights thereunder. (v) Agreements with Affiliates and Other A�reements. Except as disclosed on Schedule 4.1(v),Borrower has not entered into and, as of the date of the applicable Credit Event does not contemplate entering into,any material agreeinent or contract with any Affiliate of Borrower,except upon terms at least as favorable to Borrower as an arms-length transaction with unaffiliated Persons, based on the totality of the circumstances. Borrower is not a party to or is bound by any Contractual Obligation or is subject to any restriction under its respective charter or formation docuinents, which could not reasonably be expected to have a Material Adverse Effect. (w) Forei�n Assets Control, Etc. (i) Borrower (A)is not and will not become a Designated Person; (B) is not and will not become controlled by a Designated Person; (C)has not received and will not receive funds or other Property from a Designated Person; and (D) is not and will not become in breach of and is not the subject of any action or investigation under any Anti-Terrorisin Law. Borrower does not engage and will not engage in any dealings or transactions, and is not and will not be otherwise associated, with any Designated Person. Borrower is in compliance, in a11 respects, with Anti-Tei7orism Laws. Borrower has talcen commercially reasonable measures to ensure coinpliance with the Anti-Corruption Laws and Anti- Terrorisin Laws inchiding the requireinents that(1)no Person who owns any direct or indirect interest in Borrower is a Designated Person, (2) fiinds invested directly or indirectly in Borrower are derived from legal sources,(3)Borrower is not the subject of any Sanctions, and(4)Borrower is not located,organized or resident in a country or territory that is, or whose government is,the subject of Sanctions. (ii) No portion of the proceeds of any Loan, or other credit made hereunder has been or will be used, directly or indirectly for, and no fee, commission, rebate or other value has been or will (A)be paid to, or for the benefit of, any governmental official, political party, official of a political party or any other Person acting in an official capacity in violation of any applicable Governmental Rules, including the U.S. Foreign Corrupt Practices Act of 1977 (collectively, with such Governmental Rules, "Anti-Corruption Laws"), as amended or(B)be used to violate any Anti-Terrorism Law. (x) Burdensome Contractual Obli�ations, Etc. Borrower and none of its properties are subject to any Contractual Obligation or Requirement of Law which, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. (y) Construction Bud�et. On and as of the Closing Date and as of the date of any revision thereof permitted hereunder,the Construction Budget prepared by DRA and delivered to Lender 47 was based on DRA's good faith assumptions and estimates, and Borrower is not aware of any facts that would lead it to believe that the assumptions and estimates on which the Construction Budget was based are not reasonable. (z) Access; Utilities. (i) All roads necessary for the construction and operation of the Phase I Casino Project for its intended purposes have either been completed or the necessary rights of way therefor have been acquired by Borrower. (ii) All utilities, services and facilities necessary for the constri.tction of the Phase I Casino Project (including, without limitation, water supply, stonn and sanitary sewer facilities, gas, electrical and telephone facilities)will be available without impediment or delay at the boundaries of the Phase I Casino Project no later than the Completion Date and all utility services necessary for the operation of the Phase I Casino Project (including the Gaming Facility) are and will continue to be available at or within the boundaries thereof when needed. (iii) Borrower possess all rights and interests in property (including, without limitation, the Phase I Casino Project and rights of ingress to and egress from the Phase I Casino Project) and all material rights or contracts necessary for the construction,installation, completion, operation, and inaintenance of the Phase I Casino Project as contemplated by this Agreement, the General Contractor Agreement, each Construction Contract, and the Plans and Specifications. (aa) Contractors. As of the Closing Date, Schedule 4.1(aa� is a tiue, correct and complete list of(i) all contractors party to a Construction Contract as of the Closing Date and (ii) all contracts(and the name of the proposed contractors to be party thereto)under negotiation as of the Closing Date. 4.2 Reaffirmation. Borrower shall be deemed to have reaffirmed, for the benefit of Lender, each representation and warranty contained in Article IV on and as of the date of each Credit Event(except for representations and warranties expressly made as of a specified date, which shall be true as of such date). ARTIC�,E V CO�ENANTS 5.1 Affirtnative Covenants. So long as any Loan remains unpaid, or any other Obligation remains unpaid or unperformed, or any portion of any loan commitment hereunder remains in force, Borrower will comply with the following affirmative covenants,unless Lender shall otherwise consent in writing: (a) Financial Statements,Reports,Etc. Borrower shall furnish to Lender the following, each in such form and such detail as Lender shall request: (i) As soon as available,but in no event later than thirty(30)days past the prior month's end, copies of the monthly Financial Statements of Borrower and the balance sheets and statements of income of Borrower for such month and for the fiscal year to date, each certified by a Responsible Officer to present fairly in all material respects the financial condition, results of operations 48 and other information reflected therein and to have been prepared in accordance with GAAP, which Financial Statements and balance sheets and statements of incoine shall be accoinpanied by a narrative from management of Borrower as prepared for Borrower's executive board committee which discusses results, if any such narrative is actually prepared by Borrower; (ii) As soon as available copies of monthly statements providing information on the Average Daily R�te, occupancy, and Revenue Per Available Room with respect to the Hilton Garden Inn, which statements shall be accompanied by a narrative from management of Borrower as prepared for Borrower's executive board committee which discusses results, if any such narrative is actually prepared by Borrower; (iii) Borrower shall deliver to Lender within thirty(30)days after the appliclble filing period, Borrower's filed tax returns, including all schedules and exhibits thereto, inchiding any extensions filed(in which case,Borrower shall deliver to Lender its filed federal incoine tax rehirn within thirty(30) days of the extended filing); (iv) As soon as available and in no event later than one hundred twenty(120) days after the end of each fiscal year, a copy of the Financial Statements of Borrower, (A) audited by an independent certified public accountants acceptable to Lender, which Financial Statements shall be accompanied by a narrative fiom management of Borrower as prepared for Borrower's executive board coinmittee which discusses results,if any such narrative is actually prepared by Borrower, and(B) copies of the unqualified opinions delivered by such accountants and,to the extent delivered,management letters delivered by such accountants in connection with all such Financial Statements and prepared in accordance with GAAP; (v) Contemporaneously with the annual Financial Statements for each fiscal year required by the foregoing clause(iv), a compliance certificate of a Responsible Officer in a form acceptable to Lender which (A) states that no Default has occurred and is continuing, or, if any such Default has occurred and is continuing, a statement as to the nature thereof and what action Borrower proposes to take with respect thereto, (B) sets forth, for fiscal year covered by such Financial Statements or as of the last day of such fiscal year(as the case may be),the calculation of the financial ratios and tests provided in Section 5.3, and(C) sets forth infonnation and computations related to Sections 5.1(i), 5.2 a , 5.2 e and 5.2 of this Agreement and any other provisions of the Credit Documents required to be included in such Compliance Certificate; (vi) As soon as possible and in no event later than five(5) Business Days after Borrower knows of the occurrence or existence of(A) any actual or threatened litigation, suits, claims, disputes or investigations against Borrower involving potential monetary damages payable by Borrower or in which injunctive relief or similar relief is sought, which relief, if granted, could have a Material Adverse Effect, (B) any other event or condition which, either individually or in the aggregate,could have a Material Adverse Effect,including(I)breach or non-perfor�nance of,or any default itnder,a Contractual Obligation of Borrower; (II) any dispute, litigation, investigation, proceeding or suspension between Borrower and any Governmental Authority; or(III) the commencement of, or any material development in, any litigation or proceeding affecting Borrower, including pursuant to any applicable Hazardous Materials Laws; (C) any Default or any default under any Subordinated Obligations, the statement of a Responsible Officer of Borrower setting forth details of such event, condition, default or Default and the action which Sorrower propose to take with respect thereto, or (D) any material change in accounting 49 policies of or financial reporting practices by Borrower. Each notice pursuant to this Section 5.1(a)(v) shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action Borrower has taken and proposes to take with respect thereto. Each notice pursuant to this Section 5.1(a)(v) shall describe with particularity any and all provisions of this Agreement or other Credit Document that have been breached; (vii) As soon as available, and in any event not later than thirty(30) days prior to the commencement of each fiscal year of Borrower, the budget and projected financial statements of Borrower for such fiscal year, inchlding,in each case,projected balance sheets, statements of income and statements of cash flow of Borrower, all in reasonable detail and with assumptions and in any event to include projected Capital Expenditures and projections of Borrower's compliance with each of the covenants set forth in Section 5.3 of this Agreement; (viii) As soon as possible and in no event later than five(5) Business Days prior to the occurrence of any event or circumstance that would require a prepayinent pursuant to Section 2.3(c), the statement of a Responsible Officer setting forth the details thereof; (ix) As soon as possible and in no event later than ten(10)Business Days prior thereto, written notice of the establishment by Borrower of any new Subsidiary; (x) As soon as possible and in no event later than five(5) Business Days after the receipt thereof by Borrower,a copy of any notice,suinmons,citations or other written communications concerning any actual, alleged,suspected or threatened violation of any Hazardous Materials Law,or any liability of Borrower for Environmental Damages; (xi) As soon as possible and in no event later than ten (10) Business Days prior to the acquisition by Borrower of any leasehold or ownership interest in real property, a written supplement to Schedule 4.1(h)(i); (xii) As soon as possible and in no event later than five(5) Business Days after the receipt thereof by Borrower, copies of any and all material adverse notices and other material adverse communications from any Govermnental Authority with respect to Borrower or any Gaming Facility and promptly upon the req�iest of Lender, copies of any and all periodic or special reports filed by Borrower with any Gaming Authority or other Governmental Authority with respect to any Gaming Facility; (xiii) To the extent not previously provided, contemporaneously with the Financial Statements for each month and each fiscal year end required by the foregoing clauses (i) and (ii), the notices and supplements required by the Security Agreement with respect to the period covered by such Financial Statements; (xiv) To the extent Borrower is required to file any notice or other document with respect to the Loans or any Credit Document pursuant to applicable Gaming Laws, Borrower shall make such filings in a timely manner and notify Lender in writing upon the completion thereof; (xv) (x)As soon as practicable, and in any event no later than ten(10) Business Days prior to entering any Construction Contract or modifying any Constiliction Contract, a copy of such proposed Constniction Contract or modification, and(y) as soon as practicable, and in any event no later than two (2)Business Days after entering any Construction Contract or modification of any Construction 50 Contract,a copy of such Construction Contract or modification and,to the extent not previously delivered, a signed Assignment of Construction Contract from the contractor party to such Construction Contract, provided that so long as any change order is allowed under Section 5.2(s)(il(C), Borrower shall not be required to provide a copy of any change order prior to entering into such change order inodifying a Consti-uction Contract; and (xvi) Such other instri.iments, agreements, certificates, opinions, stateinents, documents, and inforination relating to the properties, operations or condition (financial or otherwise) of Borrower,and compliance by Borrower with the terms of this Agreement and the other Credit Documents as Lender may from time-to-time reasonably request. (b) Books and Records. Borrower shall at all tiines keep proper books of record and account in which full,true and correct entries will be macle of its transactions in accordance with GAAP. (c) Inspections. Borrower shall permit Lender, or any agent or representative thereof, upon reasonable notice, during normal business hours, and only so often as is reasonably necessary, so long as no Default shall have occurred and be continuing and otherwise at any time as Lender may determine with or without prior notice to Borrower, to visit and inspect any of the properties and offices of Borrower,to conduct audits of any or all of the Collateral,to examine the books and records of Borrower and malce copies thereof, and to discuss the affairs, finances and business of Borrower with, and to be advised as to the same by,their officers,auditors and accountants,all at such times and intervals as Lender inay request, all at Borrower's expense. Without limiting the foregoing, Borrower shall: (i) provide the Construction Consultant any and all requested and reasonably necessary access to the Phase I Casino Project construction site; (ii) provide the Construction Consultant any and all information which is reasonably required for the preparation of a monthly Construction Progress Report; (iii) cooperate in the preparation of each Construction Progress Report and, if reasonably requested by Lender, cause each Architect, General Contractor and each contractor to certify that the Phase I Casino Project constructed as of the date of any Construction Progress Report conform to the Plans and Specifications in all material respects; (iv) if requested by the Construction Consultant, maintain a full set of worlcing drawings at the construction office for the Phase I Casino Project for review by the Construction Consultant; (v) within fifteen(15) days following any request by Lender, deliver (i) then current construction plans for the Phase I Casino Project certified as true and correct by each Architect and Engineer, (ii) a then current list of the names, addresses and telephone numbers of each contractor, subcontractor and material supplier with respect to the Phase I Casino Project and the dollar value and ainounts paid with respect to the related contracts, and (iii)then current versions of the construction schedule for all uncompleted work on the Phase I Casino Project and all executed contracts and subcontracts for such work; and (vi) cooperate (and shall use its best efforts to cause General Contractor and each contractor to cooperate)with Lender in arranging for inspections from tiine to tiine by Lender or the 51 Construction Consultant or any other representative of Lender of the progress of constn.iction and its relation to the Construction Budget and Plans and Specifications, which inspections shall occur only so often as is reasonably necessary and at such times as to minimize any interfere with such construction. In the course of such inspections, Lender and the Construction Consultant or any other representative of Lender shall be entitled to inspect the Phase I Casino Project,including,without liinitation, (i)the Phase I Casino Project, (ii) all materials to be used in the constrl.iction of the Phase I Casino Project, (iii) all plans and shop drawings which are or may be kept at the construction site, (iv) any contracts, bills of sale, statements, receipts or vouchers in connection with the Phase I Casino Proj ect whether or not kept at the constr�iction site, (v) all work done, labor performed,materials furnished in and about the Phase I Casino Project, (vi) all books,contracts and records of Borrower and Borrower's agents and other entities as inay be contractually bound to Borrower to provide such records with respect to the construction of the Phase I Casino Project whether or not lcept at the construction site, and (vii) any other docuinents relating to the construction of the Phase I Casino Project whether or not lcept at the constrtiction site. In additian to the foregoing, Lender and the Construction Consultant or any employees, agents and representatives of Lender shall be entitled to inspect(to the extent Borrower has a right to so inspect)(i) all books, contracts and records of General Contractor and each contractor with respect to the Phase I Casino Project and (ii) any other document of General Contractor relating to the Phase I Casino Project and whether or not kept at the construction site. Borrower will cooperate (and will use its best efforts to cause all of the following Persons to cooperate) and instruct each Architect, General Contractor, each contractor and all material subcontractors to cooperate with Lender and any representatives of Lender so that they may perform their respective responsibilities hereunder and to comply with Lender's reasonable requirements. (d) Insurance.Borrower shall,at Borrower's expense,carry and maintain the insttrance coverage specified on Schedule 5.1(d); provided, however, that if Borrower shall fail to maintain insurance in accordance with this Section 5.1(d), or if Borrower shall fail to provide the required endorseinents with respect thereto,Lender shall have the right(but shall be under no obligation)to procure such insurance and Borrower agrees to reimburse Lender for all costs and expenses of procuring such insurance. (e) Goverrunental Char�es and Other Indebtedness. Borrower shall proinptly pay and discharge when due (i) all taxes and other Governmental Charges prior to the date upon which penalties accrue thereon,(ii) all Indebtedness which,if unpaid,could become a Lien upon the property of Borrower, and (iii) subject to any subordination provisions applicable thereto, all other Indebtedness which in each case, if unpaid, could be reasonably likely to have a Material Adverse Effect, except such taxes, Govermnental Charges and Indebtedness as may in good faith be contested or disputed, or for which arrangements for deferred payment have been made;provided that in each such case appropriate reserves are maintained in accordance with GAAP and no inaterial property of Borrower is at impending rislc of being seized, levied upon or forfeited. (fl Use of Proceeds. Borrower shall use the proceeds of the Loans to (i) refinance certain existing Indebtedness of Borrower, (ii)finance the design, construction and equipping costs of the Phase I Casino Project, (iii) pay fees and expenses incurred in connection with this Agreement, (iv)provide working capital and general coinpany purposes of Borrower; provided that the Phase I Construction Loan may only be used to finaiice the design,constri.iction,and equipping costs of the Phase I Casino Project. No part of the proceeds of any Loan or any other extension of credit hereunder shall be used, whether directly or indirectly, (A)to purchase, acquire or carry any Margin Stock, or (B) for any ptirpose that entails a violation of any of the regulations of the Federal Reserve Board, inchiding 52 Regulations T, U, and X, (C)to fund any Distributions or any portion thereof, (D) for payment to, or for the benefit of, any governmental official, political party, official of a political party or any other Person acting in an official capacity in violation of any applicable Anti-Corruption Laws, (E) for the purpose of fi.lnding, financing or facilitating any activities,business or transaction of or with any Designated Person, or(F)in any manner that would result in the violation of any Anti-Terrorism Laws applicable to any party hereto. (g) General Business Operations. Borrower shall (i)preserve, renew and maintain in full force its corporate existence and good standing under the Goverrunental Rules of the jurisdiction of its organization and all of its rights, Licenses (including Gaming Licenses), leases, qualifications, privileges, franchises and other authority reasonably necessary to the conduct of its business, (ii) conduct its business activities in compliance in all inaterial respects with all Requirements of Law (including all Gaming Laws) and Contractual Obligations applicable to such Person, (iii)lceep all property useful and necessary in its business in good worlcing order and condition, ordinary wear and tear excepted and from time to time make, or cause to be made, all necessary and proper repairs, except, in each case, where any failure, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, (iv)maintain, preserve and protect all of its rights to enjoy and use material trademarks, trade names, service marks,patents, copyrights, Licenses (including Gaming Licenses), leases, franchise agreements and franchise registrations, in each case, to the extent necessary to maintain its business operations in the ordinary course, and (v) conduct its business in an orderly manner without voluntary inten-uption (other than the intemiption resulting from the Phase I Casino Project). Borrower shall not change its jurisdiction of formation. (h) Com�liance with Laws; Maintenance of Gamin�and Liquor License. (i) Compliance with Laws. Borrower shall comply in all material respects with the requirements of all applicable laws, rules, regulations and orders of any Governmental Authority (including, without liinitation, all Gaming Laws, Hazardous Materials Laws and the Patriot Act), noncompliance with which could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (ii) Maintenance of Licenses. Borrower shall maintain (i) a valid Gaming License in Iowa as may be necessary to operate each Gaming Facility, the absence of which could reasonably be expected to result in a Material Adverse Effect,and(ii) all liquor Licenses and registrations as may be necessary to sell alcoholic beverages from and in each Gaming Facility. Borrower shall notify Lender promptly upon the revocation or non-renewal of any such Gaming License, liquor License, or registration. (i) New Subsidiaries. Borrower shall, at its own expense promptly, and in any event within ten(10)Business Days after the formation or acquisition of any Subsidiaiy by Borrower(A)notify Lender of such event in writing (to the extent notice has not already been provided in accordance with Section 5.1(al(viii�), (B) cause each Subsidiary to become a party to the Security Agreement and each other applicable Security Docuinent in accordance with the ter�ns thereof, execute additional Security Documents if reasonably requested by Lender and amend the Security Docuinents as appropriate in light of such event to pledge Lender one hundred percent(100%)of the Equity Securities of each sLich Person which becomes a Subsidiary and execute and deliver all documents or instnunents required thereunder or appropriate to perfect the security interest created thereby, (C) deliver(or cause the appropriate Parson to 53 deliver) to Lender all certificates and other instnuilents constituting Collateral thereunder free and clear of all adverse claims, accoinpanied by undated stock powers or other instruments of transfer executed in blank(and talce such other steps as may be requested by Lender to perfect Lender's first priority Lien in such Collateral consisting of Equity Securities), (D) cause each document (including each Uniform Commercial Code financing statement and each filing with respect to intellectual property owned by each new Subsidiary) required by law or requested by Lender to be filed, registered or recorded in order to create in favor of Lender a valid, legal and perfected first-priority security interest in and lien on the Collateral subject to the Security Documents ta be so filed, registered or recorded and evidence thereof delivered to Lender, (E) deliver an opinion of counsel in forin and substance satisfactory to Lender with respect to each new Subsidiary, and/or the pledge of the Equity Securities of each Subsidiary and the matters set forth in this Section, and (F) deliver to Lender the same organization documents, resolutions, certificates and other matters set forth in Section 3,1(b) with respect to such new Subsidiary as required to be delivered with respect to Borrower on the Closing Date and lien searches with respect to such new Subsidiary, in form and substance satisfactory to Lender. (j) Ap raisals. During the existence of an Event of Default or upon the written request of Lender acting pursuant to any applicable Requirement of Law, Borrower agrees that Lender may, at the expense of Borrower, commission an appraisal of any property(i) to which Borrower holds legal title, and(ii)which is encumbered by any Security Document. (k) Additional Collateral. If at any time from and after the Closing Date Borrower acquires any fee interest in the Casino Real Property, including by way of exercising Borrower's right of first refusal contained in the Sclunitt Island Lease, Borrower shall deliver to Lender, at its own expense, promptly all documentation and infonnation in form and substance reasonably satisfactory to Lender (including surveys, environmental reports and enviroiunental indemnities) to assist Lender in obtaining deeds of trust or mortgages on such additional interest the Casino Real Property and ALTA policies of title insurance, with such endorsements as Lender may reasonably require, issued by a company and in form and substance satisfactory to Lender,insuring Lender's Lien on such additional interest in the Casino Real Property Collateral to be of first priority, subject only to such exceptions as Lender shall approve in its d�iscretion,with all costs thereof to be paid by Borrower. (1) Continual Operation of the Gamin�Facilities. Borrower shall continuously operate each Gaming Facility in the inanner operated as of the Closing Date (or as contemplated on the Closing Date to be operated), in each case in compliance with all applicable Laws in all material respects. (m) Sanctions, Anti-Terrorism and Anti-Comi tion. (i) Borrower (A) is not and will not become a Designated Person; (B)is not and will not become controlled by a Designated Person; (C)has not received and will not receive funds or other Property from a Designated Person; and (D)is not and will not become in breach of, and is not the subject of any action or investigation under, any Anti-Terrorisrn Law. Borrower does not engage and will not engage in any dealings or transactions, and is not and will not be otherwise associated, with any Designated Person.Borrower has taken coininercially reasonable measures to ensure compliance with the Anti-Corruption Laws and Anti-Terrorism Laws including the requirements that(1)no Person who owns any direct or indirect interest in Borrower is a Designated Person, (2) funds invested directly or indirectly in Borrower are derived from legal sources, (3)Borrower is not the subject of any Sanctions, and 54 � (4) Borrower is not located,organized or resident in a country or territory that is, or whose goveriunent is, the subject of Sanctions. (ii) No portion of the proceeds of any Loan or other credit inade hereunder has been or will be used, directly or indirectly for, and no fee, commission, rebate or other value has been or will (A)be paid to, or for the benefit of, any governmental official, political party, official of a political party or any other Person acting in an official capacity in violation of any applicable Gover�unental Rules, including the U.S. Foreign Corn.ipt Practices Act of 1977 (collectively, with such Governmental Rules, "Anti-Comiption Laws"), as amended, or(B)be used to violate any Anti-Terrorism Law. (n) Construction of the Phase I Casino Project. Borrower shall: (i) Cause the construction of the Phase I Casino Project to be prosecuted with diligence and continuity so as to cause(A)the Opening Date to occur on or before May 1,2025 and(B)the Completion Date to occur on or before May 1, 2025. (ii) Cause the Phase I Casino Project to be constructed in a good and worlcinanlike manner in accordance with the Plans and Specifications and the Construction Budget, and in compliance with all applicable laws,rules,permits,requirements and regulations of any Governmental Authority in all respects, and Borrower will not cause, permit or allow any deviations from the Construction Budget and/or the Plans and Specifications without the prior written consent of Lender, except to the extent pennitted by Section 5.2(s)(i). (iii) Upon written demand from Lender, at Borrower's sole cost and expense (and not from the Loan proceeds),correct any material defect in the Phase I Casino Project or any material departure from the Plans and Specifications not theretofore approved in writing by Lender, and it is expressly understood and agreed that the advancement by Lender of any Loan proceeds shall not constitute a waiver of Lender's right to require compliance with this covenant with respect to any such defects or departures froin the Plans and Specifications not theretofore approved by Lender in writing. (iv) Cause the Phase I Casino Project to be completed free and clear of liens or material claiins for material supplied or for labor or services performed in connection with the constniction of the Phase I Casino Project or otherwise. (o) Additional Construction Covenants. (i) Liens. If a claim of lien is recorded or served upon Lender which affects the Casino Real Property or Phase I Casino Project,Borrower shall,within twenty(20) calendar days of such recording or service or within five(5) calendar days of Lender's demand, whichever occurs first: (a)pay and discharge the claim of lien; (b) effect the release thereof by recording or delivering to Lender or Title Company a surety bond in sufficient form and amount; or(c)provide Lender with other assurances which Lender or Title Company deems,in its sole discretion,to be satisfactory for the payment of such claiin of lien and for the full and continuous protection of Lender froin the effect of such lien. (ii) Constri.iction Responsibilities. Borrower shall comply in all material respects with any constr�action schedule fiirnished to Lender and all applicable laws, ordinances, rules, regulations,building restrictions, recorded covenants and restrictions, and requirements of all regulatory authorities having jurisdiction over the Casino Real Property or Phase I Casino Project. Each portion and 55 all of the Phase I Casino Project, except for approved off-site improvements, shall be constructed within building restriction and set-back lines, and shall not encroach upon, overhang or interfere with any easement, right-of-way, floodplain or other property. Borrower shall not commence the constniction of any improvements on the Casino Real Property, except for those set forth in the Plans and Specifications, without Lender's prior written consent.Borrower shall be solely responsible for all aspects of Borrower's business and conduct in connection with the Casino Real Property and Phase I Casino Project, including, without limitation,for the quality and suitability of the Plans and Specifications and their coinpliance with all goverr�nental requirements, the supervision of the work of constniction, the qualifications, financial condition and performance of all architects, engineers, contractors, material suppliers, consultants and property inanagers, and the accuracy of all applications for payinent and the proper application of all disburseinents. Lender is not obligated to supervise,inspect, or inform Borrower or any third party of any aspect of the construction of the Phase I Casino Project or any other matter refened to above. Except to the extent approved in writing by Lender, no materials, equipment or other personal property or fixture constituting part of the Phase I Casino Project shall be purchased or installed under any security agreement, lease or other arrangement whereby any third party has a security interest, lien or right to remove or repossess any such item or to claim or assert a lien upon any such property, or to consider such property to constitute personal property after its incorporation into the Phase I Casino Project. (iii) Assessments and Coinmunity F�cilities Districts. Without Lender's prior written consent, Borrower shall not cause or suffer to becoine effective or otherwise consent to the formation of any assessment district or commLulity facilities district which includes all or any part of the Casino Real Property and Phase I Casino Project, nor shall Borrower cause or otherwise consent to the levying of special taxes or assessments against the Casino Real Property and Phase I Casino Project by any such assessinent district or community facilities district. Borrower shall immediately give notice to Lender of any notification or advice that Borrower may receive from any municipality or other third party of any intent or proposal to include the Casino Real Property and Phase I Casino Project in a community facilities district or to levy any such special taxes or assessments, Lender shall have the right to file a written obj ection to the inclusion of all or any part of the Casino Real Property and Phase I Casino Project in a cominunity facilities district, or to the levy of any such special taxes or assessments, either in its own naine or in the name of Borrower, and to appear at, and participate in, any heaiing with respect to the fonnation of any such district or the levy or such special taxes or assessments. (iv) Delay. Borrower shall promptly notify Lender in writing of any event causing material delay or inaterial interruption of construction, or the tiinely coinpletion of construction. The notice shall specify the particular work delayed, and the cause and period of each delay. (v) Survevs. Borrower shall deliver to Lender a survey of the Casino Real Property and Phase I Casino Project. Such survey shall be performed and certified by a licensed engineer or surveyor acceptable to Lender and Title Company,shall be prepared according to current ALTA/ACSM Minimuin Standard Detail Requireinents and any additional items required by Lender or Title Company, and shall be certified to Lender and Title Company. (vi) Bonds. Within five(5) Business Days of Lender's request, Borrower shall procure from a surety reasonably acceptable to Lender, and deliver to Lender dual obligee performance and labor and material payment bonds in form, substance and amount reasonably acceptable to Lender,if and to the extent a Default has occurred. If requested by Lender, Borrower shall record said bond, the 56 Plans and Specifications and each Construction Contract, if any, in the Office of the Dubuque County, Iowa Recorder. (p) Subordinated Lease Payments. If any payinent under the Schmitt Island Lease would have been prohibited at the tiine of such payment pursuant to the Schmitt Island Lease Subordination Agreement, Borrower shall use its best efforts to irnmediately recover from the City of Dubuque the difference between the actual amount of rent paid to the City of Dubuque and the amount of such rent payments that would have been permitted at such time. 5.2 Negative Covenants. So long as any Loan or Existing Loan remains unpaid, or any other Obligation remains unpaid or unperfor�ned,or any portion of any loan commitment hereunder remains in force,Borrower will comply with the following negative covenants,unless Lender shall otherwise consent in writing: (a) Indebtedness. Borrower shall not create, incur, assume or permit to exist any Indebtedness or engage in any off-balance sheet finance transaction or other similar transaction except for the following("Permitted Indebtedness"): (i) Indebtedness of Borrower under the Credit Documents; (ii) Indebtedness (excluding purchase money Indebtedness and Finance Lease obligations) of Borrower listed in Schedule 5.2(a) and existing on the date of this Agreement and any Indebtedness of Borrower under initial or successive refinancings or replacements of any such Indebtedness permitted by this Section 5.2(a)(ii); rovided that (A)the principal amount of any such refinancing or replacement does not exceed the principal amount of the Indebtedness being refinanced or replaced and (B)the material terms and provisions of any such refinancing or replacement (including maturity,redemption,prepayment,default and subordination provisions)are no less favorable to Borrower and Lender than the Indebtedness being refinanced or replaced; (iii) Indebtedness of Borrower under (x) Lender Rate Contracts and (y) other Rate Contracts entered into with respect to Indebtedness permitted by the other provisions of this Section 5.2(al; ro� vided that (A) all such other Rate Contracts are entered into in connection with bona fide hedging operations and not for speculation, (B)the aggregate notional principal amount under all such other Rate Contracts does not exceed the principal amount of the Indebtedness to which such other Rate Contracts relate and(C) such other Rate Contracts are permitted under Section 5.2(1); (iv) Indebtedness of Borrower with respect to surety, appeal, indeinnity, performance or other similar bonds in the ordinary course of business (inchiding surety or similar bonds issued in corulection with the stay of a proceeding of the type described in Section 6.1(h)) or required in connection with the Phase I Casino Project; (v) purchase money Indebtedness and Finance Lease obligations in excess of Borrower's formally adopted annual budget; (vi) Unsecured trade payables incurred in the ordinary course of business that are, unless such amounts are being disputed in good faith, less than one hundred twenty(120) days past due; 57 (vii) Indebtedness of Borrower under that certain promissory note of even date herewith in the original principal amount of$4,000,000.00 issued by Borrower and m�,de payable to Dubuque Initiatives; and (viii) Indebtedness of Borrower in respect of its repayment obligation to the City of Dubuque, Iowa for bonds issued by the City of Dubuque, Iowa in corulection with the construction of the Amphitheater. (b) Liens. Borrower shall not create, incur, assume or permit to exist any Lien or Negative Pledge on or with respect to any of the Collateral, whether now owned or hereafter acquired, except for the following("Permitted Liens"): (i) Liens in favor of Lender securing the Obligations and Negative Pledges under the Credit Documents(or in favor of one or more Lender Rate Contract Counterparties in connection with Lender Rate Contracts); (ii) Liens listed in Schedule 5.2(b) and existing on the date of this Agreement and any replacement Liens (covering the same or a lesser scope of property) in respect of replacement Indebtedness permitted under Section 5.2(a)(ii); (iii) Liens for Taxes or other Governmental Charges not at the time delinquent or thereafter payable without penalty or being contested in good faith by appropriate proceedings and have not proceeded to judgment;provided that adequate reserves for the payment thereof have been established in accordance with GAAP and no property of Borrower is subject to impending risk of loss or forfeiture by reason of nonp�yment of the obligations secured by such Liens; (iv) statutory Liens, possessory liens of carriers, warehousemen, materialmen, mechanic's liens and landlord liens, arising in the ordinary course of business with respect to obligations which are not delinquent or are being contested in good faith by appropriate proceedings, provided that, if delinquent, adequate reserves have been set aside with respect thereto in accordance with GAAP and, by reason of nonpayment, no property of Borrower is subject to a material impending risk of loss or forfeiture; (v) Deposits under worlcers' coinpensation, uneinployment insurance and social security laws or to secure the performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, or to secure statutory obligations of surety, appeal or customs bonds or to secure indemnity,performance or other similar bonds in the ordinary course of business or in connection with the Phase I Casino Project; (vi) Purchase money Liens and associated Negative Pledges incurred with respect to property acquired using the proceeds of Indebtedness and Finance Leases permitted under Section 5.2(a)(vii�; (vii) Liens incurred in connection with the extension, renewal or refinancing of the Indebtedness secured by the Liens described in Section 5.2(a)(ii) or vi above; provided that any extension, renew�l or replacement Lien (A)is limited to the property covered by the existing Lien and (B) secures Indebtedness which is no greater in amount and has material tenns no less favorable to Lenders than the Indebtedness secured by the existing Lien; 58 (viii) leases or subleases granted to others (in the ordinary course of business consistent with past practices) not interfering in any material respect with the ordinary conduct of the business or operations of Borrower; (ix) easements, rights-of-way, restrictions, minor defects, encroachments or irregularities in title and other similar charges or encumbrances not interfering in any material respect with the ordinary conduct of the business of Borrower; (x) deposits in the ordinary course of business to secure liabilities to insurance carriers, lessor,utilities and other service providers; (xi) bankers liens and rights of setoff or offset with respect to customary depository arrangements entered into in the ordinary course of business; (xii) Liens arising by reason of security for surety or appeal bonds in the ordinary course of business of Borrower or in connection with the Phase I Casino Project; (xiii) Liens in respect of judgments, orders, decrees or arbitration awards that do not constihrte an Event of Default under Section 6.1(h); (xiv) Uniform Commercial Code financing statements filed as a precautionary matter by lessors of equipment or other goods to Borrower under operating leases, provided that such precautionary financing statements extend only to the equipment or other goods under such operating leases and any substitutions or replacements therefor and proceeds thereof; (xv) the Schmitt Island Lease; and (xvi) Liens on the real property subject to any of the Real Property Security Doctunents identified in each ALTA title policy received by Lender (in fonn and substance reasonably satisfactory to Lender)relating to such real property. (c) Asset Dispositions. Borrower shall not, directly or indirectly, sell, lease, convey, transfer or otherwise dispose (including, without limitation, via any Sale and Leasebacic transaction) of any of its assets or property, whether now owned or hereafter acquired, except for the following: (i) Sales by Borrower of inventory in the ordinary course of its businesses; (ii) Sales by Borrower of furniture, fixtures and equipment and other iteins of Collateral for no less than fair market value that are, in Borrower's prudent business judgment, damaged, worn-out, obsolete or no longer necessary for Borrower's business objectives; (iii) Licenses of intellectual property owned by or licensed to Borrower to any third party in the ordinary course of business; (iv) Transfers permitted by Section 5.2(b), Section 5.2(d), Section 5.2(e), and Section 5.2(fl; and 59 (v) Sales,transfers and other dispositions of assets that are not permitted by any other clause of this Section,provided that the aggregate fair market value of all assets sold,transferred or otherwise disposed of in reliance upon this clause(v) shall not exceed$250,000.00 during any fiscal year of Borrower; (vi) Transfers of property (whether in the form of cash or otherwise) to any Person,to the extent such transfers constitute charitable distributions by Borrower required by(i)the terms of the Schmitt Island Lease (except to the extent expressly prohibited by the Schmitt Island Lease Subordination Agreement) and/or (ii) Iowa law, as it pertains to Borrower in its capacity as a qualified sponsoring organization; provided that nothing herein shall be construed to permit (x) any Sale and Leaseback transaction with respect to any Property of any character, whether now owned or hereafter acquired or (y)the sale, conveyance,transfer or other disposition of any Equity Securities of Borrower(other than in the creation of the Lien thereon in favor of Lender pursuant to the Security Documents). (d) Mergers, Acquisitions, Etc. Borrower shall not (x) acquire any Person as a new Subsidiary or acquire all or substantially all of the assets, any material assets, any business unit or any division of any other Person or(y) dissolve, cease to exist, reorganize, recapitalize or consolidate with or merge into any other Person or permit any other Person to merge into it. (e) Investments.Boi7ower shall not malce any Investment except for Investments in the following: (i) investments in short-tenn direct obligations of the United States Government; (ii) investments in negotiable certificates of deposit issued by Lender, an Affiliate of Lender, or by any other bank acceptable to Lender, in its reasonable discretion, and payable to the order of Borrower or to bearer and delivered to Lender; (iii) investments in commercial paper rated A1 or P1; (iv) investments listed in Schedule 5.2(e)existing on the date of this Agreement; (v) investments or loans in or to any wholly-owned Subsidiary of Borrower; (vi) investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and investments acquired in connection with the settlement of delinquent accounts or notes receivable or in connection with banlcruptcy or reorganization of suppliers or customers; (vii) investments received as the non-cash portion of consideration received in connection with dispositions permitted pursuant to Section 5.2(c); and (viii) investments received in connection with the settlement of a bona fide dispute with another Person after making reasonable efforts to collect cash in respect thereof. 60 (� Distributions, Redeinptions, Etc. Borrower shall not reorganize, recapitalize or malce any Distributions or set apart any suin for any such purpose except as follows: (i) If no Default shall have occurred and be continuing or woulcl result from a proposed Distribution under this Section 5.2(f�(i) Borrower may malce payments in accordance with the Schinitt Island Lease and further in accordance with the Schmitt Island Lease Subordination Agreeinent. (g) Chan�e in Business.Borrower shall not engage,either directly or indirectly tluough Affiliates, in any business different from the business of Borrower as of the Closing Date except in immaterial respects. (h) Payments of Indebtedness, Etc. Borrower shall not: (i) prepay, redeem,purchase, defease, acquire or otherwise satisfy(or offer to redeem,purchase, acquire or otherwise satisfy)in any manner prior to the scheduled payinent thereof any Indebtedness (including any Subordinated Obligations) or lease obligations of Borrower (other than (A)the Obligations and (B)the prepayment of any Indebtedness incurred in accordance with Section 5.2(a)(v)so long as no Default exists at the time of such proposed prepayment of any Indebtedness incurred in accordance with Section 5.2(a)(v)or would result therefrom);or malce any payment or deposit any monies, securities or other property with any tiustee or other Person that has the effect of providing for the satisfaction (or assurance of any satisfaction) of any Indebtedness (including any Subordinated Obligations) of Borrower prior to the date when due or otherwise to provide for the defeasance of any such Indebtedness, other than deposits in connection with the Phase I Casino Project; or (ii) pay or prepay any principal, preinium, interest or any other amount (inchiding sinking fiind payments) with respect to any Subordinated Obligation (except payments expressly permitted by, in the case of all other Subordinated Obligations, the subordination provisions approved by Lender and payinents expressly approved in writing by Lender),or redeem purchase,defease, acquire or otherwise satisfy(or offer to redeem,purchase, acquire or otherwise satisfy) any Subordinated Obligations; or make any payment or deposit any monies, securities or other property with any trustee or other Person that has the effect of providing for the satisfaction(or assurance of any satisfaction) of any Subordinated Obligations prior to the date when due or otherwise to provide for the defeasance of any Subordinated Obligations; or (iii) supplement,modify, amend,restate, extend, or otherwise change the terms of any document, instr�.unent or agreement evidencing or governing any Subordinated Obligations (other than in respect of(i) extensions of the inaturity date of such Subordinated Obligations or the scheduled dates for payment of principal, interest or any other payments of such Subordinated Obligations, (ii) reductions in the interest rate applicable to such Subordinated Obligations, and (iii) conversions of cash pay interest to payment in kind interest). (i) ERISA. (i) Borrower nor any ERISA Affiliate shall (A) adopt or institute any Pension Plan; (B)take any action which will result in the partial or complete withdrawal, within the meanings of Sections 4203 and 4205 of ERISA,from a Miiltiemployer Plan;(C) engage or pennit any Person to engage in any transaction prohibited by Section 406 of ERISA or Section 4975 of the Code involving any Pension Plan or Multiemployer Plan which would siibject Boi�ower or any ERISA Affiliate to any tax,penalty or 61 other liability including a liability to indemnify; (D)incur or allow to exist any accumulated funding deficiency (within the meaning of Section 412 of the Code or Section 302 of ERISA); (E) fail to malce fiill payment when due of all amounts due as contributions to any Pension Plan or Multieinployer Plan; (F) fail to coinply with the requirements of Section 4980B of the Code or Part 6 of Title I(B) of ERISA; or(G) adopt any amendment to any Pension Plan which would require the posting of security pursuant to Section 401(a)(29) of the Code, where singly or cuinulatively, the above could have a Material Adverse Effect. (j) Transactions With Affiliates. Borrower shall not enter into or permit to exist any Contractual Obligation with any Affiliate or engage in any other transaction with any Affiliate except upon terms at least as favorable to such Borrower as an arms-length transaction with unaffiliated Persons. (lc) Accounting Changes, Borrower shall not change (i)its fiscal year (currently January 1 tl�rough December 31) or(ii) its accounting practices except as required by GAAP. (1) Rate Contracts, Borrower shall not enter into any Rate Contract, except (i) Rate Contracts entered into to hedge or mitigate risks to which Borrawer has actual exposure, (ii) Rate Contracts entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of Borrower, and(iii)those certain Swap Transaction Documents executed by and between Borrower and Lender on the Closing Date. (in) Amendment of Material Documents. Borrower shall not agree to amend, modify, supplement, terminate, or replace any Material Docuinent or any document executed and delivered in connection therewith,in each case(i) in a manner which would adversely affect the interests of Lender or (ii)in the case of the Schmitt Island Lease, without the prior written consent of Lender, which consent shall not be unreasonably delayed, conditioned and/or withheld; provided, that any change to the Plans and Specifications permitted under Section 5.2(u)(i) and any corresponding change in the Construction Budget shall not be prohibited hereby, (n) Joint Ventures;Non-Wholly Owned Subsidiaries.Borrower shall not enter into any Joint Venture or own any Non-Wholly-Owned Subsidiary, except to the extent permitted by Section 5.2(e�(iii�. (o) Forei�n Subsidiaries. Borrower shall not form or acquire any Subsidiary that is organized or cloiniciled, or talce any other action that would result in Borrower or any of its Subsidiaries being organized or domiciled,under the law of any jurisdiction outside the United States. (p) No New Gaming Facilities. Borrower shall not open or prepare to open, or allow or cause any of its Subsidiaries to open or prepare to open, any new gaming facilities other than the Gaming Facilities (including the Phase I Casino Project), without the written consent of Lender, which consent will not be unreasonably withheld, conditioned or delayed. (q) No Agreements to Sell Assets; Etc. Borrower has no legal obligation, absolute or contingent,to any Person to sell the assets of Borrower(except as permitted by Section 5.2(c)),or to effect any merger, consolidation or other reorganization of Borrower(except as permitted by Section 5.2(d)) or to enter into any agreement with respect thereto. � 62 (r) Construction of the Phase I Casino Project. Borrower shall not: (i) Permit any ainendments or modifications of the Plans and Specifications (exchiding the existing change orders set forth on Schedule I) that(A) constitute a material change in the building material or equipinent specifications, or in the architectural or structural design, vahie or quality of any of the Phase I Casino Proj ect;(B)would affect the strizctural integrity,quality of building materials, or overall efficiency of operating systems of the Phase I Casino Project; or (C)will increase the cost of constructing the Phase I Casino Project or delay the completion thereof. The term "change order" shall include any update to a line item in the Constriiction Budget which is estimated and which is later updated based on the actual aggregate costs associated with such line item to the extent such actual costs exceed the estimate for such line item. (ii) Purchase or contract for any materials, equipment, furnishings, fixtures or articles of personal property to be placed or installed on the Phase I Casino Project under any security agreement or other agreement where the seller reserves or puiports to reserve title or the right of removal or repossession(excebt for such reservations as may arise solely by operation of any applicable Laws,or that are permitted by Section 5.2(a�(vii�), or the right to consider such materials personal property after their incorporation in the work of construction, unless Lender in each instance has authorized Borrower to do so in writing. (iii) Fail to proinptly pay prior to delinquency (subject to applicable and customary retentions)or otherwise discharge all lawfiil claims and Liens for labor done and materials and services furnished in connection with the construction of the Phase I Casino Project, except for claims contested in good faith by appropriate proceedings and without prejudice to the constniction timetable, provided that any such claims are covered by such payment bonds or title insurance policy endorseinents as may be reasonably requested by Lender. (iv) Fail to properly obtain, comply with and keep in effect all legally required material permits, licenses and approvals which are customarily required to be obtained from Goverrunental Authorities in order to constnict and occupy the Phase I Casino Project as of the then current stage of construction, and deliver copies of all such permits, licenses and approvals to Lender promptly following a written request therefor. (v) Fail to promptly notify Lender if it takes title to any construction materials for the Phase I Casino Project having a value in excess of$50,000 that are not located on the Phase I Casino Project, or will not be delivered to the Phase I Casino Project site within fifteen(15) days after the date upon which title thereto has been transferred to Borrower(describing such construction materials,the purchase price therefor and the location thereo� or, if requested by Lender, fail to provide to Lender the written�cknowledgement of the Person having custody of such constniction materials of the existence of Lender's Lien on such construction materials and the right of Lender to have access to and to remove such constrtzction materials when an Event of Default has occurred and remains continuing, (vi) Fail to make the DRA Equity Contributions prior to the use of any Loan proceeds. 63 (s) Mana�ement Fees. Borrower shall not enter into or otherwise have any obligations under any Management Agreement unless the obligations of Borrower thereunder are reasonably acceptable to Lender. 5.3 Financi�,l Covenants. So long as any Loan remains unpaid,or any other Obligation reinains unpaid or unperformed, or any portion of any loan commitment hereunder remains in force,Borrower will comply,and will cause compliance,with the following financial covenants,unless Lender shall otherwise consent in writing: (a) Debt Service Covera�e Ratio. Measured annually utilizing the audited financial statement beginning with fiscal year-end December 31, 2023. Borrower shall maintain a minimum Debt Service Coverage Ratio of 1.10 to 1.00. Debt Service Coverage Ratio means the ratio of(i) Cash Flow to (ii)the sum of all contractual principal and interest payments on all borrower debt and finance lease obligations. "Cash Flow" is defined as (a) Change in Net Assets without Donor Restrictions, (b)plus Amortized Diamond Jo Lease Parlcing Expense, (c) Less Actual Diamond Jo Lease Parking Reimbursement Payment, (d)plus Depreciation and Amortization, (e)plus interest expense, (�plus realized and unrealized losses from interest rate swap(s), asset sales, marketable securities, and extraordinary items, (g) less realized and unrealized gains from interest rate swap(s), asset sales, marketable securities, and extraordinary iteins; (b) Restin P�eriod. During each fiscal year in which the Existing Revolving Line of Credit Loan is in place the outstanding principal balance of the Existing Revolving Credit Loan shall be reduced to, and maintained at, zero dollars for a period of at least thirty(30) consecutive calendar clays. ARTICLE VI EVENTS OF DEFAULT 6.1 Events of Default. The occurrence or existence of any one or more of the following shall constitute an`Bvent of Default"hereunder: (a) Non-Pa.�. Borrower shall(i) fail to pay when due any principal of any Loan or (ii) fail to pay within five(5)days after the same becomes due, any interest, fees or other amounts payable under the terms of this Agreement or any of the other Credit Documents; or (b) Specific Defaults. Borrower shall fail to observe or perform any covenant, obligation, condition or agreement set forth in Section 5.1(a (iv), Section 5.1(a)�vl, Section 5.1(f�, Section 5.1(�){i),Section 5.1(h)(ii)(i), Section 5.2 or Section 5.3; or (c) Other Defaults. (i)Any default shall occur under any Security Document and such default shall continue beyond any period of grace provided with respect thereto; (ii) Borrower shall fail to observe or perform any other covenant, obligation, condition or agreement contained in this Agreement or any other Credit Document and such faihire described in this clause(ii) shall continue for thirty(30) days after the date of such failure; or (iii)Sorrower shall fail to observe or perfonn any covenant, obligation, condition or agreement in any Lender Rate Contract or documentation for any Lender Banlc Product and such failure shall continue beyond any period of grace provided with respect thereto; or (d) Representations and Warranties. Any represe�tation, warranty, certificate, information or other statement (financial or otherwise) made or furnished by or on behalf of Borrower, 64 shall be false, incorrect, incoinplete or misleading in any material respect (or if such representation, warranty, certificate,information or other statement(financial or otherwise)is qualified by materiality,in any respect) when made or furnished; or (e) Cross-Default. (i) The occurrence of a default or event of default (or any similar event or circuinstance) under any document for the Indebtedness described in Section 5.2(a)(v1, (ii) Borrower shall fail to inake any payment on account of any Indebtedness or Contingent Obligation of such Person (other than the Obligations) when due (whether at scheduled maturity, by required prepayment, upon acceleration or otherwise) and such failure shall continue beyond any period of grace provided with respect thereto, or(iii)Borrower shall otherwise fail to observe or perform any agreement, term or condition contained in any agreement or instrument relating to any Indebtedness or Contingent Obligation of such Person(other than the Obligations),in each case, if the effect of such faihire, event or condition is to cause, or permit the holder or holders thereof to cause, Indebtedness and/or Contingent Obligations of Borrower (other than the Obligations) in an aggregate ainount exceeding Five Hundred Thousand Dollars ($500,000) to become redeemable, due, liquidated or otherwise payable (whether at scheduled maturity,by required prepayment,upon acceleration or otherwise)and/or to be secured by cash collateral; or (� Insolvencv; Voluntary Proceedin�s. Borrower shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property,(ii)be unable,or admit in writing its inability,to pay its debts generally as they mature,(iii)make a general assignment for the benefit of its or any of its creditors, (iv}be dissolved or liquidated in full or in part, (v)become insolvent(as such term may be defined or interpreted under any applicable statute),or (vi) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or, in each case, any analogous procedure or step is taken in any jurisdiction; or (g) Involuntary Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian of Borrower or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to Borrower or the debts thereof under any bankruptcy,insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within sixty(60) days of commencement, or, in each case, any analogous procedure or step is taken in any juriscliction; or (h) Jud�nents. (i) One or more judgments, orders, decrees or arbitration awards requiring Borrower to pay an aggregate amount of One Million Dollars ($1,000,000) or more (exclusive of amounts covered by insurance issued by an insurer not an Affiliate of Borrower and otherwise satisfying the requirements set forth in Section 5.1(d)) shall be rendered against Borrower in connection with any single or related series of transactions, incidents or circumstances and the same shall not be satisfied, vacated or stayed for a period of ten(10) consecutive days; (ii) any judgment, writ, assessment, warrant of attachment,tax lien or execution or similar process shall be issued or levied against a part of the property of Borrower with an aggregate value in excess of One Million Dollars ($1,000,000) and the same shall not be released, stayed, vacated or otherwise dismissed within thirty(30) days after issue or levy; or (iii) any other judgments, orders, decrees, arbitration awards,writs, assessments, warrants of attachment, 65 tax liens, executions or similar processes which, alone or in the aggregate, could reasonably be expected to have a Material Adverse Effect are rendered, issued or levied; or (i) Credit Documents. Any Credit Document or any material term thereof shall cease to be, or be asserted by Borrower not to be, a legal,valid and binding obligation of Borrower enforceable in accordance with its terms or shall otherwise cease to be in fiill force and effect; or (j) Security Documents. Any Lien intended to be created by any Security Docuinent shall at any time be invalidated,subordinated or otherwise cease to be in full force and effect,for whatever reason, or any security interest purported to be created by any Security Document shall cease to be, or shall be asserted by Borrower not to be, a valid, �rst priority (except as expressly otherwise provided in this Agreement or such Security Document)perfected Lien in the Collateral covered thereby, or Borrower shall issue, create or permit to be outstanding any Equity Securities which shall not be subject to a first priority perfected Lien under the Security Documents (other than Equity Securities not required to be pledged under the Credit Documents); or (k) Chan�e of Control. Any Change of Control shall occur; or (1) Loss of Gamin� Licenses/Failure to Maintain Gaming Activities. The occurrence of a License Revocation,other than on account of casualty,condemnation or force maj eure event,provided that such License Revocation continues for at least thirty(30) consecutive days; or (m) Involuntary Dissolution or Split U�.Any order,judgment or decree shall be entered against Borrower decreeing its involuntary dissolution or split up and such order shall remain undischarged and unstayed for a period in excess of sixty(60) days; or (n) Other Default. The occurrence of an Event of Default (as sttch term is or may hereafter be specifically defined in any other Credit Document or Material Contract) under any other Credit Document or Material Contract that continues beyond any applicable cure period; or (o) Desi�nated Person. Borrower shall become a Designated Person; or (p) Subordinated Obli at�. Any trustee for, or any holder of, any Subordinated Obligations asserts in writing that any such Subordinated Obligations (or any portion thereo� is not subordinated to the Obligations in accordance with its terms or the applicable subordination agreement (in the case of such other Subordinated Obligations);or any event occurs which gives the holder or holders of such Subordinated Obligations (or an agent or tnistee on its or their behal� the right to declare such Subordinated Obligations due before the date on which it otherwise would become due, or the right to require the issuer thereof, to redeem, purchase or otherwise defease, or offer to redeem, purchase or otherwise defease, all or any portion of any Subordinated Obligations, or a final judginent is entered by a court of competent jurisdiction that any Subordinated Obligations (or any portion thereo� is not subordinated in accordance with its terms or the applicable subordination agreement(in the case of such other Subordinated Obligations) to the Obligations; or (q) Uninsured Loss.The occurrence of any uninsured loss with respect to any property of Borrower in excess of$1,000,000; or 66 (r) Management Companies. (i)DRA ceases to actively manage the operations of Q Casino; or (s) Cessation of Gamin�. The occurrence of any event or circumstance, other than a casualty, condemnation or forces majeure which results in the failure of Borrower to have any matarial portion of any Gaming Facility open to conduct gaming activities for any reason for more than thirty(30) consecutive days or which results in the prohibition of Borrower to conduct gaming activities at any Gaming Facility fbr a period in excess of thirty(30) consecutive days; or (t) Govenitnental Action. Any Governmental Authority with jurisdiction over the Phase I Casino Project or the Casino Real Property orders or requires that construction of the Phase I Casino Project be stopped, in whole or in part, or any required approval, license or permit is withdrawn or suspended, and the order, requirement, withdrawal or suspension remains in effect for a period of fifteen(15) days; or (u) Cessation of Construction. Constniction of the Phase I Casino Project is abandoned or halted prior to coinpletion for any period of fifteen(15) consecutive days for any cause not beyond the reasonable control of Borrower; or (v) Lien; Attachment; Condemnation. (i) The recording or service upon Lender of any claim of lien against the Casino Real Property or any Gaming Facility, and the continuance of such claim of lien for twenty(20) days after such recording or service or five(5) days after Lender's demand, whichever occurs first, witliout discharge, satisfaction or provision for payment being made by Borrower in a manner satisfactory to Lender; or(ii)the condemnation, seizure or appropriation of, or occurrence of iuiinsured casualty damage with respect to, any material portion of the Casino Real Property or any Gaining Facility; or (iii)the sequestration or attachment of, or any levy or execution upon, any of the Casino Real Property or any Gaming Facility or any other collateral provided by Borrower or any other party under any of the Credit Documents which is not released,expunged or dismissed within twenty(20) days; or (w) Swap Cross-Default. Borrower acknowledges and agrees that an Event of Default under this Agreement shall also constitute an event of default under all Swap Transactions. In addition to Lender's rights set forth herein,upon the occurrence of an Event of Default under this Agreement,Lender has the right to demand payment of any Swap Indebtedness. Conversely, Borrower acicnowledges and agrees that an Event of Default under the Swap Indebtedness shall also constitute an Event of Default under the Phase I Note, this Agreeinent, and any Credit Documents. Upon the occurrence of an Event of Default under the Swap Indebtedness,Lender has the right to exercise all of its rights and remedies under the Credit Documents,including acceleration. 6.2 Remedies. At any time after the occurrence and during the continuance of any Event of Default (other than an Event of Default referred to in Section 6.1(fl or Section 6.1(�)), Lender may, by written notice to Borrower, (a)terminate the Cominitments and the obligations of Lender to make Loans, and/or(b) declare all or a portion of the outstanding Obligations payable by Borrower to be immediately due and payable without presentmeiit, deinand, protest or any other notice of any lcind, all of which are hereby expressly waived, anything contained herein or in the Notes to the contrary notwithstanding.Upon the occurrence or existence of any Event of Default described in Section 6.1(fl or Section 6.1(�), immediately and without notice, (1)the Cominitments and the obligations of Lender to malce Loans shall 67 autoinatically terminate, and (2) all outstanding Obligations payable by Borrower hereunder shall automatically become immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived anything contained herein or in the Notes to the contrary notwithstanding. In addition to the foregoing remedies, upon the occurrence or existence of any Event of Default, Lender may exercise any other right, power or remedy available to it under any of the Credit Documents or otherwise by law, either by suit in eqt�ity or by action at law, or both. 6,3 Additional Provisions Concernin�Phase I Casino Project. (a) Disbursements to Third Parties. Upon the occurrence of an Event of Default occasioned by Borrower's failure to pay inoney to a third party as required by this Agreement, Lender may but shall not be obligated to make such payment from the Loan proceeds, or other funds of Lender. If such payment is made from proceeds of the Loans, Borrower shall immediately deposit with Lender, upon written demand, an amount equal to such payment. If such payment is made from fiinds of Lender, Borrower shall iinmediately repay such funds upon written demand of Lender. In either case,the Event of Default with respect to which any such payment has been made by Lender shall not be deemed cured until such deposit or repayment(as the case inay be)has been made by Borrower to Lender. (b) Lender's Completion of Construction.Upon the occurrence of an Event of Default, Lender may,upon five(5) days prior written notice to Borrower, and with or without legal process, talce possession of the Casino Real Property and Phase I Casino Project, remove Borrower and all agents, employees and contractors of Borrower from the Casino Real Property and Phase I Casino Project, complete the work of construction and market, operate and sell or lease the Casino Real Property and/or Phase I Casino Project (provided, however, that such right to sell is expressly limited to Barrower's leasehold interest in and under the Schmitt Island Lease). For this purpose,Borrower irrevocably appoints Lender as its attorney in fact, which agency is coupled with an interest. As attorney in-fact, Lender may, in Borrower's name, take or omit to take any action Lender may deem appropriate, including, without limitation, exercising Borrower's rights under the Credit Documents and all contracts concerning the Casino Real Property and/or Phase I Casino Project. (c) Right to Stop Constrtilction. If Lender reasonably determines at any time that the Phase I Casino Project is not being constructed in accordance with the Plans and Specifications and all governmental requirements,Lender may immediately cause a11 constri.iction to cease on any of the Phase I Casino Project affectecl by the condition of nonconformance and withhold further disburseinents under the Loans. Borrower shall thereafter not allow any construction work, other than corrective work, to be performed on any of the Phase I Casino Project affected by the condition of nonconformance until such time as Lender notifies Bonower in writing that the nonconforming condition has been corrected. Borrower shall notify Lender and the Construction Consultant immediately upon receipt of"red tag" or "stop order" notices from any federal, state, cotinty or municipal building inspector or of unsatisfactory compliance with any applicable building code, and in such event,Borrower shall provide Lender and the Construction Consultant with a full and complete written explanation of the nature of such noncompliance. (d) Deposited Loan Funds. All Deposited Loan Funds shall be disbursed for the costs of the Phase I Casino Project as contemplated by this Agreement other than (i) amounts used to pay for expenses of Lender, and(ii) amounts to be applied to the Obligations. 68 ARTICLE VII JRESERVEDI ARTICLE VIII MISCELLANEOUS 8.1 Notices. (a) Except as otherwise provided herein, all notices, requests, demands, consents, instructions or other cominunications to or upon Borrower or Lender under this Agreeinent or the other Credit Documents shall be in writing and faxed,mailed,e-mailed or delivered,if to Borrower or to Lender, at its respective facsimile number, e-mail address or address set forth below (or to such other facsimile number or address for any party as indicated in any notice given by that party to the other parties). All such notices and communications shall be effective (a)when sent by an overnight courier service of recognized standing, on the second Business Day following the deposit with such service; (b) when mailed, first-class postage prepaid and addressed as aforesaid through the United States Postal Service, upon receipt; (c)when delivered by hand,upon delivery; and(d)when sent by facsimile transmission or e-mail,upon confirmation of receipt. Lender: MIDWESTONE BANK 895 Main Street Dubuque, Iowa 52001 Attn: Wayne Breckon, First Vice President Tel.No.: (563) 589-0828 Fax No. (563) 589-0860 Borrower: DUBUQUE RACING ASSOCIATION, LTD. 1855 Greyhound Park Road Dubuque, IA 52001 Attn: Alex Dixon, President and CEO Tel.No.: (563) 585-3002 Fax No.: Each Notice of Borrowing shall be given by Borrower to Lender's office located at the address referred to above during Lender's normal business hours;brovided,however,that any such notice received by Lender after 2:00 p,m, on any Business Day shall be deemed received by Lender on the next Business Day. In any case where this Agreement authorizes notices, requests, demands or other communications by Borrower to Lender may conclusively presume that anyone purporting to be a person designated in any incumbency certificate or other similar document received by Lender is such a person. 8.2 Expenses. Borrower shall pay on demand, whether or not any Credit Event occurs hereunder, (a) all reasonable fees and expenses,including reasonable attorneys', consultants' and experts' fees and expenses incurred by Lender, in connection with the participation of the facility provided 69 hereunder, due diligence, the preparation, negotiation, execution and delivery of, and the exercise of its duties under,this Agreement and the other Credit Documents, and the preparation,negotiation, execution and delivery of amendments, waivers, consents, modifications and supplements related to the Credit Documents, (b) all reasonable fees and expenses of Lender in connection with the hiring and use of any Constniction Consultant, and (c) all reasonable fees and expenses, inchtding reasonable attorneys' fees and expenses, incuned by Lender in the enforcement or attempted enforceinent of any of the Obligations or the Credit Docuinents or in preserving any of Lender's rights and remedies (including, without limitation,all such fees and expenses incurred in connection with any"workout"or restnicturing affecting the Credit Documents or the Obligations or any bankniptcy or similar proceeding involving Borrower). The obligations of Borrower under this Section 8.2 shall survive the payment and perforrnance of the Obligations and the termination of this Agreement. Without limiting the foregoing, upon the occurrence and during the continuation of any Event of Default, Lender is authorized, at Borrower's expense, to obtain a tax service contract with a third-party vendor which shall provide tax information on the Casino Real Property and the Gaming Facilities satisfactory to Lender. 8.3 Indemnification, To the fullest extent permitted by Iaw, and in addition to any other indemnity set forth in the Credit Documents, Borrower agrees to (a)protect, indemnify, defend and hold harmless Lender and their Affiliates and their respective directors, officers, employees, attorneys, agents, trustees and advisors (collectively, "Indemnitees") from and against any and all liabilities, obligations, losses, damagas,penalties,judgments, costs, disbursements,claims or expenses of any kind or nature and from any suits, claims or demands (including in respect of or for reasonable attorneys' fees and other expenses) arising on account of or in connection with any matter or thing or action or failure to act by Indemnitees, or any of them, arising out of or relating to (a)the Credit Docuinents or any transaction contemplated thereby or related thereto, including the malcing of any Loans, issuing of any Letters of Credit, any use by Borrower of any proceeds of the Loans or the Letters of Credit, (b) any Environmental Damages, (c) any elaims for brokerage fees or commissions in connection with the Credit Documents or any transaction contemplated thereby or in connection with Borrower's failure to conchide any other financing, and to reimburse each Indemnitee on demand for all reasonable legal and other expenses incurred in connection with investigating or defending any of the foregoing,or(d) any and all excise, sales or other similar taxes which inay be payable or determined to be payable with respect to any of the Collateral or in connection with any of the transactions contemplated by this Security Documents, including any penalties, claims or other losses resulting froin any delay in paying such excise, sales or other similar taxes; rovided,however, that nothing contained in this Section 8.3 shall obligate Borrower to protect, indemnify, defend or hold harmless any Indemnitee against any such liabilities, obligations, losses, damages,penalties,judgments, costs, disbursements, claims or expenses to the extent determined by a final, non-appealable judgment of a court of competent jurisdiction to have arisen froin(i)the gross negligence or willful misconduct of such Indeinnitee or(ii) a material breach of any Credit Document by such Indeinnitee. Upon receiving lcnowledge of any suit, claim or demand asserted by a third party that Lender believes is covered by this indemnity,Lender shall give Borrower notice of the matter and Lender may select its own counsel or request that Borrower defend such suit, claim or demand,with legal counsel satisfactory to Lender, at Borrower's sole cost and expense and (b)reimburse each Indemnitee for all reasonable legal fees and other expenses in connection with such Indemnitee's investigation or defense of any of the foregoing; provided, however, that Lender shall have the right to defend, at Borrower's sole cost and expense, any such matter that is in connection with a formal proceeding instituted by any Goverrunental Authority having authority to regulate or oversee any aspect of Lender or Lender's business or that of its Affiliates. Lender may also require Borrower to defend the matter. In the event an Indemnitee (or any of its officers, directors or employees) appears as a witness in any action or proceeding brought 70 against Borrower in which an Indemnitee is not named as a defendant,Borrower agrees to reimburse such Indemnitee for all out-of-pocket expenses incurred by it (including reasonable fees and expenses of counsel)in corulection with its appearing as a witness. Any faihire or delay of Lender to notify Borrower of any such suit, claim or demand shall not relieve Borrower of its obligations under this Section 8.3, except to the extent that Borrower is materially prejudiced as a result of such failure or delay. No Indemnitee referred to above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transinission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willfiil misconduct of such Indeinnitee as detennined by a final and non-appealable judgment of a court of competent jurisdiction.Borrower shall not, without the prior written consent of each Indemnitee affected thereby (which consent will not be unreasonably withheld, conditioned or delayed), settle any threatened or pending claim or action that would give rise to the right of any Indemnitee to claim indeinnification hereunder unless such settlement (x)includes a fiill and unconditional release of all liabilities arising out of such claim or action against such Indemnitee, (y) does not include any statement as to or an admission of fault, culpability or failure to act by or on behalf of any Indemnitee, and (z)involves only the payment of a monetary sum(and does not restrict any future activity of such Indemnitee). Borrower agree that no Indemnitee shall have any liability(whether direct or indirect,in contract or tort,or otherwise)to Borrower or its Affiliates or to their respective equity holders or creditors arising out of, related to or in connection with any aspect of the transactions contemplated hereby, except to the extent such liability is determined in a final, non- appealable judgment by a court of competent jurisdiction to have resulted from(i) such Indemnitee's own gross negligence or willful misconduct of such Indemnitee under the Credit Documents or(ii) a material breach of any Credit Document by such Indemnitee. The obligations of Borrower under this Section 8.3 shall survive the payment and performance of the Obligations and the tennination of this Agreement, The obligations of Borrower with respect to Enviromnental Damages are (1) separate and distinct from the Obligations described within the Real Property Security Documents and the Liens and security interests created in the Rea1 Property Security Documents, and (2)inay be enforced against Borrower without regard to the existence of the Real Property Security Documents and independently of any action with respect to the Real Property Security Documents. 8.4 Waivers; Amendments. Any term, covenant, agreement or condition of this Agreeinent or any other Credit Document may be ainended or waived, and any consent under this Agreeinent or any other Credit Docuinent may be given,if such ainendment,waiver or consent is in writing and is signed by Borrower and Lender;provided, however, that: (a) Any amendment, waiver or consent which would (i)increase the Schinitt Island Term Loan Commitment, (ii) increase the Phase I Constniction Loan Commitment or the aggregate amount of the Phase I Construction Loan, (iii) increase any Phase I Term Loan Commitinent, (iv) extend the Schmitt Island Term Loan Maturity Date,the Phase I Construction Loan Conversion Date,any Phase I Term Loan Maturity Date,,(v)reduce the principal of or interest on any Loan or any fees or other amounts payable for the account of Lender hereunder (whether or not scheduled), (vi) extend any date fixed for any scheduled payment of the principal of or interest on any Loans or any fees or other ainounts payable for the account of Lender (excluding mandatory prepayments required by Section 2.3(c)(i) through ii , (vii) amend Section 2.8, or (viii)release Borrower, must be in writing and signed or approved in writing by Lender; 71 (b) Any amendinent, waiver or consent which (i)releases any g�,taranty or any substantial part of the Collateral, or (ii)would amend this Section 8,4 must be in writing and signed or approved in writing by Lender; and (c) Any amendinent, waiver or consent which affects the rights or obligations of Lender must be in writing and signed by Lender. No failure or delay by Lender in exercising any right under this Agreement or any other Credit Document shall operate as a waiver thereof or of any other right hereunder or thereunder nor shall any single or partial exercise of any such right prechide any other further exercise thereof or of any other right hereunder or thereunder. Unless otherwise specified in such waiver or consent, a waiver or consent given hereunder shall be effective only in the specific instance and for the specific purpose for which given. Lender may condition the giving or malcing of any amendment, waiver or consent of any term, covenant, agreeinent or condition of this Agreement or any other Credit Document on payinent of a reasonable fee by Borrower. 8.5 Successors and Assigns. (a) Binding Effect. This Agreement and the other Credit Documents shall be binding upon and inure to the benefit of Borrower, Lender, all future holders of the Notes and their respective successors and perinitted assigns, except that Borrower may not assign or transfer any of its rights or obligations under any Credit Document without the prior written consent of Lender. Any purported assignment or transfer by Borrower in violation of the foregoing shall be null and void. (b) Participations, Lender may, without notice to or consent of Borrower, at any time sell to one or more one or more banking institutions or other Persons (other than a Person that is in the same line of business as Borrower), in Lender's sole an absolute discretion ("Participants") participating interests in all or a portion of any Loan owing to Lender, any Note held by Lender, any Commitment of Lender or any other interest of Lender under this Agreeinent and the other Credit Documents,and,subj ect to the conditions set forth in this subsection(b), Borrower hereby consents to the grant. Notwithstanding the foregoing: (i)Lender's obligations under this Agreement shall remain unchanged; (ii) Lender shall remain solely responsible to Borrower for the performance of such obligations; (iii) Borrower shall continue to deal solely and directly with Lender in connection with Lender's rights and obligations under this Agreement; (iv)no Participant shall have the right to(X) approve any amendment or grant any waiver of any provision of this Agreement or any other Credit Docuinent, (Y) consent (or withhold consent) to any departure by Borrower of any such provision, (Z) consent to the release of Collateral, or(W)receive any notice directly froin Borrower, all of which rights shall exclusively belong to Lender, and any amendment, waiver, andJor consent executed and/or granted by Lender under or pursuant to this Agreement or any other Credit Document, and any notice provided to Lender under or pursuant to this Agreement or any other Credit Document, shall be conclusively binding on Lender and each of the Participants if signed and delivered by or to Lender. (c) Assi�nments. Lender may, at any time, sell and assign to any Eligible Assignee (individually, an "Assi�nee Lender") all or a portion of its rights and obligations under this Agreement and the other Credit Documents(such a sale and assignment to be referred to herein as an"Assi n� ment"). With respect to any such Assignment, (i) such Assignee Lender shall be deemed automatically to have become a party hereto and,to the extent that rights and obligations hereunder have been assigned to such 72 Assignee Lender pursuant to an assigtunent agreeinent between Lender and the Assignee Lender (an "Assi�nment A�reement"), shall have the rights and obligations of Lender hereunder and (ii) Lender, to the extent that its rights and obligations hereunder have been wholly assigned by it and wholly assumed by the Assignee Lender pursuant to such Assigrnnent Agreement(which shall be on terms and conditions satisfactory to Lender), shall be released from its rights (other than its indeinnification rights) and obligations hereunder. If requested by Lender, but subject to the prior approval of the City of Dubuque, Iowa(if required by Borrower's bylaws and/or the Schmitt Island Lease)and the Iowa Racing and Gaming Commission(if required by the Gaming Laws),Borrower shall execute and deliver to the Assignee Lender (and, as applicable, Lender)promissory note(s) in a for�n acceptable to Lender in the principal amount of the Assignee Lender's pro rata share of the Loans (and, as applicable, a promissory note in the principal amount of the pro rata share of the Loans retained by Lender), Each such promissory note shall be dated the effective date of such assignment. Upon receipt by Lender of such promissory note(s), Lender shall return to Borrower any prior and replaced promissory note held by it, and Lender shall proinptly note in its records that such prior and replaced promissory note has been indefeasibly paid in full. Notwithstanding anything to the contrary herein, the rights of Lender to make assignment of, and grant participations in, the Loans and Cominitments shall be subject to the approval of any Gaming Authority,to the extent required by applicable Gaming Laws. (d) Re�istration. Upon its receipt of an Assignment Agreement executed by an Lender and an Assignee Lender, Lender shall (i)promptly accept such Assigmnent Agreement and (ii) on the Assignment Effective Date deterinined pursuant thereto record the information contained therein in a register and give notice of such acceptance and recordation to Lenders and Borrower. Lender may, from time to time at its election, prepare and deliver to Lenders and Borrower a revised Schedule I reflecting the naines, addresses and respective Coinmitments or Loans of all Lenders then parties hereto (and in any event Schedule I shall be deemed amended to reflect any assignment consummated pursuant to the terms of this Agreement or upon any Lender becoming a party to this Agreement by any other means). (e) Confidentialitv. Subject to Section 8.10, Lender may disclose the Credit Docuinents and any financial or other information relating to Borrower to each actual or potential Participant and any actual or potential Assignee Lender. (� Pledges to Federal Reserve Banks; Other Pledges of Notes, Notwithstanding any other provision of this Agreeinent, Lender may at any time assign all or a portion of its rights under this Agreement and the other Credit Documents, including, without limitation, to a Federal Reserve Banlc or central banlc. No such assignrrient shall relieve the assigning Lender fi•om its obligations under this Agreeinent and the other Credit Documents. In the case of any Lender, such Lender may (i) assign or pledge all or any portion of the Loans held by it (and Notes evidencing such Loans) to the trustee under aiiy indenture to which such Lender is a party in support of its obligations to the trustee for the benefit of the applicable trust beneficiaries, or (ii)pledge all or any portion of the Loans held by it (and Notes evidencing such Loans)to its lenders for collateral security purpose;provided,however, no such pledgee under clause (i) or(ii) shall become a Lender hereunder(by foreclosure, transfer in lieu of foreclosure or otherwise) unless and until it complies with the assignment provisions of this Agreement to become a Lender hereunder and has received all consents required hereunder. (g) True Sale. All participations in the Obligations or any portion thereof, whether pursuant to provisions hereof or otherwise, are intended to be "true sales" for purposes of financial 73 reporting in accordance with Statement of Financial Accounting Standards No. 140. Accordingly, any Lender that sells or is deeined to have sold a participation in the Obligations(including any participations in the Loans, any participations described in Section 8.5(b) above (each a "Participation Seller") hereby agrees that if such Participation Seller receives any payinent in respect of the Obligations to which such participation relates through the exercise of setoff or offset by such Participation Seller against Borrower or any other obligor, then such Participation Seller agrees to promptly pay to the participating party in such participation such participant's pro rcztc� share of such setoff or offset. (h) Additional Forms. If required by applicable Governmental Rules or otherwise deemed prudent by Lender,Borrower and Lender shall prepare, execute and deliver a completed Form U- 1 (or Form G-3, as applicable) for each Lender(and, if applicable, for each Participant, in which case the applicable Lender shall cause its Participant to satisfy the requireinents of this Section). 8,6 Setaff; Liinitations on Setoff; Securitv Interest. (a) Setoffs By Lender. In addition to any rights and remedies of Lender provided by law,Lender and its Affiliates shall have the right,without prior notice to or consent of Borrower, any such notice and consent being expressly waived by Borrower to the extent permittecl by applicaUle Governmental Rules,upon the occurrence and ditring the continuance of an Event of Default, to setoff or offset and apply against the Obligations any amount owing from Lender or its Affiliates to Borrower. The aforesaid right of setoff or offset may be exercised by Lender or its Affiliates against Borrower or against any trustee in bankruptcy,debtor in possession,assignee for the benefit of creditors,receiver or execution, judgment or attachment creditor of Borrower or against anyone else claiming through or against Borrower or such trustee in bankruptcy, debtor in possession, assignee for the benefit of creditors, receiver, or execution,judgment or attachment creditor,notwithstanding the fact that such right of setoff or offset may not have been exercised by Lender at any prior time. Lender agrees promptly to notify Borrower after any such setoff or offset and application made by Lender; provided, that the faihire to give such notice shall not affect the validity of such setoff or offset and application. (b) Limitations on Setoff. Notwithstanding or anything to the contrary in this Agreement (including Section 8.6(a)) or any other Credit Document, Lender shall not have the right to setoff with respect to any Excluded Assets. To that end, in the event that any portion of moneys or funds of Borrower on deposit or held in any deposit accounts now or hereafter inaintained with Lender constitute Excluded Assets, Lender shall not have the right to setoff against such portion thereof and, in the event that Lender effectuates a setoff with respect to any poi�tion of Exchided Assets, Lender shall promptly refund such amounts to Borrower. (c) Securitv Interest.As security for the Obligations,Borrower hereby grant to Lender, a continuing security interest in any and all deposit accounts or moneys of Borrower (to the extent such deposit accounts and/or moneys do not constitute Excluded Assets) now or hereafter inaintained with Lender. Except as otherwise provided in Section 8.6(b) above, Lender shall have all of the rights of a secured party with respect to such security interest, 8.7 No Third-Partv Rights. Nothing expressed in or to be iinplied from this Agreement is intended to give,or shall be construed to give, any Person,other than the parties hereto and their permitted successors and assigns hereunder, any benefit or legal or equitable right, reinedy or claim under or by 74 virtue of this Agreement or under oi•by virtue of any provision herein. Notwithstanding the foregoing, nothing in this Section shall limit the benefits provided to Lender under the Credit Documents. 8.8 Partial Invaliditv. If at any time any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law or any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. 8,9 Jur Trial. EACH OF BORROWER AND LENDER TO THE FULLEST EXTENT PERMITTED BY APPLICABLE GOVERNMENTAL RULES, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT. 8.10 Confidentialitv. Lender shall not disclose to any Person any Confidential Information, except that Lender may disclose any such infonnation (a)to its own directors, officers, employees, auditors, counsel and other advisors and to its Affiliates,to the extent such Affiliates are required to have such information in connection with performance of Lender's obligations under this Agreement and the other Credit Documents; (b)which is otherwise known or available to the public or which is otherwise lcnown to the receiving party prior to the tiine such Confidential Information was delivered to Lender; (c) if required in any report, statement or testimony submitted to any Governmental Authority having or claiming to have jurisdiction over Lender;(d) if legally compelled or required in response to any summons or subpoena; (e)in connection with any enforcement by Lender of its rights under this Agreement or the other Credit Documents or any litigation among the parties relating to the Credit Documents or the transactions contemplated thereby; (�to comply with any Requirement of Law applicable to Lender; (g) to any Assignee Lender or Participant, or any prospective Assignee Lender or Participant; provided that such actual or prospective Assignee Lender or Participant, or any prospective Assignee Lender or Participant, (i) agrees to be bound by the provisions of (or provisions substantially similar to) this Section 8.10 and (ii) is not in the same line of business as Borrower; provided, however, that any disclosure made in violation of this Agreement sha11 not affect the obligations of Lender under this Agreement and the other Credit Documents.Notwithstanding the foregoing,Lender,Participant and their respective representatives shall provide Borrower written notice, to the extent legally permissible, of any disclosure pursuant to subsections (c), (d), andlor (fl and shall reasonably assist Borrower in seelcing a protective order or another appropriate remedy at the sole expense of Borrower. If Borrower fails to obtain (or determines not to seek)a protective order or other appropriate remedy,Lender,Participant and/or such representatives may, without liability hereunder, disclose all such confidential infonnation as it is legally compelled to disclose 8.11 Counter�arts. This Agreement may be executed in any number of identical counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a complete,executed original for all purposes. Transmission by facsiinile, "pdf' or similar electronic copy of an executed counterpart of this Agreement shall be cleeined to constitute due and sufficient delivery of such counterpart.Any party hereto may request an original counterpart of any party delivering such electronic counterpart. 8.12 Consent to Jurisdiction. Each of the parties to this Agreement irrevocably submits to the non-exclusive jurisdiction of the courts of the State of Iowa and the courts of the United States of America located in Iowa and agrees that any legal action, suit or proceeding arising out of or relating to this 75 Agreement or any of the other Credit Documents may be brought against such party in any such courts. Final judgment against any party in any such action, suit or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment, a certified or exemplified copy of which shall be conclusive evidence of the judgment, or in any other manner provided by law. Nothing in this Section 8.12 shall affect the right of any party to commence legal proceedings or otherwise slie any other party in any other appropriate jurisdiction, or concurrently in more than one jurisdiction, or to serve process, pleadings and other papers upon any other party in any inanner authorized by the laws of any such jurisdiction. Borrower agrees that process served either personally or by registered mail shall, to the extent permitted by law, constitutes adequate service of process in any such suit. Each of the parties to this Agreement irrevocably waives to the fiillest extent permitted by applicable Governmental Rules (a) any objection which it may have naw or in the future to the laying of the venue of any such action, suit or proceeding in any court referred to in the first sentence above; (b) any claim that any such action, suit or proceeding has been brought in an inconvenient forum; (c)its right of removal of any matter commenced by any other party in the courts of the State of Iowa to any court of the United States of America; (d) any immunity which it or its assets inay have in respect of its obligations under this Agreement or any other Credit Document from any suit, execution, attachment (whether provisional or final, in aid of execution, before judgment or otherwise) or other legal process; and (e) any right it may have to require the inoving party in any suit, action or proceeding brought in any of the courts referred to above arising out of or in connection with this Agreement or any other Credit Document to post security for the costs of any party or to post a bond or to take siinilar action. 8,13 Relationship of Parties. The relationship between Borrower, on the one hand, and Lender, on the other, is, and at all tiines shall remain, solely that of borrower and lender. Lender shall not under any circumstances be construed to be partners or joint venturers of Borrower or any of its AfFiliates; nor shall Lender under any circumstances be deemed to be in a relationship of confidence or tnist or a fiduciary relationship with Borrower or any of its Affiliates, or to owe any fiduciary duty to Borrower or any of its Affiliates. Lender does not undertake or assume any responsibility or duty to Borrower or any of its Affiliates to select, review, inspect, supervise, pass judgment upon or otherwise inform Borrower or any of its Affiliates of any matter in connection with its or their property, any security held by Lender or the operations of Borrower or any of its Affiliates. Borrower and each of its Affiliates shall rely entirely on their own judgment with respect to such matters, and any review, inspection, supervision, exercise of judgment or supply of information undertalcen or assumed by Lender in connection with such matters is solely for the protection of Lender and neither Borrower nor any of its Affiliates is entitled to rely thereon. 8.14 Time Is of the Essence. Time is of the essence as to each tenn or provision of this Agreement and each of the other Credit Documents. 8.15 Waiver of Punitive Damages. Notwithstanding anything to the contrary contained in this Agreement, each party hereby agrees that it shall not seek from the other party punitive, exemplary, indirect, special or consequential damages under any theory of liability; provided, however, that in no event shall reasonable attorneys' fees and expenses be considered punitive, exemplary, indirect, special or consequential damages for purposes of this Section. 8.16 USA PATRIOT Act. Lender hereby notifies Borrower that pursuant to the requireinents of the Patriot Act, it is required to obtain, verify and record information that identifies Borrower, which infonnation inchides the name and address of Borrower and other information that will allow Lender to identify Borrower in accordance with the Patriot Act. 76 8.17 Notice. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEASLE. NO OTHER TERMS OR ORAL PgtOMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. [Remc�inder of Page Intentionally Left Blnnlz, Signature Pctge Follows.J 77 IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to be eYecuted as of the day and year first above written. BORROW�R: DUBUQUG RACING ASSOCIATION,LTD., AN IOWA NON-PROI'[T CORPORATION By: Name: Alex Dixon Title: President and Chief Executive Off cer L�ND�R: MIDWESTONE BANI< B : l �+ ��%� ,�..___,. y � c,�%� Name: \lVayne Breckon Title: `�First Vice President and Regional Credit Officer Signata�re Pcrge to C��edit Ag��eemel�t SCHEDUL�I EXISTING CHANG�ORD�RS Schedicle I SCHEDUL�4.1(g) LITIGATION Schedule 4.1(g) SCHEDULE 4.1(h)(i) R�AL PROPERTY Lot 1 of CHAPLAIN SCHMITT ISLAND in the City of Dubuque, Iowa, according to the Plat recorded as Instrument#2023-7679,records of Dubuque County, Iowa. Lots 2 and 3 of CHAPLAIN SCHMITT ISLAND in the City of Dubuque, Iowa, according to the Plat recorded as Instrument#2023-7679,records of Dubuque County, Iowa. Schedule 4.1(h)(i) _ Sc��nuL� 4.1(lc) MULTI-EMPLOYER PLANS Schedzale 4,1(Iz) SC�IEDULE 4.1(0� SUBSIDIARIES Schedule 4.1(0) SCHEDUL�4.1(u) INSURANCE Schedule 4.1(u) SCH�DUL�4.1(V) AGREEM�NTS WITH AFFILIAT�S Schedule 4.1(v) SCH�DULE 4.1(aa) CLOSING DATE CONTRACTORS Schedule S.1(d) SCHEDULE 5.1(d) INSURANCE REQUI1t�M�NTS Scheclule S.1(d) SC�I�DULE 5.2(a) EXISTING INDEBT�DNESS Scheclule 5.2(a) SCH�DUL� 5.2(b) EXISTING LIENS Schedule 5.2(b) SCI3EDULE 5.2(e) INVESTM�NTS Schedule 5.2(e) EXHIBIT A SCHMITT ISLAND TERM LOAN NOTE Exhibit A EXHIBIT B PHASE I NOTE Exhibit B EXHIBIT C COMPLIANCE C�RTIFICAT� Exhibit C PHASE I NOTE $27,777,821.00 Date: October 20, 2023 FOR VALUE RECEIVED, DUBUQUE RACING ASSOCIATION,L`rD. ("Borrower"},hereby proinise to pay to MIDWESTONE BANK, its successors and assigns ("Lender"), the principal sum of TWENTY- SEVEN MILLION SEVEN HUNDRED SEVENTY-SEVEN THOUSAND EIGHT HUNDRED TWENTY-ONE DOLLARS AND 00/100 ($27,777,821.00) pursuant to that certain Credit Agreement, dated as of October 20, 2023,by and between Borrower and Lender(as amended,restated, supplemented or otherwise modified from time to time, the "Credit Agreement"), in the amounts and on such dates provided in the Credit Agreement; and to pay interest on said sum at the rates and on the dates provided in the Credit Agreement; provided that all principal and interest remaining unpaid shall be payable in fiill on the applicable Maturity Date as set forth in the Credit Agreement. Borrower shall make all payments hereunder to Lender as indicated in the Credit Agreement, in lawful money of the United States and in same day or immediately available funds. ' This Note is the Phase I Note referred to in the Credit Agreement. This Note is subject to the terms of the Credit Agreement, including the rights of prepayment and the rights of acceleration of maturity set forth therein, and is secured by the Security Documents. Terms used herein have the meanings assigned to those terms in the Credit Agreement, unless otherwise defined herein. The transfer, sale or assignment of any rights under or interest in this Note is subject to certain restrictions contained in the Credit Agreement, including Section 8.5 thereof. Borrower shall pay all fees and expenses,inchiding reasonable attorneys' fees,incurred by Lender in the enforcement or attempt to enforce Borrower's obligations hereunder not performed when due. Except as otherwise expressly provided in another Credit Document, Borrower hereby waives notice of presentment, demand,protest, or notice of any other kind. This Note shall be governed by and construed in accordance with the laws of the State of Iowa without reference to conflicts of law rules. [ResnaindeN of Page Inte�ctzor�ally Left Blank, Signature Pages FollowJ SIGNATURE PAG�TO PHAS� I NOT� Loa�i_No.�_.. -----.... _ ........ ___...... .... ..... . . ....... _.__..... ...... _. t° �� J 2 PRIOR TO SIGNING THIS PROMISSORY NOT�, BORROW�R READ AND UND�RSTOOD ALL TI3� PROVISIONS OF THIS PROMISSORY NOTE, INCLUDING THE APPLICABL� TERMS S�T FORTH IN THE CR�DIT AGREEMENT. BORROWER AGREES TO THE TERMS OF THE PROMISSORY NOTE. ; BORROWER ACKNOWL�DGES R�CEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE AND ALL OTHER DOCUM�NTS RELATING TO THIS D�BT. BORROWER: DUBUQUE RACING ASSOCIAT[ON LTD. By: Alex Dix n President and Chief Executive Officer i I i � I � I � ; ; � :l � i i I I i [Sig��atao�e Page to Pl�ase 1 NoteJ SIGNATURE PAGE TO PHASE I NOTE (Continued) Page � 3 LENDER: MIDWESTONE BANK ; By: � �/ T �L� Wayne " reckon First ce President and Regional Credit Officer i 1 I � f� I I i � � � .I � � I i � i � ; [SignatuYe Page to Phase I NoteJ SCHMITT ISLAND TERM LOAN NOTE � $1,939,375.09 Date: October 20, 2023 FOR VALUE RECEIVED, DUBUQUE RACING ASSOCIATION,LTD. ("Borrower"},hereby promise to pay to MIDWESTONE BANIC ("Lender"), the principal sum of ONE MILLION NINE HUNDRED THIRTY-N1NE THOUSAND THREE HUNDRED SEVENTY-FIVE DOLLARS AND 09/100 ($1,939,375.09} pursuant to that certain Credit Agreement, dated as of October 20, 2023, by and between Borrower and Lender (as amended, restated, supplemented or otherwise modified from time to time, the "Credit A�reement"), in the amounts and on such dates provided in the Credit Agreement; and to pay interest on said suin at the rates and on the dates provided in the Credit Agreement; provided that all principal and interest remaining unpaid shall be payable in full on the Schmitt Island Term Loan Maturity Date as set forth in the Credit Agreement. ° Borrower shall make all payments hereunder to Lender as indicated in the Credit Agreement, in lawful money of the United States and in same day or immediately available funds. This Note is the Schmitt Island Term Loan Note referred to in the Credit Agreement. This Note is subject to the terms of the Credit Agreement, including the rights of prepayment and the rights of . acceleration of maturity set forth therein, and is secured by the Security Documents. Terms used herein have the meanings assigned to those tenns in the Credit Agreement, unless otherwise defined herein. The transfer, sale or assignment of any rights under or interest in this Note is subject to certain ' restrictions contained in the Credit Agreement, including Section 8.5 thereof. Borrower shall pay all fees and expenses,including reasonable attorneys' fees,incurred by Lender in the enforcement or attempt to enforce Borrower's obligations hereunder not performed when due. Except as otherwise expressly provided in another Credit Document, Borrower hereby waives notice of presentment, demand,protest, or notice of any other kind. This Note shall be governed by and construed in accordance with the laws of the State of Iowa without reference to conflicts of law rules. [Reniainder of Page Intentionally Left Blank, Signatu�e Pages FollowJ SIGNATUR� PAGE TO SCHMITT ISLAND TERM LOAN NOTE Loan No. --_ __....--.... � � <� . _....... ____ ___ __ ....__.._.. - _ ...._._ . --- _. ----- ------------ ---- -------- -- . <�_cm7-- PRIOR TO SIGNING THIS PROMISSORY NOT�, BORROW�R READ AND UNDERSTOOD ALL TH� PROVISIONS OF THIS PROMISSORY NOTE, INCLUDING THE APPLICABLE TEI2MS SET FORTH IN TH� CREDIT AGI2��MENT. BORROWER AGREES 'I'O TH� TERMS OF THE PROMISSORY NOTE. ; BOI�ROWER ACKNOWLEDG�S REC�IPT OF A COMPLETED COPY OF THIS PROMISSORY NOT� AND ALL OTH�R DOCUMENTS It�LATING TO THIS DEBT. BORROWER: DUBUQUE RACING ASSOCIATION LTD. By: A ex Dixon President and Chief Executive Officer 1 � i I I � i ; � [Signattn°e page to Schmitt Islcn�d Te�•nt Loai�NoteJ SIGNATURE PAGE TO SCHMITT ISLAND TERM LOAN NOTE (Continued) 1' a �rt. � 3 LENDER: MIDWESTONE BANK ; By: � G� Wayne ckon First Vi e President and Regional Credit Officer �� i ; � i � [Szgnature page to Schnaittlslancl Term Loan NoteJ Borrower/Grantor: DUBUQUE RACING ASSOCIATION,LTD. Lender: MIDWESTONE SANK 1855 Greyhound Park Drive 895 Main Street ' Dubuque, Iowa 52001 Dubuque, Iowa 52001 {563) 585-3002 (563) 589-0828 SECURITY AGREEMENT ° THIS SECURITY AGREEMENT, dated as of October 20, 2023, is entered into by and between DuBuQuE ` RACING ASSOCIATION,L'rD., an Iowa nonprofit corporation(referred to interchangeably as the"Borrower"or the "Grantor"), and each of the other entities which from time to time becomes a party hereto pursuant to � Section 10.15 below and MIDWESTONE BANK(the "Lender"). RECITALS A. Concurrently herewith, Borrower is entering into a Credit Agreement, dated as of even date herewith(as the saine from time-to-time hereafter may be amended,restated,supplemented or otherwise modified from time to time, the "Credit Agreement"), among Borrower and Lender, pursuant to which Lender has agreed to extend loans and other financial accommodations to Borrower upon the terms and subject to the conditions set = forth therein. B. Lender's obligations to extend loans and other financial accommodations to Borrower under the Credit Agreenlent and the Related Documents are subject, among other conditions, to receipt by Lender of this � Security Agreement duly executed by Borrower. = AGREEMENT NOW,THEREFORE,in consideration of the above recitals and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Borrower hereby agrees with Lender, as follows: SECTION 1. I�efinitions �nd Interpretation. When used in this Security Agreement, the following ter�ns shall have the follawing respective meanings: "Account"means any"account," as such term is defined in Section 9-102(1)(b) of the UCC (or any other then applicable provision of the UCC) and, in any event, shall include, without limitation, all accounts - receivable, boolc debts and other forms of obligations (other than forms of obligations evidenced by _ Chattel Paper, Documents or Instruments) now owned or hereafter received or acquired by or belonging or owing to Borrower (including, without limitation, under any trade name, style or division thereo fl whether arising out of goods sold or services rendered by Borrower or from any other transaction,whether or not the same involves the sale of goods or services by Borrower (including, without limitation, any such obligation which may be characterized as an account or contract right under the UCC) and all of Borrower's rights in, to and under all purchase orders or receipts now owned or hereafter acquired by it for goods or services, and all of Borrower's rights to any goods represented by any of the foregoing (including, without limitation, unpaid seller's rights of rescission, replevin, reclamation and stoppage in transit and rights to returned, reclaimed or repossessed goods), and all monies due or to become due to Borrower under alI purchase orders and contracts for the sale of goods or the performance of services or both by Borrower (whether or not yet earned by performance on the part of Borrower or in connection with any other transaction), now in existence or hereafter occurring, including, without limitation, the right to receive the proceeds of said purchase orders and contracts, and all collateral security and guarantees of any kind given by any Person with respect to any of the foregoing. "Account Debtor"means any"account debtor," as such term is defined in Section 9-102(1)(c)of the UCC (or any other then applicable provision of the UCC). "Chattel Pa�er"means any"chattel paper,"as such term is defined in Section 9-102(1)(k) of the UCC (or SECURITY AGItEEMENT (Continued) Page �2 • _ ____ __ __ __ ___ ___ ___ __ ___ _ _ __ ____ _ _ any other then applicable provision of the UCC), including, without limitation, electronic chattel paper and tangible ch�ttel paper, in each case, now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest. "Collateral"has the meaning assigned to such term in Section 2 below. "Commercial Tort Claim" means any "cornmercial tort claim," as such term is defined in Section 9- i 102(1)(m) of the UCC (or any other then applicable provision of the UCC). "Commodity Account" means any "coinmodity account," as such term is defined in Section 9-102(1)(n) of the UCC (or any other then applicable provision of the UCC). "Commoditv Contract"means any"commodity contract," as such term is defined in Section 9-102(1)(0) of the UCC (or any other then applicable provision of the UCC). "Contracts" means all contracts, undertakings, franchise agreements, license agreements (except the Gaming License) or other agreements (but excluding rights evidenced by Chattel Paper, Documents or ° Instruments) in or under which Borrower may now or hereafter have any right, title or interest, including, - without limitation,with respect to an Account, any agreement relating to the terms af payment or the terms of performance thereof. "Co��ghts" means all of the following now owned or hereafter acquired by Barrower or in which : Borrower now halds or hereafter acquires any interest: (i) all copyrights, whether registered or � unregistered, held pursuant to the laws of the United States, any State thereof or af any other country; (ii) registrations, applications and recordings in the United States Copyright Office or in any similar office or agency of the United States, any state thereof or any other country; (iii) any continuations, renewals or extensions thereof; and(iv) any registrations to be issued in any pending applications. "Co�vri�ht License"means any written agreement granting any right to use any Capyright or Copyright ' registration now awned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest. "Deposit Account" means any "deposit account" as such term is defined in Section 9-102(1)(ac) of the UCC (or any other then applicable provision of the UCC), and should inchide, without limitation, any deinand, time, savings passbook or like account, now or hereafter maintained by or for the benefit of - Borrower, or in which Borrower now holds or hereafter acquires any interest, with a bank, savings and loan association, credit union or like organization (including Lender) and all funds and amounts therein, whether or not restricted or designated for a particular purpose. "Documents" means any "documents," as such term is defined in Section 9-102(1)(ad) of the UCC (or any other then applicable provision of the UCC), now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest. "Electronic Chattel Pa�er," means any "electronic chattel paper" as such term is defined in Section 9- 102(1)(ae) of the UCC (or any other then applicable provision of the UCC). "Equipinent"means any"equipment,"as such term is defined in Section 9-102(1){ag)of the UCC (or any other then applicable provision of the UCC),now or hereafter owned or acquired by Borrower or in which Borrower now holds or hereafter acquires any interest and, in any event, shall include,without limitation, all machinery, equipment, fixtures, gaming machines, casino chips, signage, change banks, change bins, slot machine bases, furniture, furnishings, trade fixtures, apparel, fittings, mainframe, personal and other ' computers, terminals and printers and related components and accessories, all copiers, telephonic, video, electronic data-processing, data storage equipment and other equipinent of any nature whatsoever, and SECURITY AGREEMENT (Continued) _ __ _ _ _ _ __ ___ P �� e �3 ' _ _ _ _ -__ _ __ . __ . _ __ any and all additions, substitutions and replacements of any of the foregoing, wherever located, together with all attaclunents, components, parts, equipment and accessories installed thereon or affixed thereto. "Excluded Assets"means: _ (a) any property owned by Borrower and any lease, license, contract, property rights or agreement to - which Borrower is a party, in each case, to the extent that(i) Borrower is prohibited from granting a security interest therein by any Requirement of Law of a Governmental Authority or any ' applicable term contained in such lease, license, contract, property rights ar agreement or (ii) the grant of a security interest therein would constitute a breach or default under, or result in the termination of, any such lease, license, contract, property rights or agreement (other than, in the case of {i} or (ii), to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of ' any relevant jurisdiction or any other applicable law (including any Debtor Relief Laws) or principles of equity); (b) any "intent to use" Trademark applications for which a statement of use has not been filed (but only until such statement is filed); (c) any assets that Borrower is unable to encumber with a lien as a result of the ter�ns or conditions of any franchise agreements or lease agreeinents to which Borrower is a party; and - (d) without limitation of any of the foregoing, all "Excluded Assets" as such term is defined in the Credit Agreement. "Financial Contract" As used herein "Financial Contract" shall mean (1) an agreement (including terms and conditions incarporated by reference therein) which is a rate swap agreement, basis swap, forward _ rate agreement, commodity swap, commodity option, equity or equity index swap, bond option, interest - rate option, foreign exchange agreement, rate cap agreement, rate floor agreement,rate collar agreement, currency swap agreement, cross-currency rate swap agreement, currency option, and other similar agreement(including any option to enter into any of the foregoing; (2) any coinbination of the foregoing; or (3) a master agreement for any of the foregoing together with all amendments and supplements. - "General Intan ig'ble" means any "general intangible," as such term is defined in Section 9-102(1)(ap) of the UCC (or any other then applicable provision of the UCC) and, in any event, shall include, without limitation, all right,title and interest which Borrower may now or hereafter have in or under any Contract, all customer lists, Copyrights, Trademarks, Patents and other Intellectual Property of any lcind or nature, including, without limitation, any rights to Intellectual Property, including, without limitation, under or pursuant to any License, all proprietary or confidential information, inventions (whether or not patented or patentable),interests in partnerships,joint ventures and other business associations,permits,books and records, goodwill(including, without limitation, the goodwill associated with any Trademark,Tradeinark registration or Trademark licensed under any Trademark License), claims in or under insurance policies, including unearned premiums, Payment Intangibles, Software, uncertificated securities, cash and other forms of money or currency, rights to sue for past, present and future infringement of Copyrights, Trademarlcs and Patents, rights to receive tax refunds, all agreements, obligations and liabilities owing to Borrower and alI callateral securing such agreements, obligations and liabilities, and other payments and rights of indemnification. "Instruments" means any "instrument," as such ter�n is defined in Section 9-102{1){au) of the UCC (or any other then applicable provision of the UCC), now owned or hereafter acquired by Borrower or in SECURITY AGItEEMENT (Continued) Page �4 � _ -_ __ __ _ _ _ _ ___ _ ___ _-- ___ __ ___. ___ _ __ _ which Borrower naw holds or hereafter acquires any interest, including, without limitation, all notes and all other evidences of indebtedness, other than instruinents that constitute, or are a part of a group of writings that constitute, Chattel Paper. "Intellectual Property"means all intellectual property of any kind or nature,including,without limitation, all Copyrights, Copyright Licenses, Trademarlcs, Trademark Licenses, Patents, Patent Licenses, trade secrets, mask warks, source codes, customer lists, proprietary or confidential information, inventions (whether or not patented or patentable), technical information, procedures, designs, knowledge, lcnow- how, software, data bases, data, skill, expertise, recipes, experience, processes, inodels, drawings, materials and recards. "Inventorv" ineans any "inventory," as such terin is defined in Section 9-102(1){av} of the UCC (or any other then applicable provision of the UCC), wherever located, now or hereafter owned or acquired by ' Borrower or in which Borrower now holds or hereafter acquires any interest, and, in any event, shall include,without limitation, all inventory,goods and other personal property which�re held by or on behalf of Borrower for sale or lease or are furnished or are to be furnished under a contract of service or which - constitute raw materials, work in process or materials used or consumed or to be used or consumed in ; Borrower's business, or the processing, packaging, promotion, delivery or shipping of the same, and all finished goods whether or not such inveiitory is listed on any schedules, assignments or reports furnished to Lender from tiine to time and whether or not the same is in transit or in the constructive, actual or exclusive occupancy or possession of Borrower or is held by Borrower or by others for Borrower's account, inchiding, without limitation, all goods covered by purchase orders and contracts with suppliers , and all goods billed and held by suppliers and all inventory of Borrower which may be located on the premises of Borrower or of any carriers, forwarding agents, truckers, warehousemen, vendors, selling agents or other persons. "Investment PropertX"means any"investment property," as such term is defined in Section 9-102(1)(aw) of the UCC (or any other then applicable provision of the UCC), now owned or hereafter acquired by ' Borrower or in which Borrower now holds or hereafter acquires any interest, and shall include, without limitation, all Securities Accounts, Commodity Accounts and Commodity Contracts and all certificated securities (including, without liinitation, those listed on Schedule I),uncertificated securities and security entitlements, as each such term is defined in the UCC. - "Letter-of-Credit Right"means "letter-of-credit right," as such term is defined in Section 9-102(1)(ay) of the UCC (or any other then applicable provision of the UCC). "License"means any Copyright License, Patent License, Trademarlc License or other license of rights or interests now held or hereafter acquired by or in which Borrower no� holds or hereafter acquires any interest and any renewals or extensions thereof. "Patent License"means any written agreement granting any right with respect to any invention on which a Patent is in existence now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest. "Patents"means all of the following now owned or hereafter acquired by Borrower ar in which Borrower - now holds or hereafter acquires any interest: (a) letters patent of, or rights correspanding thereto in, the United States or any other country, all registrations and recordings thereof, and all applications for letters patant of, or rights corresponding thereto in, the United States or any other country, inchiding, without limitation, registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other cauntry; (b) all reissues, ' SECURITY AGREEMENT ' (Continued) _ ___ _ _. _ _ P � ge �5 ; continuations, cantinuations-in-part or extensions thereof; (c) all petty patents, divisionals, and patents of addition; and (d} all patents to issue in any such applications. "Payment IntanglY}10"means "payment intangible," as such term is defined in Sectian 9-102(1)(bi) of the UCC (or any other then applicable provision of the UCC). "Pled�ed Collateral" means, collectively, the notes, the stocic, partnership interests, liinited liability company interests,and all other Equity Securities owned by Borrower, all certificates or other instruments . representing any of the foregoing, all security entitlements of Borrower in respect of any of the foregoing, all dividends,interest distributions,cash,warrants,rights,instruments and other property or Proceeds from . time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing. "Proceeds"means "proceeds," as such term is defined in Section 9-102(1)(bl) of the UCC (or any other then applicable provision of the UCC), and, in any event, shall include, without limitation, (a) any and all - Accounts, Chattel Paper,Instruments, cash or other forms of money or currency or other proceeds payable to Borrower from time to time in respect of the Collateral, (b) any and all proceeds of any insurance to the _ extent allowed under the DRA Leasehold Mortgage,indemnity,warranty or guaranty payable to Borrower from time to time with respect to any of the Collateral, (c) any and all payments(in any form whatsoever) made or due and payable to Borrower from time to time in connection with any requisition, confiscation, i condemnation, seizure or forfeiture of all or any part of the Collateral by any governmental authority (or ,- any Person acting under color of governmental authority), (d) any claiin of Borrower against third parties (i) for past,present or future infringeinent of any Copyright, Patent, Copyright License or Patent License or (ii) for past, present or future infringement or dilution of any Trademarlc or Trademarlc License or for injury to the goodwill associated with any Trademark, Trademarlc registration or Trademark licensed under any Trademark License,(e) all certificates,dividends, cash,Instruments and other property received i or distributed in respect of or in exchange for any Investment Property, and (� any and all other amounts from time to time paid or payable under or in connection with any of the Collateral; provided, however, that Proceeds shall not inchide the"proceeds", as such term is defined in Section 9-102(1)(bl) of the UCC (or any other then applicable provision of the UCC), of Excluded Assets. "Secured Obli atg ions" shall mean and include the Obligations (as defined in the Credit Agreeinent). "Securities Account"means "securities account," as such term is defined in Sectian 8-501(1) of the UCC (or any other then applicable provision of the UCC). "Securitv A�ree�nent"means this Security Agreement and all exhibits and schedules hereto, as the same may froin time to time be amended,modified, supplemented or restated. "Software"means "software," as such term is defined in Section 9-102(1)(bw) of the UCC (or any other then applicable provision of the UCC). "Supportin�Obli ag tion" means "supporting obligation," as such term is defined in Section 9-102(1)(by) ; of the UCC (or any other then applicable provision of the UCC). "Swap Indebtedness"means indebtedness,liabilities,fees,costs,assessments,or obligations,now existing - or hereafter arising, due or to become due, absolute or contingent, of the Borrower to the Lender under any Swap Transaction, Swap Transaction Documents, or Financial Contract. "Swap Transactions" as used herein, a "Swap" and/or "Swap Transaction" shall mean one or more agreements between the Borrower and Lender with respect to any interest rate swap, forward, future or : derivative transaction or option or similar agreement involving, or settled by reference to, one or more ' interest rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or '' SECURITY AGREEMENT (Continued) Page �6 • pricing indices or measures of economic, financial or pricing risk of value. "Swap Transaction Documents". as used herein, "Swap Transaction Documents" shall mean: any and all documents related to any Swap Transactions by and between the Borrower and Lender, including but not - limited to the following: 2002 Multicurrency-Cross Border version of the ISDA Master Agreeinent, the 3 Schedule to the Master Agreement, any Credit Support Annexes, any Swap Trade Confirmation, Rislc . Disclosure Statement, Eligible Contract Participant Verification Form, Financial Cantracts, and all such other related documents as Lender may require. All such Swap Transaction Documents shall be in form and content, and include such terms and conditions as reasonably required by Lender and/or its legal counsel. "Trademark License"means any written agreement granting any right to use any Trademarlc or Trademark registration now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter - acquires any interest. "Trademarlcs" means any of the following now owned or hereafter acquired by Borrower or in which ` Borrower now holds or hereafter acquires any interest: (a) any and all trademarks,trade naines, corporate names,business names,trade dress, service marks,logos,designs,and other source or business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of like nature, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and ; any applications in connection therewith, including, without limitation, registrations, recordings and applications in the United States Patent and Trademark Office or in any similar af�ce or agency of the United States, any State thereof or any other country or any political subdivision thereof and (b) any reissues, extensions or renewals thereof. "UCC"means the Uniform Commercial Code as the same may, from time to time,be in effect in the State - of Iowa;pNovided, however, in the event that,by reason of mandatory provisions af law, any or all of the creation or attachment,perfection or priority of Lender's security interest in any collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Iowa, the term "UCC" shall mean the Uniform Cominercial Code as in effect in such other jurisdiction for purposes of the _ provisions hereof relating to such creation or attachment, perfection of priority and for purposes of - definitions related to such provisions. Unless otherwise defined herein, all other capitalized terms used herein and defined in the Credit , Agreement shall have the respective meanings given to those terms in the Credit Agreement, and all terms defined in the UCC shall have the respective meanings given to those terms in the UCC. The rules of interpretation set forth in Article I of the Credit Agreement shall, to the extent not inconsistent with the terms of this Security Agreement, apply to this Security Agreement and are hereby incorporated by reference. SECTION 2. Grant of Securitv Interest. Borrower hereby assigns, conveys, mortgages, pledges, grants, hypothecates and transfers to Lender, for the benefit of Lender and participants, if any, as security for the full,prompt, complete and final payment when dLte(whether at stated maturity,by acceleration or otherwise) and - prompt performance and observance of all of the Secured Obligations of Borrower, and in order to induce Lender and the other participants, if any, to enter into the Credit Agreeinent and the Related Dacuments and to make loans and other financial accommodations available to and for the benefit of Borrower upon the terms and subject to the conditions thereof, a security interest in and to all of Borrower's right, title and interest in, to and under each of the following, whether now owned or hereafter acquired by Borrower or in which Borrower now holds or hereafter acquires any interest, in each case, to the extent located at or on, exclusively related to, and/or ' SECURITY AGREEMENT (Continued) Yage �7 • _ __ _ _ - — _ _ ____ __ ___ _ _ _ _ __ _ _ _ _._ _ generated exclusively in connection with Borrower's operations at or on the Casino Real Property (all of which being hereinafter collectively called the "Collateral"): (a) All Accounts; (b) All Chattel Paper; (c) All Commercial Tort Claiins; (d) All Contracts; � (e) All Deposit Accounts; (� AIi Documents; (g) All Equipment; . (h) All General Intangibles; (i) AllInstruments; - (j) AllInventory; (k) All Investment Property; (1) All Pledged Collateral; _ (m) All Letter-of-Credit Rights; (n) AIl Supporting Obligations; (o) All property of Borrower held by Lender or any lender party, or any other party for whom Lender or any lender party is acting as agent hereunder,including,without limitation,all property of every description now or hereafter in the possession or custody of or in transit to Lender, any lender party, or such other party, for any puipose, including, without limitation, safekeeping, collection or pledge, for the account of Borrower, or as to which Borrower may have any right or power; (p) AlI ather goods and personal property of Borrower whether tangible or intangible and = whether now or hereafter owned or existing,�leased, consigned by or to, or acquired by, Borrower and _ wherever located; and (q) To the extent not otherwise included, all Proceeds of each of the foregoing and all accessions to, substitutions and replacements for, and rents,profits and products of each of the foregoing; provided, howeveN, notwithstanding the foregoing or any other provision to the contrary contained in this Agreement or any other Credit Document, the Collateral shall not include, and this Agreement shall not ' constitute a grant of a security interest in or upon, any property constituting Excluded Assets. SECTION 3. Ri�hts of Lender; Collection of Accounts. (a) Lender shall not have any obligation or liability under any Contract by reason of or arising out of this Security Agreement or the granting to Lender of a security interest therein or the receipt by Lender of - any payment relating to any Contract pursuant hereto,nor shall Lender be required or obiigated in any manner to perform or fulfill any of the obligations of Borrower under or pursuant to any Contract, or to make any payment, or to make any inquiry as to the nature or the sufficiency of any payinent received by it or the sufficiency of any performance by any party under any Contract, or to present or file any claim, or to talce any action to collect or enforce any performance or the payinent of any amounts which may have been assigned ta it or to which it may be entitled at any time or times. SECURITY AGREEMENT (Continued) Page � 8 (b) Lender authorizes Borrower to collect the respective Accounts of Barrower,p�^ovzded,that Lender may, upon the occurrence and during the continuation of any Event of Default and without notice, limit or terminate said authority at any tiine. If required by Lender at any time after the occurrence and during the continuation of any Event of Default, any Proceeds, when first collected Uy Borrower, received in payment of such Account or in payment for any of its Inventory or on account of any of its Contracts shall be promptly deposited by Borrower in precisely the form received(with all necessary endorsements)in a special banlc account inaintained by Lender subject to withdrawal by Lender only, as hereinafter provided, and until so turned over . shall be deemed to be held in trust by Borrower for and as Lender's property, and shall not be commingled with Borrower's other funds or properties. Such Proceeds, when deposited, shall continue to be collateral security for � all of the Secured Obligations and shall not constitute payment thereof until applied as hereinafter provided.Upon the occurrence and during the continuation of any Event of Default, Lender may, in its soie discretion, apply all or a part of the funds on deposit in said special account to the principal of or interest on or both in respect of any of the Secured Obligations in accardance with the provisions of Section 7(h), below, and any part of such fiinds which Lender elects not to so apply and deems not required to be held by Lender as collateral security for the Secured Obligations sha11 be paid over from time to time by Lender to Borrower. If an Event of Default has - occurred and is continuing, at the request of Lender, Borrower shall deliver to Lender all original and other ;. docuinents evidencing, and relating to, the sale and delivery of such Inventory and Borrawer shall deliver all original and other documents evidencing and relating to, the performance of labor or service which created such , Accounts, including,withaut limitation, all original orders, invoices and shipping receipts. (c) Lender may at any time, upon the occurrence and during the continuation of any Event of � Default,without notice to or consent from Borrower,notify Account Debtors of Borrower,parties to the Contracts of Borrower, obligors in respect of Instniments of Borrower and obligors in respect of Chattel Paper of Borrower that the Accounts and the right, title and interest of Borrower in and under such Contracts, Instruments, and Chattel Paper have been assigned to Lender, and that payments shall be made directly to Lender. Upon the request of Lender, Borrower shall sa notify such Account Debtors, parties to such Contracts, obligars in respect of such - Instruments and obligors in respect of such Chattel Paper. Upon the occurrence and during the continuation of an E Event of Default, Lender may, in its naine, or in the name of others communicate with such Account Debtors, parties to such Contracts, obligors in respect of such Instruments and obligors in respect of such Chattel Paper to verify with such parties, to Lender's satisfaction, the existence, amount and terms af any such Accounts, , Contracts, Instruments or Chattel Paper. - SECTION 4. Representations and Warranties. Borrower hereby represents and warrants to Lender that: (a) Borrower is the sole legal and equitable owner of each itein of the Collateral in which it purports to grant a security interest hereunder, having good and merchantable title or rights thereto free and clear ; of any and all Liens, except for Permitted Liens or other Liens or restrictions allowed under the Credit Agreement. ; (b) No effective security agreement,financing statement,equivalent security or lien instrument or continuation statement covering all or any part of the Collateral exists, except such as may have been filed by Borrower in favor of Lender pursuant to this Security Agreement or such as relate to other Permitted Liens or other Liens or restrictions allowed under the Credit Agreement. (c) The execution and delivery of this Security Agreement creates a legal and valid security interest on and in all of the Collateral. Borrower will worlc with Lender to ensure all filings and other actions necessary or desirable to perfect and protect the security interest granted herein. Accordingly, Lender has a fully perfected first priority security interest in all of the Collateral in which Borrower now has rights subject only to Permitted Liens or other Liens or restrictions allowed under the Credit Agreement. This Security Agreement will SECURITY AGREEMENT (Continued) _ - -___ _._._ _. P �� e I 9 : _._ _ _ _ __ ____ ___ _ _ _ ___ - _ __ _ __ . _ _ _ _ _ _ ' create a legal and valid and fully perfected first priority security interest in the Collateral in which Borrower later acquires rights, when Borrawer acquires those rights, subject only to Permitted Liens. (d) Borrower's exact legal name is set forth on Schedule VI attached hereto or as otherwise set - forth in a written notice given to Lender pursuant to Section 5.14 below. Borrower was fonned under the laws of jurisdiction of its formation as set forth on Schedule VI attached hereto or as otherwise set forth in a written notice - given to Lender pursu�nt to Section 5.14 below. Borrower's chief executive office, principal place of business, and the place where Barrawer maintains records concerning the Collateral are set forth on Schedule VI attached j hereto or at such other lacation(s) set forth in a written notice given to Lender pursuant to this subsection (d). The Collateral, other than Deposit Accounts, Investment Property held in Securities Accounts or Commodity Accounts and Collateral in Lender's possession, is presently located at the location(s) set forth on Schedule VI attached hereto or at such other location(s) set forth in a written notice given to Lender pursuant to this subsection (d). Borrower shall not change such chief executive office or principal place of business or remove or cause to be removed, except in the ordinary course of Borrower's business and in connection with sales,transfers and dispositions permitted under Section 5.2(c) of the Credit Agreement,the Collateral or the records concerning the Collateral from those premises without prior written notice to Lender. � (e) Schedule I (as supplemented from time to time by Borrower in a supplement delivered pursuant to this subsection(e)) sets forth, as of the Closing Date and as of each date by which this subsection (e) requires any supplement ta be delivered by Borrower, all Collateral with respect to which a security interest may be perfected by the secured party's taking possession thereof, including, without limitation, all Chattel Paper, 1 Instruments and certificated securities. As of the Closing Date and as of each date by which this subsection (e) requires any supplement ta Schedule I to be delivered by Borrower, all action necessary ta protect and perfect such security interest in each item set forth on Schedule I (as supplemented from time to time by Borrower in a suppleinent delivered pursuant to this subsection (e)), including, without limitation, the delivery to Lender of all originals of all Chattel Paper, Instruments and certificated securities and all necessary stock powers, endorsements, assignments and other instruments of transfer,has been taken. Schedule II {as supplemented from tiine to time by Borrower in a supplement delivered pursuant to this subsection (e)) sets farth, as of the Closing I Date and as of each date by which this subsection (e) requires any supplement to be delivered by Borrower, all Letter-of-Credit Rights and Commercial Torts Claims of Borrower. The security interest of Lender in the = Collateral is prior in right and interest to all other liens, other than Permitted Liens or other Liens and restrictions allowed under the Credit Agreement, and is enforceable as such against creditors of and purchasers from Borrower. Borrower shail supplement Schedule I and Schedule II from time to time within twenty(20) Business Days after obtaining any additional Chattel Paper, Instruments, certificated securities, Letter-of-Credit Rights or Commercial Tort Claims, as applicable. (� Schedule III (as supplemented from time to time by Borrower in a supplement delivered ' pursuant to this subsection(fl) sets forth, as of the Closing Date and as of each date by which this subsection (fl ! requires any supplement to be delivered by Borrower, the names and addresses of all �nancial institutions at which Borrower maintains its Daposit Accounts and the account numbers and account names of such Deposit Accounts. Borrower sha11 supplement Schedule III from time to time within twenty (20) Business Days after opening any additional Deposit Account or closing or changing the account number or account name on any existing Deposit Account. (g) Schedule IV (as supplemented from time to time by Borrower in a supplement delivered pursuant to this subsection(�)) sets forth, as of the Closing Date and as of each date by which this subsection(g) : requires any supplement ta be delivered by Borrower, the names and addresses of all institutions at which Borrower inaintains its Securities Accounts and the account numbers and account names of such Securities Accounts. Borrower shall supplement Schedule IV from time to time within twenty{20} Business Days after SECURITY AGREEMENT (Contimied) Page � 10 • opening any additional Securities Account or closing or changing the account nuinber or account name on any existing Securities Account. � (h) Schedule V (as suppleinented from time to time by Borrower in a supplement delivered - pursuant to this subsection(h)) sets forth, as of the Closing Date and as of each date by which this subsection(h) requires any supplement ta be delivered by Borrower, the names and addresses of all institutions at which Borrower maintains its Cominodity Accounts and the account numbers and account names of such Commodity Accounts. Borrower shall supplement Schedule V from time to time within twenty{2Q} Business Days after opening any additional Commodity Account or closing or changing the account number or account name on any existing Commodity Account. (i) Ali Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarlcs Trademarlc Licenses which constitute Collateral, and applications and registrations owned, held or in which Borrower otherwise has any rights which constitute Collateral are listed on Schedule VII. Within thirty (30) Business Days after the filing of any application for a Patent,Trademark or Copyright or the issuance of any Patent or registration of any Trademark or any Copyright or any acquisition of any Patent, Trademark or Copyright (or application -- therefore) (i) Borrower shall amend Schedule VII to reflect any additions to or deletions from this list, and (ii) Borrower shall execute and deliver to Lender additional short form documentation in form and substance reasonably satisfactory to Lender to be filed in the United States Copyright Office or the United States Patent and Trademark Office as Lender may reasonably require from time to time. � (j) No Copyrights, Patents or Trademarks listed on Schedule VII which are of material value , or utility to Borrower has been adjudged invalid or unenforceable or have been canceled, in whole or in part, or � are not presently subsisting. (lc) None of the Patents,Trademarks or Copyrights has been licensed to any third party, except ' for Licenses issued in the ordinary course of Borrower's business to enable Borrower to conduct its business. (1) As of the Closing Date and as of each date by which Section 4(e)requires any supplement ' to Schedule I to be delivered by Borrower. As of the date of this Security Agreement, Barrower does not have Equity Security and so has not delivered to Lender any Equity Securities to Lender by Borrower under Section 2, as defined in Section 8-102(1)(a) of the UCC (or any other then applicable provision of the UCC). (m) No authorization, approval or other action by, and no notice to or filing with, any governmental authority or any other Person is required for the exercise by Lender of the voting or other rights provided for in this Security Agreement, except in connection with a disposition of the Investment Property as may be required by govermnental rules affecting the offering and sale of securities generally. (n) Borrower has delivered, if any, to Lender, together with all necessary stock powers, endorsements, assignments and other necessary instrl.nnents of transfer, the originals of all stock certificates, instri.iments,notes,other certificated securities,other Collateral and all certificates,instruinents and other writings evidencing the same,in each case relating to Equity Securities and Instruments required to be pledged hereunder. SECTION 5. Covenants. Borrower covenants and agrees with Lender that froin and after the date of this Security Agreement and until the Secltred Obligations have been completely and finally paid in full (other than contingent indemnification obligations): - 5.1 Further Assurances; Pled�e of Instruments. At any time and from time to time, upon the written request of Lender, and at the sole expense of Borrower, Borrower shall promptly and duly execute and deliver any and all such further instruments and documents and take such fiirther action as Lender may reasonably deem necessary to obtain the full benefits of this Security Agreement and of the rights and powers herein granted, including, without limitation, (a)using its best efforts to secure all cansents and approvals SECURITY AGREEMENT (Continued) Page � 11 necessary or appropriate far the grant of a security interest to Lender in any Contract held by Borrower or in which Borrower has any rights not heretofore assigned, (b) filing any financing statements, amendments or continuation stateinents under the UCC with respect to the security interests granted hereby, (c) filing or cooperating with Lender in filing any forms or other documents required to be filed with the United States Patent and Trademark Office, the United States Copyright Office or any filings in any foreign juriscliction or under any - international treaty, required to secure or protect Lender's interest in the Collateral, (d) transferring Collateral to � Lender's possession(if a security interest in such Collateral can be perfected and free from an adverse claim only " by possession), (e) filing fnancing statements as consignor pursuant to Section 9-505 of the UCC (or any other then applicable provision af the UCC) in such jurisdictions as Borrower maintains Inventory on consignment, (� using its best efforts to obtain waivers of liens from landlords and mortgagees as required pursuant to the Credit Agreement, (g)obtaining written acknowledgements from consignees, warehouse and other bailees of the prior lien of Lender in and to the Collateral and that such third party is holding possession of the Collateral for the benefit of Lender to the extent provided in sLtch written acicnowledgement, (h) executing supplements to this _ Security Agreement in form and substance satisfactory to Lender necessary to identify and grant to Lender a security interest in any Commercial Tort Claims acquired by Borrower, and (i) assisting Lender in obtaining -- control under the UCC with respect to any Collateral consisting of Deposit Accounts,Investinent Property,Letter- � of-Credit Rights and Electronic Chattel Paper. Borrower also hereby authorizes Lender, to the extent not ' prohibited by applicable law, to file any such financing statement, amendment or continuation statement (including consignment filings)without the signatures of Borrower. If any amount payable under or in connection I with any of the Collateral is or shall become evidenced by any Instrument, such Instrument, other than checks I and notes received in the ardinary course of Borrower's business, shall be duly endorsed in a manner satisfactory to Lender and delivered ta Lender promptly upon Borrower's receipt thereof. 5.2 Maintenance of l�ecords. Borrower shall keep and maintain at Borrawer's own cost and expense accurate and complete records of the Collateral, including, without limitation, a record of all payments '� received and all credits granted with respect to the Collateral and all other dealings with the Collateral. Borrower i- shall mark its boolcs and records pertaining to the Collateral to evidence this Security Agreement and the security interests granted hereby. If requested by Lender, all Chattel Paper shall be marlced with the following legend: "This writing and the obligations evidenced or secured hereby are subject to the security interest of MidWestOne Bank, as Lender, created by that certain Security Agreement, dated as of October 20, 2023, in favor of MidWestOne Bank, as Lender,as the same may thereafter from time to time be amended,modified,supplemented - or restated." 5.3 Indemnification. In any suit, proceeding or action brought by or a�gainst Lender or any � lender party relating to any Collateral, including, without limitation, any Account, Chattel Paper, Contract, General Intangible, Instruinent or pocument for any sum owing thereunder, or to enforce any provision of any Account, Chattel Paper, Contract, General Intangible, Instrument or pocument, Borrower shall jointly and severally save, indemnify and keep Lender harmless from and against all expense, loss or damage suffered by reason of any defense, setoff, counterclaim, recoupment or reduction of liability whatsoever of the obligor thereunder arising out of a breach by Borrower of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing to, or in favor of, such obligor or its successors from Borrower, except to the extent determined by a final, non-appealable judgment of a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of Lender, and all such obligations of Borrower shall be and remain enforceable against and only against Borrower and shall not be enforceable against Lender, 5.4 Compliance With Terms of Accounts, Ete. In all material respects, Borrower shall perform and coinply with all obligations in respect of Accounts, Chattel Paper, Contracts, Documents, Instruments and Licenses and all other agreements to which it is a party or by which it is bound; provided, SECURITY AGREEMENT (Continued) P �ge � 12 _ ___ _ __ ___-_ __ ___ __ . _ _ _ _ ___ __ __ _ __ _ _ _ ___ ___ however�, that Borrower may suspend its perfor�nance thereunder in the event of a material breach of any such obligations by third parties. 5.5 Limitation on Liens on Collateral. Borrower shall not create, permit or suffer to exist, and shall defend the Collateral against and take such other action as is necessary to remove, any lien on the Collateral, except the Permitted Liens or other Liens or restrictions allowed under the Credit Agreement. Borrower shall, jointly and severally, further defend the right, title and interest of Lender in and to any of Borrower's rights under the Chattel Paper, Contracts, Documents, General Intangibles, Instruments and Investment Property and ta the Equipment and Inventory and in and to the Proceeds thereof against the claiins and demands of all Persons whomsoever. 5.6 Limit�tions on Modifications of Accounts, Etc. Upon the occurrence and during the i continuation of any Event of Default, Borrower shall not, without Lender's prior written consent(which consent shall not be unreasonably withheld, conditioned or delayed), grant any extension of the time of payment of any of the Accounts, Chattel Paper, Instruments or amounts due under any Contract or pocuinent, comproinise, compound or settle the same for less than the full amount thereof, release, wholly or partly, any Person liable for - the payment thereof, or allow any credit or discount whatsoever thereon other than trade discounts and rebates granted in the ordinary course of Borrower's business. 5.7 Maintenance of Insurance.Borrower shall maintain,with financially sound and reputable companies, the insurance policies with coverage provisions as set forth in the Cr•edit Agreement. 5.8 Taxes, Assessments, Etc. Borrower shall pay promptly when due all property and other ' taxes, assessments and government charges or levies imposed upon, and all claims (including,without limitation, claims for labor, materials and supplies) against, the Equipment or Inventory, except ta the extent the validity � thereof is being contested in good faith and adequate reserves are being maintained in connection therewith. 5.9 Limitations on Disnosition. Borrower shall keep the Collateral separate and identifiable ° from other property located on the same premises as the Collateral and Borrower shall not sell, lease, license outside the ordinary course of its business, transfer or otherwise dispose of any of the Collateral, or attempt or contract to do so, except as perinitted by the Credit Agreement; provided, however, that the provisions of this - Section 5.9 shall not be deemed to require Borrower to establish separate deposit accounts into which Excluded - Assets cash or funds are deposited and maintained, it being expressly acknowledged and agreed by Lender that - such cash or funds may be maintained on deposit in Borrower's general operating accounts. I 5.10 Further ldentification of Collateral. Borrower shall, if so requested by Lender, furnish f to Lender,as often as Lender shall reasonably request,stateinents and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as Lender may reasonably request, all in i reasonable detail. � I 5.11 Notices. Borrower shall advise Lender promptly, in reasonable detail, of(a) any material Lien, other than Permitted Liens or other Liens or restrictions allowed under the Credit Agreement, attaching to or asserted against �.ny of the Collateral, (b) any material change in the composition of tlle Collateral and (c) the occurrence of any other event which is reasonably lilcely to have or result in a Material Adverse Effect with respect to the Collateral or on the security interest created hereunder. 5.12 Ri�ht of Inspection and Audit. Borrower shall permit Lender such rights of inspection and audit as provided in the Credit Agreement. 5.13 Maintenance of Faeilities. Borrower shall maintain and protect its properties, assets and facilities,including,without limitation,its Equipment in good order and worlcing repair and condition(taking into consideration ordinary wear and tear) and from time to time make or cause to be made all needful and proper SECURITY AGRE�MENT (Continued) Page � 13 repairs,renewals and replaceinents thereto and shall competently manage and care for its property in accordance with prudent industry practices. 5.14 Continuous Perfection.Sorrower shall not change its name,identity or corporate stnicture in any manner unless Borrower shall have given Lender at least thirty(30) days' prior written notice thereof and shall have taken all action (or inade arrangements to take such action substantially simultaneously with such change if it is impossible to talce such action in advance) necessary or reasonably requested by Lender to amend such financing statement or continuation statement so that it is not seriously misleading. 5.15 Intellectual Property.To the extent Borrower owns or licenses any Intellectual Property: (a) Borrower shall notify Lender promptly and not later than by the next calendar quarter if Borrower lcnows or has reason to know that any application or registration relating to any Copyright, Patent or ; Trademarlc may becoine abandoned, or of any adverse determination or development (including, without limitation, the institution of, or any such deter�nination or development in, any proceeding in the United States - Patent and Trademark Office, the United States Copyright Office, or any court)regarding Borrower's ownership ` or license of any Copyright, Patent or Trademark or the right of Borrower to register or keep and maintain the `- same. l (b) Borrower shall take all commercially reasonable steps to prevent any misuse,infringement, I invalidation,misappropriation,unauthorized use or abandonment of its Copyrights, Patents,Trademarks or other , Intellectual Property, whether owned or licensed. Borrower's efforts pursuant to this Sectian 5.15 shall inchide, but not be limited to: {i) establishing prudent security measures and procedures governing access to, and use of, property protected by such Copyrights, Trademarks or Patents or of Intellectual Property awned or licensed by Borrower or developed by any Person on behalf of Borrower; (ii) establishing and maintaining in force any agreements with emplayees and consultants or any written terms of einployment, as are customarily used in Borrower's industry for the protection of similar intellectual property; and (iii) vigorous enforcement of Borrower's rights in any Intellectual Property. � (c) If Barrower shall (a) obtain rights to any new patentable inventions, any registered Copyrights or any Patents ar Trademarks, or (b)become entitled to the benefit of any registered Copyrights or any Patents or Trademarlcs or any improveinent on any Patent, the provisions of this Security Agreeinent shall automatically apply thereto. Any expenses incurred in connection with Borrower's abligations under this - Section 5.15 shall be borne by Borrower. (d) In the event that any Copyright, Patent or Trademarlc is infringed, misappropriated or � diluted by a third party, Borrower shall notify Lender promptly after Borrower learns thereof but not later than the next calendar quarter and shall, unless Borrower shall reasonably deter�nine that such Copyright, Patent or Trademark is not material,promptly sue for infringement, misappropriation or dihition�nd to recover any and all damages for such infringement, misappropriation or dilution and take such actions as Borrower shall reasonably � deem appropriate under the circumstances to protect such Copyright, Patent or Trademark. 5.16 Au�horizations with Respect to Financing Statements, Etc. Borrower hereby irrevocably authorizes Lender at any time and from time to time to file in any filing office in any UCC jurisdiction any initial financing statements and amendments thereto that (i) indicate the Collateral (a) as "all assets" of �_ Borrower or words of similar effect, regardless of whether any particular asset coinprised in the Collateral falls ; within the scope of Article 9 of the UCC of such jttrisdiction, or (b) as being of an equal ar lesser scope or with greater detail, and (ii) contain any other information required by part 5 of Article 9 of the UCC for the sufficiency : or filing office acceptance of any financing statement or amendinent, inchiding, without limitation, (a) whether Borrower is an organizatian, the type of organization and any organization identification number issued to Borrower, and (b) in the case of a financing statement filed as a fixture filing or indicating any Collateral as as- SECURITY AGREEMENT (Continued) Page � 14 _ _ . _ _ __ _ ___ __ _ _ _ ___ - __ __ __ _ _ _ ___ . _ __ _ extracted collateral or timber to be cut, a sufficient description of the real property to which such Collateral relates. Borrower agrees to proinptly furnish any such information that Lender may reasonably request. Borrower also � ratifies its authorization far Lender to have filed in any UCC jurisdiction any initial financing statements or � amendments thereto if filed prior to the date hereof. 5.17 Na Reincorporation. Borrower shall not reincorporate or reorganize itself under the laws ; of any jurisdiction other than the jurisdiction in which it is incorporated or organized as of the date hereof without the prior written consent of Lender. 5.18 Terminations and Amendments Not Authorized. Borrower acicnowledges that it is not authorized to file any amend�nent or termination statement with respect to any financing statement relating to any ; security interest granted hereunder without the prior written consent of Lender and agrees that it will not do so without the prior written consent of Lender, subject to Borrower's rights under Section 9-509(4)(b) of the UCC ; (or any other then applicable provision of the UCC). 5.19 Pledged Collateral. ; (a) Upon Lender's request, Borrower shall deliver to Lender all certificates or Instruments � representing or evidencing any Pledged Collateral, whether now existing or hereafter acquired, in suitable form for transfer by delivery or, as applicable, accompanied by Borrower's endorsement, where necessary, or duly � executed instruments of transfer or assigmnent in blanlc, all in form and substance satisfactory to Lender. Lender ! shall have the right, at any tiine in its discretion and after an Event of Default without prior notice to Borrower, to transfer to or to register in its naine or in the name of its noininees any or all of the Pledged Collateral. Lender shall have the right at any time to exchange certificates or instruments representing or evidencing any of the Pledged Collateral for certificates or instri.iments of smaller or larger denominations. , (b) Except as provided in Section 7, Borrower shall be entitled to receive all cash dividends i and cash distributions paid in respect of the Pledged Collateral to the extent permitted to be paid by the Credit Agreement (other than liquidating or distributing dividends or distributions) with respect to the Pledged Collateral. Any sums paid upon or in respect of any of the Pledged Collateral upon the liquidation or dissolution of any issuer of any of the Pledged Collateral, any distribution of capital made on or in respect of any of the Pledged Collateral or any property distributed upon or with respect to any of the Pledged Collateral pursuant to - the recapitalization or reclassification of the capital of any issuer of Pledged Collater�l or pursuant to the - reorganization thereof sha11, unless otherwise subject to a perfected security interest in favor of Lender, be delivered to Lender to be held by it hereunder as additional collateral security for the Secured Obligations of : Borrower. If any sums of money or property so paid or distributed pursuant to the immediately preceding sentence in respect of any of the Pledged Collateral shall be received by Borrower, Borrower shall, until such money or property is paid or delivered to Lender, hold such money or property in trust for Lender, segregated from other funds of Borrower, as additional security for the Secured Obligations of Borrower. i (c) Except as provided in Section 7, Borrower will be entitled to exercise all voting, consent and corporate rights with respect to the Pledged Collateral;pNovicled, howeve�, that no vote shall be cast, consent given or right exercised or other action taken by Borrower which would (i)be inconsistent with or result in any violation of any provision af the Credit Agreement,this Security Agreement, any other Credit Document or would adversely affect Lender's Lien on such Pledged Collateral or its remedies with respect thereto or(ii) without prior - notice to Lender,permit any issuer of Pledged Collateral to issue any stock or other equity securities of any nature or to issue any other securities convertible into or granting the right to purchase or exchange for any stock or other equity securities of any nature of any issuer of Pledged Collateral. (d) Barrawer shall not grant "Control" (within the meaning of such term under Section 9-106 of the UCC) over any Investment Property to any Person other than Lender. SECURITY AGREEMENT (Continued) P �ge � 15 (e) Borrower shall not agree to any provision in, or amendment of, a limited liability company agreement or partnership agreement that adversely affects the perfection of the security interest of Lender in any pledged partnership interests or pledged limited liability company interests pledged by Borrower hereunder, inchiding electing to treat the membership interest or partnership interest of Borrower as a security under j Section 8-103 of the UCC. � SECTION 6. Lender's Appointment as Attorney-in-Fact. � (a) Subject to Section 6(bl below, Sorrower hereby irrevocably canstitutes and appoints Lender, and any officer or agent thereof, with fu11 power of substitution, as its true and lawful attorney-in-fact � with full irrevocable power and authority in the place and stead of Borrower and in the name of Borrower or in its own name, froin time to time at Lender's discretion, for the purpose of carrying out the terms of this Security Agreement,to take all appropriate action and to execute and deliver any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Security Agreement and, without limiting the generality of the foregoing, hereby gives Lender the power and right, on behalf of Borrower,without notice to or ° assent by Borrower to do the following: - (i) to ask, demand, collect, receive and give acquittances and receipts for any and all I monies due or to become due under any Collateral and, in the name of Borrower,in its own name or otherwise to ' take possession of, endorse and collect any checks,drafts,notes, acceptances or other Instruments for the payment of monies due under any Collateral and to file any claim or to talce or commence any other action or proceeding in any court of law or equity ar otherwise deemed appropriate by Lender for the purpose af collecting any and all such monies due under any Collateral whenever payable; . {ii) to pay or discharge any liens, including, without limitation, any tax lien, levied or placed on or threatened against the Collateral, to effect any repairs or any insurance called for by the terms of this � Security Agreement and to pay all or any part of the premiums therefor and the costs thereof,which actions shall i be for the benefit of Lender and not Bonower; - (iii) to (1) direct any person liable for any payment under or in respect of any of the Collateral to malce payment of any and all monies due or to become due thereunder directly to Lender or as Lender - shall direct, (2) receive payment of any and all monies, claims and other amounts due or to become due at any - time arising out of or in respect of any Collateral, (3) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against Borrower, assignments, verifications and notices in connection with Accounts and other Instruments and Documents constituting or relating to the Collateral, (4) coinmence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any part thereof and to enforce any other right in respect of any Collateral, (5) defend any suit, action or proceeding brought against Borrower with respect to any Collateral, (6) settle, compromise or adjust any suit, action or proceeding described above and, in connection therewith, give such discharges or releases as Lender may deem appropriate, (7) license or, to the extent per�nitted by an applicable license, sublicense, whether general, special or otherwise, and whether on an exchisive or non-exclusive basis, any Patent or Trademark throughout the world for such term or terms, on such conditions and in such inanner as Lender shall in its discretion determine and (8) sell, transfer, pledge, make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though Lender vc�ere the absolute owner - thereof for a11 purposes, and to do, at Lender's option and Borrower's expense, at any time, or from time to time, all acts and things which Lender may deem necessary to protect, preserve or realize upon the Collateral and Lender's security interest therein in order to effect the intent of this Security Agreement,all as fully and effectively as Borrower might do; and SECURITY AGREEMENT (Contimied) Page � 16 _ _ __ __ _ _ ___ __ _ ___ __ __ _ __ _ _ _ ___ _ _ __ (iv) to execute and deliver any and all such further insh�uments and documents and take such further action that are required of Borrower by Section 5.1 above. (b) Lender agrees that, except upon the occurrence and during the continuation of an Event of Default, it shall not exercise the power of attorney or any rights granted to Lender pursuant to this Section 6. - Borrower hereby ratifies,to the extent not prohibited by applicable law, all that said attarney shall lawfully do or cause to be done by virtue hereof. The power of attorney granted pursuant to this Sectian 6 is a power coupled with an interest and sha1l be irrevocable until the Secured Obligations are completely paid and performed in full or this Security Agreement is terminated and the security interests created hereby are released. (c) The powers conferred on Lender hereunder are solely to protect Lender's interests in the Collateral and shall not impose any duty upon Lender to exercise any such powers. Lender shall have no duty as to any Collateral, including any responsibility for (i)taking any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral, or (ii) ascertaining or talcing action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Investment Property, whether or not Lender has or is deemed to have knowledge of such matters. Without limiting the generality of the preceding - sentence, Lender shall be deemed to have exercised reasonable care in the custody and preservation of any of the i Collateral if it takes such action for that purpose as Borrower reasonably requests in writing at times other than I upon the occurrence and during the continuance of any Event of Default. F�ilure of Lender to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care. Lender shall be accountable only for ainaunts that it actually receives as a result of the exercise of such powers and neither it nor any of its officers, directors, employees, agents or representatives shall be responsible to Barrower for any act or failure to act, except for its own gross negligence or willful misconduct as determined by a final, non-appealable judgment of a court of competent jurisdiction. (d) Borrower also authorizes Lender, at any time and from time to time upon the occurrence � and during the continuation of any Event of Default, to (i) communicate in its own name with any party to any Contract with regard ta the assignment of the right, title and interest of Borrower in and under the Contracts : hereunder and other matters relating thereto and (ii) execute, in connection with the sale of Collateral provided for in Section 7, below, any endorsements, assignments or other instruments of conveyance or tralisfer with respect to the Collateral. _ (e) If Borrower fails to perform or comply with any of its agreements contained herein and Lender, as provided for by the terms of this Security Agreement, shall perform or comply, or otherwise cause performance or compliance, with such agreement, the costs and expenses, including, without limitation, reasonable attorneys' fees and costs, of Lender incurred in connection with such performance or compliance, together with interest thereon at a per annum rate equal to the Default Rate shall be payable by Borrower to Lender promptly following demand and shall constitute Secured Obligations secured hereby. � I Borrower hereby ratifies all that Lender as its attorney-in-fact shall do or cause to be done by virtue of this Security Agreement. In furtherance of the powers granted in this Section 6, Borrower shall execute and deliver to Lender a Special Power of Attorney in the form of Attachment 1 hereto;provided,however,that Lender expressly acknowledges and agrees that it shall not be entitled to utilize, act under or pursuant to, or present such Special Power of Attorney to any other person unless an Event of Default has occurred and is continuing. SECTION 7. Ri�hts and Remedies Upon Default. (a) If any Event of Default shall occur and be continuing, Lender may exercise, in addition to all other rights and reinedies granted to it under this Security Agreement,the Credit Agreeinent, the other Related Docuinents and under any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under applicable law, inchiding, without limitation, the SECURITY AGREEMENT (Continued) P1ge � 17 • _ ___ ___ _ _._ ___ _ _ _ _ _ ___ _- -- __ _ _ _ __ _ __ _ UCC. Without limiting the generality of the foregoing, Borrower expressly agrees that in any such event Lender, without demand of performance or other demand, advertisement or notice of any kind(except the notice specified below of time and place af public or private sale) to or upon Borrower or any other person{all and each of which demands, advertisements and notices are hereby expressly waived to the maximum extent not prohibited by the UCC and other applicable law), shall have the right to collect the Proceeds from all Collateral(including,without limitation, dividends or distributions on Pledged Collateral) and may(i)reclaim, take passession, recover, store, maintain, finish, repair, prepare for sale or lease, ship, advertise for sale or lease and sell or lease (in the manner provided for herein) the Collateral, and in connection with liquidation of the Collateral and collection of the accounts receivable pledged as Collateral,use any trademarlc, trade name, trade style, copyright, ar process used or owned by Borrower; (ii} forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, and may forthwith sell, lease, assign, give an option or options to purchase or sell or otherwise dispose of and deliver said Collateral (or contract to do so), or any part thereof,in one or more parcels at public or private ' sale or sales, at any exchange or broker's board or at any of Lender's offices or elsewhere at such prices as it may deem best, for cash or on credit or for future delivery without assltmption of any credit risk and (iii) to the ; exclusion of Borrower, exercise (a) all voting, consent, corporate and other rights pertaining to the Pledged - Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and(b) any and all rights of conversion, exchange and subscription and any other rights, privileges or options pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right ta exchange at its discretion any and all of the Pledged Collateral upon the merger, ; consolidation,reorganizatian,recapitalization or other fundamental change in the corporate structure of any issuer i of securities pledged hereunder, the right to deposit and deliver any and all of the Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as Lender may determine), all without liability except to account for property actually received by it, but Lender shall have no duty to Barrower to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing. Borrower authorizes Lender, on the terms set forth in this Section 7, to enter - the premises where the Collateral is located, to talce possession of the Collateral, or any part of it, and to pay, purchase, contest, or compromise any encumbrance, charge, or lien which, in the opinion of Lender, appears to be prior or superior to i#s security interest. Lender shall have the right upon any such public sale or sales, and, to the extent not prohibited by applicable law,upon any such private sale or sales,to purchase the whole or any part ` of said Collateral so sold,free of any right or equity of redemption, which equity of redemption Borrower hereby - releases. Lender may sell the Collateral without giving any warranties as to the Collateral and inay specifically disclaim any warranties of title, which procedures shall not be considered to adversely affect the commercial � reasonableness of any sale of the Collateral. Borrower further agrees, at Lender's request, to asseinble the Collateral and make it available to Lender at places which Lender shall reasonably select,whether at Borrower's premises or elsewhere. Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale as provided in Section 7(h), below, and Borrower shall remain liable for any ; deficiency remaining unpaid after such application, and only after so paying over such net proceeds and after the payment by Lender of any other amount required by any provision of law,including,without limitation, Section 9- 608(1)(a)(3)of the UCC(or any other then applicable provision of the UCC),need Lender account for the surplus, if any, to Borrower. To the maximum extent not prohibited by applicable law, Borrower waives all claims, dainages, and demands against Lender arising out of the re�ossession, retention or sale of the Collateral except such as are determined by a final, non-appealable judgment of a court of competent jurisdiction to arise out of the ' gross negligence or willfiil misconduct of Lender. Borrower agrees that Lender need not give more than ten(10) ; days' prior written notice(which notification shall be deemed given in accordance with the Credit Agreement) of the time and place of any public sale or of the time after which a private sale may talce place and that such notice ' is reasonable notification af such matters. Borrower shall remain liable for any deficiency if the proceeds of any sale or disposition of the Callateral are insufficient to pay all amounts to which Lender and participants, if any, ' SECURITY AGREEMENT (Contimied) Page � 18 • are entitled, and Borrower shall also be liable for attorneys' fees or costs of any attorneys employed by Lender to collect such deficiency. (b) As to any Collateral constituting certificated securities or uncertificated securities, if, at any time when Lender shall determine to exercise its right to sell the whole or any part of such Collateral, such Collateral or the part thereof to be sold shall not, for any reason whatsoever, be effectively registered under Securities Act of 1933, as amended (as so ainended the "Act"), Lender may, in its discretion (subject only to applicable requirements of law), sell such Collateral or part thereof by private sale in such manner and under such circumstances as Lender may deem necessary or advisable, but subject to the other requirements of this Section 7(b), and shall not be required to effect such registration or cause the saine to be effected.Without limiting the generality of the foregoing, in any such event Lender may, in its sole discretion, {i} in accordance with applicable securities laws,proceed to make such private sale notwithstanding that a registration statement for the purpose of registering such Collateral or part thereof could be or shall have been filed under the Act; (ii) approach and negotiate with a single possible purchaser to effect such sale; and (iii)restrict such sale to a purchaser who ` will represent and agree that such purchaser is purchasing for its own account,for investment, and not with a view to the distribution or sale of such Collateral or part thereof. In addition to a private sale as provided above in this Section 7(b), if any of such Collateral shall not be freely distributable to the public without registration under the � Act at the time of any proposed sale hereunder, then Lender shall not be required to effect such registration or cause the same to be effec�ed but may, in its sole discretion (subject only to applicable requirements of law), require that any sale hereunder (including, without limitation, a sale at auction) be canducted subject to such { restrictions as Lender may, in its sole discretion, deem necessary or appropriate in arder that such sale (notwithstanding any failure so to register) may be effected in compliance with the Bankruptcy Code and other laws affecting the enforcement of creditors' rights and the Act and all applicable state securities laws. (c) In arder to permit Lender to exercise the voting and other consensual rights which it may be entitled to exercise pursuant to this Security Agreement with respect to the Pledged Collateral and to receive _ all dividends and other distributions which it may be entitled to receive under this Security Agreeinent with respect to the Pledged Collateral, (i)Borrower shall promptly execute and deliver (or cause to be executed and delivered) to Lender all such proxies, dividend payment orders and other instruments as Lender may from time = to time reasonably request and (ii) without limiting the effect of clause (i) above, Borrower hereby grants to = Lender an irrevocable proxy to vote all or any part of the Pledged Collateral held by Borrower and to exercise all other rights, powers, privileges and remedies to which a holder of such Pledged Collateral would be entitled (including giving or witl�Iiolding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders,partners or members, as the case may be, and voting at such meetings), which proxy shall be effective automatically and without the necessity of any action (including any transfer of such Pledged Collateral on the record books of the issuer thereo� by any other Person (including the issuer of such Pledged Collater�l or any officer or agent thereo� during each period of time that an Event of Default has occurred and is continuing. Borrower hereby expressly authorizes and instructs each issuer of any Pledged Collateral pledged hereunder by Borrower to(i) comply with any instruction received by it from Lender in writing : that(a) states that an Event of Default has occurred and is continuing and (b) is otherwise in accordance with the terms of this Security Agreement, without any other or further instructions from Borrower, and Borrower agrees that such issuer shall be fully protected in so coinplying, and (ii)unless otherwise expressly permitted hereby, _ pay any dividends or other payments with respect to the Pledged Collateral directly to Lender in compliance with any such instructions. (d) Borrawer agrees that in any sale of any of such Collateral, whether at a foreclosure sale or otherwise, Lender is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be advised by counsel is necessary in order to avoid any violation of applicable law(including, without limitation, compliance with such procedures as may restrict the mimber of prospective bidders and purchasers, SECURITY AG1tEEMENT (Continued) P1ge � 19 _ __ _ _ _ -- _ _ _.._ _ _._ _. _ _ __ ._ _ __ _ ____ _._ � require that such prospective bidders and purchasers have certain qualifications and restrict such prospective bidders and purchasers to persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental authority, and Borrower further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially - reasonable manner,nor shall Lender be liable nor accountable to Borrower for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restrictian. (e) Borrower also agrees to pay all fees, costs and expenses of Lender, including, without limitation, attorneys' fees and costs,incur�ed in connection with the enforcement of any of its rights and rernedies � hereunder. Upon Lender's request, Borrower agrees to promptly execute such assignments with respect to Borrower's right, title and interest in and to each of the Patents, Trademarlcs, Copyrights and Licenses as Lender shall require to the extent allowed by any franchise agreement entered into by Borrower. Such assignments shall be in form and content which is recordable in the United States Patent and Trademark Office or Copyright Office, =- as applicable, and othert�vise reasonably acceptable to Lender. ; i (� Borrower hereby waives presentinent, demand, protest or any notice (to the maximum I extent not prohibited by applicable law) of any kind in connection with this Security Agreement or any Collateral. : (g) Borrower agrees that a breach by Borrower of any covenants contained in this Section 7 - will cause irreparable injury to Lender, that in such event Lender and would have no adequate remedy at law in respect of such breach and,as a consequence, agrees that in such event each and every covenant contained in this Section 7 shall be specifically enforceable against Borrower, and Borrower hereby waives and agrees not to assert � any defenses against an action for specific performance of such covenants except for a defense that the Secured Obligations are not then due and payable. (h) The proceeds of any sale, disposition or other realization upon all or any part of the Collateral shall be distributed by Lender as set forth in the Credit Agreement. (i) For the purpose of enabling Lender to exercise rights and remedies under this Section 7 at such time as Lender shall be lawfully entitled to exercise such rights and reinedies, Borrawer hereby grants to Lender a nonexclusive license(exercisable without payment of royalty or other compensation to Borrower during - the existence of an Event of Default)to use,license or sublicense any of the Collateral (as defined herein), subject ; to any restrictions now owned or hereafter acquired by Borrower, and wherever the same may be located, and ' including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all coinputer software and programs used for the compilation or printout thereof,except to the extent that such license may not be granted as a result of an exclusive license arrangeinent. The use of such license by Lender shall be exercised, at the option of Lender, after the occurrence and during the continuation of an Event of Default; provided that any license or sublicense entered into by Lender with a Person other than a participant in accordance herewith shall be binding upon Borrower notwithstanding any subsequent cure of an Event of Default. SECTION 8. Limitation on Lender's Dutv in Respect of Collateral. Lender shall be deemed to have _ acted reasonably in the custody, preservation and disposition of any of the Collateral if it complies with (a) the obligations of a secured party under Section 9-207 of the UCC (or any other then applicable provision of the UCC) and (b) applicable Gaming Laws. SECTION 9. Reinstatement.This Security Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against Borrower for liquidation or reorganization, should SECURITY AGREEMENT (Coutinued) P1ge �20 ___ __ __-_ ____ _ _ __ _ _ _ _ ___ _ _ __ __ __ ___ _ Borrower become insolvent or malce an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of Borrower's property and assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Secured Obligations, or any part thereof, is,pursuant to applicable law, rescinded or redticed in amount, or must otherwise be restored or returned by any obligee of the Secured Obligations, whether as a "voidable preference," "fraudulent conveyance," or otherwise, all as though such payment or perfonnance had not been made. In the event that any payment, or any I part thereof, is rescinded, reduced, restored or returned, the Secured Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced,restored or returned. SECTION 10. Miscellaneous. 10.1 Notices. Except as otherwise specified herein, all notices, requests, demands, consents, instructions or other communications to or upon Borrower(which shall be sent care of Borrawer)or Lender under this Security Agreement shall be given as provided in the Credit Agreement. 10.2 Partial Invaliditv. If at any time any provision of this Security Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or - enforceability of the remaining provisions of this Security Agreement nor the legality, validity or enforceability j of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. � 10.3 Headin�s. The Section headings and captions appearing in this Security Agreement are included solely for convenience of reference and are not intended to affect the interpretatian of any provision of - this Security Agreement. 10.4 No Waiver; Cumulative Remedies. �� (a) Lender shall not by any act, delay, omission or otherwise be deemed to have waived any of its rights or remedies hereunder or under the Credit Agreement or the other Related Dactiments, nor shall any single or partial exercise of any right or remedy hereunder or thereunder on any one or more occasions preclude the further exercise thereof or the exercise of any other right or remedy under any of the Related Documents. - (b) The rights and remedies hereunder provided or provided under the Credit Agreement or ° the other Related Documents are cumulative and may be exercised singly or concurrently, and are not exclusive of any rights and remedies provided by law or by any of the other Related Documents. - (c) None of the terms or provisions of this Security Agreement may be waived, altered, modified or amended except by an instrument in writing, duly executed by Borrower and Lender. Unless ' otherwise specified in any such waiver or consent, a waiver or consent given hereunder shall be effective only in the specific instance and for the specific purpose for which given. : 10.5 Time is of the Essence. Time is of the essence for the perfonnance of each of the terms and provisions of this Security Agreement. 10.6 Termination of this Securitv A�reement. Subject to Section 9, above, this Security Agreement shall terminate u�on the satisfaction of all of the following conditions: (a) the fiill, complete and final payment of the Secured Obligations (other than contingent indemnification obligations), and (b) the terinination of the commitments under the Related Documents. 10.7 Sueeessors and Assigns. This Security Agreement and all abligations of Borrower � hereunder shall be binding upon the successors and assigns of Borrower, and shall, together with the rights and remedies of Lender hereunder,inure to the benefit of Lender and the other participants,if any,and their respective successors and assigns, except that Borrower may not assign or transfer any of its rights or abligations hereunder unless expressly permitted by the Credit Agreement.No sales of participations, other sales, assignments,transfers SECURITY AGREEMENT (Continued) Page �21 or other dispositions of any agreement governing or instruinent evidencing the Secured Obiigations or any portion thereof or interest therein shall in any manner affect the security interest created herein and granted to Lender - hereunder. Any assignment or transfer in violation of the foregoing shall be null and void. 10.8 Further Indemnification. Borrower agrees to pay, and to save Lender harinless from, any _ and all liabilities with respect to, or resulting from any delay in paying, any and all excise, sales or other similar taxes which may be payable or detennined to be payable with respect to any of the Collateral or in connection with any of the transactians contemplated by this Security Agreeinent. � 10.9 Amendments, Etc. Lender and Borrower hereby acicnowledge and agree that the waiver, amendment and other provisions in the Credit Agreement apply to this Security Agreement as to Boi�rower and are incorporated herein as though set forth in fu1L 10.10 EN�'IRE AGREEMENT. THIS SECURITY AGREEMENT AND THE OTHER RELATED DOCUMENTS REPRESENT THE COMPLETE AND FINAL AGREEMENT AMONG THE BORROWER AND THE LENDER,AND SUPERSEDE ALL PRIOR AGREEMENTS,WRITTEN OR ORAL, ON THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR AMONG THE BORROWER AND THE LENDER. 10.11 Gaverning Law. This Security Agreement shall be governed by, construed and enforced in accordance with the internal law of the State of Iowa(including the Gaming Laws,insofar as they are applicable to the rights and obligations of the parties hereunder)without reference to conflicts of law rules except that matters concerning the validity and perfection of a security interest shall be governed by the conflict of law rules set forth ; in the UCC. The parties hereby consent to the application of Iowa civil law to the construction, interpretation and j enforcement of this Security Agreement, and to the application of Iowa civil law to the pracedural aspects of any suit, action or proceeding relating thereto,including,but not limited to, legal process, execution of judgments and other legal remedies. 10.12 Counterparts. This Security Agreement may be executed in any number of identical counterparts, any set of which signed by all the parties hereto shall be deemed to constitute a complete, executed - original for all purposes.Transmission by facsimile,".pdf'or similar electronic format of an executed counterpart - of this Security Agreement shall be deemed to constitute due and sufficient delivery of such counterpart. 10.13 PaYments Free of Taxes, Etc. All payments made by Borrower under this Security Agreement shall be made by Borrower free and clear of and without deduction for any and all present and future taxes, levies, charges, deductions and withholdings (except as otherwise provided in the Credit Agreement). In addition, Borrower shall pay upon deinand any stainp or other taxes, levies or charges of any jurisdiction with respect to the execution, delivery, registration, perforinance and enforcement of this Security Agreement. Upon request by Lender, Borrower shall furnish evidence satisfactory to Lender that all requisite authorizations and approvals by, and notices to and filings with, governmental authorities and regulatory bodies have been obtained and made and that all requisite taxes, levies and charges have been paid. 10.14 Borrower's Continuin� Liabilit.y. Notwithstanding any provision of this Security Agreement or any other Related Document or any exercise by Lender of any of its rights hereunder or thereunder (inchiding, without limitation, any right to collect or enforce any Collateral), (i) Borrower shall remain liable to perform its obligations and duties in connection with the Collateral and (ii)none of participants, if any, shall assume or be considered to have assuined any liability to perform such obligations and duties or to enforce any of Borrower's rights in connection with the Collateral. SECURITY AGREEMENT (Continued) P �ge �22 10.15 Additional Borrowers. If, after the date hereof, pursuant to the terms and conditions of � the Credit Agreement, Barrower shall be required to cause any Subsidiary, or other Persan to become a party hereto, Borrower shall cause such Person to execute and deliver to Lender a Joinder Agreement in the form satisfactory to Lender and such Person shall thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as Borrower on the Closing Date and shall be deemed to have assigned, conveyed, _ mortgaged, pledged, granted,hypothecated and transferred to Lender, for the benefit of Lender and participants, if any, the security interest described in such Joinder Agreement and Section 2 hereof. 10.16 Inapplicability to Excluded Assets. Lender and Borrower hereby acknowledge and agree that none of the covenants or obligations of Borrower hereunder shall be applicable to any af the Excluded Assets. 10.17 Additional Provisions. Lender and Borrower hereby acknowledge and agree that the jury trial waiver, consent to jurisdiction and other provisions in the Credit Agreement (inciuding the limitations on setoff set forth in Section 8.6(b) thereo� apply to this Security Agreement and are incorporated herein as though set forth in full. [Remainder Of Page I�tentionally Left Blank,Signatu�^e Pages FollowJ SGCURITY AGRG�M�NT Loan No. 1�' a ,�; G. � 23 GRANTOR HAS R�AD AND UNDERSTOOD ALL THE PROVISIONS OF THIS � COMMERCIAL S�CURITY AGREEM�NT AND AGR��S TO ITS T�RMS. THIS � AGR��M�NT IS DAT�D OCTOBER 20, 2023. � GRANTOR ACKNOWLEDG�S R�CEIPT OF A COMPLETED COPY OF THIS � COMM�RCIAL SECURITY AGREEMENT AND ALL OTHER DOCUMENTS RELATING TO THIS D�BT. BORROWER/GRANTOR: DU[3UQUE RACING ASSOCIATION LTD. By: Alex Di n � President and Chief Executive Officer LENDER: MIDW�STONE BANK %; By: '✓ :�� - . Wayii�e Breckon Firs�Vice President and Regional Credit Officer i I i i 1 l � � I ; � I � I i SCHEDULEI COI,LATERAL FOR PERFECTION BY POSSESSIOIeT 1 � [Scheclule IJ SCHEDULE II LETTER OF CREDIT RIGHTS AND COMMERCIAL TORT CLAIMS _ _ __ __ __ _ ___ _ _ _ _ _�__ _ ___ _ _ _ ___ __ __ _ _ Letter-of-Credit Ri�hts: Coinmercial Tort Claims: 'i. i � � [Schedule IIJ SCHEDULE III DEPOSIT ACCOUNTS _ __ _ _ ___ __ __ __ _ _ __ __ _ _ _ _ __ _ __ �� Dubuque Racing Assaciation, Ltd. Depository Bank Type of Account Account Number Banlc Address i � 1 i � � I [Schedule IIIJ SCHEDULE IV SECURITIES ACCOUNTS � __ _ ___ ._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Dubuque Racin�Association, Ltd. Securities Type of Account Account Number Securities - Intermediary Intermediary Address � � � � [Schedule IVJ SCHEDUL�V COMMODITY ACCOUNTS _ __ ___. _ _ _ _ _ __ __ ___ __ _ °: Dubuque Racin�Association, Ltd. Commodity Type of Account Account Number Cammodity Intermediary Intermediary Address � i i � i f � i � I i [Schedule VJ SCHEDULE VI LEGAL NAME; JURISDICTIOI>T OF FORMATION; ' BOOKS AND RECORDS; LOCATION OF COLLATERAL Dubuque Racing Association, Ltd. Legal Name Jurisdiction of Chief Executive Other Collateral Formation Office; Place of Locations � Business; Location of Boolcs and Records Dubuque Racing Iowa Association, Ltd. � ; I � I [Scheclule VIJ SCHEDULE VII INTELLECTUAL PROPERTY __ __ _ _ _ _ _ - ___ _ _ __ _ _ - _ __ _ _ __ _ _ i ; ; I � [Scheclule VIIJ -- - AT-T-AC-HMEN-T-1 — - — TO SECURITY AGREEMENT _. _ __ ___ __ _ __ _ _ __ ___ _ _ _ _ __ _ _ _ _ SPECIAL POWER OF ATTORNEY Dated as of October 20, 2023 KNOW ALL PERSONS BY THESE PRESENTS, THAT DUBUQUE RACING ASSOCIATION, L'rD., an Iowa nonprofit corporation{the"Grantor" or "Borrower"), pursuant to a Security Agreement, dated as of October 20, 2023 (as amended, restated, supplemented or otherwise modified from time to time, the"Securitv A�reement"), - among Grantor, other entities party thereto from time to time and MIDWESTONE BANK (the "Lender") in connection with that certain Credit Agreement, dated as of October 20,2023 (as amended,restated, supplemented - or otherwise modified from time to tiine,the"Credit A�reement"), ainong Borrower and Lender,hereby appoints and constitutes Lender its true and lawful attorney in fact,with full power of substitution, and with fiill power and authority to perform the following acts on behalf of Grantor,but subj ect,in each case,to the terms and conditions ' set forth in the Security Agreeinent: 1. For the purpose of assigning, selling, licensing or otherwise disposing of all right,title and interest of Grantor in and to any letters patent of the United States, and all registrations, recordings, reissues, continuations, continuations-in-part and extensions thereof, and all pending applications therefor, and for the = purpose of the recording, registering and filing of, or accomplishing any other formality with respect to, the foregoing, to execute and deliver any and all agreements, documents, instruments of assigninent or other papers necessary or advisable to effect such purpose; 2. For the purpose of assigning, selling, licensing or otherwise disposing of all right,title and interest - of Grantor in and to any trademarks, trade names, trade styles and service marks and all related goodwill, and all registrations, recordings,reisslies, extensions and renewals thereof, and all pending applications therefor, and for the purpose of the recording, registering and filing of, or accomplishing any other formality with respect to, the foregoing, to execute and deliver any and all agreements, documents, instruinents of assignment or other papers necessary or advisable to effect such purpose; 3. For the purpose of assigning, selling, licensing or otherwise disposing of all right, title and interest ; of Grantor in and to any copyrights, and all registrations, recordings, reissues, extensions and renewals thereof, � and all pending applications therefor, and for the respect to, the foregoing, to execute and deliver any and all agreements, documents, instruments of assignment or other papers necessary or advisable to effect such purpose; _ 4. For the purpose of assigning, selling, licensing or otherwise disposing of all right,title and interest of Grantor in and to any mask works, and all registrations, recordings, reissues, extensions and renewals thereof, and all pending applications therefor, and for the purpose of the recording, registering and filing of, or accomplishing any other formality with respect to, the foregoing, to execute and deliver any and all agreements, documents, instruments of assigrunent or other papers necessary or advisable to effect such purpose; 5. For the purpose of evidencing and perfecting Lender's interest in any patent,trademarlc, copyright , or mask worlc not previously assigned to Lender as security, or in any patent, trademark, copyright or maslc worlc, r which Grantor may acquire from a third party, and for the purpose of the recording, registering and filing of, or accomplishing any other formality with respect to, the foregoing, to execute and deliver any and all agreements, documents, instruments of assignment or other papers necessary or advisable to effect such purpose. - 6. To execute any and all documents, statements, certificates or other papers necessary or advisable in order to obtain the purposes described above as Lender may in its sole discretion determine. [Remair�der Of Page Intentionally Left I3lank, Signatu�e Pages FollowJ . [Attachment IJ _. _ _ _ _ _ _ -_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ This power of attorney is made pursuant to the Security Agreement and takes effect solely for the purposes thereof and is subject to the terms and conditions thereof and may not be revolced until termination of the Security Agreement as provided therein. BORROWER/GRANTOR: DUBUQUE RACING ASSOCIATION LTD. By: Alex Dixon ' President and Chief Executive Officer STATE OF ) ) COUNTY OF ) The foregoing Special Power of Attorney was acknowledged before me on , 2023, by - Alex Dixon, as Chief Executive Officer of DUBUQUE RACING ASSOCIATION,LTD., an Iowa nonprofit corporation, on behalf of the corporation. ; i Notary Public [Attachment IJ — - -- - - — -- AT-T-ACHMENT-1 TO SECURITY AGREEMENT _ __ _ _ _ __ __ _ _ -_ __ _ _ _ _ _ __ __ _ _ _ SPECIAL POWER OF ATTORNEY Dated as of October 20, 2023 KNOW ALL PERSONS BY THESE PRESENTS, THAT DuBuQuE RAcrIVG Associa`r�oN, LTD., an Iowa nonprofit corporation{the"Grantor" or"Borrower"), pursuant to a Security Agreement, dated as of October 20, 2023 (as amended, restated, supplemented or otherwise modified from tiine to time, the"Security A�reement"), - among Grantor, other entities party thereto from time to time and MIDWESTONE BANK (the "Lender") in _ connection with that certain Credit Agreement,dated as of October 20,2023 (as amended,restated, supplemented or otherwise modified from time to time,the"Credit Agreement"), among Borrower and Lender,hereby appoints and constitutes Lender its true and lawful attorney in fact,with fiill power of substitution,and with full power and authority to perfor�n the fallowing acts on behalf of Grantor,but subject, in each case,to the terms and conditions set forth in the Security Agreement: 1. For the purpose of assigning, selling,licensing or otherwise disposing of all right,title and interest of Grantor in and to any letters patent of the United States, and all registrations, recordings, reissues, _ continuations, continuations-in-part and extensions thereof, and all pending applications therefor, and for the purpose of the recording, registering and filing of, or accomplishing any other formality with respect to, the foregoing, to execute and deliver any and all agreements, documents, instruments of assigrunent or other papers necessary or advisable to effect such purpose; 2. For the purpose of assigning, selling, licensing or otherwise disposing of all right, title and interest - of Grantor in and to any trademarlcs, trade names, trade styles and service marlcs and all related goodwill, and all - registrations, recordings,reissues, extensions and renewals thereof, and all pending applications therefor, and for the purpose of the recording, registering and filing of, or accomplishing any other formality with respect to, the foregoing, to execute and deliver any and all agreements, documents, instruinents of assigrunent or other papers necessary or advisable to effect such purpose; 3. For the purpose of assigning, selling, licensing or otherwise disposing of all right,title and interest of Grantor in and to any copyrights, and all registrations, recordings, reissues, extensions and renewals thereof, and all pending applications therefor, and for the respect to, the foregoing, to execute and deliver any and all agreements, documents,instruments of assignment or other papers necessary or advisable to effect such purpose; 4. For the purpose of assigning, selling,licensing or otherwise disposing of all right,title and interest of Grantor in and to any mask works, and all registrations, recordings,reissues, extensions and renewals thereof, and all pending applications therefor, and for the purpose of the recording, registering and filing of, or accomplishing any other fortnality with respect to, the foregoing, to execute and deliver any and all agreements, documents, instruments af assignment or other papers necessary or advisable to effect such purpose; 5. For the purpose of evidencing and perfecting Lender's interest in any patent,trademark, copyright or mask work not previously assigned to Lender as security, or in any patent, trademark, copyright or mask work, . which Grantor may acquire from a third party, and for the purpose of the recording, registering and filing of, or accomplishing any other formality with respect to, the foregoing, to execute and deliver any and all agreements, documents, instn�ments of assignment or other papers necessary or advisable to effect such purpose. 6. To execute any and all docitments, statements, certificates or other papers necessary or advisable in order to obtain the putposes described above as Lender may in its sole discretion determine. [Remai�cder Of Page Intentionally Left Blanli, Signatu�e Pages Fottowj This power of attori7ey is made pursuant to the Seclu•ity Agi•eeillent and talces effect solely for the ptu�poses thereof and is subject to the terms and conditions thereof and may not be revol<ed until tei•mination of the Sectu•ity Agreement as provided therein. BORROWER/GRANTOR: DUBUQUc RACING ASSOCIATION LTD. i By: oG/ Alex Dixon President and Chief Executive Officer STATE OF IOWA ) ) COUNTY OF DUBUQUE ) The foregoing Special Power of Attorney was acknowledged before ine on Septeinber 14, 2023, by Alex Dixon, as Chief Eaecutive Officei� of D[1BuQuE RAc[N� Ass IATION, LTD., an Iowa nonprofit coiporation, on behalf of the coiporation. iy u��ic � � T��Y� ATRtSMN1 �. �r�, r�nm�nissinn�1 mb �7 60 .-- �Ay Carnm.Ezp. •owP i i 1 � CERTIFICATE AND INDEMNIFICATION : 12EGARDING HAZARDOUS MATERIALS THIS CERTIFICATE AND INDEMNIFICATION REGARDING HAZARDOUS MATERIALS {"Agreement") is executed as of October 20, 2023 by DusuQuE R�.crt�G ASSOCIATION LTD. ("Indemnitor" or "Borrower"), for the benefit of MIDWESTONE BANK ("Lender" or"Indemnitee") (as defined below). - 1. DEFINITIONS: 1.1. Reference is made to that certain Credit Agreement dated as of the date hereof (as the same from time-to-time hereafter may be amended, restated, supplemented or otherwise modified froin time to time, the "Credit Agreement"), by and between Borrower and Lender, pursuant to which the Lender has agreed to extend loans and other financial accommodations to the Borrower for the purpose, and on the terms and subject to the conditions, set forth in the Credit Agreement. The Lender and its successors and assigns (as defined in the Credit Agreement) are referred to herein as the"Indemnified Parties". 1.2. In this Agreeinent all capitalized words and terms not defined herein have the respective meanings and are to be construed herein as provided in the Credit Agreement, and any reference to a provision of the Credit Agreement incorporates that provision as a part hereof in the same manner and with the same effect as if the same were fiilly set forth herein. _ 1.3. The term "Hazardous Materials Laws" means any applicable present or - future regional, state, federal and local laws, statutes, regulations, rules, ordinances and the like, as well as consent orders, administrative orders, enforcement actions and other governmental written directives, agency gtiidance materials and common law relating to the protection of the � environment, natural resources or human health and safety, in each case, to the extent applicable ' to the Leased Real Property, including, without limitation: (i) environmental matters, including, without limitation, those relating to fines, injunctions, penalties, damages, contribution, cost recovery compensation, losses or injuries resulting from or relating to any Release, threatened ° Release, intrusian, or migration of any Hazardous Materials; (ii) the generation, use, storage, treatment,transportation, disposal,management,monitoring,reporting, of Hazardous Materials or the Release or threatened Release of Hazardous Materials; or (iii) occupational safety and health or industrial hygiene; in any manner applicable to Indemnitor or to any of its real properties; including, without limitation, the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq., as amended), the Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq., as amended), the Coinprehensive Environmental Response, Compensation, and Liability Act . (42 U.S.C. § 9601 et seq., as amended), the Toxic Substances Control Act (15 U.S.C. § 2601, et seq., as amended), the Hazardous Materials Transportation Act (49 U.S.C. § 1801, et seq.), the Clean Air Act (42 U.S.C. § 7401, et seq., as amended), the Occupational Safety and Health Act (29 U.S.C. § 651, et seq., as amended), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001, et seq., as amended), the Federal Insecticide, Fungicide and Rodenticide Act(7 U.S.C. § 136 et seq., as amended), the Rivers and Harbors Act(33 U.S.C. § 401, et seq., as amended), the Endangered Species Act(16 U.S.C. § 1531, as amended), the Safe Drinlcing Water Act, 42 U.S.C. 300f et. seq., as amended, and all analogous state laws, including, without limitation, Chapter 455 B of the Iowa Code, and all rules and regulations proinulgated thereunder, 1 from time to time, as amended by any state or federal agency or any other governmental organization or agency having jurisdiction over any of the Leased Real Property; all as recodified, � amended or supplemented. The term "Hazardous Materials Laws" also includes, without limitation, any present and future federal, state and local laws, statutes ordinances, rules, regulations and the lilce, as well as common law conditioning transfer of real praperty upon a negative declaration or other approval of a governmental authority of the environmental condition of the Leased Real Property; requiring notification or ciisclosure of the Release or threatened _ Release of Hazardaus Materials or other environmental condition of the Leased Real Property to - any Governmental Authority or other Person, whether or not in connection with transfer of title to or interest in property; imposing conditions or requirements on the Leased Real Property in ' connection with any Permit. 1.4. The term "Hazardous Material" or "Hazardous Materials" means: (a) any material,substance, chemical,gas,vapor or waste which is defined as a"hazardous waste," "hazardous material,""hazardous substance,""extremely hazardous waste,""restricted hazardous waste," "contaminant," "pollutant," "toxic waste" or "toxic substance" under any provision of Hazardous Materials Laws or any other formulations intended to define, list or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, ; toxicity,reproduction toxicity, "TCLP toxicity" or"EP toxicity"or words of similar import under any provision of Hazardous Materials Laws; (b) any asbestos or asbestos containing materials in any form that is or could become friable, tremolite, anthophylite, actinolite; {c} any solvents, j degreasers, heavy metals, refrigerants, nitrates, urea formaldehyde, polychlorinated biphenyls, � dioxins, petroleum and petroleum products and derivatives, fuel additives, ethanol, bio-fuels, methyl tertiary butyl ether, per- and polyfluoroallcyl substances; and (d) any ather product, byproduct, compaund, substance, chemical, material, waste; solid, liquid, gaseaus or thermal irritant; greenhouse gas; carbon emission; atomic, molecular and macromolecular nanomaterials; and microbial material whose presence, characteristics, nature, quantity, intensity, existence, use, manufacture, possession, handling, disposal, transportation, spill, Release, threatened Release, ' Remedial Action or effect, either by itself or in combination with other materials is: (x) injurious, dangerous, toxic, hazardous to human health, safety or welfare or any other portion of the envirorunent or natural resources; (y) is now or at any time in the future becomes regulated, defined, listed, prahibited, controlled, studied or monitored in any manner by any Goverrunental Authority or Hazardous Materials Laws; or(z) a basis for liability,responsibility, or duty owed to any Governmental Authority or private or public third party. 1.5. The term "Leased Real Property" means the Schmitt Island Lease, as defined in the Credit Agreement. 1.6. The tenn "Mitigation Requirements" means (i) during all constrtiction and utility activities on the Leased Real Property, coinpliance with a Soil and Groundwater Management Plan(SGMP)prepared,implemented and overseen by an envirorunental professional and approved by Lender (it being understood that Blackstone Enviromnental, Inc. sha11 be automatically deeined satisfactory to Lender); (ii) installation, operation and maintenance of methane and vapor mitigation systems in all future buildings on the Leased Real Property and in - compliance with the SGMP; (iii)monitoring all construction workers for methane at the Leased Real Property in compliance with the SGMP; and (iv) any other action to stop any continuing Release on the Leased Real Property or to prevent exposure within the Leased Real Property to 2 any Hazardous Materials by any Person or the enviromnent. , 1.7. The term "Permit" means any permit, approval, license, certification, ' authorization, letter, notice, clearance, consent, waiver, closure, exeinption, decision or other action required under or issued, granted, given, authorized by or made pursuant to Hazardous Materials Laws,together with any amendments or renewals thereof. 1.8. The ter�n "Release(s)" means any release, spill, emission, leaking, ; pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials into the indoor or outdoor environment (incluciing, without limitation, the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Materials), or into or out of any Leased Real Property, structure, vessel or vehicle,including,without limitation,the movement of any Hazardous Materials into or througll the air, soil, soil gas, surface water, groundwater or other media. 1.9. The term "Remedial Aetion" means action, including any capital expenditures, required or voluntarily undertalcen to (a) cleanup, abate, remove, respond, contain, remediate, mitigate, treat, cap or in any other way address, respond to or alter any Hazardous - Materials or any Release of any Hazardous Materials; (b) prevent the Release or to ininimize the further Release af any Hazardous Materials so it does not migrate or endanger or threaten to endanger public health, safety, welfare or the environment; (c)perfonn pre-remedial evaluations, assessments, studies and investigations, post-remedial monitoring, assessments and care - concerning any Release of Hazardous Materials; (d)re-open any closed or completed action to respond to any Hazardous Materials Release; (e)bring all operations conducted into compliance with Hazardous Materials Laws; or (� assess, investigate, evaluate, study, restore, replace or compensate for any injured or damaged portion of natural resources or the environment. ', 2. INDEMNITOR'S REPRESENTATIONS. - Indemnitor represents and warrants to Indemnified Parties that, to its knowledge: 2.1. Since Indemnitor's occupation of the Leased Real Property: (i) there have = been no Releases ar threatened Released onto, under, into or from the Leased Real Property; (ii) there have been na past, present or threatened Releases onto, under, into or from the Leased Real Property, which have not been fully remediated in accordance with Hazardous Materials Laws; and(iii)there is no"facility"as that term in defined under Hazardous Materials Laws,underground storage tanlcs, landfills or other disposal units on, at or under the Leased Real Property which are used for the generation, manufacture, treatment, storage, placing or disposal of any Hazardous Material, except for Hazardous Materials, each of which is: (aa)used in the normal maintenance and operation of any Indemnitor's business as contemplated under the Credit Agreement; and (bb)properly stored, handled, used, and disposed of in compliance and in accordance with all Hazardous Materials Laws. 2.2. Indemnitor has not received any written summons, citation,directive,letter, notice, order, infarmation request or other written coinmunication froin any Governmental ; Authority or any Person concerning or alleging any intentional or unintentional action or omission on the part of Indemnitor, or on the part of any occupant of the Leased Real Property, which has 3 resulted or potentially resulted in any Release giving rise to a requireinent that such occurrence be reported to any Governmental Authority or for�ning the basis of liability under any Hazardous ' Materials Laws. As of the date of this Agreement, there is no actual or threatened litigation, administrative praceedings, enforcement actions or written claims or notices of any kind by any - Person or Governmental Authority relating to: (aa) the Leased Real Property; and{bb} any Release or threatened Release of Hazardous Materials within the Leased Real Property ar violation or � potential or alleged violation of Hazardous Materials Laws with respect to the Leased Real =_ Property. - 2.3. During its occupation of the Lease Real Property, Indemnitar has been in compliance in aIl material respects with Hazardous Materials Laws. 2.4. Indemnitor has truthfully and fully provided to Indemnitee, in writing, any and all information relating to conditions in, on, under or from the Leased Real Property that is known to Indemnitor and that is contained in files and records of Indemnitor, including but not limited to any reports relating to Hazardous Materials in, on, under or from the Leased Real Property and/or to the environmental condition of the Leased Real Property. 3. COVENANTS. � 3.1. Compliance with Hazardous Materials Laws. Indemnitor shall comply with all Hazardous Materials Laws and orders of any Governmental Authority under Hazardous Materials Laws and shall obtain, keep in effect and comply with any Permit for all aperations at � the Leased Real Property. Upon the request of Lender, Indemnitor shall furnish promptly to Lender copies of each Permit that is in possession or control of Indemnitor or is reasonably available to Indemnitor and shall notify Lender of any expiration, revocation or revision of each Permit. Indemnitor shall also furnish Lender with all citations, notices, summonses, or other communications which are received by it from any Governmental Authority ar other Person ' concerning any Hazardous Materials Laws. I 3.2. Investi�atory and Remedial Action. Indeinnitor, at its expense, sha11 = undertake any and all Remedial Action (a) that it is required to undertake by Hazardaus Materials = Laws or orders of any Goverrunental Authority; or (b) that is reasonably necessary to minimize property damage (inchiding damage to Indemnitor's own property),personal injury or clainage to the environment, or the threat of any such damage or injury,by Releases or threatened Releases of or exposure or potential exposure to Hazardous Materials in connection with the occupation or operation of the Leased Real Property. In the event Indemnitor fails to perfortn any of its obligations under this Section 3.2, Lender may(but is not required or under any obligation or duty to) perform such obligations at the Indemnitor's expense. All such reasonable costs and expenses incurred by Lender under this Section and otherwise under this Agreement sha11 be reimbursed promptly by Indemnitor to Lender upon Lender submitting an accounting of such costs and expenses and making demand for the payment thereof with interest at the Default Rate specified in the Credit Agreement. In performing any such obligations of the Indemnitor, Lender is the agent of the Indeinnitar and is not by reason of such performance assuming any respoi2sibility of the Indemnitor under any Hazardous Materials Laws or to any third party and is not participating in the manageinent of Indemnitor or Indemnitor's business. If Indemnitor fails to act after reasonable demand by Lender, Indemnitor shall be deemed to irrevocably appoint and has irrevocably 4 i appointed Lender as its attorney-in-fact with full power to perform such af the applicable Indemnitor's obligations under this Section 3.2 as Lender deems necessary and appropriate. 3.3. Mitigation Requirements. Indemnitor, at its expense, shall comply with all Mitigation Requirement. 4. NOTICES, REPORTS AND 1NSPECTIONS. 4.1. Notices. Indemnitor shall provide all notices required under this Agreement in the manner, and within the time period(s), which are set forth in the Credit Agreement. 4.2. Access to Records. Indemnitor shall deliver to Lender, at the written request of Lender and to the extent not covered by attorney-client privilege, copies af any and all documents in its possession or to which it has access relating to: (i) Hazardous Materials or Hazardous Materials Laws; and (ii) the Leased Real Property or operations conducted on the Leased Real Property;including,without limitation results of laboratory analysis, site assessments or studies, environmental audit reports and other consultants' studies and reports. 4.3. Inspections. Lender reserves the right to inspect and investigate the Leased Real Property and the operations conducted thereon at its sole cost and expense (except to the extent that any Indemnitor is responsible for such cost and expense pursuant to Section 3.2 in accordance with any other provisions of this Agreement or any other Credit Document}and subject to the reasonable rights of the applicable Indemnitor's tenants, subtenants and other occupants of the Leased Real Property, from time to time upon reasonable prior written notice ta the Indemnitor and to perform such tests as would be reasonable under the circumstances, and Indemnitor shall cooperate fully with Lender in such inspection, investigations and tests. All such inspections, investigations and tests shall be: (i) conducted in a manner which does not unreasonably interfere with the businesses and the operations at the Leased Real Property; and (ii) for Lender's purposes - only and does not create any liability or responsibility on the part of Lender to Indemnitor or to any other Person. If Lender at any time reasonably believes that Indemnitor or any tenants or other occupants of the Leased Real Property are failing to comply with the requirements of this Agreement or requirements of Hazardous Materials Laws, or that a Release or threatened Release - of Hazardous Materials has occurred onto, under, into, within or from the Leased Real Property, ' Lender may require Indemnitor to furnish Lender at the Indemnitor's expense an enviromnental audit or a site assessment of and within the Leased Real Property. Such audit or assessment shall ' be perfor�ned at the Indemnitor's expense by a qualified consultant approved by Lender and shall be delivered to both the Indemnitor and Lender upon completion. 5. INDEMNIFICATION. Indemnitor agrees to and does hereby indemnify, protect, defend and save harmless each of the Indemnified Parties and their respective trustees, officers, employees, agents, attorneys and shareholders (individually an "Indemnified Party" and collectively the "Indemnified Parties") from and against any and all losses, fines, penalties, damages, expenses or liabilities of any kind or nature from any investigations, suits, claims, demands or other proceedings, including reasonable attorney and expert consultant fees incurred in investigating or defending such claim,suffered by any of them and caused by,relating to, arising out of, resulting fram, or in any way connected with: 5 a. any investigatory or Remedial Action instituted under, or required by, Hazardous Materials Laws or by orders of any Governmental Authority: (i) involving past, presently existing or fiiture contamination of any of the Leased Real Property with Hazardous Materials; or (ii} involving past, present or future operations conducted on the Leased Real Property; or b. any claims of any Person or Goverrunental Authority (including, without limitation, any Persan or Governmental Authority responsible for Remedial Action), for injury to :. ; any Person whatsoever or for damage to any property, groundwater, soils, soil gas, subsurface strata, ainbient air, ar surface water or the environment arising out of,in connection with or in any way relating to: {i}the breach of any covenants, representations or warranties of Indemnitor contained in this Agreement; (ii) any past, present or future violation of any Hazardous Materials Laws, by any Person, on any of the Leased Real Property, or in connection with operation of any of the Leased Real Property; (iii) any condition or circumstance,the existence of which causes any representation by Indeinnitor under this Agreement to be materially incorrect; (iv) any past, present or future use, treatment, storage, generation, manufacture, disposal or transport of _- Hazardous Materials by any Person, onto, under, into, within or from or to any of the Leased Real Property; (v) any past,present or future Release or threatened Release(regardless of which Person, if any, may be responsible for such Release) onto, under, into, within or from, any of the Leased Real Property; (vi) or the use, treatment, storage, generation,manufacture, disposal or transport of Hazardous Materials or Release or threatened Release at, onto, under, into, within or from or to any of the Leased Real Property; or c. any presently existing, or future contamination of any of the Leased Real Property by Hazardous Materials by any means whatsoever or the contamination of any Leased Real Property, graundwater, soils, soil gas, subsurface strata, ambient air or surface water as a result of any past,present or future Release from or in connection with the operation of, any of the Leased Real Property; or d. any claims arising from any breach by Indemnitor of any af its covenants or obligations under this Agreement;provided,however, that notwithstanding the faregoing, in no event shall Indemnitor be obligated to provide indemnification to any of the Indemnified Parties -- to the extent that the event or condition giving rise to such claiin, request, and/or demand for - indemnification stems from, is the result of, and/or is caused by, directly or indirectly, any gross negligence or intentional or willful misconduct of Lender or any of its employees, agents, representatives and/or consultants. In case any action is brought against any Indemnified Party based upon any of the above, Lender shall promptly notify the Indemnitor in writing, and the Indemnitor shall assume promptly the defense thereof, including the employment of counsel selected by Lender (with the consent of Indemnitor, such consent not to be unreasonably withheld or delayed),and the payment of all costs : and expenses, and the right to negotiate and consent to settlement, but Lender has the right to approve any settlement, which approval shall not be unreasonably withheld, conditioned or delayed. Upon reasanable determination made by an Indemnified Party that counsel would have a conflict representing such Indemnified Party and the Indemnitor,the applicable Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense thereof at the expense of Indemnitor. Subject to any limitations expressly set forth herein, the 6 Indemnitor agrees to indemnify, defend and save harmless Indemnified Parties from and against any loss or liability by reason of any settlement or judgment in any action hereunder. 6. PAYMENT: FULL RECOURSE TO INDEMNITOR. The Indemnified Parties � have full recourse ta the Indemnitor for those liabilities, losses, claims, damages, and expenses for which the Indeinnified Parties are indemnified under this Agreement. Each of Indemnified Parties = and the Indemnitor intends that Indemnified Parties have full recourse to the Indeinnitor for any sum at any time due to Indemnified Parties under this Agreement. In addition to any remedy � available for failure to pay such amounts, such amounts shall bear interest from the date due until payment in full at the Default Rate as set forth in the Credit Agreement. 7. ACCEPTANCE: NO WAIVER. Indeinnitor waives any acceptance of this Agreement by Lender or any of the other Indemnified Parties. The failure of Lender, or any other Indemnified Party,to enforce any right or remedy hereunder,or to promptly enforce any such right ' or remedy, is not a waiver thereof,nor gives rise to any estoppel against Lender or any of the other Indemnified Parties, nor excuses Indemnitor from its obligations hereunder. Any waiver of such right or remedy inust be in writing and signed by Lender and the applicable Indemnified Party. This indemnity may be enforced at law and/or in equity. Remedies include,but are not limited to, actions for damages and/or specific performance. 8. SURVIVAL. Indemnitor's obligations and liability, with respect to any breach of '� its covenants under this Agreement and with respect to indemnification under Section 5 hereof � shall survive satisfaction of the Credit Agreement and Credit Documents. 9. OBLIGATIONS SEPARATE AND UNSECURED. It is expressly intended that none of the obligations of the Indemnitor hereunder is to be secured by any Real Estate Security ; Document, or any of the other Security Documents. The obligations of the Indemnitor under this Agreement are separate from and in addition to the obligations under the Credit Agreement, and - the obligations under the Real Estate Security Documents and other Credit Dacuments. The liability of the Indernnitor under this Agreement is not liinited to or measured by the amount of such indebtedness ar obligations; nor is it limited to, or measured by, the value of the Leased Real - Property. Indemnitor waives the right to assert any statute of liinitations as a bar to the enforcement - of this Agreement or to any action brought to enforce this Agreement. Except to the extent - expressly set forth herein, this Agreement does not affect, iinpair or waive any rights or remedies of Lender or any obligations of the Indemnitor with respect to Hazardous Materials, where such rights, remedies or obligations are created or imposed by Hazardous Materials Laws (including, without limitation, Lender's rights of reimbursement or contribution under Hazardous Materials Laws). The remedies in this Agreement are cumulative and in addition to all remedies provided by law. 10. ATTORNEY FEES. In the event of suit or action under or in connection with this : Agreement, or any settlement thereof,the prevailing party shall be entitled to recover its costs and reasonable attorney fees. 11. CHOICE OF LAW. The terms of this Agreement are governed, in all respects, by the internal laws of the State of Iowa without regard to the principles of conflicts of law. 7 12. CREDIT DOCUMENT. This Agreement is a Credit Docuinent under the Credit Agreement. � [This Space Intentionally Left Blank] : 8 IN WITNESS WHEREOF, the Indemnitor has caused this Agreement to be executed as of the date first written above. IND�MNITOR: DUBUQUE RACING ASSOCIATION LTD, By: Name: Alex ixon Title: President and Chief Executive Officer Sigi�aturePagetoCertificateai�dlndemnificntionRegardi��agHnzcri�dozrs R�tate��ials ASSIGNMENT OF PLANS AND SPECIFICATIONS AND ARCHITECT'S AGREEMENT THI� ASSIGNMENT OF PLANS AND SPECIFICATIONS AND ARCHITECT'S AGREEMENT (this "Assi nm�ent") is made effective as of October 20, 2023 by DusuQu� R�,C�1vG ASSOCIATION LTD. {the "Assi�nor") to MID�VESTONE BANK, ("Lender" as defned in the Credit ` Agreement referenced hereinafter) in connection with that certain Credit Agreement, dated as of October : 1 20, 2023 (as the same may be amended, restated, suppleinented or otherwise modified frorn time to time, ; the"Credit A�reement"},by and between Assignor and the Lender. RECITALS A. Assignor is indebted to the Lender fbr money actually loaned or to be loaned and advanced to Assignor as set fortli in the Credit Agreement (collectively, the"Loans"), to be evidenced by the Credit Documents (as defined in the Credit Agreement), according to the terms set out in the Credit Documents, all the terms,provisions, conditions, covenants, stipulations and agreements contained in the Credit Documents being hereby made a part of this Assignment to the same extent and with the same and like force and effect as if they were fully set forth herein. Unless otherwise defined herein, capitalized terms shall have the same meanings as set forth in the Credit Agreement. B. The obligations under the Credit Documents are secured by, among other things, the collateral described in a Security Agreement(as the same may be amended,restated, suppleinented or - otherwise modified from time to time,the "SecuritY A�reeinent"), dated as of October 20, 2023, made by Assignor and in favor of Lender. ; C. Lender requires as a condition to malcing the Loans to Assignor that Assignor assign to Lender (for itself and on behalf of its successors and assigns) all of Assignor's right, title and interest in and to that certain Standard Form of Agreement between Owner and Architect, dated as of December - 9, 2022, entered into by and between Assignor and DLR Group, Inc. ("Architect"), together with any and all existing and future attachments, amendments, modifications, supplements, general conditions and addenda thereto (callectively, the "Architect's A�reement"), in connection with the constniction of the ` Phase I Casino Project and related improvements (collectively referred to herein as the"Improvements"), as well as all of Assignor's right, title and interest in and to those certain plans and specifications - heretofore prepared or hereafter to be prepared by Architect for the account of Assignor, together with any and all existing and future amendments,modifications, supplements, general conditions and addenda thereto (collectively, the"Plans and Specifications"). Assignor is willing to enter into this Assignment to effectuate the foregoing assignment so as to induce the Lender to make the Loans to Assignor. NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt whereof is hereby acknowledged,Assignor hereby assigns,transfers and conveys to Lender(for itself and on behalf of its successors and assigns)all of Assignor's right,title and interest in and to the Plans and Specifications and the Architect's Agreement. Assignor hereby irrevocably appoints Lender as its attorney in fact, which appaintment is coupled with an interest, to receive, demand and enforce any and all of Assignor's rights with respect to the Plans and Specifications and the Architect's Agreement and to perform any and all acts in the name of Assignor or at the option of Lender, in the name of Lender with the same force and effect as if performed by 1 Assignor in the absence of this Assignment. THIS ASSIGNMENT is inade for the purposes of securing: A. Payment of the principal sum, interest and indebtedness of all Obligations. f B. Payment of all other sums with interest thereon becoming due and payable to Lender under the provisions of this Assignment or of the Credit Agreement,the Security Agreement or any other Credit Docuinent. C. The performance and discharge of each and every obligation, covenant and agreement of ' Assignor contained herein, in the Credit Agreement, the Security Agreement, the Credit Documents or any other docuinent ar instrument executed by Assignor in connection therewith. D. The perfoi�llance and discharge of each and every obligation, covenant and agreement of Assignor contained herein, in the Architect's Agreement or any other document or instrument executed by Assignor in connection therewith. THIS ASSIGNMENT is made on the following terms, covenants and conditions: : 1. For sa long as no Event of Default shall occur and be continuing, Assignor shall have the right to enjoy all of the rights arising out of and to enforce the Plans and Specifications and the Architect's Agreement. 2. Upon the occurrence and during the continuance of an Event of Default, Lender shall have the right to enforce Assignor's rights and interest with respect to the Plans and Specifications and the Architect's Agreement. Upon the occturence of any such Event of Default by Assignor, Lender may, without affecting any of Lender's rights and remedies against Assignor under any other instrument, _ document or agreement, exercise Lender's rights under this Assignment as Assignar's attorney in fact or in any other manner permitted by law. 3. Assignar hereby represents and warrants to Lender that: (i)no previous assignment of = Assignor's interest in and to or rights under the Plans and Specifications or the Architect's Agreeinent has been made and (ii) all covenants, agreements and conditions required to be performed or occur under the Plans and Specifications and the Architect's Agreement by Assignor as of the date hereof and as of the date of any extension of credit under the Credit Agreement have, in all material respects,been performed or occurred. Assignor agrees not to amend, assign, sell, pledge or otherwise transfer or encumber in any manner Assignor's interest in and to or rights under the Plans and Specifications and the Architect's Agreement without the prior written consent of Lender,which consent shall not be unreasonably withheld, conditioned or delayed, so long as this Assignment remains in effect. 4. Assignor hereby agrees to protect, indemnify, defend and hold Lender free and hannless from and against any and all claims, causes of action, demands, damages, liens, liabilities, losses, costs ` and expenses (inchiding reasonable attorneys' fees) to which Lender ma,y become exposed or which Lender may incur in exercising any of Lender's rights under this Assigrnnent, except to the extent such claims, causes of action,demands, damages,liens, liabilities, losses, costs or expenses are the result of the ` gross negligence or intentional misconduct of Lender or any of its employees, agents, representatives and/or consultants. Assignor hereby expressly agrees that Lender shall not be liable far any loss sustained 2 by Assignor resulting from Lender's exercise of the rights herein assigned to Lender after default by Assignor, except to the extent such loss is the result of the gross negligence or intentional misconduct of Lender and/or any of its employees, agents, representatives and/or consultants. 5. This Assignment, together with the covenants and warranties herein contained, shall inure to the benefit of Lender and its successors and assigns, and shall be binding upon Assignor and its ` respective successors and assigns. - 6. If any one or more of the provisions contained in this Assignment sha11 for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Assignment,but this Assignment shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 7. In the event of any conflict between any provision of the Credit Agreement and any provision of this assigrunent, the provision of the Credit Agreement shall control. 8. This Assigninent shall be governed by and constnied according to the laws of the State of = Iowa. ; 9. The Bonower hereby acknowledges and agrees that the juiy trial waiver, consent to jurisdiction and other provisions in Section 8.9 and Section 8.12 of the Credit Agreement apply to this Assignment and are incarporated herein as though set forth in fu1L - jRetnc�inder of P�ge Intentionally Left Blank, Signczture Page Fodlows.� , 3 IN WITNESS WHEREOF, Assignor has executed this Assignment as of the date first above written. ASSIGNOR: DUBUQUE RACING ASSOCIATION LTD. r By: Alex Di n President and Chief Executive Officer i 1 f i II � � � � � I I � i r � � I � ; i i i ; ; ; � Sig»ature Pnge to Assign�nerat of Plans and Specifrcntions m�cl Architect's Agi•eeinent CONSENT The undersigned Architect hereby expressly: (a) consents to(i) the foregoing Assigmnent to which this Consent is attached, (ii) the terms and conditions thereof, and (iii) the transfer and assignment - contemplated thereby{collectively, the "Assi�mnent Actions"); (b) waives any right(if any) to terminate the Architect's Agreement and/or the Plans and Specifications as a result of any of the Assignment ' Actions; (c) waives any violation, default, and/or breach (if any) occurring under the Architect's ;- Agreement and/or the Plans and Specifications as a result of any of the Assignment Actions; (d) waives ' any notice requirement ar review and/or response period (if any) contained in the Architect's Agreement and/or the Plans and Specifications that may arise from or in connection with any of the Assignment Activities;and(e) acicnawledges that each of Assignor and Lender are expressly relying on the Architect's consent, agreement and waivers set forth herein. The undersigned hereby agrees and acicnowledges that upon Lender or its successors or assigns giving the undersigned written notice of Lender's exercise of its rights under the Assigrunent, the undersigned will recognize and attorn to Lender in accordance with this Consent. The undersigned fui�ther acknowledges and represents that: (i) The undersigned has not assigned its interest under the Plans and Specifications or the Architect's Agreeinent to any other person or entity; (ii) There presently exists no unpaid claims due to the undersigned arising aut of the perfonnance by the undersigned relating to the Plans and Specifications or the Architect's Agreement, except for ; (iii) The undersigned has no present claim against or lien upon the Improveinents or the real property underlying the Improveinents arising out of the undersigned's performance of any worlc or service on or relating to the Improvements or the real property underlying the Improvements; and (iv) The undersigned hereby agrees and confirms that the "Architect's Agreement"referred to - in the Assignment to which this Consent is attached constitutes (a)the entire agreement of Assignor and °- Architect in respect of the subj ect matter thereof and(b)the valid and legal binding obligation of Architect. - (v) The undersigned fitrther acknowledges and agrees that the Assignment, the Credit Agreement and any other documents between Lender and Assignor are solely for the benefit of Lender and Assignor, and the undersigned has no interest in or claim upon any funds advanced thereunder by virtue of its consent to this Assignment. (vi) The undersigned further acknowledges and agrees that no material change,modification or amendment to the Architect's Agreement from and after the date hereof shall be valid without the prior written consent of the Lender, which consent shall not be unreasonably withheld, conditioned or delayed. (vii) The iindersigned agrees that Lender has not and shall not be deemed to have assumed the obligations of the Assignor under the Architect's Agreement notwithstanding anything to the contrary in the Architect's Agreernent.In addition,the undersigned agrees that,in the event Lender exercises its rights under the Assigrunent, Lender and its assignees shall not be liable for any default of the Assignor, provided, that, (i)Architect may require that the Lender cure any payment default under the Architect's Agreement with respect to payments owing for work perfonned prior to the date Lender exercises its rights . under the Assignment and(ii) from and after the date Lender exercises its right under the Assigrunent, on ter�ns and subject to the conditions set forth in the Architect's Agreement, the Lender shall pay for worlc performed by the Architect that is specifically requested by Lender under the Architect's Agreement notwithstanding anything to the contrary in the Architect's Agreeinent. Dated: , 2023 ARCHITECT: DLR GRour,INC. By: Edward S. Wilms Vice President Lender's Address for Notices: MidWestOne Bank Attn: Wayne Breckon,First Vice President and Regional Credit Officer - 895 Main St. Dubuque,IA 52001 Tel.No. (563)589-0828 Email:wbrecicon�midwestane.com ' Signnture Pc�ge to Consent to Assignment of Plczns czn�l Specificcttions ancl Architect's Agreement ASSIGNMENT OF STANDARD FORM GENERAL CONTRACTOR AGREEMENT THIS ASSIGNMENT OF AGREEMENT BETWEEN OWNER AND CONTRACTOR (this "Assi mg nent") is made effective as of October 20, 2023 by DUBUQUE RACING ASSOCIATION LTD. (the "Assi n�or,") to MIDWEST ONL' BANK, ("Lender" as defined in the Credit Agreetnent referenced hereinafter) in connection with that certain Credit Agreement, dated as of October 20, 2023 (as the saine may be amended, restated, supplemented or otherwise modified from time to time, the "Credit A�reement"),Uy and between Assignor and Lender. RECITALS A. Assignar is indebted to the Lender for money actually loaned or to be ioaned and advanced to Assignor as set forth in the Credit Agreement(collectively,the"Loans"), to be evidenced by the Credit Documents (as defined in the Credit Agreement), according to the terms set out in the Credit Documents, all the terms, provisions, conditions, covenants, stipulations and agreements contained in the Credit Documents being hereby made a part of this Assignment to the same extent and with the same and lilce force and effect as if they were fully set forth herein. Unless otherwise defined herein, capitalized ter�ns shall have the same ineanings as set forth in the Credit Agreement. B. The obligations under the Credit Documents are secured by, among ather things, the collateral described in a Security Agreement (as the same may be amended, restated supplemented or otherwise modified froin time to time, the"Securit�greement"), dated as of October 20, 2023, made by Assignor in favor of Lender. C. Lender requires as a condition to making the Loans to Assignor that Assignor assign to Lender (for itself and an behalf of its successors and assigns) all of Assignor's right, title and interest in and to that certain Agreement Between Owner and Contractor, dated November 1, 2022,by and between Conlon Construction Co. ("General Contractor") and Assignor, together with any and all existing and future attachments, amendments, modifications, supplements, general conditions and addenda thereto (collectively, the "General Contractor A�reement"), in connection with the constructian of the Phase I Casino Project and related improvements (collectively referred to herein as the "Improvements"). _ Assignor is willing to enter into this Assignment to effectuate the foregoing assignment so as to induce the Lender to malce the Loans to Assignor. NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt whereof is hereby acknowledged,Assignor hereby assigns,transfers and conveys to Lender(for itself and on behalf of its successors and assigns) all of Assignor's right, title and interest in and to the General Contractor Agreement. Assignor hereby irrevocably appoints Lender as its attorney in fact, which appointment is coupled with an interest,to receive,demand and enforce any and all of Assignor's rights with respect to the General Contractor Agreement and to perform any and all acts in the name of Assignor or at the option of Lender, - in the name of Lender with the same force and effect as if performed by Assignor in the absence of this Assignment. THIS ASSIGNMENT is made for the purposes of securing: 1 A. Payment of the principal sum, interest and indebtedness of all OUligations. B. Payment of all other sums with interest thereon becoming due and payable to Lender under the provisions of this Assignment or of the Credit Agreement,the Security Agreement or any other Credit Document. C. The perforinance and discharge of each and every obligation, covenant and agreement of Assignor contained herein, in the Credit Agreement, the Security Agreement, the Credit Documents, or any other document or instrument executed by Assignor in connection therewith. D. The perfannance and discharge of each and every obligation, covenant and agreement of Assignor contained herein, in the General Contractor Agreement or any other docuinent or instruinent executed by Assignar in connection therewith. THIS ASSIGNMENT is made on the following terms, covenants and conditions: 1. For so long as no Event of Default shall occur and be continuing, Assignor shall have the : right to enjoy all of the rights arising out of and to enforce the General Contractor Agreement. 2. Upon the occurrence and during the continuance of an Event of Default,Lender shall have � the right to enforce Assignor's rights and interest with respect to the General Contractor Agreement. Upon the occurrence of any such Event of Default by Assignor, Lender may, without affecting any of Lender's '_ rights and remedies against Assignor under any other instrument, document or agreement, exercise - Lender's rights under this Assignment as Assignor's attorney in fact or in any other manner permitted by law. 3. Assignor hereby represents and warrants to Lender that: (i)no previaus assignment of Assignor's interest in and to or rights under the General Contractor Agreement has been made and (ii) all - covenants, agreements and conditions required to be performed or occur under the General Contractor _ Agreement by Assignor as of the clate hereof and as of the date of any extension of credit under the Credit Agreement have been, in all material respects, performed or occurred. Assignor agrees not to amend, _ assign, sell,pledge or otherwise transfer or encumber in any manner Assignor's interest in and to or rights under the General Contractor Agreement without the prior written consent of Lender,which consent shall - not be unreasonably withheld, conditioned or delayed, so long as this Assignment rem�ins in effect. 4. Assignor hereby agrees to protect, indeinnify, defend and hold Lender free and harmless from and against any and all claims, causes of action, demands, damages, liens, liabilities, losses, costs and expenses (including reasonable attorneys' fees) to which Lender may become exposed or which Lender may incur in exercising any of Lender's rights under this Assignment, except to the extent such claims,causes of action, demands, damages, liens, liabilities,losses, costs or expenses are the result of the gross negligence or intentional misconduct of Lender or any of its employees, agents, representatives and/or consultants.Assignor hereby expressly agrees that Lender shall not be liable for any loss sustained by Assignor resulting from Lender's exercise of the rights herein assigned to Lender after default by Assignor, except to the extent such loss is the result of the gross negligence or intentianal misconduct of Lender or any of its employees, agents, representatives and/or consultants. 5. This Assignment, together with the covenants and warranties herein cantained, shall inure to the benefit of Lender and its successors and assigns, and shall be binding upon Assignor and its 2 respective successors and assigns. , 6. If any one or inore of the provisions contained in this Assignment shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality ar unenforceability shall not affect any ather provision of this Assigmnent, but this Assignment shall be constn.ied as if such invalid, illegal or unenforceable provision had never been contained herein. 7. In the event of any conflict between any provision of the Credit Agreement and any provision of this Assignment, the provis�on of the Credit Agreement shall control. 8. This Assignment shall be governed by and construed according to the laws of the State of : Iowa. 9. The Borrower hereby acknowledges and agrees that the jury trial waiver, consent to jurisdiction and other provisions in Section 8.9 and Section 8.12 of the Credit Agreement apply to this Assignment and are incorpor�ted herein as though set forth in full. [Rernecincler of Page Intentionally Left Blcznk, Signctture Pczge Follows.� 3 IN WITN�SS WHEREOF, Assignor has eaecuted this Assignment as of the date first above written. ASSIGNOR: DUBUQUE RACING ASSOCIATION LTD. i I By: , Alex Dixon President and Chief Executive Officer i i I l t r Signcrtzn•e Page t�o Assignment of Ge»e��al Coi�tracto��Agr�eeme»t CONSENT The undersigned General Contractor hereby expressly: (a) consents to(i) the foregoing assigmnent ' to which this Consent is attached, (ii) the terms and conditions thereof, and {iii}the transfer and assignment contemplated thereby (collectively, the "Assi�nment Actions"); (b) waives any right (if any) to terminate the General Contractor Agreement as a result of any of the Assignment Actions; (c) waives any violation,default,and/or breach(if any)occurring under the General Contractor Agreement as a result of any of the Assignment Actions; (d) waives any notice requirement or review and/or response period(if ; any) contained in the General Contractor Agreement that may arise from or in connection with any of the Assignment Activities; and (e) acknowledges that each of Assignor and Lender are expressly relying on the General Contractar's consent, agreement and waivers set forth herein. The undersigned hereby agrees and acicnowledges that upon Lender or its successors or assigns giving the undersigned written notice of Lender's exercise of its rights under the Assignment, the undersigned will recognize and attorn to Lender in accordance with the Assignment. The undersigned further acknowledges and represents that: (i) The undersigned has not assigned its interest under the General Contractor Agreement to any other person or entity; (ii) There presently exists no unpaid claims due to the undersigned arising out of the performance by the undersigned relating to the General Contractor Agreement except for - $ ; (iii) The undersigned has no present claim against or lien upon the Improvements or the real property underlying the Improvements arising out of the undersigned's performance of any work or service on or relating to the Improvements or the real property underlying the Improvements; and (iv) The undersigned hereby agrees and confirms that the "General Contractor Agreement" referred to in the Assignment to which this Consent is attached constitutes (a)the entire agreement of Assignor and General Contractor in respect of the subj ect matter thereof and(b) the valid and legal binding - obligation of General Contractor. - (v) The iindersigned further acknowledges and agrees that the Assignment, the Credit Agreement and any other documents between Lender and Assignor are solely for the benefit of Lender and Assignor, and the undersigned has no interest in or claim upon any fiinds advanced thereunder by virtue of its consent to this Assignment, which consent shall not be unreasonablywithheld, conditioned or delayed. (vi) The undersigned further acknowledges and agrees that no material change,modification or amendment to the General Contractor Agreement from and after the date hereof shall be valid without the prior written consent of Lender. (vii) The undersigned agrees that Lender has not and shall not be deemed to have assumed the obligations of the Assignor under the General Contractor Agreement notwithstanding anything to the contrary in the General Contractor Agreeinent. In addition, the undersigned agrees that, in the event Lender exercises its rights under the Assignment, Lender and its assignees shall not be liable for any default of the Assignor; provided, that, (i) General Contractor may require that the Lender cure any Signc�tu�e Page to Consent ofAsszgnment of Gene�^ctl Contraetor AgreeYrcent payment default under the General Contractor Agreement with respect to payments owing for work . performed prior to the date Lender exercises its rights under the Assignment and (ii} froin and after the . date Lender exercises its right under the Assignment, on terms and subject to the canditions set forth in the General Contractor Agreement, the Lender shall pay for work perforn�ed by the General Contractor that is specifically requested by Lender under the General Contractor Agreement notwithstanding anything to the contrary in the General Contractor Agreement. Dated: , 2023 GENERAL CONTRACTOR: Conlon Construction Co. By: Name: Matthew Mulligan ; Title: President and COO Lender's Address for Notices: MidWestOne Bank Attn: Wayne Brecicon,First Vice President and Regional Credit Officer 895 Main St. Dubuque,IA 52001 Tel.No. (563)589-0828 , Email: wbreckon(a),midwestone.com - Signatzl�e Pccge to Consent of Assignntent of General Contractor Ag�eement ASSIGNMENT OF . AMENDED AND RESTATED OPERATING AGREEMENT THIS ASSIGNMENT OF AMENDED AND RESTATED OPERATING AGREEMENT (this "Assignment") is made effective as of October 20, 2023 by DUBUQUE RACING ASSOCIATION LTD. (the "Assignor") to MIDW�STONL' BANK, ("Lender" as defined in the Credit Agreement referenced hereinafter) in connection with that certain Credit Agreement, dated as of October 20, 2023 (as the same = may be amended, restated, suppleinented or otherwise modified from time ta time, the ``Credit Agreement"),by and between Assignor and Lender. RECITALS A. Assignor is indebted to the Lender for money actually loaned or to be laaned and advanced to Assignor as set forth in the Credit Agreement(collectively,the"Loans"), to be evidenced by tlie Credit Documents (as defined in the Credit Agreement), according to the terms set out in the Credit Documents, all the ter�ns, provisions, conditions, covenants, stipulations and agreements contained in the Credit Documents being hereby made a part of this Assignment to the same extent and with the same and lilce force and effect as if they were fully set forth herein. Unless otherwise defined herein, capitalized terms shall have the same meanings set forth in the Credit Agreement. B. The obligations under the Credit Documents are secured by, ainong other things, the collateral described in a Security Agreement (as the same may be amended, restated supplemented or - otherwise modified from time to time, the"Securitv A�reement"), dated as of October 20, 2023, made by Assignor in favor of Lender. ' C. Lender requires as a condition to making the Loans to Assignor that Assignor assign to Lender (for itself and on behalf of its successors and assigns) all of Assignor's rights under that certain Amended and Restated Operating Agreement, dated January 1, 2019, by and between Diamond Jo, LLC - ("Diamond Jo") and Assignor, together with any and all existing and future attachments, amendinents, modifications, supplements, general conditions and addenda thereto (collectively, the "Operating ' Agreement"), in connection with the construction of the Improvements and related improvements. - Assignor is willing to enter into this Assignment to effectuate the foregoing assignment so as to induce the Lender to make the Loans to Assignor. NOW THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt whereof is hereby acknowledged, Assignor hereby assigns to Lender(for itself and on behalf of its successors and assigns) all of Assignor's rights under the Operating Agreement. Assignor hereby irrevocably appoints Lender as its attorney in fact, which appointment is coupled with an interest, to receive, demand and enforce any and all of Assignor's rights under the Operating : Agreement . THIS ASSIGNMENT is made for the purposes of securing: A. Payment of the principal sum, interest and indebtedness of all Obligations. B. Payment of all other sums with interest thereon becoming due and payable to Lender under the provisions of this Assignment or of the Credit Agreement,the Security Agreement ar any other Credit 1 Document. C. The performance and discharge of each and every obligation, covenant and agreement of Assignor contained herein, in the Credit Agreement, the Security Agreement, the Credit Documents, or any other document or instniment executed by Assignor in connection therewith. THIS ASSIGNMENT is made on the following terms, covenants and conditions: = 1. For sa lang as no Event of Default shall occur and be continuing, Assignar shall have the t right to enjoy all of the rights arising out of and to enforce the Operating Agreement. 2. Upon the occurrence and during the continuance of an Event of Default, Lender shall have the right to enforce Assignor's rights under the Operating Agreement. Upon the occurrence of any such Event of Default by Assignor, Lender may, without affecting any of Lender's rights and reinedies against Assignor under any ather instniment, document or agreement, exercise Lender's rights under this Assignment as Assignor's attorney in fact or in any other manner permitted by law. 3. Assignor hereby represents and warrants to Lender that: (i) no previous assignment of Assignor's interest in and to or rights under the Operating Agreement has been made and(ii) all covenants, agreements and conditions required to be performed or occur under the Operating Agreement by Assignor as of the date hereof and as of the date of any extension of credit under the Credit Agreement have, in all material respects, been performed or occurred. Assignor agrees not to amend, assign, sell, pledge or - otherwise transfer or encumber in any manner Assignor's interest in and to or rights under the Operating Agreement without the prior written consent of Lender,which consent shall not be unreasonably withheld, conditioned or delayed, so long as this Assignment remains in effect. 4. Assignor hereby agrees to protect,indemnify, defend and hold Lender and the Lenders free and harmless from and against any and all claims, causes of action, demands, damages, liens, liabilities, - losses, costs and expenses (including reasonable attorneys' fees) to which Lender may become exposed or which Lender may incur in exercising any of Lender's rights under this Assignment,except to the extent such claims, causes of action, demands, damages, liens, liabilities, losses, costs or expenses are the result of the gross negligence or intentional misconduct of Lender or any of its employees, agents, representatives and/or consultants. Assignor hereby expressly agrees that Lender shall not be liable for any loss sustained by Assignor resulting from Lender's exercise of the rights herein assigned to Lender after default by Assignor, except to the extent such claims, causes of action, demands, dainages, liens, liabilities, losses, costs or expenses are the result of the gross negligence or intentional misconduct of Lender or any of its employees, agents, representatives and/or consultants. 5. This Assignment, together with the covenants and warranties herein contained, shall inure to the benefit of Lender and its successors and assigns, and shall be binding upon Assignor and its respective successors and assigns. 6. If any one or more of the provisions contained in this Assignrnent sl�all for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Assignment,but this Assignment shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 7. In the event of any conflict between any provision of the Credit Agreeinent and any 2 provision of this Assignment, the provision of the Credit Agreement shall control. . 8. This Assignment shall be governed by and construed according to the laws of the State of Iowa. 9. Assignar hereby acknowledges and agrees that the jury trial waiver, consent to jurisdiction and other provisions in Section 8.9 and Section 8.12 of the Credit Agreement apply ta this Assignment = and are incorporated herein as though set forth in full. jRemc�incleN of Page Intentionczlly Left Blank, SignatuNe Pc�ge Follows.J E 3 IN WITNESS WHER�OF, Assignor has executed this Assigmnent as of the date first above written. ASSIGNOR: DUBtiQUE RACING ASSOCIATION LTD. By: r Alex DiYon President and Chief EYecutive Officer Lender's Address for Notices: MidWestOne Bank Attn: Wayne Breckon, First Vice President and Regional Credit Officer 895 Main St. DLibuque, IA 52001 Tel. No. (563)589-0828 Email: wbrecl<on a midwestone.com i � � ` � } � f ; i ; � i I t 1 � i i I � � i i Sigfurtzrre Page to Coi�sent ofAssigi�»�ent of Opercrti��gAg��ee»�ent CON�STRUCTION LOAN DISBURSING AGREEMENT TT3IS CONSTRUCTION LOAN DISBURSING AGREEMENT (this "Ag�eement"} is entered into this 20t�' day of October, 2023, by and among First American Title Insurance Com��ny ("Escrow Age�zt"), MidWestOrze B�nk ("I.encleE�"}, and Dubuque R�cing Associ�tion, Ltd. ("Bor^�ower"), WITNES�ETH: ; W�iER�AS, Lender and Borrower contemplate entering into a construetion loan agreement to l�e dated on or about October 20, 2023 ("CoiZstruction Lotcn Agr�eehient"), coveriilg financing in the total priilcipal amount of $27,777,821,00 (the "C'oristruction. Loa�a.") for the development and construction of a project (the "P�^oject") upofl the land described on Exl�ibit A attached hereto ("Lai2d"), '6�HElt�AS, Lender and Borrower have requested that Escrow Agent disburse !- (a) equity contributions made by Borrower in connection with the Project and (b) the � Constructioil Loan proceeds made by Lender under the Construction Loan Agreement, - which Escrow Agent is willing to do so pursu�nt to the terms and conciitioi�s of this Agreement. 1�OW, THEREFORE, in consideration of the premises and of the mutual ;_ covenants and agreements set forth herein, the receipt and sufficiency of which are hereby acknawledged, the parties agree as follows: 1, E�ity Contributions. Borrower will deposit (or will cause to be deposited) with : �scrow Agent from time to time equity contributions for disbursement in connectiori ' with the Project ("Equity Corzt��iGcition(s)"), - i i I 2, Adv�nces. At the request of Borrower, Lender will deposit with Escrow Agent from tinle to titne undisbursed proceeds of the Construction Loan available f'or disbursement ("Adv�izce(s)"). 3. Pur�ose of Disbursements, �scrow Agent is authorized and directed to disburse Equity Contributions and Advances (hereinafter referred to as "Corastructaon DisG�aNsemer�t(s)") to pay costs of construction of the Project pursuant to and in accordance with the procedure set forth in Section 5 hereof, 4. Conditions of Initial Disbursement. Prior to the initial Construction Disblxrsement heretinder, Borrower shall suUmit to Escrow Agent the following; a, A Project Cost Statement listing all of the hard and soft costs relating to the Project to be paid with�quity Contributions and Advances; 1 b, An Owner's Sworn Construction Statement disclosing the name of each person, corporation or other entity which has a contract under which payment may be required for any worlc done, material supplied or services furnished in connection with acquiring, constructing, financing, equipping and/or developing the Project, including project nlanagers, interior design firms, ; architects, engineers and surveyors ("Contrccctors"), and the amouilt of such contract, to be updated with each draw; and, c. If requested by Lender or�scrow Agent, a copy of each contract with each of the Contractors. 5. Construction Disbursements and Procedures. The parties acicnowledge and agree to the following procedures with respect to a request for, and disbursemeilt of, a Constrlrction Disbursement for any given month during construction of the Project: a, On or before the Sth day of such month, the general contractor for the Project = will submit to Borrower's development manager ("Development Manager") the following documents (the "Gene�trl Co�ztractor DisbuNsement Request �ocun2ents"): i. an updated general contractor's sworn construction statement setting -- forth the Contractors, subcontractors and suppliers, the amount of each contract, the amount paid to date, the amount being requested, ancl the balances due, which statement shall be substantially in the form attached as EYhibit "B", together with copies of the applicable invoices, affidavits and/or substantiated evidence of payment to establish the cost or value of the iteins or improvements for which - disbursement is to be or has been made ("Ge�zeral Cont�r�ctar Sworn Statehze��P'); � � _ ii, unconditional, up to date lien waivers executed by each Cantractor, to which any portion of the immediately preceding Construction ° Disbuisement ("Prior Disburse�2eizP') was paid, covering liens for all work done and materials supplied for which disbursement was made from the Prior Disbursement, in form satisfactory to Escrow Agent; �nd iii. in the case of the final draw request, an updated General Contractor Sworn Statement, inclusive of all change orders, togetl�er with full and final unconditional lien waivers from each Contractor for all worlc done and materials supplied for which payment has been made in full. 2 b. On or before the 12t�' day of such mbnth, Development Manager will: i. distribute copies of the C�eneral Contractor Disburseilletlt Request Documents simultaneous�y to Borrower, Lender, Lender's construction consultant ("�'orzstruction Consccltrc�it"), and Escrow Agent; and ii, simultaneously notify ea�h of Borrower, Lender, Canstruction Consultant, and Escrow Ag�nt of Development Manager's approval of the General Contractor Sworn Statement in its entirety or, if applicable, any conditions to such approval. c. On or before the 25t�' day of such month: i. Borrower will furnish to Escrow Agent the following documents: (A) a draw req�,iest signed by Borrower for the requested disbursement; (B) an updated Owner's Sworn Construction Statement setting forth _ the Contractors, the amount of each contract, the amount paid to date, the amount being requested, and the balances due; and (C} an updated Project Cost statement reflecting all financial sources and uses, i.e. the amount paid to date, the amount being requested, and the sources/costs remaining; and (D) for any amounts requested as reimbursements, -- proof of payment (in the forin of a canceled checic or wire receipt), corresponding invoice, and, for reimbursements of lienable worlc, an unconditional waiver for the paid amount. , ii. Lender will simultaneously notify each of Borrower, Development Manager, and �scrow Agent of Lender's approval of the relevant draw request. d. On ar before the 30t�' day of such month: = i, Borrower will (or will cause Lender to) transmit to Escrow Agent an Equity Contribution to fund (in whole or in part) the a�plicable Construction Disbursement, Uy transfer of such funds to Escrow Agent for deposit in Escrow Agent's Account No. 3152070000 m�intained with First American Trust, FSB, 5 First American Way, Santa Ana, California, ABA No, 122241255 (the "Escrow DisGu�sehzent Account"), which transfer will constitute Borrower's authorization to Escrow Agent to disbl�rse such Equity Contribution. ii. Lender will transmit to Escrow Agent an Advance to fund (in whole or in part) the applicaUle Constrltction Disbursement, by transfer of such funds to Escrow Agent for deposit in the Escrow Disbursement Account, which transfer will constitute Lender's authorization to Escrow Agent to disburse such Advance, 3 iii. Escrow Agent will, subject�o its (A) receipt of each of the document�s, notifications, and approvals contemplated by subsections a.-c., above, in form �nd content satisf�ctory to Escrow Agent in its reasonable discretion, (B) receipt of�e`�uity Contributions and/or Adv�nces in an amount sufficient to cover the requested Construction Disbursement and any unpaid t�itle escrow:charges, and (C) determination �ursuant to Section 7 that the title to tYie Project and Land has not changed since the date of prior notifcation given to Lender and Borrower, disburse from the Escrow Disbursement Account the amounts shown in the relevant draw request (or such lesser amounts if directed by Development Manager and/or Lender) directly to the Contrletor identified in the relevant draw request. In the event that Escrow Agent has determined that it is unable to malce the requested Construction Disbursement, it shall immediately notify Borrower, Development Manager and Lender of the reason preventing such disburseinent and promptly return and remit to Borrower and/or Lender, as applicable, the Equity Contributions and/or Advances then on deposit in the �scrow Disbursement Account. e. All documents, notifications and approvals to be provided pursuant to this Section 5 shall be provided by email and shall be sent to the applicaUle party(ies) at the following email address(es): if to Borrower; brianr(�a,qcasinodbq.com tresah(c�,qcasinodbq.com if to Development Mai�ager; ben ,mammina r�oup.com if to Lender; wbrecicon(a�midwestone,com ConstructionLoanMoi�itorin�(p�midwestone.com if to Construction Consultant: chrisna,primus-companies.com if to Escrow Agent: disbursin .�(a�firstam.coin f. Notwithstanding the disbursement procedures set forth in this Agreement, the p�rties acicnowledge and agree that the notifications to and/or approvals of Lender and Construction Consultant contemplated by this Section 5 shall not be required with respect to any Construction Disbursement to be funded by an Equity Contribution prior to the date upon which the Construction Loan Agreement has become effective and the closing date contemplated therein has occurred. 4 6. Conditions of Advances. Borrower may obtain Advances for disbursement to Contractors only to tl�.e extent of the ai�tount of the contract worlc campleted or � nlaterials sL�pplied to the Project by eacll such Contractor in accordance with its contract, fess any required Tetainage, and Borrower agrees that all sums reqtlested hereunder for disbursement of Advances to each Contractor shall not exceed that amount. 7, Title Policy Endorsement. Promptly L1pon receipt of the General Contractor Disbursament Request Documents for any given month (and in any event prior to the 30t�, day of such month), Escrow Agen� shall malce such searches as it deems � necessary ta deternline that the status of tlie title to the Project and Land has not changed since the date of prior notification given to Lender and Borrower. Escrow Agent wiil immediately notify Lender, Borrower, and Development Manager by email (at the email addresses specified in Section S.e.) of any intervening mechanics' ' liens or ather matters recorded in the land records or over which Escrow Agent is unwilling to insure (other than those expressly listed in the Policy, or as may have been approved and accepted by Lender and shown in endorsements previausly given _ to Lender} and may discontinue disbursement .until the encumbrance has been disposed of to Escrow Agent's reasonable satisfaction. Provided the draw documentation set forth in Section S is satisfactory to �scrow Agent and there are no intervening meclzanics' liens or other matters of title, Escrow _ A.gei�t will increase the amount of Lender's insurance coverage by the amouiit of the Advance and date down the coverage for mechanics' liens with the ALTA 33-06 endorsement attached hereto as "Exhibit C"; provided, howeveN, that notwithstanding ' the foregoing, the parties acicnowledge and agree th�t the ALTA 33-06 endorsement : will not be applicable or provided prior to the date upon which the Construction Loan Agreement has become effective, the closing date contemplated therein has occurred, and the Ioan title policy has been issued by First American Title Insurance Compa�ly - to Lender. 8. Additional Equit�De�posits, If at any time it is deterinined that the amount required to pay all remaining and unpaid costs and expenses in connection with the completion of the Project exceeds the amount of the undisbursed funds available under the Construction Loan, then Borrower shall, upon Lender's request, deposit with Lender funds from sources otller than the proceeds of the Construction Loan sufficient to pay for the excess costs, In no event shall fiinds available under the Construction Loan be disbursed if the unpaid costs and expenses in connection with the completion of the Project exceed the amount of the undisbursed funds available under the Construction Loan. 9, No Interest on Funds. Escrow Agent shall not be liable for interest on Equity ContriUutions, Advances or other funds deposited with it. 10. Records. Escrow Agent will lceep and maintain boolcs and records in suFficient detail to reflect the disbursements made by it pursuant to this Agreeinent. Each of 5 Borrower, Development Manager and Lender inay during normal business hours examine the boolcs and records of Escrow Agent pertaining to those disbursements. 1 l. Re orti�� . The parties acicnowledge that Escrow Agent shall not be responsible for = creating, fiirnishing or reporting any IRS 1099 notices or filings for any payments it disburses under this Agreement for the parties. 12, Duties of Escrow Agent. Functions and duties assumed Uy Escrow Agent include only those described in this Agreement, and Escrow Agent is not obligated to act except in aeeordance with the terms and conditions of this Agreement. Escrow Agent does not ensure that the Pt�oject will be completed, nor that any improvements for the Project will be in accordance with the plans and specifications, nor t11at sufl'icient funds will be available for the completion of the Project. �scrow Agent may conclusively rely upon any document believed by Escrow Agent to be genuine and to have been signed or presented by the proper parties, consistent with reasonal�le due diligence on Escrow Agent's part. 13. Custodv of Documents. �scrow Agent shall not be responsible for any loss of documents, �quity Contributions, Advances or other funds while such items are not in its custody, Documents, Equity Contributions, Advances or other funds which are deposited in the United States mail shall not be construed as being in the custody of Escrow Agent, -- 14, Fees. The parties contemplate 15 draws will occur for the Project. Escrow �lgent's fee for disbursement shall be $500,00 per draw. Additional disbursement fees will be ' chargeci against Borrower for any draws in excess of 25 draws, Escraw Agent reserves the right to charge additional, reasonable fees should circumstances warrant. 15. Miscellaneous. �„ This Agreement shall be binding upon the parties hereto and their respective = successors and �ssigns. b, This Agreement can be amended or modified only by a written amendment signed by the parties hereto. c, Except as otherwise expressly provided in Sections S.e, or 7 hereof, any notice required to be given to Borrower, Lender or �scrow Agent pursuant to t11is Agreement shall be via email or in writing and shall be deemed duly given (i) via einail, (ii) on the date of personal delivery, (iii) one business day following dispatch by Federal �xpress or equivalent, or (iv) three (3) business days �Fter mailing certified mail, postage prepaid, return receipt requested, to the respective addresses of the parties set out below: 6 LENDER; MIDWESTONE BANK 895 Main Street DuUuque, Iowa 52001 Attn: Wayne Brecicon wbreciconn,midwestone.com � BORROW�R: DUBUQUE RACING ASSOCIATION, LTD. 1855 Greyhound Parlc Road Dubuc�ue, Iowa 52001 Attn: Alex Dixon and Brian Ralcestraw alexd cr,qcasinodbc�.com brianr(a�,c�casinoclbc�.com ESCROW AGENT: First Americail Title Insurance Company _ 121 South 8t�' Street, Suite 1250 Minneapolis, MN 55402 Attn: Construction Disbursing Department disbursin .mn e firstam.coin d. This Agreement may be executed in counterparts, each of which shall be ' deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, ' e-mail or other means of electronic transnlission (including, without limitation, via DocuSign or Adobe Sign) shall be deemed to I1ave the same legal effect as delivery of an original signed copy of this Agreement. jRe�aainder of Page Intentionally Left 13lank; Signature Page FollovvsJ 7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the � day and year first above written. ESCROW AGENT: _ First American Title Insurance � Company ,A��.�- By: Aaron J. Priest Its: Vice President, Construction Escrow Manager LENDER: MidWestOne Bank : By: Wayne Brecicon Its: First Vice President, Regional Credit Officer BORROWER: Dubuque Racing Association,Ltd. - By: Alex Dixon Its: President and Chief Executive Officer : 8 IN WITN�SS WHER�OF, the parties hereto have e�ecuted this Agreement the day and year first above written. ESCROW AGENT: I'irst American Title Insurance ? Company By: Aaron J. Priest Its: Vice President, Construction Escrow Manager LENDER: MidWestOi�e Banlc ;� ��'�� _ . By:v ��ayne Breckon Its: �irst Vice President, Regional Credit OfFicer BORROWER: Dubuque Racing Association, Ltd. By: Ale Dixon Its: President and Chief EYecutive Officer 8 EXHIBIT A LEGAL DESCRIPTION Lot 1 of CHAPLAIN SCHMITT ISLAND in tlle City of Dtibuque, Iowa, accatding to the Plat recorded as Instrument#2023-7679, records of Dubuque County, Iowa. ; 9 PROMISSORY 1�TOTE $4,000,000.00 October 20,2023 ' FOR VALUE RECEIVED, Dubuque Racing Association, LTD., an Iowa nonprofit ; corporation ("Barrower"), hereby promises to pay to the order of Dubuque Initiatives, an Iowa �- nonprofit corporation("Lender"), an aggregate principal amount of$4,000,000.00 (the"Principal Amount"), together with interest thereon calculated in accordance with the provisions of this ' Promissory Note{the"Note"). 1. Payments ; (a) Monthly Installment Payments/Demand.The principal balance shall accrue � interest at the rate of tluee and one-half percent (3.5%) per year commencing on the date hereof � and amortized over twenty years. On or before the fifteenth (15t1i) business day of each calendar month beginning November 15,2023 (each, a"Pavment Date"), Borrower shall pay to Lender the sum of $23,198.24, on a fiilly amortized basis, in accordance with the amortization schedule attached hereto as Exhibit A. Beginning November 1, 2033, Lender may call all remaining principal and interest due at any time by providing written notice of call of the loan to Borrower i at least twelve(12}months prior to the date upon which the principal and interest shall be due(the �- "Call Notice"). In the event Lender provides the Call Notice, Borrower shall pay all sums due hereunder on or before a date twelve (12) months after the date of the Call Notice. (b} Optional Prepa.�. Borrower may, at its option,prepay any or all of the outstanding Principal Amount at any time without premium or penalty; provided, that, any such prepayment of the Principal Amount shall be accompanied by all accrued and unpaid interest ' thereon through and inchtding the prepayment date. To the extent Borrower makes any � I prepayment under this Section 1(b) of less than the entire balance then due and owing under this � Note, Exhibit A shall be updated to reflect the remaining installment payments due hereunder. � 2. Interest. The outstanding Principal Amount shall bear simple interest (calculated '•:, for actual days elapsed on the basis of a 365-day year) from and excluding the date hereof to and including the date on which the Principal Amount is paid in fitll at a rate per annuln equal to 3.5%. For any Payment Date, the Principal Amount shall be the outstanding principal amount on such Payment Date prior to giving effect to any payment of principal on such date. 3. Use of Funds. Borrower intends to expand its gaming and other businesses in Dubuque, Iowa. Borrower agrees that upon fiinding of the loan proceeds by Lender, Borrower shall identify such loan funds as restricted funds to be used solely for design and construction costs attributable to unique enhancements to entertainment capacity on that real estate locally known as "Schmitt Island". Unique enhancements shall include a rooftop restaurant, performance venues or such other enhancements as may be approved in writing by Lender (the "Restricted Purpose") to be developed by Borrower as part of its business expansion project on Schmitt Island. The Restricted Purpose shall be completed on or before December 31, 2026. 39247367 4. A�lication and Place of Pa.�. All payments made on this Note shall be ' applied first to the payment of any fees and expenses incurred by the Lender in collecting the same, second to any interest then due hereunder, and the remainder, if any, shall be applied to the unpaid Principal Amount hereof. All payments on account of this Note shall be made in lawfiil money of - the United States ofAmerica and in immediately available funds at such place as Lender may from tiine to tiine direct in writing to Borrower. 5. Events of Default. The occurrence of any one or more of the following events at ' any time when any amottnt remains outstanding under this Note without the prior written consent ; of Lender shall constitute an event of default(individually, an"Event of Default"and collectively, the `Bvents of Default") under the terms of this Note: {a} The failure of Borrower to pay Lender when due any and all amounts payable by Borrower to the Lender under the terms of this Note; brovided, that, notwithstanding anything to the contrary, Lender will not exercise any available right because of any default under this clause (a) unless Borrower shall have failed to cure the default within 15 days of such due - date; (b} Borrower shall (i) apply for or consent to the appointment of a receiver, trustee, or liquidatar of itself or any of its property; (ii) admit in writing its inability to pay its debts as they mature; {iii} make a general assignment for the benefit of its creditors; (iv}be adjudicated a bankrupt or insolvent; (v) file a voluntary petition in banlcruptcy or a petition or answer seelcing reorganization or arrangement with creditors or to take advantage of any bankruptcy, ' reorganization,insolvency or readjustment of debt, dissolution or liquidation law or statute; or(vi) by any act indicates consent to, approval of or acquiescence in any such procedure or the appointment of any receiver or trustee for any of his/its property or suffer such receivership, trusteeship or praceedings to continue undischarged for a period of sixty (60) days; {c} Borrower shall terminate or otherwise dissolve its existence as an Iowa non- profit corporation, (d) Borrower shall repudiate or disavow in writing its liability under this Note; _ (e} Borrower shall fail to use the funds for a Restricted Purpose within the time frame established herein; (�} Borrower loses its license to operate its primary gaming operation and fails to obtain reinstatement of such license within thirty (30) days of the date of loss; (g) Borrower defaults upon obligations to MidWestOne Bank or the City of Dubuque, Iowa(the "Citv"); (h} Borrower fails to maintain a minimum Debt.Service Coverage Ratio of at least 1:1. For purposes of this Note, "Debt Service Coverage Ratio"means the ratio of (i) Cash Flow to (ii) the sum of all contractual principal and interest payments on all borrower debt and finance lease obligations. "Cash Flow" is defined as (a) Change in Net Assets without Donor Restrictions, (b)plus Amortized Diamond Jo Lease Parking Expense, (c) Less Actual Diainond Jo Lease Parking Reimbursement Payment, (d)plus 2 Depreciation and Amortization, (e)phis interest expense, (�plus realized and unrealized losses from interest rate swap(s), asset sales, marketable securities, and extraordinary items, (g) less realized and unrealized gains from interest rate swap(s), asset sales, marlcetable securities, and extraordinary items, measureci annually utilizing Bon•ower's audited financial statement beginning with fiscal year-end December 31, 2023. {i) The City asserts a right to payinents from Borrower under Borrower's lease with the City upon terms contrary to the provisions of the Lease Subordination Agreement between Borrower, MidWestOne Bank and the City . 6. Remedies. Upon the occurrence of an Event of Default, subject to any grace period provided for herein, at the option of Lender and upon notice to Borrower, all amounts payable l�y ; Borrower to Lender under the terms of this Note shall immediately become due and payable by Borrower, and Lender shall have all the rights, powers and remedies available under the tenns of this Note and all applicable laws. Borrower and all endorsers, guarantors, and other parties who r may now or in the future be primarily or secondarily liable for the payment of the indebtedness evidenced by this Note, hereby severally waive presentment, protest, and c�emand, notice of protest, notice of demand of dishonor and nonpayment of this Note, and expressly agree that this Note or any payinent hereunder may be extended from time to time without in any way affecting the liability of Borrower, guarantors, and endorsers. 7. Ex ep nses. Borrower promises to pay Lender on demand by the Lender all costs and expenses incurred by Lender in connection with the collection and enforcement of this Note, � including, without limitation, reasonable attorneys' fees (actually incurred withaut regard to � statutory presumptian), expenses and court costs, which collection and enforcement result from the occurrence of an Event of Default hereunder. Further, Borrower agrees to pay Lender's out of ; pocicet expenses, including reasonable attorneys' fees incurred, in connection with the loan contemplated by this Note and all loan documents associated with the transaction. 8. Notices. Any notice,request,demand or other communication to or upon Borrower � or Lender shall be made to the following addresses, or such new address as a party may provide in the future: To Lender: Dubuque Initiatives Attn: President 50 W. 13t1i St. Dubuque, Iowa 52001 To Borrower: Dubuque Racing Association, LTD Attn: President and Chief Executive Officer 1855 Greyhound Park Drive Dubuque, Iowa 52001 3 ' 9. Miscellaneous. (a} Each right,power and remedy of Lender as provided for in this Note or now or hereafter existing uncier any applicable law or otherwise, shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for in this Note or now or hereafter existing under applicable law in the exercise or beginning of exercise by Lender of any one or more of such rights, powers or remedies, shall not preclude the simultaneous or later exercise by Lender of any or all such other rights, powers or remedies. No failure or delay by - Lender to insist upon the strict performance of any tenn, condition, covenant or agreement of this Note or to exercise any right, power or remedy consequent upon a breach hereof, shall constitute a waiver of any such tenn, condition, covenant or agreement or of any such breach or preclude Lender from exercising any such right, power or remedy at a later time or times. By accepting payment after the due date of any amount payable under the terms of this Note, Lender shall not : be deemed to waive the right to either require prompt payment when due of all ather ainounts payable under the terins of this Note, or to declare an Event of Default for the failure to effect such prompt payment of any such other amount. No course of dealing or conduct shall be effective to - amend, modify, waive, release or change any provisions of this Note. - ; (b} Borrower expressly waives any presentment, demand, protest or notice in ' connection with this Note, now or hereafter required by law. {c} Time is of the essence of this Note. - {d) This Note shall be binding upon the successors, and assigns of Borrower and shall inure ta the benefit of the successors and assigns of Lender;provided,however,Borrower ' shall have no right to assign its obligations hereunder to any person without the prior written consent of Lender. i 10. Severabilitv. In the event any provision of this Note(or any part of any provision) � is held by a court af competent jurisdiction to be invalid, illegal or unenforceable in any respect, such invalidity, iliegality or unenforceability should not affect any other provision (or the remaining part of the effective provision) of this Note but this Note shall be construed as if such invalid, illegal, or unenforceable provision or part thereof had not been contained in this Note,but only the extent it is invalid, illegal, or unenforceable. 11. GOVERNING LAW. THE PROVISIONS OF THIS NOTE SHALL BE CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF IOWA AS THE SAME MAY BE IN EFFECT FROM TIME TO TIME. 12. Waiver of Trial b.�rv. To the extent perinitted by applicable law, Borrower and Lender hereby waive trial by jury in any action or proceeding in which any of them may be parties arising out of or in any way pertaining to this Note. 13. Usu . Nothing contained in this Note shall be construed to permit Lender to receive at any tiine interest, fees or other charges in excess of the amounts which Lender is legally entitled to charge and receive under any law to which such interest, fees or charges are subject. In no contingency or event whatsoever shall the compensation payable to Lender by Borrower, howsoever characterized or computed, hereunder or under this Note or under any other agreement 4 or instrument evidencing or relating to the obligations evidenced hereby, exceed the highest rate permissible under any law to which such compensation is subject. 14. Amendment or Waiver. The provisions of this Note may be amended or waived, only pursuant to a writing signed by Lender and Borrower. [SIGNATURE PAGE FOLLOWS] 5 IN WITNESS WHEREOF, Bori�ower has c�used this Note to be executed as of the date first written aUove. BORROW�R: � Dubuque Racing Association, LTD By: Alex Dixon, Presid nt and Chief EYecutive Officer A�reed and acknowledaed: LENDER: Dubuque Initiatives By: Kevin Lynch, President i I � l � � i � ; IN WITNESS WHEREOF, Borrower has caused this Note to be executed as of the date first written above. BORROWER: i � Dubuque Racing Association, LTD By: Alex Dixon, President and Chief Executive Officer A�reed and ackr►owledged: LENDER: Dubuque Initiatives ' By: Ke,v-i.+�.J. �y�- Kevin Lynch, President Exhibit A Amortization Schedule fEqual Monthly Paymentsl See attached. ;