The URL can be used to link to this page

Dubuque Racing Association Lease, Improvement Projects — Lot 1 of Chaplain Schmitt Island, Requesting Consent of City to Improvements, Leashold Mortgage, & Subordination Agreement Copyrighted September 18, 2023 City of Dubuque Public Hearings # 010. City Council Meeting ITEM TITLE: Dubuque Racing Association Lease, Improvement Projects — Lot 1 of Chaplain Schmitt I sland, Requesting Consent of City to I mprovements, Leasehold Mortgage, & Subordination Agreement SUMMARY: Proof of Publication on notice of public hearing to considerthe lease along with consent to and approval of the improvements, leasehold mortgage, and subordination agreement and City Attorney recommending approval. RESOLUTION Disposing of an Interest in Real Property by Lease Agreement with Dubuque Racing Association, LTD. and Approving a Leasehold Mortgage and Subordination Agreement Between Dubuque Racing Association, LTD and MidWestOne Bank. SUGGESTED Suggested Disposition: Receive and File;Adopt Resolution(s) DISPOSITION: ATTACHMENTS: Description Type Memo Staff Memo Resolution Resolutions Lease Subordination Agreement- Executed by DRA, Supporting Documentation MWO and DI Amended and Restated Lease Agreement Supporting Documentation Leasehold Mortgage Supporting Documentation Dubuque THE CITY OF � AIFAneriea Cil� Du B E ��,��,��v��. ' � II ��' MRSt� iece on the Mississi 1 zoo��zoiz=zois �P pP zai�*zoi9 CRENNA M. BRUMWELL, ESQ. CITY ATTORNEY TO: MAYOR BRAD M. CAVANAGH & MEMBERS OF THE CITY COUNCIL DATE: SEPTEMBER 13, 2023 RE: DUBUQUE RACING ASSOCIATION LEASE DUBUQUE RACING ASSOCIATION IMPROVEMENT PROJECTS — LOT 1 OF CHAPLAIN SCHMITT ISLAND REQUESTING CONSENT OF CITY TO IMPROVEMENTS, LEASEHOLD MORTGAGE $SUBORDINATION AGREEMENT The City of Dubuque in conjunction with the Dubuque Racing Association (DRA) and community participants have worked diligently for years to procure a Chaplain Schmitt Island Master Plan and Schmitt Island Placemaking & Implementation Plan. Work on implementation of the plans has been ongoing. The biggest project to date has been the Veteran's Memorial. A Community Project Funding grant was received via Representative Hinson for construction of the Veterans Memorial Trailhead Project and will be constructed in 2024. In 2022 the City invested millions of dollars in improvements to ImOn Arena. Additional improvements to the arena are currently in process. The Chaplain Schmitt Island Master Plan as adopted in 2014 and amended in 2017. The Chaplain Schmitt Island Placemaking & Implementation Plan was adopted in 2017. The goals of the plan were largely recreational focused and included connecting and expanding access to the riverfront, creation of educational opportunities on the island, highlighting the unique characteristics of the island, bringing new visitors to the island, and offering activities and events for all seasons. The largest tenant on the island is the DRA leasing and operating Q Casino. The DRA in has proposed approximately $90 million dollars in public and private improvements to the island. The improvements completed or proposed include: OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 3OO MAIN STREET DUBUQUE, IA 52001-6944 TE�EPHONE(563)589-4381 /Fax(563)583-1040/Ennai�cbrumwel@cityofdubuque.org Public Improvements • lowa Amphitheater on Chaplain Schmitt Island • Veterans Memorial Trailhead Project • Proposed $40 million Chaplain Schmitt Island connectivity and access improvements including a railroad overpass at 14th Street Private Improvements • Construction of a new 8-story, 108 room Hilton Tapestry Collection hotel adjacent to the existing Hilton Garden Inn, including an upscale rooftop restaurant, lounge, and event space overlooking the Mississippi River • Interior casino remodel, including elevated bar with bar top slot machines and updated showroom, new Sports Book, and new sports bar. • New banquet space and party rooms • Additional of a family entertainment zone for all ages with high-end arcade games • Exterior casino upgrades including the fa�ade, signage, landscaping, and surface parking The private improvements to the island necessitate: • Consent to the improvements by the City as required by the lease for any improvements over $100,000 • Financing of the improvements by the DRA. The lender for DRA, which is MidWestOne Bank, requires: ■ City consent to a leasehold mortgage ■ City agreement to subordination of its lease in favor of the MidWestOne Bank • Updates to the lease between the City and DRA An amended lease has been negotiated between the City and DRA for Lot 1 of Chaplain Schmitt Island which contains the area where the casino, existing hotel and restaurant, and the new hotel are located. The lease: ■ Consolidates separate leases for the casino and hotel/restaurant into a single lease ■ Adds a Consumer Price Index escalator on the lease payment related to the hotel and restaurant ■ Establishes a Debt Payment Reserve Fund of$7 million over five (5) years ■ Clarifies responsibility for environmental issues ■ Allows usage of $3 million of funds in the Cash Reserve Fund by the DRA for downpayment on the construction improvements 2 ■ Continued approval for carryover of $2.5 million from fiscal year 2022 budgeted for debt payments by DRA toward the downpayment on the construction loan for the improvements The leasehold mortgage and subordination agreement have been reviewed and negotiated between the parties. The City Attorney's Office consulted with outside counsel as well. Public hearing on the lease along with consent to and approval of the improvements, leasehold mortgage, and subordination agreement is scheduled for September 18, 2023. Staff respectfully recommends approval. cc: Michael C. Van Milligen, City Manager Teri Goodmann, Director of Strategic Partnerships Marie Ware, Leisure Services Director Wally Wernimont, Planning Services Director Jill Connors, Economic Development Director Steve Sampson Brown, Project Manager Alex Dixon, CEO and President, Dubuque Racing Association Mike Donahue, Dubuque Racing Association Board Chair 3 Prepared by Crenna Bramwell 300 Main Street Suite 330 Dubuque IA 52001 563 583-4113 RESOLUTION NO. 315-23 DISPOSING OF AN INTEREST IN REAL PROPERTY BY LEASE AGREEMENT WiTH DUBUQUE RACING ASSOCIATION, LTD. AND APPROVING A LEASEHOLD MORTGAGE AND SUBORDINATION AGREEMENT BETWEEN DUBUQUE RACING ASSOCIATION, LTD AND MIDWESTONE BANK. Whereas, the City Council, by Resolution No. - 23, dated , 2023, declared its intent to dispose of City interest in 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. (the Property); and Whereas, pursuant to published notice, a public hearing was held on the proposed disposition on September 18, 2023 at 6:30 p.m. in the Historic Federal Building, 350 W. 6th Street, Dubuque, Iowa; and Whereas, it is the determination of the City Council that approval of the Agreement with Dubuque Racing Association, Ltd. according to the terms and conditions set out in the Amended and Restated Lease Agreement is in the public interest of the City of Dubuque. Whereas, it is the determination of the City Council that consent for a construction project in excess of$100,000 is in the public interest of the City of Dubuque; and Whereas, it is the determination of the City Council that consent to Dubuque Racing Association's financing of the improvement project with MidWestOne Bank, which requires City consent to a Leasehold Mortgage is in the public interest of the City of Dubuque; and Whereas, it is the determination of the City Council that subordination of Dubuque Racing Association's lease obligations to the City in favor of MidWestOne Bank pursuant to a Subordination Agreement and City consent to the subordination is in the public interest of the City of Dubuque; and Whereas, the City Council of City believes it is in the best interests of City to approve the Lease Agreement with Dubuque Racing Association, Ltd., to consent to the improvements, to consent to a Leasehold Mortgage, and to consent to the Subordination Agreement in favor or MidWestOne Bank. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The City Council disposes of City's interest in the foregoing-described real property pursuant to the Amended and Restated Lease Agreement, consents to improvements by Dubuque Racing Association Ltd., consents to a Leasehold Mortgage, and consents to the Subordination Agreement in favor of MidWestOne Bank. Section 2. The Mayor and Assistant City Clerk are hereby authorized and directed to execute the Amended and Restated Lease Agreement, Leasehold Mortgage, and Subordination Agreement. Section 3. The Assistant City Clerk is hereby authorized and directed to cause said Amended and Restate Lease Agreement, Leasehold Mortgage, and Subordination Agreement to be delivered to the City Attorney's Office, together with a certified copy of the Resolution. Passed, approved, and adopted this 18th day of September, 2023. Brad M. Ca agh, Mayor Attest: Trish L. Gleason, Assistant City Clerk 2 LEASE SUBORDINATION AGREEMENT TIIIS LEAS�SUBORDINATION AGRE�MENT("Agreement")is made as of October 20,2023, by and among DIJBUQUE RACING ASSOCIATION, LTD,, an Iowa nonprofit corporation ("DRA" and/or as applicable, the `Borrower"); the CI'rY oF DuBvQvE, IowA, a municipal corporation (the "Citv"); MIDWESTON� BANK, an Iowa state banlc ("Lender"); and DUBUQUE INITIATIVES, an Iowa nonprofit corporation ("DI"), � ; RECITALS A. Lender has made, and h�s agreed to malce certain. loans and other financial accommodations to Barrower pursuant to the terms and conditions of a Credit Agreement of even date herewith (as amended from time to time, the "Credit A�reement") between Borrower anel Lender, B. DI has �greed to malce certain loans and other financial accommodations to Borrower �ursuant to the terms and conditions of a promissory note and/or credit agreement of even date herewith (as amended from time to time, the "DI Note") between Borrower and DI. C. Borrower is obligated to City pursuant to the Lease Agreement, as l�ereinafter defizled. D. Lender is willing to malce the loans and other financial accoinmodations to Borrowei:undex � t1�e:.Credit Agreement and the other Credit Documents on the condition, among ather thin�s, th�t this - Agreement be signed by the parties hereto and delivered to Lender, E, DI is willing to malce the loans and other financial accommodations to Borrower under tlle DI Note on the condition, among other things, that this Agreement be signed by the parties hereto and delivered to DL F. City and Borrower desire to enter into this Agreement in order to induce each of Lender - and; DI to malce their respective loans and rinancial accommodations conteinplated by the Credit Agreement, the other Credit Documents, and the DI Note, City acicnowledges that neither Lender nor DI = would consent to the transactio�ls but for the execution of this Agreement. AGI2EEM�NT In exchange for the consideration described above, the receipt and sufficiency of which is hereby acknowledged, and as part of the consideration for the making by Lender and DI to Bo�rower of any loan or financial accoinmod�.tion, the p�rties hereto agree as follows: 1, Definitions. �xcept as otherwise provided herein, all capitalized terms used in this AgTeement shall have the ineanings ascribed to such terms in the Credit Agreement,provided that the following terms shall have the meanings set forth below: a. "DI IndebtedFiess" means all obligations, liabilities, and indebtedness of Borrower from time to ti�ne owed to DI under or pursuant to the DI Note and any amendments, modifications, renewals, restatements and refinancing thereof, including, without limitation, the costs of collecting those liabilities - - _ ------ _ _. ____ ___ _ ___ __...__ 1 � �' ��; �; and interest accruing on those liabilities after the commencement of banlcruptcy or similar insolvency : proceedings. b. `Bvent of Default" means the occurrence of an `Bvent of Default" as defined in the Credit Agreement and/or the DI Note, c. "Indebtedness" means the DI IndeUtedness and the Lender Indebtedness, to the extent such = Indebtedness has not been Paid in Full. d. "Lease Agreement"means that certain Amended and Restated Lease Agreement by and betweeii DRA and City, dated September 19, 2023, as amended or supplemented from time to titne for the rental of tlze"Leased Premises"as defined in the Lease Agreement and more particularly descrit�ed on Exhibit A of the Lease Agreement. e. "Lender Indebtedness"means all obligations,liabilities,and indebtedness of Borrower from time to time owed to Lender or Lender's Affiliate, of any and every kind and nature, whether heretofore, i�ow, or herea�ter owing, arising, due or payable and howsoever created, incurred, acquired, or owing, whether primary, secondary, direct, contingent, fixed, or otherwise (including obligations of performance), in each - case,to the extent evidenced or contemplated by the Credit Agreement and all other Credit Documents and any amendments, madifications, renewals, restatements and ref"inancing thereof, including, without limitation, the costs of collecting those liabilities and interest accruing on those liabilities after the � commencement of banicruptcy or similar insolvency pioceedings. _ f. "Paid in FuII"when used in connection with the DI Indebtedness and/or the Lender Indebtedness, , as applicable,means Borrower has(i) indefensibly paid all such Indebtedness in cash{ather than contingent , indemnification or rezmbursement claims in relation to such Indebtedness to the extent na claim givin�rise tl�ereto l�as been asserted), (ii)performed all inaterial obligations under the Credit Agreement and DI Note , and(iii) in the case of the DI Indebtedness,Borrower has agreed to terminate all of its rights to future credit from DI uncier the DI Note �nd, in the case of the Lender Indebtedness, Borrower has agreed to terminate all of its rights to future credit from Lender under the Credit Documents and all Letters of Credit, if any, have expired or terminated, g. "Permitted Monthly Rental Payments" means that portion of rental payments due to City under - Paragraph 3 of the Lease Agreement that constitutes the fair market ground rent for the Leased Real Property, which fair market ground rent for the Leased Real Property shall be determined witllin thirty (30) days following an Event of Default by a certified commercial appraiser approved and engaged by Lender following the occurrence of an �vent of Default. Borrower shall be responsible for the payment of all appraisal fees. h. "Subordinated Payments"ineans the following rent and distributions payaUle by Borrower to City: (i) Any rental payments(other than Permitted Monthly Rental Payments)due to City Luzder Paragraph 3 of the I,ease Agreement; (ii) Any distribution of Net Cash Remaining payments to City under Paragr�ph 22(a)(i) of the Lease Agreement; and (iii) Any distribution of Net Cash Remaining to the Sclunitt Island Master Plan Implementation Fund under Paragraph 22(a)(iii) of the Lease Agreement. For avoidai�ce of doubt�nd for clarification,the parties aclalowledge and agree that Permitted Monthly Rental Payments shall not, Ltnder any circl�mstances,constitute or be deemed to constihite Subordinated Payments, ____ __ _ __.__._ __ __ -- - ____._ __.. 2 � F� ��pe 2. Subo�dination of Subordinated Payments to Indebte�ness. City acicnowledges and agrees that, upon the occurrence and during the eantinuance of an Event of Default, the Subordinated Payments are and shall automatically be deemed to be subordinate in all r�spects to the Indebtedness. NotwithstandiiZg the foregoing, each of Lender and DI expressly acicnowle�ges and agrees that Borrower shall be permitted to make,and City shall be permitted to receive, Subordin�ted Payments unless and ttntil otherwise prohibited pursuant to Paragraph 3(a) hereof. 3. Aefault/Cessatian of Lease Pa, n�, a. Upon the occurrence and continuance of ari Event of Default, Borrower sllall not directly or indirectly malce any payments of any lcind of the Subordinated Payments until the Event of Default is cured or waived in writing by Lender and/or DI, as applicable, Upon receipt of notice that an Event of Default has occurred, the City shall not accept any payment on account oI'the Subordinated Payments LUZtiI the ' Event of Default is cured or waived in writing by Lender and/or DI, as applicable. b. Notwithstanding anything to the contrary contained herein,upon the occurrence and continuance of an Event of Default, Borrower may malce, and City may accept, Permitted Monthly Rental Payments. Provided, however,upon the Event of Default, such Permitted Monthly Rental Payments shall not Uecome payable until the amount of such payments is determined in accordance with Section 1(g) of this Agreement, If the amount of the Permitted Monthly Rental Payments is not determined within the ' thirty (30) day timeframe provided under Section 1(g) of this Agreement, then, until such determination is nlacle, the City may demand and accept payment from the Borrower of an amount the City, in its sole '- discreti�n, determines to ve the fair marlcet ground rent for the Leased Real Property, which amount may � not exceed the then applicable monthly base rental r�te on a per acre basis payable l�y Borrower to City ui�der Section 3(a) of the Lease Agreement for the portion of the Leased Premises consisting of the Hilton G�rden Inn and Houlihan's. For the avoidance of doubt, the parties hereto expressly agree that the total ' Leased Premises consists of 27.784 acres and the poi�tion of the Leased Premises consisting oI'the Hilton Garden Inn and Houlihan's consists of 1.317 acres. c. Notwithstanding any other term or condition of this Agreement, if a payment under the Subordinated Payments would cause an Event of Default, and without notice from Lender or DI,Borrower shall immediately cease malcing any such distri�utions and payments of the Subordinated Payments. Upon - receipt of notice t11at a payment of a Subordinated Payment by Borrower would cause an Event of Default, - the City shall not accept or retain payments of the Subordinated Payments even if otherwise permitted hereby, d. When such Event of Default is cured or waived as provided in the Credit Agreement and/or the ' DI Note, as applicable, City may accept, ask for, demand, �nd receive any payments on t11e Subordinated �'ayments owed to Ci�y for the duration of the Event of Default discounted by any Permitted Monthly Rei�tal Payments paid to City pursuant to Section 3(b) that were actually paid by the Borrower during the time period an�vent of Default continued. 4, No Enforcement bv Cit�. City covenants and, agrees not to sue upon, or enforce any right City niay have pertaining to the Subordinated Payments, nor to collect or receive payment of the Subordinated ' Payments in contradiction to this Agreement. _.. - . _ __ _ ___ _. _ ___ __ __ . 3 � �" ��; �, 5, Payment to Lender of Payments and Distributions on Account of Subordinated Pa�ents, City shall promptly (and in any event within thirty (30) d�ys after demand by Lender) pay or otherwise deliver to Lender all amounts that City may receive on account of the SuUordinated Payments in violation of Section 3(a) of this Agreement,and those sLtms shall be held in trust by City for the benefit of Lencler until paid or delivered to Lender. In the event the DI Indebtedness remains outst�nding after the Lender Indebtedness has been Paid in Full, all references to Lender in this Section 5 shall be deemed to be - amended to refer to DI and the provisions hereof shall inure to the benefit of DL b. Banlcru�tc�Rights. In any banlcruptcy, liquidation, insolvency, receivership, or similar proceeding, whether at law or in ec�uity, or pursuant to state or Federal law, Lender shall be entitled to be Paid in Full with respect to the Lender Tndebtedness and DI shall be entitled to be Paid in Full witl� respect to the DI ' Indebtedness, in each case, from the assets of Borrower before City is entitled to receive any payment or thing of value on account of the Subordinated Payments. In case of any assignment for the benefit of � creditors by Borrower or in case any proceedings under the United States Banlcruptcy Code are instituted by , or against Borrower, or in case of the appointment of any receiver for Borrower's business or assets, or in case of any clissolution or winding up of the affairs of Borrower: a. Borrower and any assignee, trustee in banlcruptcy, receiver, debtor in possession or other person or persons in ch�rge are hereby directed to (i) pay to Lender the full amount of the Lender Indebtedness (including interest to the date of payment and all unpaid fees and expenses and all other items included in ' the Lender Indebtedness) before malcing any Subordinated Payment to City, and insofar as may be necessary for that pur�ose, City heTeby assigns and transfers to Lender all security or the proceeds thereof, _ and all rights to any payments, dividends or other distributions and (ii) pay to DI the full amount of the DI Indebtedness (inclttding interest to the date of payinent and all unpaid fees and expenses atld all other items included in the DI Indebtedness) before malcing any SuUordinated Payment to City, and insofar as may be necessary for that purpase, City hereby assigns and transfers to DI all security or�he proceeds thereoF, and all rights to any payments, dividends or other distributions, Notwithstanding the foregoing, as between Lender and DI, DI's rights hereunder shall be subordinate and junior to Lender's rights as provided in - Section 10 hereof and�or in any other agreeinent between Lender and DI pertaining thereto, - b. In any Praceeding involving Borrower or any Collateral under applicable Batilcruptcy Laws: (i) City will file a proof of claim in respect of its claims against Borrower,wllich proof of claim shall include this Agreement as an attacl�unent and acicnowledge on the face of the proof of claim the assignment of such banlcruptcy claim and any other related claim to Lender,which shall become the holder thereof in accordance with the requirements of Federal Rule of Banlcruptcy Procedure 3001 and other applicable law, and shall send to Lender a copy thereof together with evidence of the filing with the appropriate court or other authority; , (ii) Notwithstanding the foregoing, Lender may file such proof of claim, or corrected proof of claim, on behalf of City having such a claim and Lender, as assignee of the claim of City, at any time; and (iii) If objection is made to the allowance of any claim of City,Lender has the right to intervene ai�d fuily participate in such proceedings and if such rights are denied and City fails to defend such claim, then Lender may defend such claim in the name of City or the name of __ ----- _-_ _ _ __ _ _ _ _ ___ _ _ 4 � �' �� Lei�der, as assignee of said claim, or may chose not to defend such objection, as Lender determines in its sole discretion, In the event the DI Indebtedness remains outstanding �fter the Lender Indebtedness has been Paid in Full, all references ta Lender in this Section 6,b. shall $�e deemed to be ainended to refer to DI and the � provisions hereof sliall iilure to the benefit of DI. F 7. Representations, Warranties, and Coven�nts of Pai�ti�s. ; a. Bv CitX. City represents, warrants, and covenants that: � (i) City has the full power to malce the subordinations set forth in this Agreement; (ii) as of the date of this Agreement, City has not made or permitted any assignment or transfer, as coilateral or otherwise, of its interest under the Lease Agreement; (iii) City has entered into this Agreement based on its own independent investigation of (or decision not to investigate) the financial condition of Borrower, and has not relied on and - shall not rely on any representation oi information of any nature regarding Borrower made by or received from Lender or DI; (iv) except as permitted�ursuant to the terms of the Credit Agreement, City will take no action to amend or modify the Lease Agreement in a manner that (�} increases the rental - payments, increases distributions of Net Cash Remaining (as defined in the Lease ' Agreement)to City and/or the Sc1�u11itt Island Master Plan Implementation Fund(as defined under the Lease Agreement), or provides for any additional payments fronz Borrower to ' City regardless of how characterized, or (B) reduces the term of the Lease Agreement, in either case, without Lender's prior written consent(or, if the Lender Indebtedness has Ueen Paid in Full, without DI's prior written consent), which consent shall not be unreasonably - delayed, conditioned and/or withheld; ' (v) except as permitted under this Agreement, City will talce no action to terminate the Lease = Agreement or to collect or sue to collect on the Lease Agreement, in either case, for nonpayment of the Subordinated Payments, without Lender's prior written consent (or, if the Lender Indebtedness has been Paid in Full, without DI's prior written consent); (vi) __City shall not transfer or assign_the Lea�e�greeme�t_to an_y_other Persan without Lender's _ _ prior written consent (or, if the Lender Indebtediless has been Paid in Full, without DI's prior written consent), which consent may be withheld unless such trinsferee or assignee has entered into a subordination agreement in the same form and substance as this Agreement; and (vii) City shall not, and shall not encourage any other person to, at any time, contest the validity, perfection, priority, enforceability of the provisions of this Agreement. b. By Borrower. Borrower represents, warrants, and covenants that: (i) Borrower is the is the tenant under the Lease Agreement; ' -- -_ ____ _ _. _ __- ____ __. _. ---- -----._. _ _ 5 � �" � � �: (ii) Borrower has full power to perform and assume its obligations as set forth in this Agreement; (iii) excep�as specifically permitted under t11is Agreement and the Credi#Agreement, Borrower will not malce any payment on the Sub��rdinated Payments in contradiction to the terms of this Agreement without Lender's prior �vritten consent (or, if the Lender Indebtedness has been Paid in I'ull, without DI's prior wiitten consent); ; (iv) except as permitted under the Credit A�reeinent, Borrower will iiot grant any lien, secttrity interest or otherwise encumber its inte�est under the Lease Agreement without Lender's pxior written consent (or, if the Lender Indebtedness has been Paid in Rull, without DI's prior written consent); (v) except as permitted pursuant to the terms of the Credit Agreement, Borrower will talce i�o action to amend, modify or waive any of its rights under the Lease Agreement and any agreement relating to any Subor�dinated Payments, to transfer or assign the Lease Agreement or Subordinated Payments to a subsidiary or otherwise, or to perform or - omit to perform any act required to be performed by Borrower (if any) with respect to the Lease Agi•eement or Subordinated Payments without Lender's prior written consent (or, if the Lender Indebtedness has been Paid in Full, without DI's priar written consent); and {vi) Borrawer shall not, and shall not encourage any other person to, at any time, contest the validity,perfection,priority or enforceability of the provisions of this Agreement,the Credit ' Agreement, the other Credit Documents, or the DI Note. c. By Lender. Lender represents and warrants that: (i) it has the full power to enter into this Agreement; - (ii) as of the date of this Agreement, Lender has not made or permitted any assignment or = transTer,as collateral or otherwise,of the Lender Indebtedness,of any instrument evidencing = the Lender Indebtedness, or of any of the Collateral, provided that Lender may do so in the future pursuant to the terms and conditions of the Credit Agreement; and (iii) Lender has extended the Lender Indebtedness and Lender has entered into this Agreement based on its own independent investigation (or decision not to investig�t�)��tl��f"inancia� ' condition of Borrower, and has not relied on and shall not rely on any representation or information of any nature regarding Borrower made by or received from City or DL d. �DI, DI represents and warrants that; (i) it lzas the full power to enter into this Agreement; (ii) as of the date of this Agreement, DI has not made or permitted any assignment or transfer, as coliateral or otherwise, of the DI Indebtedness, of any instrument evidencing the DI Indebtedness,provided that DI may do so in the future pursuant to the terms and conditions of the DI Note; and . _. _ .__ -- _...._ __------- 6 � T� <i � � ' ; (iii) DI has extended(or will extend)the DI I'ndebtedness and DI has entered into this Agreement based ar� its own independent investiga ion (or decision not to investigate) of the financial condition of Borrower, and has not rel�ed on and shall not rely on any representation or information of any nature regarding Boi'rower made by or received from City or Lender, 8. Waivers. Borrower and City each waive: (a) notice of acceptance ol this Agreement; and (b) demand, presezltment, notice of dishonor, and protest in the cbllection of the Indebtedness or the Subordinated Payments, 9, Action Re ag rdin�Indebtedness. Without notice to or the consent of City, each of Lender(with respect to , the Lender Indebtedness) and DI (with respect to the DI Indebtedness) may talce or refrain from talcing any action regarding such Indebtedness that it deems appropriate, including, without limitation; (a) amending, modifying, extending, or renewing such Indebtedness or changing any interest rate applicaUle to it; (b)releasing, compromising, or settling any claim related to such Indebtedness; (c) forbearing or agreeing to forUear from enforcing any right or remedy related to such Indebtedness, including rights and remedies agaiilst any guarantor, sltrety, or accoinmodation pa2-ty of all or any part of such Indebtedness; or (d) suUstituting, releasii�g, or exchanging any collateral for such Indebtedness, Lender shall not be required to perfect any securiry interest in any collateral securing the Lender Indebtedness. Notwithstanding the foregoing,the pai�ties expressly acicnowledge and agree that the provisions of this Section 9 shall not, �nd are not ii�tended to,vary or alter any provision contained in the Lease Agreement that requires Borrower to obtain the consent of City with respect to certain indebtedness of Borrower (including the Indebtedness), which pr�visions shall remain applicable and enforceable notwithstanding anything to the contrary in this :- �lgreeinealt, the Credit Agreement, any of the other Credit Documents, or the DI Note. Notwithstanding the foregoin�, if the Lender or DI increases the amount of the Lender Indebtedness or DI Indebtedness above the amount committed on the date of this Agreement without the consent of the City,then any increased amount shall not be subject to this Agreement, 10, DI Acicnowledgements and A�reements. DI hereby acicnowledges and agrees that, notwithstandii�g _ anything to the contrary contained in this Agreement,the Credit Agreement, the other Credit Agreements, the DI Note, and/or any other agreement between DI and Borrower: (a) all of DI's present and future rights, claims, and interests under this Agreement are subordinate in all respects to the rights, claims, and interests of Lender under this Agreement; (b) DI shall not exercise or pursue any rights, claims, and/or interests 1lereunder without the prior written notice to Lender; (c) any and all DI Indebtedness is - subordinate in all respects to all Lender Indebtedness; and (d) upon the occurrence and duri�g the continuance of an�vent of Default, the Lender Indebtedness shall be Paid in Full before DI is entitled to receive any payment on account of any DI Indebtedness. 11. Continued Reliance. Each of Lender and DI, by accepting delivery of tlus Agreement, shall be deemed to have relied upon all of its terms and conditions and shall be entitled to continue that reliance. This Agreement constitutes an irrevocable continuing agreement of suUordination, 12. Subro a� tion. So long as this Agreement remains in effect, City shall not exercise any right of subrogation or other siinilar rights with respect to tlie Indebtedness. 13. Construction. t�s used in this Agreement the term "or" shall mean "and/or". Section headings are for convenience of xeference only and do not affect the interpretation of this Agreement. __ - _. __ . __. - -_ _____.. __.... 7 � F' � �; �; 14. Binding Effect; Governin� Law; Counter arts. THis Agreement binds Borrower and City and their respective successors and assigns, and benefits Lender, DI and their respective successors and assigns. This Agreement is to be governed by and construed in accorelance with Iowa law, withoiit regard to principles of conflicts of law, This Agreement may be exectrted in zny number of counterparts, each of which shall be deemed an original and all of which talcen together sliall constitute one and the same Agreement, 15. CONSENT TO JURISDICTION; WAIVER. EACH PARTY HER�TO IRREVOCABLY AGREES - 'I'HAT ALL ACTIONS OR PROCEEDINGS 1N ANY WAY,MANNER OR RESPECT, ARISING OUT OF OR FROM OR RELAT�D TO THIS AGREEMENT, SHALL BE LITIGATED 1N COURTS HAVING SITUS WITHIN THE COUNTY OF DUBUQUE, STATE OF IOWA. THF PARTIES I��RETO HEREBY CONSENT AND SUBMIT TO THE JURISDICTION OF ANY LOCAL, STATE OR F�DERAL COURT LOCATED WITHIN SAID COUNTY AND STATE, 16, WAIVER OF BOND. E�CH PARTY HERETO WAIVES THE POSTING OF ANY BOND OTHERWISE REQUIRED OF LENDER AND/OR DI IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO �NFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IIrI FAVOR OF LENDER AND/OR DI, AS APPLICABL�, OR TO ENFORCE BY SPECIFIC PERI'ORMANCE, TEMPORARY R�STRAINING ORDER, OR PRELIMINARY OR PERMAN�NT INJUNCTION THIS AGREEMENT. 17. WAIVER OF JURY TRIAL. EACII PARTY HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE 1N RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, : OR OTHERWISE, BETWEEN OR AMONG THE PARTIES HERETO ARISING OUT OF, (�ONN�C7'ED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISH�D BETW�EN TH�M iN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO. EACII PARTY H�RETO HEREBY AGREES AND CONSENTS THAT ANY ' CLAIM, D�MAND, �CTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND TIIAT ANY OF THEM MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGR�EMENT WITH ANY COURT AS WRITTEN EVIDENCE OF TH� CONSENT OF THE PARTY TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. 18. Acicnowled�ement of Recitals. The above Recitals are incorporated herein by reference and - acicnowledged Uy each party hereto as true and correct. 19. Termination. This Agreement shall automatically and immediately terminate, without action on the part of or notice to any party hereto, when the Indebtedness is Paid in Full, at which time this Agreement and each and all of the terms, conditions and provisions hereof shall automatically and immediately become and be deerned to be null, void, and of no further force or effect. Notwithstanding the foregoing, . thzs Agreement shall be deemed to be terminated and of no further force or effect(a)with respect to Lender once t11at the Lender Indebtedness has been Paid in Full, even if the DI Indebtedness remains outstanding, and (b) with respect to DI once that the DI Indebtedness has been Paid in Full, even if the Lender Indebtedriess remains outstanding. 20. Entire A�reeinent. Except for any other agreement now or hereafter entered into by and between Lender and DI regarditlg with the priorities and subordination, as between themselves, with respect to the Indebtedness,this Agreement constitutes the entire agreement among the parties hereto with respect to the . ___ _.., __. _ ___.. _ _.__ . _-- _ ___--- -._.._. 8 � �' <�� subject matter of this Agreement and supersedes and is in full substitution for any and all prior�greements and understandings between them relating to the subject matter of this Agreement. [REMAIND��Z OF PAGE INTENTIONALLYLEFT BLANK; SIGNATURE�AGE FOLLOWSJ � _ ____ ______ _ __ _--- __. _ _ _.._ _— --- _ _ 9 � �� stp; a; IN WITNESS WHEREOF, each party hereto has authorized and signed this Agreement as of the date First written above. BORROWER: DUBUQUE RACING ASSOCIATION LTD. By: ad._ Alex Dixon President and Chief Executive Officer CITY: CITY OF DUBUQUE,IOWA y- ra Cavanagh Mayor LENDER: MIDWEST ONE BANK By: Wayne Breckon First Vice President and Regional Credit Officer DI: DUBUQUE INITIATIVES By: Kevin Lynch President Signature Page to Lease Subordination Agreement • IN WITNESS WHEREOF, each party hereto has authorized and signed this Agreement as of the date first written above. BORROWER: DUBUQUE RACING ASSOCIATION LTD. By: Alex Dixon President and Chief Executive Officer CITY: CITY OF DUBUQUE,IOWA By: Brad Cavanagh Mayor LENDER: 11IIDWEsT ONE BANK By: /JMd .✓� Wayne/ reckon First ice President and Regional Credit Officer DI: DUBUQUE INITIATIVES By: Kevin Lynch President Signature Page to Lease Subordination Agreement IN WITNESS WHEREOF, each party hereto has authorized and signed this Agreement • as of the date first written above, BORROWER: DUBUQUE RACING ASSOCIATION LTD. By: • Alex Dixon President and Chief Executive Officer • CITY: CITY OF DUBUQUE,IOWA By: Bra Cavanagh Mayor LENDER: MIDWEST ONE BANK By: Wayne Breckon First Vice President and Regional Credit Officer DI: DUBUQUE INITIATIVES By: Kevin Lynch • 7/ President • • Signature Page to Lease Subordination Agreement AMENL�EI� AND IZEST�ITED . LT�,.SI��1GR�E�VIEN'1' : F3E"�WEL,N - . TI�E CITY OF D[JBUQUE, IOWA ANll � nUBUQUE RACING �1�SOCIATION, LTD. 'rhis .A-niended and .Restated Lease Agceeinent (this "Ce�se") is ciated" for ��eference purp�>ses��s oi'the 19`�' day of Septei�lber 2023, and is by and betweed� the Gity of Dubuqt.�e, Iowa, a nlualicipal corpoe�tion ("C�"), and Dubuque Raciilg As�oc�iatio��, I,td., an Tow� nonprofit � corporation {"Associatioii"). � ' WIIl-�IZEt�S, City and Association are�s�rties to that certlin Le1se A�reern�nt dnted,1uly 6; ?.,�04, ori��;t`i��illy betweeil City and I_7Lr�uque Casino XIotel, L,L.�. ("i�CH"), as amerid�d by th�tt cet•tain A.a�acnd��e�it No. 1 to Lease A��^eeinent clatecl M�rch 2,1, 2005, that cer•t�i�1 �econcl Amecic�i7ie�it'tU:L�ase A�reei�ent dated April 4, ?005, and that:cert�tin Ana��ldi�7entNa: 3 to l:�ea�e Agi�c>r-,meiat clttted Septenlher b, 2005, azld subsequently assi�ned by UCII to tlssoai�t'i�z1 pctrsuant to that cE;t�l:aiil Assignt�ne�lt c�f L,ense Agreei�aent dated.1cGia�2,201�;bet�een DC'II ti�Aid Associatio�Z ani� c�i�se�ltad to-by City, which Lease �lgree�n�nt r�lates to the pi�o�erty �n whic�'� Houl'ihal�'s Rest�ur�nt and the Hilto�l Garden In�� at�e located and operated (the "FIilton G��def�Lease"); W�-X�,iZFt�.S; City and Association a��e p�rties to tl1�t certain S�.cond Americied and l�estated Lease Abt°ee�neilt dateci �eptembei� 14; 2021; as ame�ided by that certa►n I�irst ��ei�dment to the Secot�d Aanealded and Restatecl Lease Agreetnea.�t datec{ DecPrnber �2, 2022, whicfx rel�tes to tl�e propc,�•ty oi�which.tlle casino and tlle p.arlcing lots aie located (the "CasiaZo L,ease"); ` WIIEI��S, a sui°vey of plat with tl�� re5pect to the north�t°n h�lF of Chap(ai�t SchiYiitt � Is11nd was rec�ntly prepared and reco��ded ii�orclet�to,am�ng other things,clarify lease��tznciaxies, i wl�ieh recorded plat nffects tl�e legal descriptiot�� of the p�opetties suhject to th:e_Hilton Gaiclen L,�as�.and the Gasino L,ease; a��d � - . ' WHERi�fIS, City aiad Asso�intian now�lesi�ic to �mend,restate, and uonsolidate tl�e I-�iltoia = U�az�den Leasr and tl�e (>asi��o l,ease in ardei° to (i) an7�;nd ce�t�in tei•i�ns �xnd pcovisions tl�ereo[; � (ii) coi�soli�ate thean into o�ae and the sai�1� docr,unent, (iii) suhstitute �nd reptace the lep�l �� descriptions set forth the,rein with th�a�ewly cre�tted legal descri�tiot�,azad (iv)clelet�tl�e�rovisians thereaf that are n� lo��ger applicable. N�VJ�, 'I'II�RI=JFC)RL;, City a��d Associ�tion, in consider�tiora of�t17e rnul�.r�l cavc:naiats aild conditions (ierei�lal'ter set forth, a�rse ns follo�s; l. Term of Lease. The tern� of tl�is l.,�ase shall commencr o�i 12;01 �i,m, on 5eptetnber 19, 2023, and tei°minate at 1 l;S9 p.m. oia December 31, 2,056 (tl�e "Tern1"), 2. . Lease,d Pren�ises. During t11e '�'��m C,ity a�rees ta lease t.o t�ssociation, and Associatir�n agrees to le�lse fr��1 City,tl�ie real �state desci�ibed on attached Lxhil�it A. (hei°eiixafter, tlle "Leased Pxen�ises"), A.ssoeiation may �;rant utility easen�ea�ts i�oi° tl�� pt:�rpose of abtai»in�; utility services to the facilities loc�teci on t��e Leased Premises;provideci tliat s��cl� easefnents sllall only �e �canted with tl�e written co►lsent of City. 3, Rent�l. Por eac11 inonth duriilg the term of this Lease, Association sllall pay City the surn of the following amounts �s matitllly reat hereuzlder: ' ; {a} for the portions of tl�e Leased Pretnises consistin�; of the Hilton Gard�;n Inn and Houlihan's Rest�iu�ant, �,ssociatioil shall pay City a base �•�nt o#'Foui� Tllousand Nine I�undred Tliirty=Nine Dol'lars ($�1,939.�0} p�r moeith �s monthly rent here�ulder; which p�yments shall be due on the tentl�i (10`�') day � of each month. Th�e blse rent payxnent shall be adjusted annually on U�ctober - 1`t oI' �-ach year be�innin� ori Octoi�er 1; �0�;4; pui•siiant to th�"pei�eetlt�� increase; i�'any, in the C;bnstimer Price Inclex US C;ity Average 1ver��ecl over the pric�i•twelve (12) montl�s. � (b} Coi tlae i�enlaining po��tions af the Leased P�emises (othe� th�i7 those portions - consistir►�; of the Hilton Gai•de�7 Inr� ai�d Houlihaia's RestauranC}: _ (i) �n an�ount equal to one. and nne-halF percent (I.a%} of slot coin-in fiorn slot m�chines �nd vicieo machines whicla sii��ialatF tabla �;a�nes o('ch�i�ce at (2 Casino foc such n�ar�tli; � ' (ii) an a�notint ec�ual to four and-eight�-tenths ��e��cent {4.8%) of the t�l�l� game adjusted grass rec�ipts (�iaiounts actLially wagered at table g�mes less winnin�;s paid to wagerers) for table gai�las conducted at Q Casino for such mont:h; aiir� (iii) a11 ail1ount equal to one�half of one percent(0.50%) of morYthly sports : w��;erin� conducted on Q Sportsboolc ratail or Q advance deposit = � � � spoi�ts w�g�ring iritei°net � sitP � ("ADSW") (or � any �� successot�/i°eplacemerit sports wagering internet site owned �nd - operatecl by Associatio�l) fc�r such �nontl�, wllicl�:p�yments shall be due oia the tentl� (l Ot�') day of.'tl�e fol�awin� month, City shall exp�,nd �tich funrls by erectin��or maintai��in�; public builclin�s ot� worlcs, or otherwise lessening the bux�deia of government in accc�rdance witl� and ns contemplated by Iowa Code Sectioi� 99B,1(14�), �s amended. Notwithstanding the foz�egoin�, ll�wevex�, City shall not be limited in any , manner from the issuarice o�f debt to fund capital improve►n�nts for other purposes ot� froi�l using other revenue sources, required to be d�dicater� to capita.l improveinents, to iui�d tl�e capital imp��ovement buciget. All rent payments pursuant to paragrapli 3(b) of this Le�se s11a11 be used by City �xclusiv�ly for tl�� promotion c�f s�cial, welfare unde� TRC §501(c)(4), oi otllerwise lessening tli�;l�urdei7 of�overa�ment: � 4. I�und Re uirements, z (a� City and Associatio�i ttc(aiowledge and agree�tllat t11e i71o��ies oii��deposit ii1 tlZe depreciatiot� �nd iinpt�ovemF�zit fund previously established l�y Ass�ciatian piu�suant t� the terrns of the C�tsino.Lease (the "Depi�eciation ancl I�n rovement Putid") are the sole pro}�erty of Association, The balance of the Depreciation 1nd Improvement Futtd shall be used by A.ssociat:ion to (i) pay for costs r�nd expenses rel�ted to the removal of any _ sti•uctures (includii�g any necessary environment�l remediation), eqi�ip�nent, furniture, � fiu�i�islzin�s, lnci other personal property of Iowa Greyhotznd Associatian �nd/oi� its � , vendors, suppliecs and cotitract partners retnaining on the Leased Preinises �ind/or the land ` adjacent thei�eto, (ii)pay for any costs aild �;xpenses incurred by Association i.n coanectiori , with prepaei�lg and readyin� such are�s ior Association's operations, �nd/o� (iii) mak� or , � fund�tlie Eqtiity Cont��ibtition (as d�efined �n para�rapl7 12 h�ei�eoi), At�y�iutef•est�ccrl.iiii�on �� tlie `balance in th�; Depreciation ai�d Improvement I'und sha11 he clepasited to the Depreciation and Improvement�'und and shall be avlilable to and expei7c{ed by Associatic�n ' as pravicled in t��is subparagra�h (a), (b) Association�shall .establish a Debt Payment [�esc.rvc: F�a�id (tl�e "pebt Pa�ment fZese�°ve Fund")to belleld i�1 a�estricted funcl with nss�eiation, into wiiich it sha11 � deposit fui�d:; until such tiine �s the b�il�nce on deposii: tllerein equals $7,0OO,OD0,00 pui•suant to th� followii�g schedule; F�Y23 $1,000,000 1�Y24 �2,500,000 1�Y25 $1,00O,OOQ ' l�'Y26 $:1,500,0�0 . I'Y27 $1,000,000 ' Associati�n reserves the righC to contribttte more to the Debt Payment Resr rve Fund than - i�equiied ta re�ch the required ballnce of $7,000,000,00 at an earlier clate. In the evei�t Associat�ia�1 ceaches t11e required balanc�of$7,000,000,00 prior to any of'the conti•ibutions outlined above,the contributio�l listed will nat l�e rec�uired u�lless Associatian has aceessed tl�e I7ebt I'ayt7�eilt Reserve Fund to cov�r a deUt paymetlt, The monies on de�osit in the Debt I'aymetlt Reserve Fund, togeth�i� with all accrued intcrest tl�ereon, �re the sole property of Association; however,Assoriatioa� shall �1ot use,plec��e�r otheiwise encumber the Del�t Fa,yme�lt Reserve Fti�nd or the funds an deposit thetein without the prior r�ritten co��sent of City. In the �ve�at Association i�lust access the Del�t Payt�r�ent Reserve I'uncl to � cover a clebt payment, Association shall, in wi�itin�, pi�ovide to City a written plan within ' sixty (60} days as tc> how Association will replet�ish the fund witll a specific timelin� for t�e��lenishment acceptal�le to City. - � if the City's lease payment is ever subordinated to Association's lender, �1.ssociation will j repa,y tl�e City at�its iirst apportunity prior to replenishirig the Del�t Paymenl:Reserve Fund, �� A written plan, submittc;d to �nd ap��roved by City, to pay the subordinated (ease payix�ent � sl�all be sul�irlitted within siYty (GO) days. � 3 S; Sttffioieilc; af Pa�ments: City's acceptance oPrent and requirecl distx•ib�itions�s11�11 not be �n adii�ission of the sut'�cieilcy of any such paymeiits nor the accuracy of any statie�nent fui°nished by tlssaciation, All such paymeiits sh�l( be received subject to the audit to Ue �tovicled by Associatio�i to Ci'ty, 6. Non-tcansiet�abilit�y of Lease. This Lease sllall be a"pi�ivilege to be l�eld f�i�� th� �enefit of the public by Association. Tk�is Lease sh�ll not, iii aiiy ev�nt, be trinsferred; assigned; ; s�ld, le�seel, or cfisposed of; iii who}e'or iii part; by iz�eans, without tl�e prioi� w�•iiteii�ci�nseiiti'of City expressed liy a resolutio�i duly passed �y the City Council of the City of D��buq�Ae;Iciwa and ; tlien only iirideA•sucli conditions �s the City C;oitncil inay establish; ` � 7. Use of Leased Piemises. Associntion warr�xxts tllat it is valicfly existing and in good standing iander th� laws of the Stat�of Iowa as a non�ro�t oi��nization, Association�arcants t11at it has tl7e necessa��y �uthority to opei°ate its bus�izlesses in�the State�of�ow�. � � The Leased I'renlises shall Ue used by Associtttioi� fo�� the sole put•pose of' c��lducting = gamblir��; �ai��es a.t�d��thei°��enter�tainmer7��t activi�ties,� oper�tiil� resta�ura��ts �i�d��providi.i�g 1�ncigizig ;' utiles:s, p��ior to the u�� of the Leasecl Premises by Associltion foi any otlier pt�rpo.se; �ssociati��t�i ' obtaiils the written consent o#'City with resp�ct to sual� alter�l�te a�e, Use fo��tlle purj�ose �f'this para�;�aph slial[r�ot rneai� individual evsnts Gissociated witla a particul�i type of use. ;�lssociation agt�ec,s t:l�at it will at �ll ti�l�es hold the�L�a.se�i Pt�emis�s av�il�l�le fc�r i.tse by the genf�ral public without e��rd to ii�emhersl�ip ih tlae protected cl�isses covered by T'itle 8 of the city code, as �tneEldecl. Ilowever, Associatic�n tnay pY•epare and promul�ate rtiles f'�r tlle put•pose of re�ulating tlie adtllission �f p�t�soris ii�to C� C��ino arid farthe further purpase af re�talati►l�tkie ! conc3uct`ofi persons adniitted to Q C�lsino,'whicli rule-s slrall be coiisistent witli tl�e re�;ulntions o1' the Iowa R�icin�and Gaming Comi7�ission, : 8; . License to O�ei�te. . . (a) Por sa long a5 sl�ch license is requiced by the Iowa R�cin� a�lcl Gaming Cornmissi�n, Assooiat:ioal shall n�lintain a valid license to conduct �a�7iblin� games issu�d l�y the �Iowa Ra�ii��d Ga�ning Coi�znlission�.iad shall rnalce tim�ly application,together�itl� the a}�prop�iate documentation, for the renew�l ofisuch license as it expires fi�orn tim�; to time, City shall provide, on a�timely b�sis, �ny and all, information�within its co�trol � necessary to sustai�l the ]icense or to secure renewals thereof, (b) Ass�ciati�n shall procure and inaintain an:y and �ll lir,enses �nd pern�its recau'rred by law ior t11e operations at the Leased Prei��ises, 9, Ii��,c_;_Cion of Premises. An authox•ized i°ep��esentative o�r City, as desigi�ated in �vriting by its City Maalager, sh�ll have tlae ri�;ht to el�ter and have access to the Leased I'reinises, whethez o�°not events are iia o�elation,�at �ll t°easonabl�� tiines and_fo�° ar�y re�so.nable pGuposes, in fiirtl�erai�ce of��i�ty's zesponsibility to �l�e publac for the operation of th�Leased Premises, as long � � as sucll entra»ces do riot unrnasonably intei�fere wit�� Association's right to yuiet oG;eupaiacy. Q �asino entrances shall be subject to the ri�l�s ofthe Iowa Raciil�aiad G�min�Co�nmission.�The � � 4 authorized representative shall advise Association's Presi�ient and CEO o�suci� represeritative's ` presence upon arrival at the Leased Pcemises. . � 10. Ivlaintenance of Facility, Association �1�rees that, at all tinzes dut•ing the Terir�, Association shall, at its owu �xpetzse, mlintain, pieserve; a«d lcee� the Leaseci Prernises in good repaic, �vorkin�;ar�der and coilclition. .- - 1 i. Taxes and F'ees, .. . (a) Ptopei•ty Taxes, Associatio�l shall pay all property t�ixes, both real and pe��sona(, ' before they shall become delinquent, and which i7��y be levied a.nd assessecl ' a�ainst the Le�sed I'ieinises, City shall nnt opp�se any �pplivatio�i f"iled �y - Association ior exemption froial the payi�lent oi'property taxes,•both real anc{ persoiial, In the event Associa�iai� p�iys z'eal estate tlxes levied and �ssesseel a�ainst the poi°tion of th� 1,�ased Pi�emises descril-,ed in pa�a�t�a��h 3(b) ilereof, suc'li real 1 estate tax�s paicl are deductible irot�� tl�e next rei�tal payinents due uncler ' paragraph 3(b) of this Lease; (b} Ot11er Taaes aild rees. �ssoci��tion shall l�e responsible foi• and abrees to pay atl dther taxes, i�ates, cllargFs, levies, and assessn�ents; general atid special, o�� _ every name, nature, �u1d kiild, wlleth�r now known ot` herea�'ter eeeated w.hich tn�y be taxed, aharged, assesseci, levied oi in�posed, whic.l�� beeoiiie'�ayable � durin�;the tertri of the Lease anci would become`dPlinquent if nc�t so�plid, �Yrisii�g floi� Associ�ltion's operations nt the Lease� Premises, f i I 12:� Alter�tions. City acicnowled�;es thlt Associltioi� has entered 'i�ito certai�i contr�cts vvith� i�espect to �various i��iproven�ez�ts �tti be i�aae to Ass�ici��ion's ia�iliti�s at�i the L�e�sed � I?reYnises, wliich include tl�e rerr�odel of th� �asiiao facility, t11e addition of a f��ily ei�►tertaiiltslent zone, and the addition of'a eie�hotel arid restaurant(the"Pro'ect"), the total cost of which Prajec;t - will not exceed$80,000,000.00. Subjeat to its approval of the various financing rel�ted r.lor,uments _ to be �nterecl into by Association in cot�tlection �with the Project (thP "Proiect Fii7anei�� - Docu��7e�?ts"), Gity l�ereby consents to aud a�7proves� the F'z•oj�ct, City further acktlowledges that �� the I'roject Financin� Documents rec�uire �ssociltion to commit a tninimu�n of$2�,OQ0,000,00 � casl� equily to th� Pro,ject (the `Bc�uity Coiatribution"). Notwithstandin� anything to the contrary contained in this Lerise (including, without limitation, any limitatian on Association's use of c:ash oi� fund,� and/or any provisior� ar covenaalt requiring use of sucll cash or Funds for a difierent puxpose), C'it� 1lereby coi�sents to and authorizes A:ssociatiioil Y,o mal�.e or ii►iac{ the F,�uity Contribution with the following sources of cash; (a) capital reserves establisl�ecl in co�v�ection with azay po�tion of the Leased Prernises (including, without limit.ation, up to �3,000,000.00 of ; fttnds oi�c�e�osit in th:e C;apitalReserve Fund); (b)po��tions of Associ:atioi�'s cash reseeves anel c��e casl�; (c) pr�ceeds of � loa�1 fi�oin �ubuque Ii�itiatives; anc� (c) to tl7e exteiat autl�briz�d �y the subco�nmittee witli cliscz�etion over tl�e flrnds cnnt�ined therein, funeis fron�� the SG1ii��itt.Island M�tSter Pla�� Iin�teix�entation I'unci, subjec;t. to l(a� prior obl'i�atir��s committed to `by the 5 ' subcozl�mitte� aiid obli��ted undei• the Lease be�ween City and Association fot• the Destination ' Iowa Gi�ant�pplicatiori�u�d associated projects. , . Ot11ez� thata the Project, Associatiori shall not col�linence alterlti�ris to any stcllCtUl�e ol° structures or malte additioils to any existirlg structures or f�cilities in an amount exceedirtg One- IIiuieli�ed Thot�sand Dollars ($lOQ,000,U0) without tl'�� prior writte��i a'�pproval of tEae plans a��d speciiicatinns by City; Any�improvements,i�lodi�f'icat'ions or additions to the Leaser�Pren�iises whet�esoever located or h�wever iinat�ced sliall becoii�e p�rt of'the re�tl estate and`owt�ed by City l:�pon tecmination of j fllis Le7se: City consent is not required for any itenie in Association's CIP budget except foi � imp��ovements to the Leased Pt�emises costin� over �100,000,00, o�• tor capital imprc�veinents to be fie►�ticecl by inc�irrin� debt in excess o1 �100,000.00. City conserit is nat requirec.l for �ssoc;iatio» expenclitures for on�;oing ieplacement of slot m�cllines �nd othe� videa ga:mes, �i•foi ecjuipinent repi�ceanent in the normal cnurse of business, I3." Security and Traftic Control., Assoeiation shall provide an interia�l security f�rce ; suf'fici�;nt in i�t�inbers to maintain the llltegrity of Q Casina and all of its operations. Assaei�ti�n � may, in its sole discretion, sLbpplement DRE1's secutity fot•ce at Q Casino with a City af Dub�ique i.tniioi�rned polic�; a`ff'icei� (oi�, if a uniformecl police oft'icei� is noti availlble,'a unif'drii�ed Illub�.�que (.�r��.i�7ty Sliei�iff de,puty pe�ice officer) at such tiines �ls it cleei��s �ppropi�iate. The determialatioii of.' t:I�e Li�,ys.�i;�cJ l�oiirs, if any, duriil� wl�icl7 Association shall st�p}�letnerit its secux•ity Cc�i�ce witl� a = i:tni.forined City ar C�Linty �7eace officers sl�all l�e ii� tl�c; �ole cliscretioti of Associ�tio�1. Poe such :�;e�•vicc,s c��City fcir County pcace office�°s;�.ssociati�n shall reii�7bui•se City at t1�e'z•at�s �st�blished l�y C;ity. City shall be responsible for all billiiags �ncl payments to Del�uties. �efection ai�d 1't;s}�oz�si.bilities of such officet�s sllall l�e hy inutual consent �oi:' City Police Departinent arid ' Associ��tioa�. As:>oci�tian shall reimburse City ior any atld all expenses inctirred by City to m�iintain ti�aific co�1�:r�il far the�sa�Fe ingress and e�rnss o�f tlie�pub�lic tr� the Lea�sed l�remises,��includi�iig b�it � not limited to staff salarie,s �nd t►°al�c 11ne conti�ol devices, but excludin� �ny traffic si�nal installatioi�.Decisio�ls concerning ti•affic coi�trol measures neecled to eoznply with the intanti oftliis = p1r��;ra�h shall be by z��ut��al consent oI'City ai�ci Association, � � 14, Li�bility Inst�rance ancl Ii�.demiliFicati�an, Associatic�n s17a11 defend, inciem��ify and � hnld City, its officers, employees and a�;entti, harmless E'rom and against �ny and all clait�ris, suits, actions, penalties, d�tmages arid c�use5 of action of any Icind alising durin�the terin af this Lea.se, illcluding but not limited to costs, reasonable attoa�ney fees, expenses at�d liabiliti�s incurred by City in ancl about such cl�iara, suit, action, pexialty, damage or ca�tse oI'action, the ir�vesti�ation thereof, or the cl�fense of any actinn or proceeclin� bi�uf;ht thereon, as 1 z•esult c,f any operations occui"11.P1��l�tI1�.I,015eCI PC�1"X115e$, irrcludin�tlre operatioi7 ot Q Casino;arising�i�t of'any violation of tl�� license-�ranted by,the Iowa Racin� ai7d Gaming Cc�mmissiori; foi�the f�tilure l�y A.ssoci�ti�n to l<�ep, i��aintain and abide l�y eacla and every cov�nant of i:his Lease �n its paA°t to be Icept nnd performed;or as a result of any ne�li�;ence, act, error or omission of Association, its e►Tiploy�;es or a�;et�ts, or third partiy contractoi•s; provideci, l�owever, that notwitllstanditlg the foregoin�; (a) Associatinri shall not be required tio provide sucli defense aild iiadcia�a�ification with ��espect to 6 any claims,suits,actions;penalties, damages and/or causes of action ste�nnaing fi�oin (�) any action oi• omissioi�tal<en by Association with tlie full knowledge and express consent of City, oc (ii) any negligence, act, erro�� ar oniission of City, its einpldyees or agents, or third party cantrlctoi°s; and ; (b) to the ex#ent of any inconsistency, contlict or conttadiction between the terms at�d provisions of this paragrapli 14 and the te��ms aiid provisions of para�raph 17 hereof, the terms axld provisions ofpar�tgraph 1'� shall cot�trol, - Association shall maintain,througl�out the term of this Lease,liability ii�surat�c�as set forth in City's standard Insurance Schedi.�le lor 1 essees of City Pcoperty, as such schedule n�ay froni time to time be��tmended, 1 S, t�thei° Insurance. Durin� the tern� of`this Le�se, A.ssociation shall°pucehase and maintaiil propPrty insui•ance covei,a�es in coinp�inies licensed to- do business in t11e State of Iow� with a�1�A,N1.�L��es-t r�ting o�£"A" or be�ter and with a �nancial size cate�ory ratin�;of"FSC VI�II". � '� City sl�all be included as a named insured. Coverage sllall be provided on the following basis; (�) Blanlcet covera�e foi° buildings �nd contents, with an amount equal to at ; least 90% of tl�e iiasurable replacenlent v�lue, Such insurable value shall be detern�iinecl t �nnually�y a qualified appraisec. For purposes of tlxis plrag��aph, �dditioz�s, impx•ovements, j �xtures,trade�'ixtu�,es,m�cl�inei�}�, and equipment:attaclied or unattacl7ed to a buildin�;shall ' be inclucled in detei�i�ii��in�the total insur�ible valtte. {I�) Covera�;� s1�i111 be provic��d on 1i7 "all rislc" covei�age that is at ielst as broad ', as is �rovided by tl�e IS0 "Special Causes c�f Loss Fo�n�". (c} All coverages should be provided on a replacement eost basis. {d} An Agreed Value Endot�sement shall be attached to the pc�licy, subject to = � annual a�reed stntements oI' values, The Agreed Value Endorsenlent sh�tll w�ive the -- coinsurallce. (e} I�� the event of new constr.uction, coverages shall be provided on �s brond, o�� broader, b�sis than those indicated �bove, with tlle amaunt of insuranc�to be �qual to - tl��e completed value of the nPw construction, (f� All policies shall be endorsud to �rovide a thirty-day aclvai�ced iaotire of c�izcell�tion, m�teri�l chan�e, or ilon-renewal of'any coverag�: (g) �;overa�;e sho�ild include Ordiziance/Law Coverlge (the eqiiivalent of I50 endorse��ient CP0405), whicl� cove�•s: (i) Increased cost of c�nstrttction froil� operatioil of buiiclin� codes, (ii) Demolition costs, and . (iii) Contin�erat lilvility from operation of buildin� codes. . (l�} Coverage should also iilclude; _ � _ (i) Bacl<-up of'sewei�s and drains, (ii) Person�tl property oi'em�lo,yees, ` - � (iii) Propet•ty in transit, (iv) Computei�equipme�lt, including d�t�and medi�,�and (v) Equipnlent L�realcdown (Boiler& IVlachir�e��y). - {i) Businass Incom� �nd Bxtra Expe�lse (i) The busiiie5s income l'imit shall be: (A) Net iiac:ome (net p��olit or loss l�c,fore incame taxes) that _ would�l�ave been eaAned or incurrecl; and continuing n�i�i�.al � � � � � � o�er�l�ing experises iiactxrrad,� ii�ialuding p�yrokL � � � , (B) Lxtra �xpense limit shall be the necessary ex��;nses incur�•ed � during the period of restoration that would i1r�t have beeil ; incuri•Ld if there hacl been i10 physical 'loss to th� insurecl property c��tsed l�y a cave��ed loss, � � � � � � (i'i) �Coverag�e sh��ll inchtde �n�cxn'limited extei7ded perioc� o f ineleiniiit�. (iii) Coverage sl�all be on an agreeci a�nourrt b�sis, - (iv) Durirl� at�y pei�ioci of business ii�terruptioi�, ancl �o tl��e Extent �f tlie atl�.ounts aild li►nits of covei��ge �ffotdecl �y A.ss�ciation's I�usialess = interruption covern�es, A:ssor.iatioii shall coiitini�e to irialce all p�ymeiats required by ihis �,ease based upon t�1e average n��iithlji rentals for the six-month pc;ciod prior to the comt��encement of th�; interiuption, inclucling bLtt not limited to z°ent, taxes, a��d distributions. A crtncell�tion�ar lapse of such policy without aa immediate approved replace�nexlt s�all be a - mat�rial vi�lation of this Le�se. 16, VJ�iiver o��,�ub_,��.,,ation, City aizcl Association mutually release t11e otl7er ii•om liability�nd waiv�; �Il cight ot recoveiy against the other foi° any loss oi'or dan7age to the property - of each, includin� earnin�s dei°ived thexefrom, cn��sed�by or resulting fram iu•e, castiialty c�r any � other pecil inst.rred a��ir�st and f'or which proaeeds are plyable und�;r any insurance policies maintailled by the parties hereta, regardless of the c�use of such loss or d�m1�e az�d even thou�l� it results iiom soine act or negligen�e of either plrty lie�•eto, or c�t�e o�' the party's ��;ents, einpinyees, cu5�onlers or representatives, All tix�e and e�ten�ed covera�e insurar�ee policies slxall carry an endo��setnent whecein the ii�surance company waives ai�y �nd all ��iglit nf subro�;ation a�ainst eitl�er party to this Lease by reasc�n of any sucll�re, casualty o��othEr pet•il insured against and for wl�lcl� �roeeeds aie payable, � �l�. � Envir�c�i�mental Matters, � (a} For valuable consideratio�l, the receipt and suf�ciency oi'which at,e hereby 7cl<nowledgecl, City hereby releases and forevez• discharges Associ�tioris arid its 8 successors, 1f�liates; parents, subsidia��aes, leriders, inembers, ofi'icers aiid assi�ris from any T ass and all claims, acts, liabilities, perialties; •ciam�ges (iticluding foreseeal�le ai7d unforesee�ble consequential darnages), orders,judgments, liens, ��i�;hts of actiUn; c�uses o{' 'acti.on, casts and expenses of whatGvei� lcind or ��ati.ire, kriown o�• unlcnown;-conti�lgent or otherwise, which �u�ise OUt �f or celate in �iay w�y; direetly or indire.ctly, to tlie Contaminaticin. . � , ? . .. . _ i (b} For v�lual�le consideration, the recei�t`and suFficiency o#'wl�ial�, are herel�y I acknowledged, only to t11e exterlt allowed by law; City shall indenli�'s�'y aiid� may elect to defend Association �nd its successors, pet•mitted assigns; at'�liates, p�i�ents, sul�sidi�lries, lenders, �1�einbers, and officeis ("liacieinnified 1'artv(ie�") fo�• anci �i�linst any Loss and ' Litigation �xpenses incurred in any Proceeditlg b�•ou�ht aga�nst �ny Indemniiied P'arty arising aut oi'the Contarriination ("Cont�tinin�tioia�Olaim"). (i) To be entiitled to indemiiification under para�-�•�pli 17(b), �ari 1nd�nlnified Party shall promptly (nnd ii� no event tatet thn�1 thirty'(30� busihess � �2ys afte� the� Inden�nified Party received written�� n�tifi�catini�� o� ��suc1� � Contaanination Cl�im) notify in writin� Gity ofthe Coiatamin�tioil C;l�in�i reccaivecl in wi�itin� by an Indem��iified Pnrty ai�d delivei to City �cc�py of all .le�;al pleadings; to the extent in st�ch Indemni�ed Pai�ty's possessioil, with respect tc� thn Contami�zation Claim. Tf the Iric�c,mni��ci Party flils to p��otnptiy i�at:ify City of°th.e CanCa�ninatioil Claim �nd City is�rejudicecl in any illnte,rial respec�liy such fail�i��e, City's obli�;�tion to i�idem»ify t;he I��de�nnif ted Party against any Lt�ss with respec:t i to t:h1t Containii�ation Claiali will be lii��rited c�r��educed, �ls �j�proprt�C�;; �n��cco�int Ufs��ch prejuclice, �ncl C'i�ty �vill not be�required�to�rein�l�ur�e tl�e 1.nd�nlni�Fied �l'arty fot• any Litigation �xpenses the Inclemni��;d Party incurred d��rii�� tlte period in ; w[�ich the Indemni�ed Paity failed to notify Cit;y as r�quircd heieGy. �� (ii�) � F'o�llowing i°eceipt c�f written�notioe�ot�a Cori�tamina�ion�t��laim ui�der ; paragraph 17(b)(i), City shall promptly notify the Tndemni�iecl Pa��ties whethez•it is electing to defend the Ir�demnified Pal�ties nnd assume tli� defense ot the - Cont�al�ination Claim with caunsel of City's choosing. II'City assumes the defense ; c�f the Contamination Claim, then City wil.( riot be requi��ed to t�eii��burse the Iildei�lniiied I'arties for any Liti��tion Lxpenses ai•ising o�at of tlte Contamination Claitn, exaept for those Litigation Ex�enses incurred by ariy Inde;mnitied Pai°ties arising out of the Containination C141in� bei'o�•e �ity inalces its election to assulne the defetlse. After City assutnes the d�fense af a Cont��ni�latio�l Ciai�n, City may co�ltesti,pay, or settle the G�ntaininatian C'laizn with tl�e c,cinsez�t oi'Association (oz� ' its successor or assig�l, if applicalale), which consezlt shal� not be ut�ireasotlabl,y witl�hel<i, conditioned or delayed, and G;ity shall pay the IncJemni�ied Parties fo� any Loss rc�sulting frorn t:he Contamination Claim. (iii) Ari Indemni�ed Paity may dc:fend a Contai��i��atio�l Cl�im witl� caur�sel of its own cl�oosing �nd witlloLXt City p�rticipating oz�ly i1'{A} City notifies th�Tnclemi�lified Party that the does not wish to defe�ld ihe Ii�de�ni7i�ec�Pa�°ty�gainst tl�e Cont�tmination C(ai�n, (B) City fails to promptly notify the Inclen�nified Party 9 wliether it is eleeting to defencl the Indeialnil'ied Plrties arid assi�m�t[le defe»se of tlle Contamin�tioii Cl�ina witla counsel of City's choositlg, o�• (C) jaint represenlation of City�i�d the Inclemni�ed P�rty by the s�tme counsel would,�in the opinion of that counsel, cc�ristitute a c�nflic;t of interests. If the Inde�ntzi�"ied Party daes t�etain separate counsel for a re�son perialitted lziider this sul�par2graj�h, then City shall pay all Litigatioi7 Expenses t11at each Tnclenlni�ec� P�rty incurs in connection with defense of the Containin�tion Claim. � , E � (c} I�oi� purposes of this'para�;r�ph 17,'tihe following terms have the following meaivngs;: . � � � �"Coi7taininati�ri"�r�leans �-Iaz�i°dous Matei•i�ls vvitl�in,�aff�cting�or�Lind�t��t(�� Leased Premis�s 1nd th�t were i�ot �rst introduced by Associatioii 1t the`Le�rsed 1'reinises, � . "Enviranmental L�ws" means the Federal Wafer Pallut'ion Co�1t��1 Act = (33 U,S.�C. § 1251, et�seq;, as ametided), the Resource�C;onselvatiai�►�anel Recovery Act (�? U,S.C: § 6901, ct .seq., as amended), the Con�pr�hensive Environmental Response, Catnpensatioia, and Liability�1ct(42 U.S.C, § 9601 et,s�q.,as anaellded), � the Toxic;�S:ul�stances (;ontrol Act (15 U,S.C. � 2601, et >seq., as ame��ded), tl�e �Iazlr��ous M�terials �i•ansporta.tioil Act (49 U,S.C, § l$O1, et seq.}, th� (;le�n A't�� a.ct (�?.. U:S,C;, § 7�U1, r�t seq., ay arneAzc�ed), tlle Occupational 5��fety and Fiealth - �ict (29 t�.S.C, § 651,' et seq,, as amenc�ed), the l�rnergeiicy' Plan�ii�i�; a�lci ; Co«lin�init,y I�tighi-�o�I�no�v Act (�2 U,S.C, § 11001, et ;sey., as 'arnended), tlie Pec�er�l .[riseci:icide, I'ui�gicide ailcl R�denticide Act (7 U,S.t;. § 13C �t.:s�q., as , ani�;ncieri), tlle Rivers anr.l Harbors Act (33'LJ,5:C. §'401, et sec�:, as amerided); the Endaii�c�ted Species Act(1C U,S,C. § 1531; as amended), the Saf�Dx�ii�l<ing Water � 1�ct, 4�?, USC 300f et, scq,, as arnended, �nc1 all analogoits state laws, ineliir�'tng; � withol.it �limit�ti�on, Chapt�r 4,5SB� of the lowa C�de�� nd the regul�atiti�ns� ��i�� - }��i�tications issued i�nder any such laws, ai1c� in any� simil�r�fe�leral, state az local la�vs or in the regulations adopted a��d publicltions promulgltecl pursuant to any c�i" � the foregoing laws by any governmental authot�it:y, a�;ency, dep�rt:ment, co�nmission, board or instrumentality of the United States oI'Amecica, the �tate of Iowa �r any political subdivisioi7 tJlereo�`. ``Hazardous Materials" i��eans (a) aa�y materill, strl�staiic�, clie�nic�l, g1s, Vc'��Ol' OY' Wc'lSte W�11C11 1S C�e�111�C� �S Gl `�11i1Zi11'C�OLIS Wc'1St�'�" �f111Zc�1'C�OUS 171s1t�P1�1�" � . "hazardous SLIbSti�11CC," "�X1Y'e111��y 1��7�ta0US W3Ste," "1'P,Stk`1:G��C� . 11�Z1Y'dC>L15 WaSt��" "COIII;"d111111311t," "�OIIlltaYl�s" "tOXIC WaSt�" Ol' "�OXIC.'SU�S�al1C�" UI1C��1'. Q11y �� peovision of Environn�iental Laws�c�r any otl�ei fo�•�a�ulations�inteild�d to defiae, li�st � � or classify Substances by reason of deletFi�ious properties �sucla �s ignitlbility, cot•rosivity, reactivity, carcinogenicity, toYicity, rept�oduction t�xieity, "'I'CL�? ' taxicit,y" or "EP toxicity" or words of simila�� impo�°t undei any provisaon of �nvir�i�ii�7ental.Laws; (1�) any asb�stus ot�asbestos contaia�ing mate�•iais i�1 any form tl�at is or c�uld becorrie fi�ial�le, tremolite,_anthophy(ite, actinolite; (c) any solvents, de�reasers,heavy metals,refrigernnts, nitrates;ure�f'orn�ialdehyde,palycl�lorii�ated !.0 biphenyls, dioxins, petroleum and petroleum pt�oducts aiici derivatives, fuel additives, ethanol, bio-fuels, methyl terti�ry bi�tyl ether, �er- and polyt7uoroallcyl substances; and (d) any other pi°oduct, byproduct, compound, subst�nce, chen�icll, �na�eAial, waste; solid, liquid, g�seous or tliet°mal iri•itant; gt�eenlaouse �as; cai•boxl �iilission; atnmic, L110I�CLll�l1� nnd niaci'01110IeCLlI11� nanomatei•ials; and microbial tr�aterial whose presence, chat�aeteristics, nature, quantity, intensiiy, �xistence, use, n�lnuf'actut�e; �ossession, handli�lg; �iisposal, transportation, spi(l, Release, tliteatened IZelease, renledial actiotl or effeet, either by itself or in combirtiation witlz o'.ther tnateeials is ot is alle�edly: (x) injurious, dan�erous, toxic, hazard�us ta . human he�lth, safety or welfar�; or any otller portion oFthe environil7ent oi� natueal rasouices; (y) is no.w or`at any tinle in the fitture becoiales regulatecl,defiined, listed, prol�ibited, cont�olled, studied o�� n�onitoA�ed in any nianner by any �overnrnentLtl � a�.ithority or Envirr�nt�lental�Lttws; oi• (z) a b�asis For�liability, respoiisibil�ity, oi� dtrty � owed to any govei�nnaei�tal authority or priv�tte o��pubtic third party. ' "Liti rat�ion Expenses" �means ai�y reasonable out-of pocl<et expense = incurred iii a Proceedin�, includinb court filing iees, couit casts, arf�iti°ltion fees, ; witness fees, and attorneys' �nd other pi�ofessionals' Fees and disbL�csements, � "Loss" means any atnount �warded in, or p�id in settlement of, any Proc�eding; includial� �iay intei•est Uut excluding ai�y Liti��ition Lxpenses. ; "I'rocec.,din�" meatls any juclicial, adrriinistrative, x�nediatiotl, settle►nent, o.c arbitr�tiori action, suit, clairn, inv'estigation, oi pi•oc�eding. - "Release" illeans any release, spill; emission, lealcinf;, puz�lping, pourin�, i��jection, escapin�;, deposit, disposal, dischar�e, dispersal, dumpin�, leaching or mi�ratian oi` I�azardous Materials ii�to tlie incloor or outdaor environmeist : {including, without li�nit�tion, tl�e abandoi�mcnt or disposal af �ny barrels, - � � � � ca`n�ainers or�other closed ��eeeptacles containing any I-�azardous Materials), or u1�o oe out o�` the Leased Premises, strueture, vessel or vehicle, incEuc{ing, without Iintitation, the �novenlent of atly Hazardous :M�terials into or through the a.i�, soil, _ soil �;as, sLu�faGe water, �ioundwatei� or other media, 1$, Tecinii�atiori, Either City or Association i�nay tern�inate triis Lease whenever tl�e � other party has f�il��l to Gomply ��ith a material coa�ditian of this Le�se, provicled the i�o�1- defaulti�n�party h�s provided writte�l n�tic� of default�ts �arovidecl herein�ancl s��ch default has �aot i been remedied or cLrred within the tiine f'rame provided herein; - - i The writte«notice of default delive�recl to the defaultiilg p�rty shall speci�fy tlie def�ult and stake t11at this I.ease s1�a11 be t��miriated alld forfeited sixty (50) days af'ter the clate�of�ueh nntice unless such tlefault is i�emedied within that sixty (60) day period. U��o�� receipt of notice of tei�mination by either �arty, neitllei• party shall i��cur new ol�ligltioi�s for tlle te�•minated portion of the Lease aftei° tl?e efiective date af the tarmi�lation and shall caneel as many nutstanding obli�ntions as passible. 11 19.. Records, Re�orts �iid r'ilii�gs. A.�sbciatic�t� shall nl�iintai�i, or cause to be znaintained, accueate and propet• boolcs of reeord sliawitig conipl�ta �nd current erltries oF all ti�ansactions relatir►g to the operation of the Leased Pietnises, Suuh records sha[l be fully substantiated with dociunent�tiotl sufficient to s��tisfy standards for certified audits. Copies of all petitions, applic�tions or c�mmunications submitted by Assc�ciation to a�iy state regi�ldtory comr►iission or agency havi�lg jLtrisdiction in respect to any n��fttters�affeotii�g the Leased�Z'remises' �perations or the i"inancial reco��ds ihez°c,of sh�ll be subtnitted simutt�:neously to the C;ity'Mana�;ec•, Rep��eseritatives of`City shall laave the right to inspect sttcll records, accounts, and bool�s upon written request by the C;ity Mana�;er. � � 20, �Annual Ret�orts.�Associatioil sh��ll��le; no later tllan Maic�h�31 of•ea�li`year; witl� tl�e C�'ity Clerk, twc� copies of an audit of the �nancial �°ecorcis of�ssoci�ttion,�pr�paied by an indepei�dent certified public ac;couiatl�it, showing �11 receipts and disbu��semerits, ta�ethe��with t��e : co�lan7ents of tl�ie auditor conci;rnin� whethei�the boolcs a�id records are beillg�ke�t �n cor�ipliailce with this Lease, re��latzc7�ls of the State of Iciwa, �nd in accordance with reeo�;��ized aacoui�ting practices. 2,I, Ca»I7ict of I��tc;t�est. City agt�ee5 th�t n� of�ce��, en�ployee of C;ity, or member of thc - goveriai�7�;body oi'(:ity wl�io exercises o��h�s c:xei•cised any functions of�°esponsibility wAtl�r't�espect to Assoeiat�io�t a�cf/or the Leased Premises shali h�ve�ny intei°est, direct or in�iii•ect, Ell cllly Cdlltl�act ,. or subcontract, ar the procc;eds t:hereof, for woa�l< to be l�erforrned in coi�nection w.it�t thP Leased I'z•Pmis�s oz� i�� any lrtivity oi� hznefit thnrefroil7 which is part'of'this pr.�j�r.,t ai any titne dtu�ing such ��erson's tenure or for � period of oi�e yenr thereafter, stibject to tlie exceptian.s outlined in Iowa CodP §362.5, 1s amended. - ` Associatio�l agrees that no m�mber or officer who exercises or has exercis�d any func;�ions of responsibility vvith respeat to Association and/�� Q Casii�o shall 11ave �ny intere,t, direct br - indirect, in ar�y coritract or strbcontraat, ot the proceeds thereof, in c�llnertion witl�i any contracts lwarded by t�ssaei�tion or City for work to be performed ar servic�s to b�provid�d to Assouiation = or City in connectioa wxtl� Q Casino at any tin7e during such person's tel7ure, subject to the exceptions outlined ii7 Iow� Code §362.5, as amended, 2?, 1�istt�ibution ofNet Cash P�°oceeds, (��) Net Cash R�ear�ai�ning (as I�er�inaftee deiinecl) will be alloc�ted at the ei�d o�' each �scal ye�r for disti�ibution as Follows: (i) one-third (1/3'�v) to Gity (tl�e ``Cit�Dist��ibution �z��ouilt"); (ii) one-third (1./3''�) to cha��itable or non-profit recipienls, �nd/�r a[located to Associatioil accout�ts f�r use ita advancin� Asso�iation's no��••p.ro�t 12 purposes in the discretiorr of Association's board of dii�ectoi•s {the "Cl�arit�ble Distril�c�tion Amou�lt"); and � (i�ii) one-thiid (1/3`��) to�the Schi�zitt Isl�nd Ivlaster Plazi Imp�lementation . �'und (as heceinafter deiinecl) (the "Schrr►itt Isllnd Distribution Amo�.�nt"), {b} Association shall c�istribtrte the City Distribution Amo�.�t�t for e�ch fiscal year tc� City by no later than the January 31 st i'ollowing the eiid of sucli �iscal year, or - another. date�s ir�utually 1gi°eed ttpon by the parties. City shall use fui7ds distributed to City under this �ubpara�raph 2,2(b) in the saine m�tnner aild for tlie same pur�ases tllat City is autliarized to use eent payn�►ents under�aragra�h 3 of this Lease. i (c} Association shall distribute the Charitable Distribution �lmount for each iiscal year to the followii7g recipients by n�o later thai��tl�ze Decen�ber�3�ls{followin�g�tl�e encl � of su�;I� �scal year (however, Associatio�l s11a11 use i�eason�ble effocts tn �a1al<e such distributioii before tl�e Septembet• 1 st following the eticl of such fiscal yearj, oi•aiio'ther date as inutua(ly a�reed upon by the parties, as follows; _ (i) the first $1,000,000,00 of the Cha�•itable Dist�'lbllt1411 f�1210U11t SI1c�lI � be allocated to Associati�ri's� Grants Pz�ogi=lin arid� retained in a res�rict�d � � � �lssociation a��oun't for�i�ltilna�e dist�ibution to the valious reci�ients thei°eof; (ii) the next$42,8,571.�3 of the Charitable Distribution Arnount sl�all b�; alEocated to the.Endowment Funci and distributed to the (�omii�unity k�oundati'on of Gre�fer Aubi.ique; and (i.ii) i.f the Ch��iitable D�istributi�on �rnount�exceeds `�1,428;571:4�3;��the �� amount by which the Cliaritable Distribut'ion Anlount exceeds $1.,4?�,571:�3 will : be split, with 30% allocatecl to the Endowment Pund �nd distril�uted t�� the = Com�l�unity 1 b�:�ndatioil oi' Cr�ater D�:ii�uque aild 70% ietained in a restrictecl : �Associatioil account for ultimate distribution to tl�e variot.rs recir�ients of Associatior►'s charitable and nonprofit disti°ibutions�(incltrding, but ilot limited to, � Association's Grants Pi�ogi�m and,in Association's sole discretion,ather dedicated - fux�ds which Association may establish from time to tim�), � (d) Association shall deposit the Sclv�nitt Islaiad Uistribution Anlount for each �scal yeat• ii�to the Schmitt Island Mastet� Plan Implementation �'und l�y no latel tha��i the Decerraber 31St following the end of`such fiscal yenr. (e) For purposes of'this I,e�se inclttding, without limitatic�n, t11is p�ragraph 22, the following terms llave the follawin� meanings. "Endowinent I'uncl" mea�s tlae irrevocable pei°inanent endowment establishc;d by Association in L009 at the Community Founr�ation of Greater �� Duf�uq�le wllere the principal is anvested,�aiid only a partion of the�investinent earnings is spent and the rest of the earnin�s are'directec� bacl< into �he Ilnc�owment 13 rund, so that the endowiTlent �ro�t�s over ti�ile. Tkie 17ortiori of the.�ndow�nent ' Fund's 'tnvestinent e�rriin�;s that is pe��mitted to ba sp�nt, at�d i:s not dii�ected back it�to the Endownient Fund, sh�ll be availlble i'or distrit�ution to othet°�1laritable aaid non-profit reci�ients and distributed in the clisc�etion o�' Association's board of direc;tors. , "fiscal ,vear" ineaiis Ass�ciation's fiscll year. `-`Net Cash Remainin�" i�rieans; for each f3scal yeai�,�Associatiott's net cash remainin� �lftei�payn�ent of arid/or provisioil �r reserve foi`the follo�uing itctii�: (i) operatio�lal expenses and expenses for nor3na[ replacement � items; _ . , (ii) provision foi�(A)aperatir��funds, (B) capit�i irnprovements, �nd(C)1 c�tsh i�eserve fttnd not to ex�,e�cl ten percent(10%)o�.f Associatior�'s � total budget for the follc�win�fiscal year(the "Casl� Reserve �uiid"), which ; is calcul�ted each year and is i�r�t cum��lative. Monies deposifeel in the Cas11 ' Reserve Fund are tlie sole i�rapeity of Asaoci�tibn �tnd shal( b� desi�i�ated t for tlYe sole purpose ol' imaintainin� a cash balatice For Associatid:n to b� used I�y Association �s needed to fund its c�perations, p�ovided, howevez°, th�t up to �2,,5()0,000.00 of fiunds o�i deposit in the Cash R.eserve Furicl t��a,y l�e used in fisc�l year 20?3 aiid up to $500,000.00 o1'funds�oii deposit:i�z thc C1sh Iteserve I'wlds ��.ay be u.sed in fiscal year 202� as a do�tn�ayiii.eiit on any co�asteucti�7n lo�an�incurred'�by Associa��i�on: �1r�y in�terestaecruir�g on tlle � balanc,e in the Cash Reserve F'und shall also be available to f�.ssociation tc� fund operations; (iii) t•equired c1e�t sei�vice payments (including prepayment of debt, �upon Bnard approv�l and City consent) for elebt iiict.iried with the consent of City; � (iv) distribtttions to charities or� non-piof'it entities from ; oE�erational fui�ds,not to exr,eed the�;reate�°of F'nur Hundrecl I'ifty'I'hous�nd Dollars ($450,000.0()) or sixty-�ivP (65) basis points (0,0065) oP Association's adjusted gross i�eceipts f.i�om al] g�mblin� �lrnes (slots ancl t�xble �ames); (v) finlds wl�ich Association is ��ec�uired to p�ovide as callateral or� oth�rwise for purpos�s �of obtaining and securin� any boncl requir�d by tlle Iowa Racin� and Gatniri� Coani��aission pursulni:to tl�c;Iowa CocJe; : (vi) payment into a capital cesecve furid (the "Ca�ital Reserve I�'Lrnd"), subject to a maximum annu�tl payiliei7t of Five �Ii�ndred T'housand ]Dollars ($SOO,OU0.00) per fiscal yeai�, f�c° use ll3 �U11CIl11� capital iialpi•ovan�ents or gan•iblin� devices (including, but i�o�t limited to, gamii�� 14 devices and necessary hardware and/or sol:tware relating to the inst�llation � or operation of such ganlin�; devices) in the cliscretioi� of Association; and (vii) f'unds deposited it�to the Debt Payment Reserve Purid � p��isuant to patagraph 4(b) of this Lease. � (viii) Two Millioii Five Hund�'ed Tl�ausanel- Dollars ($2,500,000.00)with res�ect to fiscal year 2022 for a down payi-�Zent oil any construction lo�n inctu�red by Association. "Schmitt Island� M�ster Plan Izn�einentation Pund" means a restricted �ssociation account into which the Schmitt Island Distribution �mount shall be deposited each fiscal year, The i�aonies held in the Schmitt Island Master Pl�n Implementation Fund, together with all interest thereon, sh�ll ve �tsed solely to advance, pay for, and/oi �nance/fund any of the pernlitted purposes, activities, and/or develop�nents contemplated by the Ghaplain Schmitt Isl�tnd Master Plan � adopted by Dubuque City Council, as amended and as the same may be further - atnended, modified, and/or restated fi�oin tilne to time, The spending and � distribution of funds fron�; the Schmitt Island M�tster P1��1 Implemetltltion Fund, j wliich shall be solely for the puiposes described above, shall be in ti-�e discretion oF a subcomanittee of Associatioi�'s board of directors consistin� of not less than four , {4} nor more that� ei�l�t (8) meinbers of Association's board of directoi�s, the total riuznber ofwliich shall be divisible�y two (2), The tneiiibers of such subcoenmittea ' shall be appointed by the Cl�air of Association's board oFdii�ectors and shall consist �f, at a minimum, Association's President �nd GEU, the Ghair of Assooiation's board of elirectors, t11e City Mlnagei�ancl at least�ne (1) city council nletnber{who shall be the Mayor if the IVI1yoi is currently sei•ving on Association's boarcl of ' directors). 23. Re�i�esentation, Association shall teserve three positions on its Boat•d of Dicectot�s � for City CounciF members as �ppointed by the City Council of Dubuque, Iowa in cansultation with Association and ane position an its Board of Directors foi°the City Manager or the City M�na�er's _ �lesignee. Eacl1 af the appointments is sub,ject to removal by Association in the event of failui�e to cornply with the resolutiot�s and bylaws of Association, Association shall reserve on its Executive Cammittee, or its governing committee by . whatever name such committee is designated, one position for the City Mannger. 24, Public Puraose, City has determined that tl�e oper�tion of Q Gasino accomplishes � }�ublia purpose by pro��oti�ng community developinent and tourisnl for �l�e r,ivic betterment ancl social welfare of City. Association has been designaCed by City as an app��opriate no�ipro�t entity to further and advince such pttrpose.Both parties acicnowledge tllat Associ�ttio�a's primaty purpose in the operation of its businesses is to promote sucl� comrr�unity developz�nent, taurism, civic b�tteri�z�ent, and social welfare for the benefit af'City and its citizens. 1S ' 25. Nature of Relationshit�. The relationship created in this Lease is a landlocd-tenant relationship, �tnd each party shall be li�ble for its own action and shall l�old the othet harmless from any liability �rising fi�om the action of it or its ageilts or employees, ?_6. Complilnce with A��lical�le L�ws, Associltion, in the operation and management � of its businesses, sh�ll comply with all applicable fedecal, state, and local laws, ordinances and regulltions,The parties shall comply with all applicable locll, state and I'ederal laws or regulations relating to this Lease and/or the Leased Premises, - ; ; 27. Protection of Association Propertx, City �cknowledges that property, batl� real and personal,�o�w�3ed ac undei° the control of Associatio�l is entixled to all protection providecl foe by � law for the protection of private peoperty even if located on public lanci unless otl�erwise speci�ed herein, 2$, Notice. Both City and Association shall give prompt notice i�1 writing to t11e other patty of any advei•se development, �nancial or otheiwise, which would materially affect the operation of Q C�sino, 29, Ri�ht of Intervention, City and Association shall have the right of intervention in any suit or judicia[ or re�ulatory pi�oceeding to which the other is a pai�ty and wl�ich may affect the ri�hts of either party, Neither City nor Associltion shall oppose any such intervention. � �- 30. Discrimination. In c�rrying out all of its activities, Associatiotz sh111 not ' discriminate against any en�ployee or applicant for employment because of the protected classes covei•ed by Title $ of the city code, as amended. Association sh�ll tal<e ailirmative action to assure that ap}�licants for employment are employed and that employees are treated during etnployment without regard to theii� membership in a protected class, as outlined in Title 8 of the city code, as amended. Suc11 action shall include, but not be limited to, the followitlg: employment, upgrading, - demotion or transfei; rltes of pay or othei• forms of compensatioi7; and selectian for trainii�g, - inclttding apprenticeships. Association shall post notices setting fortll the }�rovisions of this � nondiscrimination cl�use on employee bulletin boards. The notices shall state that all q�tali£�ed applicants will receive consideration i�or employnlent with regard to the protected classes covered by Title 8 of the city code, as amended. - Association agcees and will undertake whatever af�rmative me�sures are i�ecessary so that ' no person shali, ou the grounds of the protected classes covered by Title 8 of the city code, as arnetlded, be excluded from participation in, denied the benefits of, or be subjected to discrimination�under any program or activity associated with operation�of Q Casino or any other operatian an the Leased Premises. Association further agi�ees that these nondiscrimination provisions shall be inco�•porated i into 1ny and ail third-party contracts. 31. Condemnation. 16 {a) If at any time during the term of'this Lease all subst�ntially ali of the Leased , Premises or the impi•ovements thereon shall be tal<en in the exei�cise of the power of eminent dom�in by any sovereign, municipality or other public or private authority, then this Lease shall terminate on the d�te of vesting of title in such tnl<in� and any prepaid rent shall be apportioned as of said date. Substantially all of the Leased Premises and the improvements thereon shall be deemed to have been talcen if tlle l�emaii�it-�g poetion of tlre Leased Premises shall not be of suf�cient size to permit Association, in its sale discretion; to operate its business thereon in a manner similar to tl�at prior to such talcing. Any award foc such taking of all or substantially �11 of the Leased Pt`emises shall be paid to the parties hereto in accordance with the following: (i) to City, the amount of the awai•d attributable to the Leased Premises, detarmined 1s if'this Le1se was not in effect at the time of such awlid, excludi�lg therefrom the amount of the award attributable to the improvements thereon, and all othei sunls not diiectly attributable to the val�te ofthe land constituting the Leased Premises; and (ii) to Association, the entire award except tllat portion allocated to City above. (b) If less than all or substantially all of the Leasecl Pret�ises or the improve�nents thereon shall be tal<en in the exercise of the power of eminent domain by any sovereign, municipality or other public or private autlaority, then Association, at its option, may elect to continue this Lease in full foi�ce and effect or terminate this Lease, If A.ssociation shall elect to maintain this Lease in full fotce and eI'f'ect, the awacd fo�� sucl�. - partial condemnation shall be allocated as provided in subparagraph {a), above, and Association shall peoceed with ��easonable diligence to carry out any necassary repair and restoration so that the remainii�g i�nprovements and appurtenances sliall constitute a complete structural unit or units which can be aperated on an economically feasible basis under the provisions of this Le1se, Tn the event Association elects to continue this Lease in full fo�•ce and ef'fect after a parti�l condemnation, the parties shall mutually agt�ee upon a reductibn in the reirt and distributions paid to City pursuant to fhis Lease to aceotint for the - area of'the Leased Premises talcen, Should Association elect to terminate this Lease upon a partial coilclenv�atio�l, � � Associ�tion shall provide City with wiitten notice of such electiot� within thirty (30) days - after tlse date of vesting of title for such tal<ing. Association sha(I specify in such wiitten notice the date on which this Lease sh�ll termin�te, which date shall be not less thai� sixty : (COj days nor more than 360 days after delivery 0� SUCl1 11d1;1C� to City. In the eve��t Association terminates this Lease as provided ior in this subpar�graph (b), City slZall be entitled to the entire award for such partial talcing. (c) If the tempoi°ary use of the whole or �ny part of the Leased Premises or the improvements theieon shall be taken at any time dui°ing the term of this Lease in the exercise of the power of eminent domain by any sovereign, �nunicipality,or other authority, the term,of this Lease shall not be reduced or afiected in any way, ar�d Association shall continue to pay in full the rent, distributions rent and other sum or sums of money and charges herein ��eserved and provided to be paid by Association, and ti�e en�ire awaid foi such temporary talcing shall be paid to Association, Association shall repair and�•estore atly 17 and all damage to the Le�sed Premises and the inlprovements thereon as soon as reasonably practicable after sucla teinpot,ary t1lCirig. 32. Ri�ht of rirst Refusal. Associ�ttion shall have the preemptive right ducing the Term to purchase the Leased Pcemises on the sa�ne terms 1nd conditioi�s as those of any bona tide oifer receivecl Uy and lcceptable to City. Befoie malcing sale or�ny agreement to sell, City shall notify Association in wtiting of the tecros and conditions of the offer. Association, within sixty (60) days �tfter ieceipt of sucll notice, may exercise this preemptive right by writteal notice to City, Fai(ui�e of Association to exercise this pi�eemptive right on one o�• more occasions sha(1 not affect Association's t'ight to exercise it on any subsequent occasion. Any sale or transfer of the Leased Premises, or any part theeeof, or of any larger tract of land of which the Lelsed Premises may be a part, sllall be exp��essly made subject to all of the terms, covenants aild conditions of this Lease, � 33, Restatemei�ti. This Lease (including all exhibits and a.ddend�ulis attached hereto) �� amends, restates, and repllces in their entirety each of the Hilton Garden Lease and the Casino Lease. This Lease contains the entii°e �ulderstanding of the parties and supeisecles all other understandings (oral or written), with respect to the subject matter hereot, - � � 34,� Ari�endments. This Lease may be modi�ed or ame��ded, ii� writing, following propec atittl�orization by each pai�ty's govet�ning body, This Lease may t�ot be �mended or modif ied by oi•al �greenlent or understanding between the p�rties unless the same shall be in writing, duly �pproved, and executed�y both parties, Notwithstandiilg the foregoin�,City and Association s11�11 • etitei•into an amendment to this Lease to the extent necessary; {a} to confoem with a chln�e ii�federal or state l�w or i•egul�tion,administe�tive ruling or�judicial decision; and/or (b} to comply with any requii°ements of Iow� law and the Iowa Rlcing and Gaming Comtnission, including all matters cequiied in order to obtain,mai��tain,and renew - the.appropl�iate liceilses required by state law. 35. Sevecabilitv.If any provisions of this Lease or�ny application thereof to �tny perso�a � or circumstnnce shall be held invalid by judicial decision, the invalidity shall not at'fect other provisions or applications of this Lease that can be giveil effect withou�t the invalid provision or application, and to this end and extent, the provisions of the Lease are severable, ' If any pt•ovision of this Lease becomes invalid and results in 1 si�nificant loss of bei�efit to City or Association or both, as determined by either paity,tlle party clain7ing the loss t�ay denland renegotiation. Sucl1 demand for i•enegotiatian must be m�rde and delivered to the other party within one year after lhe date both City and Association have received notice of tl�e irivalidity, Witltin �fteen (15) days of receipt of such a demand, City and Association shall nneet and begin renegotiations. The renegotiations shall be limited to reformin�; this Le�se and restorii�g the party suffet�in�the loss to its former position with equivalent bene�ts. Tl�e lease shall be effective from the date the invalidity toak place, even if such refori7lation is retroactiva aild involves a settlement foi loss of past benefits, 18 The purpose of this paragraph is to maintain the contimiity of tl�is Lease 1nd conFormity , with tl�e expressed intentions of tl�e p�rty when this Lease was foi�med. 36. Mailin� Addi•esses, Notices to City �tnd to Association shall be sent by cectified mail as follows: If to City; City Man�ger � City of Dubuque City Hall - 50 West 13th Dubttque, IA 52001 Witll a copy to: City Attoi�ney City of Dubuque 300 M�in Street;Suite 330 Dubuque, IA 52001 If to Assoaiation: President Dubuque Racing Association, Ltd: P. O. Box 3190 Dubuque, IA 52001 With a copy to: Cai�po�atioi� Counsel - _- O'Coni7or 8c Thomas, P.C, ' Attn, Tonya A, Trumm � 1000 Main Street Dubuque, IA S2001 or to such other adc[t�ess as either party shall, by written notice, request. = 3�. Approval Contin�cX. This Lease is contingent upon the prior appt•ov�l of tihe City Cduncil of the City of Dubuque, Iowa, the Iowa Racing and Gamin�; Commission, and Association's board of directors. 38. Entire A�reement, This Lease contains the entire a�reement betweet� City and Association, and �ny st�tements, indticeme�lts or pro�nises not co�ltained herein shall not be binc�iiag upon the pacties. 39. Memorandum for Recordin�. The parties mutually agree that this Lease s11a11 not be recorded but �hat if necessary or desirable for title purposes, a Memorandum. of Lease A�;reement shal� be executed �nd �led of record. � 19 CITY OF DUBUQUE, IOWA DUBUQUE RACING ASSOCIATION, LTD. Xef-te) Its: +(SRC (mac-' Its: Prec Vet,. i ef-- 6-ec+aw v Date: Sc 19 ava�3 Date: <el Ats-L2r , 1-45 Z� 20 EXHIIiIT A L�ASED PRIEMISES Lot 1 of CI�IAPI�AIN SCI-IMITT ISLAND in the City of'Dttbuque, Iowa, according to the Plat recorded as Instrument#2023-7679, records of Dubuque County, Iowa, i 3 ; I EXHIBIT I3 CITY INSURANCE SCH�DUL� City of Duuuque Msarahce Requirements f�r Lessees of City Property and Riyht of Way - Licensees or Permittees INSURANCE SCHEDULE A 1. Lessee shall Purnish a slgned c�rtlficate of i:nsurance to the Clty of Dubuque, lowa foC the ooverage required in Exhibit I prior to the lease, Iicen�e, or permit comm�ncement �ill fessoe.s of OIEy property and right of w�ylicensees or permittees•shall submit an updat�d certifi��te annu.ally. Each certificate shdll be prepared on fhe most current AGORD form appi�oved by the lowa Insurance Division or an equivalent. Each certlficate shall include a statement under Description of Operations as to why the certificate was issued. Lease Agreement dated December 14.2021_ 2. All,policies of insur�nce required hereunder shall be with an insurer-authorized to do business?n lowa anrl all insurers shall have a rating of A pr be#ter in the current A.M, Best's Rating Guide, 3, Each cerfificate sh�ll be fucnished to the Fi.nance pepartmen#of the City of Dubuqu�. A, The lessee, licenses, or permittee sh�ll be:required to carry the minimurn cqverage/IPmi.ts.,ot greater If requlred by law:or other legal agreement, in Exhibit I. Failure to provide the r�quired minimum,caverage shail not be deemed a waiver of�uch requirements by tho Cfty ezf Qubuque. - 5, Failure ta obtain or maintain the required insurance shall be cansiderad a materf.al breach of the leasa, Iicense; or permit. �. All required endorsements shall be attached to ceitifie�te, 7. Whe.never a specific ISO form is referenced th�ourrent editinn of fhe Porm must be used unlass __ ar�equlvalent form Is approved by the birector of Finance and Budget.The lessee, licensee, or permittee must identify and list in wrlting al(deviatio.ns and exclusions from the 15C3 form. 8, , lf lessee.'s, licensee's, or permittee's limits of Ilability are higher than the requir�d minimum limits � then the lessee's, licensee's,or permittee's,limits.shall be this agreemenYs requPred limlts, � 9. Lessee, Ifcensee;or p�rrnittee shall requlre all subcontr.actors and sub,subcontr�etors fo obtain and malntaln durinc�the pei#ormance oP work insurance far#he coverages described In thls Insurance Schedule ancl shall obtaln certificates oP insurance from all such subeontractors and sub-su�ooiitractoes. Lessee, Iicensee, or pormittee ac�rees that it shall he liable for the failure of a - subconfractorarid sub-subcon#ractor to obtain and mamtain such coverage. The City may ' requesi a oopy of such ce€tificates from the lessee, Ilcensee,or permitt�e. 10. Lessee,license&�ermittees shall be responslble-for deductibles and soif-Insured retentlon and ` for payment oi all policy premiums and other costs associaEed with the lnsurance policies requlred below, 11. AII cerfific�tes of insurance must include agenfs name, phone number and email address. 12. The Gify of Duk>uque reserves the right to require cornplete, certified copies of all i�equirec� insurance policies, including endorsements, required by this Schedule at any time, �3. The Gity of Dubuque reserves the right to modifythQse tequlrements, incltiiciing limlts, b�sed on ehanyes in the riskor other speciai circumstances during the term of the agr�Pmenf, subjecf to mtatual agreement of the partles, hage,1 of�l Schedu9e A Lesse�s of Gify Prnperty;Right`of Way Licensees oi�Permitte+�s Aprp 2021 City of f�Uk�uque Insurance RequlYemenks for Lessees of C(ty Property and Riyht of Way Licensees or Permittees INSURANCE SGMEDUL�.A {Continued) EXMIEiIT I A} COMMERCIAL G[NERAL LIA�I.ILI"i`Y Ceneral Aggregate L�m(t $2,000,000 Products-Completed Operations,Aggregate Limit $1;OD0,000 Personal ancl Aiivertising in�ury Limit $1,OD0 000 Each Occurrence $1,OOO;Q00 Firo D�mage Limit(any one occurrencej $50 QOp Medioal Payments $5,000 1) Caverac�e shail be written on an occurrence,not claims made,Porm.The general liability cover�ge shall be wrl#ten in accord with ISO form CG 00 01 or business owners form�F�Q9 02, l�ll devlati�ns frnm khe standard�I,SO o�romere[al g�r�ral Ilabil�ty#orm CG 0001,or�usiness owners form BP Op DZ,shall k�e clearly identif'red. 2) Inelude ISb endorsement form CG 25 04"Designated Lacatlon(s}General : Aggregate Limif." 3} Include endorsement indicaiing that coverageds primary and non-contributory, 4) Include F�reserv�fion of Governmental Immunit(es Endorsement(Sample attached}, 5) Inolude additional insured endors�ment for: The Ciry of Dubuque,including aif its el�cted and appolnted offioials,all its employees�ndvolunteers,�II its boards,commissions and/orauthoi�itfes and' the�r board members,emplayees�nd volunteers.Use ISO form CC 24�0 - (bngoing oparatlons)or its equivaienk. - 8) I�olicy shall include Waiver of Right to Recover from Others Endorsement. B} WORKI�RS'COMPENSATION&�MPLQYER3 CIAk3iLITY Statutory Benefits covering all employees injured on the job by aecident or disease as presciibed by Inwa Codo Ghapter 85, Coverage A Statukory-5tate oYlowa Coverage B Employer�Liability �ach Accident $100,0�0 Cach�mployee•Disease $100 000 Pol�cy Limit-Disease $6d0 000 ; Policy shall Include Waiver of Right ko Recover from Others endorseme.nt. Coverage B limits shall be c�reater if required by khe umbrella/excess Insurer. OR If by I�wa Code Section 85,1 A,the lessee,Ilcensee,or permittee�s nok requlred to purchase Workers'Compensatipn Insurance,the lessee, licensee,o�permitiee shal( have a cony of the State's Nonelectian of Workers'Compensatlon or Einylayers` Lfability Coverage form on file wlth the lo.wa Wor4<ers'Com�ensatlan insuranc,a Commissloner,as required by lowa Code Section n7.22:�ompleted form must be attar,hecl, PBp�2 Of 4 Schedule A Lessees of Gily Property;Right of Way Licensees nr Perinittees Apr112029 23 ' Cify of Dubtique Insurance Requi"remer7ts for Lessees of Gity f�ropeity and itic�ht of:Way Llcensees or permitkees — INSURANC� SG1-IEDULE A (�on4inuec�) C) POI_LUTIQN LIABILITY - Coverage required: __Yes X No Pollution liabillty cover'��e shall be�equired if the lessee,contracting party, or permlttee has any pollution exposu�e for�batement of hazardous or contaminated materlals inoluding,butnot Ilrnited to,petroleum products,the removal of lead,asbestos,or PGBs. ' PollUtion product and completed operatians eoverage shall also I�e covered. Eacfi occurrence $'L,DOO,ODO Policy Aggregate $4,000,000 1) Policy t4 Include Job site and transportatlon coverage. 2) Include�dditionalJnsured fo�; The City of Dubuque,lncluding all fts elecfed and appointed offioials,all its emplayees and voluntee[s,all its boards,commissions�nd/pr auth�rftles qnd their board members;employees and volunteers,Use ISC9 form CG 2010. (Ongoing operatlons)or its equivalent ancl CG2037(campleted operatlons)or - its equivalenf. ' 3) Jnclude Pr��ervatian of Gavernmental Immunitles Endarsemont, �4) Provide evidence af coverage for 5 years after completian of proJect, D) RF20PER'1'Y INSURANCE RGQUI�ED BY LEASE,LICENSE,:QRFERMIT X Yes No ' Evidence of property cove�age provided: X Yes , Include the City of�ubuque�s Lender Loss Payable. Ej RI�HT-QF-WAY 1NC1RK ONLY; UMBREL.LA/EXCE55 $1,0OO;ODO X Yes __ No - The General Liabllity,Automobile Li�billty and Workers Compens�tion fnsur�nce requi�emei7ts may be satisfied with a combinatlon of primary ancl Umbrolla or�xeesa Llabi'llty Insurance. If the Umbrella or 6xcess Insurance policy d�es not follow the form.af = the pritn�ry policles,ft snall Inoluderthe same endorsements as requir.ed oYthe primary pollc�eEineluding Wal�er of Subrog�tlorrAND Primary and Non-contributnry in favornf - tfie CIYy, F)' FLOOpINaURANCE ,�,Yes T No If Required Coverage federal Flood Prograrri Maximum R��je 3 of 4 Scfiedule A Lessees of Cfty property;Rlght of Way Licensee�ar Rermittees A�ri12021 ?_4 Gityof Clcibuque Insuratice Fiequiremenfs for Lessees of City Pro�erty and itight of Way Licensees or Fermittee:, Please be aware that naming the City of Dubuque as an additional insured as Is required by this insurance 5chedule may result Tn the waiver of the�Ity's governmental immunitles provided in lowa Gode � sec.670.4. If you would like to preserve those immunities,please use this endorsement or an equivalent . (orm. PRESCRV,QTION OF GQVERNMENTAL IMMUNITIES CNU(�R�EM�NT 9_ �lonwalver ofi Governrt1er�t,�l Immunit;y.The in�urer expressly agrees ancl states#hat the purohese : of this palicy and the Includfng of the Clty of Dubuque Iqwa a�an Additlonal Insured does not walve any of the defenses of governmental�mmuia(ty�vailable to tha Gity of Dubuque, lowa under Code ofi Ipwa Section 670;4 as it is now exists and as it rnay be amended from time to time. 2. CI li�ns Coveraqe The Insurer further agrees tha#this polfcy oflnsuranca shall cover only thQse. � clalnis not subjecYto the d�fense of governmental immunl:ty under the Code oP iowa Sectlon 67Q,4 ae lt i�caw exists and as if rri�y be amended from time to time.Those claims nat sub�ect to Code of lowa 5:ebtipn 670:4 shall be covered by the terms�nd conditions ot this insurance pnlicy, 3. Assattion of Government Imr�unity The City of Dubuque, lowa shall�e responsibl�for.asse.dinc� anq defense of governmental immunity;�nd rnay dn so at any time and shzll do so upon the itmely written request ot the Insurer, 4. Non-C7enial of Caveraae.The fnsurer shall not deny coverage under this policy andthe insurer shalf not deny any of tfie rlghts and benefits accruing to the Gity of Dubuque,Jowa under thls policy for = reasons oP governmental immunity unle�s and until a court of campetent Jurisdictinn has ruled in favar aP the defense(�)of yovemmental immunity asserted by fhe City of Dubuque, lowa. Nn�fhet C:hdnpe in Palic�The above preserratio.n of governmental immunities shall not otherwlse - ohange or alter the coverage available undsr the polPcy. ��E�I � _ (D�PAR'fMENT MANAGER: rILL IN AI,L BLANKS AN�CM�CK E10X�S) F'eg6 4 of 4 5chedule A Lessees of-City Rroperty;Right of Way Licensees or Peemittees April2(l21 25 � �r�srx��.,� �o��r�.��, FI�T�uz� rx�,�� Al�� SECURIT3�' AGRI+,�IIV�EI�1T W�TI3 A.I��OLUTE r-��SIGI�Il�dEI�T'�" O�' L�ASE� Al�l) R�N'�'� Itecoi°der's Coa�e� Sl��t �a�ep��er. In�'oz•x�n�ti��.: Fuerste, Carew, Juer�ens �c 5udmeier, P,C, 890 Main Street, Suite 200 Dul�uqtt�, [owa 520�1 (S63) 556-4011 Attii; Stepllan Alt 'I'��:�ay�r lr�for�i�tioa�: � DuUltc�ue R�cing Association, Ltd. 1855 C'Jre,yhound Paric Road I�ubuc�u�; Iowa 52001 I��t�i�r� �oc��i�etat�`�'o: Fuerste, Carew, Juergens & Sltdmeier, I'.C, II90 Mairi Str�et, Suit:e 200 �ubutltte, iowa 52001 Att��; �tephan Alt l�][or�:g;��o�: Dubuque:R�cin�Association, Ltd. 1V�o�tg�tg��: MidWestOne Banlc �.�gal D�s�rip�ion; See Lxl7ibit: "A" IVC)'Y'1C'Ec 'Chis 1Vgortgag� �ecu��s �a°edit in th� za�oa�r�t of�51,30�,775, ]Lmnzas �i�ad ndv�tnces up to t�his Zxnouaxat,togetlier wit�a in�erest, am� senxax•to nndebted�iess to otlier a�xed.itors u�cia�t° �ubseq�ently rec�l�c��d or� f'i3ed rno�°t�� tnd li�r�s, 7CI�[IS 1VIC3][�'�'G�i�E .�LSn COl>i�'I"ITU'I'E� �,,]F1�T�.T121��+,II.,�I1TC; � L�] LEASEHOLD M0�2TGAGE, I+IXTUR� FII,ING A.ND SECURT'I'Y ��iZ]C�MENT �4'ITH EIBSOLUTE AS�IG1�MEll�TTT C�IC LEASE� Al�D PeE�1T� . THIS LEASEHOLD MORTGAGE, FIXTURE FILI�IG AND SEGURITY AURE�;MENT WITH ABSOLIJT� ASSIGNMENT OF RENTS ("Mortgage"), inade as of October 20, 2023, by and between DvBvQv�RAcrN��ssoc[A�,roN,L`rb., ai�Iowa nonprofit corporatioil ("Mortgagor"}, and NIIDW�:srON�' BAN�c (hereinafter the terms "Lender" and "Mortgagee" may Ue used interchangeal�Iy}. RECITALS A, As of the date hereof, Mortgagor has execttted that certain Credit Agreement (as amended, restated, supplemented for modifiecl from time to tiine, the "2023 Credit Agreement"} relatin� to ceitain ` loans to be made by Mortgagee to Mortgagor in the amouzlt of up to $29,768,671 {callectively tl�e "2023 ' Loazl>�� B, The 2023 Loan is evidenced by certain Promissory Notes executed by Moi�t�agor on or = after the date hereof(tlle "2023 Notes"), C. Ivlortg;ago r anct Lender(slb/m/AM�H�C�N'i`rzus�'&SavlN�s BaN1c)previously eiltered ii�to that certain Busii3ess Lo�n Agreement dated as af Jui�e 13, 2014, as amended froii� time to time, re�ating to tlaat certain loan used for tl�e purchase of the Hilton Gard�n Inn,Houlihan's restauran�,and substanti�lly all of tlze assets ralated tllereto, the "Existii�g IIilton Garden Loan Agree�nent"), tlle current outstandin� amount of whicll is $8,293,2?9 (the "Existing Hilton Garcien Loan"). ' D. I'he Lxisting Hilton Garden Loan is evidenced by � certain Promissory Note execLtted by Mortgagor on JLu�e 13, 2014, as amended (t11e "�xisting IIilton Garden Note"), �, Mortga�or and Lender previously entered iixto that certain Bttsiness Loan Agrecment dated as af April l, 2023, to provide Mortgagor a Line of Credit (the "Existing Line of Credit") aild certain - letters of credit(the"Existing Letter of Credit")ii� tl�e ag�regate, combined amount of up to Three Million . Dollars (�3,000,000} (the "�xisting Li�e oC Credit Loan" and "Existing Letter of Credit Loan", = respectively). �', The �xisting Line of Credit Loan and the Existing Letter of Credit Loan are evidenced by a certain Promissory Note executed by Mortgagor on April l, 2023, as amended (the "Existing L,ine of Credit ai�d Letter o#'Credit Note"), G, "Loan" collectively shall meai� the 2023 Loat�, the Existing I-Iilton Garden Loan, t11e � Existing Line of Creclit Loan, and the I�'xistin�; Letter of Credit Loai�, H, "Credit Agreement" collectively shall mean the 2023 Credit Agreement, the Existin� Hilton Garden Loan�greement, the �xisting Line af Credit, and the EYisting Letter of Credit, I, "Note" collectively shall rnean the 2023 Notes, the �xisting Hilton Garden Note, the Existizlg Line of Credit and Letter of Credit Note. C�] J. The Cradit Agr�ement requires tliat the Loan be secureci by all of Mortga�oz�'s interest in t17e real property descriUeci herein in Dubttc�t�e Cotinty, Iowa, � � NOW, THEREFUIZE, i�a cansideration of tlie abo��e Recitals and the mutual covenants herei�� contained, the parties hereto hereby agree as follows: ARTICL� I - 1VIORTGAGE GItA1�T 1.1 Far the purposes of atld upoi� the terms aild conditiozZs set fortll in fhis Mort�a�e, to the exteiZt allowed by any license issued to Mortga�or under Chapter 99F of t11e Iowa Cade (the "Gaming License"), Mortg�gor he��eby irzevocably inortgages, grants, conveys and assigns to Mortg�gee, all ' Mortgagor's right, title and inte��est in and to the follawing:the leasellold izlterest in the real pioperty ' described in Exhibit� created by t11e Piinlary Leas�s (defined below) (the "Lai1d"), wliicll to�ether witl� � all rights, �rivileges, te��ements, hereditaments, rights-ol-way; easemeilts, �ppendage� ancl appt�rtenazlces appertainii7g thereto and all interests now or in the futu.re arising in respect of, ben�fitii�g or othet�wise relating to thc; Land, inclticlizzg, without limitation, easements, ri�hts-of way and development rights, � incluclizlg a11 rigllt, title ai�d iiatierest now owried or heieafter acqllired by Mortg;�gor in and io any land - lying within the right oF way of ai�.y street acijainiz�g thc Lai�d, and any ai�d all sidewallcs, alle,ys, and dri��ewlys adjar,eizt to or usecl in connection with the Land (which,togetl�er with the Land, �ire collectively referred to as the "Real Property"); (U) all the build'zngs, structures, fa�ilities and inlprovements of every nature whatso�ver now or hereafter situated on the Lai�d (the "Improvements"); (c) (i) all fixtures, m�chinery, appliances, goods, bi�ildin� or other i�naterzals, equipment, . inclliding all garr�ing ec�uipment and devices, and all machinery, equipment, engii�es, appliances and fixtures for�eilerating or distributing air, wat�r,heat, electricity, light, sewage, fuel or refrigeration, or for = ventil�ting or sanitary purposes, the ex�lt�sioi� of vermin or insects, or the reinoval of dust, refuse or garb�ige, now owned ar here�fter �cc�uired by Mort�a�;or and now or hereafter �ttached to, installed iiY or used in coi�nection witl�the I�eal Property and/oi the Ii�lprovem�nts; (ii) a11 wall-b�c�s, wall-safes,built�in furriiture and installatioxls, shelving, locicers, partitions, doorstops, vaults, motors, elevators, dumb- � waiters, awnings,window shades, vezletian blinds, light fixtures, i"ire hoses and bracicets and boxes f'or th� sairie, fire sprinlclers, alarm, commixnicatio��, surveillance and security systems, computers, drapes, drapery rods and bracicets, mirrors, mantels, screeias, lizloleum, carpets aild carpeting, signs, deaorations, plumbing,bath.tuUs, si:nlcs, basins,pipes, faucets, water closets, lau�zdry eqllipment, washeis, dryers, inini- bars, ice-boxes aild heating units;lcitchezl and restaurant equipment(including stoves,refrigerators, ovens, xanges, dishwashers, disposals, water heaters az�d incinerators) iaow owned or llereaftez acc�uired by Mortgagor azld now or hereafter attached to, installed in or used in coivlection witli a�iy of the Real Property nr the Improvements; (iii) all amusement rides aiad attractions attached to the Land; and (iv) all fttrnit�.tre and fitrnishings of every natltre whatsoever now or hereafter owned or leased by Mort�agor or iia which Mortgagor has a�1y rights or interest at�d loaated in or on, or attached to, or used or intended to be used or which are nnw o1 may hereafter be appropriated for use on or in cozlnectian with the operation of tlie Real Property and/or the Improvements, and all extezlsions, additions, accessions, i��lproveme�7ts, betterments, renewals, substitutions, and replacements to any oCthe foxegoing, which,to the fullest extezlt , permitted by law, shall be cozlclt�sively deemed fixtures and improvements and a�art af the real property �3] hei�by en�un�bered (the "�ixtures") (the Real Property, Fixttures and Impioveinei�ts are collectively � referred to as the "Premises"); (d) (i} all cacictail loLinge supplies, includii7g_bars, glasswaie, bottles �nc� �ables wlleievei so located; (ii) all chaise lounges, liot tubs, swimmi�7� pool heat�rs and equipment and all other recreational equipment and bcauty and barber equipment wherever so located; (iii) all persan�l propei�ty, goods, equipmei�t and supplies used in connectio�� witll t11e opez•ation of tlle lzotel, casino, restaurants, stares, parlcing facilities, and all other commercial oper�tions wherever so located, iiicl�.idin� commuiiication systems,visual anct electx�onic stirveillance systems and transportation systems; (iv) all taols,utensils,f�od and beverage, silverware, dishes, liquor, uniforms, linens, houselceeping and maintenance supplies, ' vehicles and fu�i wllerever so located; and (v) all otl�e� pexsonal property of any kind or character, inclucliz�g such items af�ersonal property as defizled i�� the U�C (defiiled below),�Zow or hereafter nvwned or leased by Mortga�or ar in which Mortgago�• has any rights or interest wherever sc� loc�ted, �uld �11 extensions, additions, accessions, improvements, belterments, renewals, st.ibstitutiotzs, and ru�lace�nents to any of the fore�;oing and i�lcluding everything in Subsection 1.1(c) not permitted ta Ue deezned l�i�tures or Improvements (the "Personalty"); (e) (i) the ri�hts to use�11 names, logos and desi�ns and all derivations tl�ereofnaw or liereafter used by Mortga�or, to�ether with the goodwill assciciated therewith, with the exclusive ri�11t to i�se sticli names,logos aild designs wherever they are now or here�ft�r us�d ai�d any azld all trade ti�i�zes,ti:aclemarlcs . ar service marlcs, whether or not registe�ed, noiv or hereafter ilsed in t11e operation af the llotel, casiilo, restaurants, stores,parking facilities �nd �11 otl�er coil7mercial �peratioizs of tlie Mort�a�or, incl�.tdin� any - ii�terest as a lessee, licensee (except the Gaming Licei7se) or franchisee, and, in each case, togetller witla � the gooclwill associated tlierewith; (ii) �ll Uoolcs, records, customer lists, concession agreemeilts, supply or service �oi�tracts, Izcenses, permits, goverilmental approvals, si�ns, �;oodwill, casi�Zo and hotel credit and chlrg� records, supplier lists, checicing accounts, safe deposit boxes (exclutling t11e cantez�ts of such deposit boxes owned by persons other than Mortg�tgor and its subsidiaries), cash, instruments, c,laattel papers, including inter-company notes and pledgas, documents, unearned premiums, deposits, refunds _ (incluclin� income tax refunds), prepaid expenses, rebates; (iii) all accounts, general intan�ibles, � instrumentis, documents, chattel paper ol Mort�agor including all reserves, escrows or impounds reqitired � under t11e Credit �lgreement or other Related Documents (as defined in the Credit Agreenl�;�1t) and all deposit accounts maintained by Mortgagor with respect to t11e Subject Prop�rty; (iv) ail acti�ns ancl rights in action, and all other claims and all otller contract ii�l�ts an�1 geneial intan�ibles resulting froin or L�sed in connecti�n with the operatioi� and occl�pancy of the hotel, casino, restaurants; stor�s, parlcing facilities and all other comm�rcial operations ol Mortgagor and ii� whicla Mortga�or now or heze�fter has rights; (v) all casino operator's ag�eements,vacation license resort a�reements or otlaer time shaie license or right to use a�reements, including all rents, issues, proF'its, iz�come and maii�.te�lance fees resultizlg there:from; and (vi) advertising aild pramoti�nal material, vll10pP111tS, surveys, plans and other docu�nezlts used ii1 the construction or ope��ation of the hotel, casino, restaurants, stores, parlcin� facilities an� all other commercial ope�atiot�s of Mortgagor, wllether any of the fo��egoing is iaow owned or l�,exeafter acqt�ired (the "Itltai�.gible Praperty") (Mortgage�'s ri�hts to the Intatagible Property associated with the operation ; by Mortgagor of franchises are limited to those rights that Martgagor is allowed to grant Mortgagee ui�der th� terms or current and future franchise agreements); (� all leases, sttbleases, lettin�s, licenses, concessians, operatin� a��•eemeiats, management agreements,and all other agreements�ffecting the SuUject Property,that Mortga�or has entered into,talcen by assignment,taken�subject to, or�ssumed, or has otherwise become batu�.d Uy,naw ar in the future, that C�] give any person the ri�ht to condtict its Uusiness oii, or otherwise use, operate or occupy, �11 or any portio�l of the l�otel, casino,restaltrants, stores,parlcing facilities and all other commercial operations oFlvlortgagor � and �ny leases, agreements or arrangements permitting anyone to enter upon or use a�1y of the llotel, casino, restaurants, stares, paricing faciliiies �nd all other commercial operations of Mortgagor to extract or remove natural resaurces of any lcind, together with all �me�zdments, extensions, �nd z•enewals of tlae foregoing entered in1:a in compliance with this Mort�age, to�ether with all reiltal, occupancy, service, maintei�ance or atly ather similar agreements pertaining to use or occup�tion of, ar tile rendering of services at the hotel, casino, restaurants, stores, pazlcing facilities and all other commercial operations of Mortgagor or any part thereof, together with a.11 related security a�Id other deposits {the "�,eases"); (g) all af ihe rents, revei�ues, receipts, royalties, income, proceeds, proi"its, license and , concession fees, security and other types ol deposits, azld other beiaei�its paid or payable by parties to the Leases for usin�, leasing, licensiz�g possessing, o�erating from, residing iii, seliing or atherwise eiljoyin� ' the Subj ect I'rope�ty (the "Ren�s"); � (11) all other a�reeinents, such as constrtiction contracts, architects' agreements, engineers' contracts, utility cozlti•acts, znaintenance a�reements, znanagernent agreements, service contracts, listiilg agreements, guaxan.ties, warranties, permits, licenses, certificates and entitlements in any way relating to = the constrt�ction, use, accupancy, operation, maintenance, enjoyment or ownership of the Re�l Proper�y, including without limitatioii that certain Revocable License A�reeinent dated on or about the clate llereof, between Mortgagor ai�d the City of Dtibltque, Iowa, as amended from tiine to time (the "Pro�erty Agreemei�ts"); (i) all rights, privileges, tenements, l�creditaments, rights-of--w�y, easements, appendages and appurtenai�ces appertazning to the foregoizlg; (j) all property tax refunds and rebates aiad utility refunds and rebates {t11e "Refunds"); ' (k) all accessions, rep�acements u1d substitutions for any of the foregoing and all proceeds thexeof(the "Proceeds"); (1) all insurance policies, unearned �remiums therefor and proceeds from such policies = covering any of the above property now or liereafter acquired by Mortga�or (the "Insttrance"); �i�.d (z1�) all of Mortgagor's right, title and interest in and to any awards, darria�es, rem�.u�erations, reimbursernents,settlemezlts or compensation l�eretofore made or hereafter to be macle by a�1y Government Authority pertainin�to the 1'remises, I'ixtr.�res or Perso�lalty (t1�.e "Condemnation Awards"), all nf tl�e foregoing, whether now owzled or llere�fter acc�uired, being collectzvely refe�'red to as the "Sub�ect I'roperty";provided, howeve�^, that notwithstanding the foregaing or anythin�to the contrary iix this 1Vlortgage, the SuUject Property does not and s17a11 not include (A) the Gaming Lic�nse or (B) any - other rigllt of Mortgagor or item of real or pei•sanal property of Mortgagor, to tlle extez�t, iz� the case af� t111S SL1�S�Ct1011 ��, tliat Mort�agor's assignment and coziveyailce to, or grant of a lien or sec�.trity ii�terest � in favoi of, Mortgagee in suc12 paiticular ri�ht or �tem o�real or peisonal plopelty is prohibited by, at� '�� would coi�stitute a default under, the terms of any current or future agreement (iilcluding any fr�nchise ag�eement)to which Mort�a�;or is a party ar�d/or any law,regulatioil or ordinance applicable to Mortgagor, ; The listing of speci�'ie rights or�roperty shall riot be interpieted as a limit of general terms, � LS] 1,2 Certaiil Dei"initinns. (a} The term "Prinlary Leases" shall meai� all of the le�s�s and agreements describecl oi� Exhibit B attached hereto and incorporated by this reference. 1,3 Term. In no event shall tlle term of this Mortgage extend beyoi�d Deceinber 31, 2056, witlzout the prior written consent of the titleholder of the Land and tlle written �g��eement of Mortgagor, ARTICLE II = OBLIG�TIOI�S S�CUIZED 2,.1 Obli�ations Secured. Mortgagor enters into this Mort�age for the pltrpase of sectu�in� the followitlg obligation� ("Secured Ol�ligations"), � � � (a) Payment and performance of all Obli�ations as defiiled in the Credii A�zeement, includin�, without limitatiozl, al1 cove�lants a�1d obligations on t11e part of Mortgagor uizder tlie Credit Agrecmezlt, tl�e Note �nd all otl�erRelated Docttmeizts (as defined in the Credit Agreemezlt); (b) Payment and perFc�rmazlce of a11 covenants and obligations of Mox�tgagor under t11is Mort�age; and (c) All modifications, extensions and rez�ewals of any of the obligations sectued l�ereby, however eviderzced, including;, withaut limitation: (i) modifications of the req��ired principal l�ayment - - dates or interest payment dates or both, as the case m�y be, deferz•ing or accelerating paym�nt dates wholly or partly; or (ai) modifications, extensions or renewals at a different rate of interest wllether or not in the case o:F a note,the modification, extension or renewal is evidenced by a new or additianal promissory note ' or notes. 2,2 Maturitv Date. The latest maturity date of the Notes secured hereby is May 1, 2035. - 2.3 Futltre Advarices, This Mortgage is given to secure not only the existing indebtedness of the Mort�a�or to the Mortgagee evidenced by the Note secuied hereby, but also future advances ��ide pttrsuant to the Credit Agreement, plus intei�est thereon, and any disbursements made by Mortgagee for the payment of taxes, insLtrallce or othPr liens on the property encumbered by this Mort�;age, with intel•est - on sucla disbursements, w�lich advances sl�all be secured herelay to the saine extent as i£ such fi�ture advances were made this date. The total amount of indebtedness secured heieby may increase or decrease from tim�to tim�e. 2.�4 Inc�oration: All terms of the Seciired Obligations ancl the documents evidencii�g sttch obli�ations are incorporated hereizl by this reference, All �ersons who may have or acq�:�ire an interest in the Subject Property shall Ue deezned t� have notice of tlle terrns of the Secl�red Obligations and ta l�ave - notice, if provided therein, th�t: (a) tlae Note or tlze Cr�dit A�reemezit may permit borrowi��g, repayment and re-boz�rowing so that repayments shall nnt reduee the amounts of the Secured Obligations; and (b) tl�e rate of interest on ozle ar more Secured Obligations may vary from time to tii�ae, 2,5 Obli a�g ions, The term"obligatiions" is L�sed herein in its bzoadest�i�d inost compreheilsive sei�se ancl shall be deemed to include, witllout limitation, all interest and cl�arges, prepayment ch�r�es (if any), late charges and loan fees at any time accruing or assessed on any oi'tl�e Secured Obligat�o�ls (and C�] sh�ll incl�.i.de interest that acc:rues after the commencement of �zly baz�lcrllptcy or otlxer insolvency proceeding by or against tlle Mortgagor, whether or not allowed oi� allow�tble) and all the foregoing shall ` be part of the Sectxreel Obligations, �.It7['ICLE �II A��IGNIVI�NT OI' L,EASES Al�iD �2lCl�i1 S - 3,1 Re�resei�tations, Warranties atid Covenants. Mort�a�or repi•esents,warrants and covenants tllat, as of the date hereof; (a) it has provided a list oi' all Leases to Mortgagee as of thc date of this Mortgage, (b) as of th� date of this Mortgage, Mortgagor is i1ot, i�1 the capacity of Iessor, a party tio any ather lease, whether written or oral, or any agreement for the use and occupancy of the Re�l Property, except as disclosec� in writing t:o Mort�agee prior to t11e date of this Mortgage, (iii} the Leases are valid, binding and in fiill force and effect and have not been amended or modi�'ied, except as disclosed in wi�itii��; to Mortgagee�rior to the d�te of this Mortgage, (iv) Mortga�or is the sole owner of the lessor's iilterest in tlle Lelses, (v) except for any Permitted Liens, Mort�agor has not executed any ather assignment or pled�e ol any of the Leases o�� Rents or performed any other act or:.exectxted any otl�er instrlrment wllicl� n�igllt nlateria.11y and adveisely prejudice Ivlortga�ee's rights hereLrnder, (vi) to the best of Mort�agor's lcnowled�e, no m�terzal default exists on tlle part of any lessee, or oi1 the p�rt of Mortga�oi, as lessor, in the perfo:rmai�ce �i the terms, covezlants, provisions, conditio�is nr agreements contained in the l,eases, - (vii) Mortgagor lalows of'no cozldition which, with thc giving of ilotice or the passage nf. tirne or botl�, would constitute a material default under azly oF t11e Leases on tlze part of �ny lessee ot� Mortgagor, as lessoi�, except as disclased in w��iting to Ivlortgagee prior to the date of tl�is Mortgage, (viii) no Rent has = been paid by any ]essee for more than one installmeiit in advance, and (ix) the payment of noi�e of the Rents to accrue tulder the Le�ases has been or will Ue w�ived, released, reduced, discaui�ted or otherwise discharged or caznpromised by Mortgagoi�, except as disclosed in writing to Mortgagee prior to the date of this Mortgage. 3,2 flssi mm�nt. Mortgagor hereby irrevocably assigns to Mort��gee all af Mortg�gor's rigllt, - title and iilterest in, to and under; (a) all Leases at7d all other l�roperty A�;reements, whether now existing - or enterecl into after the date 1leieof; and (b) t11e Rents. Tl�e term"Leases" shall also include all �ttarantees of�iid secttrity foz tlie lessees' performance 1ailder the Leases, �7d all amendments, extensions, renewals or modifications thereta which are permitt�d hereunder. This is a present and absolute assigi�nent, not an assignment Cor security purposes only, and Mnrtga�ee's Tig11t to the Leases and Rents is not contin�ent - upon, and may be exercised witliout possession of, the S�,zbject Property. 3.3 Grant of Lice�lse, Mortgagee canfers upon Mo.rtga�or a license ("License") to collect a.nd retain the Rents as they become due and payable,until the occurrence of an�vent of T�efault(as hereinafter defined),Upon an Event of Default,tl�e License s11a11 be automatically revolced and Mortgagee n7ay collect and apply the Rents pursuant to Section 6,3 of t11is Mortgage witholtt notice and witl7aut talcing possessioi� of the Sttbject�'roperty. Mortga�or llereby irrevocably authorizes ai�d directs the lessees undei�the Leases to rely upon and coinply with any notice or dem�nd by Mortgagee for the payment to Mort�agee of a�y rental or other surns which may at any time become due under the Leases, or for the performance of aizy of the lessees' ui�dertatcin�s under the Leases, aiad the lessees shall have z10 ri�ht or duty to inqtliie as to whetller any Event af Default has actually occurred or is then existing hereunder. Mortg�gor l�ereby relieves the lessees from ariy liability to Mortgagor by reason of relying L�pon and complying with any such.notice or demand by Mortga�ee, �� 3.4 Effect of Assi�nment, The foregoing irrevocable assi�iunent shall not cause Martg�.gee to be, (a) a mort�;agee in possession; (b) responsible or li�ble for the control, care, management or repait• of � the Subject I'roperty or for performing any of the terms, agreements, undertalciiigs, obli�atiozls, representations, war�anties, covei�.�nts and conditiotzs of the Leases; or (c) responsible or li�ble fo� �tny - waste committed c�n the Subject Property by the lessees under ariy ofthe Leases or any other parties; for any dangerous or defective condition of the Subject Property; or for any negligence in the managemeilt, upkeep, repair or catltral of the Sub,ject Pioperty resulting in loss or injl.uy or death to any lessee, licensee, - employee, invitee or ather person; except to the extent such loss, injuiy, or death is caused by the gross - negligence or inteiltianal misco�iduct of Mortgagee or any of its employees, age��ts, contractois or subcontractors, Except as otherwise expressly provided hereiri, Mortgagee shall not d'itectly or indizectly be liable to Mortgagor a�• any other person as a consec�uence of; (i) the exercise or failure to exercise any of tlie rights, remedies or powers grulted to Mort��gee, or any of 1Vlortga�ee's respective e�ilployees, agents, contractors or subc�ntracto�s hereunder; o� (ii) the failure or refusal of Mortg�gee to perform or dischar�e at�y obligation, dilty or liability of Mortgagor arising under.the Leases. . 3.5 Cov�i�ants. Mortgagor covenants and agrees at Mortgagor's sole cost �nd expense to. _ (a) peifnrm the abligations oF lessor contain.ed in the Leases and enforce by �ll available remedies perCormanc� by tile Iessees of the obligatiozls of the lessees cont�ined in the Leases; (b) giv� Mortgagee p�om��t written zlotice of 1ny material default which occurs with respect to any of the Leases, w�xether the default be tliat of tlZe lessee or of the lessor; (c) exercise Mortga�or's commerr,ially reasonable eff�rts to lceep all portions oi'the Sub,ject Property that are ca�able of being leased at all times at rentals not less tl�an the fair market f�enta:l value, (d) deliver to Mort�a�ee fully executed, caunterpart oz�iginal(s) of each - _ and ever.y Lease if requested to do so; and(e) execlite and record such additional assi�;nznenta of any I�ease or specific subordinations (or subarclination, attorninent azzcl non-disturbance a�;reements executed by the lessor and lessee) oi' any L,e�se to the Mortgage, in form and suUstance acceptable to Mortgagee, �s Mortga�ee may reasanably request. Mortgagor sh�ll not, without Mortbagee's prior written consent, which sliall not be unreasonably withheld, co�lditioned, or d�layed, or as otl�eiwise permitted by any provision of the Creclit Agreement: (i) enter iilto any Leases after the date of this Mait�age; (ii) execute . any other assi�nment rel�ting to any of the Leases; (iii) discount any rent or other sums dtie under the Leases or collect the same in advance, other than to collect rent oi�e (1)inontli in advance of the time when it b�coines due; (iv} terminate, modify or ame��d any of the ternls of the Leases or in any manner release _ or dischar�;e the lessees from any obligations thereunder; (v) consent to ai�y assigrunent or subletting by any lessee; or (vi) subordiilate or agree to suvordinate any of the Leases to any other mortgage or eri�um�iance. Any such attempted action in violation of the provisions of this Sectiorl shall be null and void, . 3.6 _F,sto�pel Certifir,ates, Within thirty (30) days after written request by Mortgagee, � - Mortgagor shall deliver to Mortgagee and to ai�y �arty designatecl by Mortga�ee estoppel. certi�'icates executed by Mortga.gor and by each of the lessees, in recordable form, certifying {if sltch be the case): (a) that the foregoii�g assignment and the Leases are iia ftill force and effect; (b) the date of each lessee's most recent payrneilt af rent; (c) that there are i10 defenses or offsets outstandii�g, or stating those claimed by Mortgagor oi lessees uilder the foiegoiilg �ssignment ar the Leases, as the case may Ue; and (d) any otller iixforination reason�bly rec�uested by Mortga�ee, �8� AR.TICI,L IV ��CURITY AGIa]E�1VII',I�TT ANID I'IXTUIt� �+'�l��l\3G � 4,1 Secui,�lty Interest, As secu�ity for tlae full, prompt, complete anci Cnal paym�;nt when dLle (wllether at stated maturity, by acceleration or otherwise) �nd prompt periormailce of �11 the Secured OUlig�tions, Mortga�ar izereby �rants, assi�ns, conveys, moi°t�a�es, plcdges, hy�oth.ec;ates ancl transfers - to the Mort�agee, fai itself and for the benefit of Lei�deY•, a security interest in ai�d to all of Mortga�oz's ' right, title and interest in, to and under each of the followin�, whether now owneci or hereafter acc�uired - by Mortgagor or in wl�ich Mortgagor now l�olds or hereafter acq�tires �ny interest, othei� than assets elicum:bered by T iens or other security interest �llowed under tlle Credit Agreement and to the exteilt Lender can talce a security i�lterest uilder applicable laws or regulations (all of sttch interest of Mortgagor being heieinafter collectively called the "�oll�teral"): � � � � (a) all of tlle Subject Property which is person�l property, includin� without limitation; (i) all "Equipnaent" owned by Giazltor, as such term is elefined in �ection 554.9102(1)(a�) of tl�e UCC (or any othe��t11en applicable pzovision of the UCC), �Zow oz l�ereafter owned � oi acquired by Mortga�oi or in wl�ich Mortga�or now holds or heieafter �cqttires any interes� wlucli, in � a��y event, s11a11 inclucle, witllout linlitation, all machinery, equipment, �'ixttiies, gaming mlchines, casino cl�ips, sig�la�;e, change banks, change bins, slat maclline bases; �urniture, furnisllit�gs, trade fixtures, � mainfi•az��e, perso3lal aticl other computers, terminals aild printers and related aompo�lents and accessories, a11 copiers, t�leplaonic, video, electrotlic dat:a-�rocessiiag, ctata storage equipnlei�t ai�cl otller equipn�.eilt of � any nature whatsoever, azld aily ai�d all additi�ns, substitutions and replacernents oI'any of tl�e fore�;oin�, � wherever located, ta�ether with all attachments, components, parts, equipment and lccessories iiYstallecl thereon oi• affixed thereto; (ii) all development riglits and credits and ��ny and all perinits, cansei�ts, apprc�vals, licenses (except the Gaming License), autllorizatians and other rigl�ts grantecl by, given by or obtained f'rom, any governtnental entity with respect to the Subject Property; all water and water rights, wells and _ well rights, canals a��d canal rights, ditches and ditcll iights, sprin�s and spring ri�hts, and reservoirs �nd reservoir rights appurtenant to or associated with t11e �ubject Property, whether decreed or uzldecreed, - tributary, nan-tribL�tary or not nozi-tributary, surf�ce or undergrouzld or �ppro�riateci or unappropriated, - ancl all sl7arr-,s of stock in water, ditch, la.ter�l and c�nal companies, well pexmiis and all other evidences - of any oFsuch ri�l�ts;all deposits o�other security n.ow or here�fter madP wzth ar given to utility compariies by Mortgagnr wit11 respect t�the Subject Property; all acl�va�ice payments of inst�r�nce premi�.lms made by Mortgagor with respect to the Stibject Proparty; all �uaranties, warraiaties or inderriniti.es relate�l to the; Sub,ject Property; all pl�ns, drawings, reports and specifzcatioils relating to the SilUject Property; and (iii) to the extent i7ot otherwise included, �11 proceeds of eacl� �f t11e foregoiilg anc� all accessions tc�, additions to, substitutions ai1�i replacemezlts for, and rents; pr�fits and pr�ducts of each of the f'oregoiixg, to�ether with �11 baolcs, records and files relating to any oF tl�e foregoii�g, As to all of 1he above-described pei�sonal property which is or which heieafter becomes a "fixtuie" under applicable law, this Mort�age constitutes a fixtLue filing under the Unitorm Commercial Cade as enacted in the State of Iowa, as amended from time to tiine (the "UCC"), AlZ terms deF'ined ii� the UCC shall have the zespectiive meanin�s given to tl�ose terms in the UCC. �� 4.2 I'ixture I'iling, This Mort�a�e constitutes a financing statement filecl as a fixtttre tiling in the Official Records of the Cou�lty Recorder of DuUuque County,Iowa witli respect ta any �t�id all fixtures co�npa�isii�� Collateral, The "debtoi" is Dubtiqtle �tacing �ssociation, Ltd., a noi�profit cor�oratian orgazlized under Iowa law, t�1e "secured party" is MI�W�s�'Oivz' B�N��, as Lei�der, �he collateral is as described in Section 4.1 above ai�d in the granting clal.ise oFthis Mortga�e, and the acldresses oi'the debtor - az�d secui�ed party are th� addresses stated in Sectioi17.10 nf this Moi•tga�;e for Notices to such par.ties; ° The owner of reeard of the Real Property is City of Dubuque, Iowa, an Iowa muiiicipal corporatioiz. _ i 4,3 Representations and Warranties. Mortg�gor hereby repi•esents and wariants to the Mortgagee as of the date 1lereof that; (a) Mortgagor is the sole leg�l and equitable owner of eacla item of the Collateral zn which it putports to �ra�1t a security interes� heieundei, having good and merchailtable title ar rights tl�ereto free �� and clear of any �tnd all Li�ns, exce�t for the Permitted Lieias (as defiized iri tl�e Credit A�reement) or Liens allowed Llncler t11e Credit Agreement, � (b) �� N�o effective moi�t�age, financizlg stat�mezlt, ec�uiv�lei�t�security o�• lien instirtimei�t or - continuation statemeilt covering all or any part of the Collateral exists, except the Permitted Liens. Tl�e - �� liens r,�eated in the Collate�al herettncle�• �tre first pTiority perfected liens, subj�ct only to Pe��nitted I�iens � �r Liens allowed under the Credit A�reei7iei�t, . (c) I'his Nlart�a�e creates a legal and valid security interest oii a�zd iia�11 o:C the Collateral iia _ whicll Mortga�or i�ow has riglats 1i1d all riliiags necessary or desirable to peri'ect �nd protect such s�curity interest have t>een duly made, Accordi�lgly, the Mortga�ee ]zas a fitlly perfected first priority security interest in all of the Collateral in which Mort�agor now has rights and whicll c7zZ be perfected by filing, ' suUj�ct only to the Permitted I,ieils or Liens allowed uncler the Credit Agreement. �xcept as �Zoted in the first sentence, to th�extent such secLtrity interest caia be perfected by filing,this Mo��tgage and such filings will create a legai and valid and fully perfected f'irst priority sectilrity interest ii� the Collateral in wllich Mortg�gor later acquires rights, when Mot•tgagor acquires tllose ri�hts, subject only ta the Permitted Liens or L,iens allowed under the Credit Agreement. (d) Mortgagor's exact legal name is set£orth oz1 the�"irst page of this Mort�age, Mortgagor was - iorn7ed under the laws of the State of Iowa, Mortga�ar's chief�;xecutive ofi"ice,principal place of business; and the place where Mort�a�or maintains records coilcernin� the Collateral are the address provided For in Section 7.10, The tangible Collateral is presently located in Dubuque County, iowa. Mort�agor shall not change sucla chief executive ofi"ice or principal place of business or remove nr catise to be removed, except in the orciinary course of Mortgagor's bttsiness, t11e Collateral or the records concernin� the : Collateral fxom those pxemises without prior writteil notice to tile Mortgagee. All of Mort�agor's ' organizational clocitments delivered to Mortgagee pursuant to the Credit Agreemei�t are coiriplete a��d accurate in every r.espect, (e) No authoriz�tion, approva.l or othei �ction l�y, ai�d no �Zotice, to or filing with, any � governmental autliority or any otlaer Person is recYuired for the exercise by the Mort�agee oF the ri�hts pravided for in tl7is Mort�a�e, except in connection�ith a elisposition oF tl�e investment property as inay be reqtiired by governmental rllles affectin� the oFfexin� and sale of securities �enerally and the CTaming Laws as sl�ch term is dei'ined in the Cr�dit�1�;reement, C10] 4.4 I'iirther Assur�ices. Mortgagor agrees: (a) to execirte and deliver such c�ocuments as : Mortgagee reasonably dee�lis necessary to create, perfect and contiiiue the s�curity iizterests contem�lated hereby to the extent the same may Ue perfected by f"iling, (l�) to coope��ate with Mortg�gee in perfecting all secuiity interes�s �r�nted herein and in obtaining stxch lgreemezzts�fiom third partie� as Mortgag.ee deems necessary, proper or convenient in connection wit11 the preservation, ��erfectian or ezli'orcet�7ent ol ai�y of its rig��ts herettnder (including, witklout limitation, coiitrol agreements with�espect to accounts �1ot at MidWestO�e Bat�lc, or its affiliates); and (c) that Mortga�ee is autllorized to file financing statements : in the name of Ivlortgagor to perfect Mortgagee's secttrity interest in Collateral {including iinancizlg statements that inciu.de an "all assets," "a11 personal property,'' or similar collateral d.escription): Mortgagor shall promptly notiiy Mortgagee in writing after the filing of any application for a pate�lt, � trademarlc or copyt�ight or the isstianee of any patezit or registration of any trademark or co�7yrigl�t or otherwise obtaining any interest in aily patent, trademarlc ar copyright, If requested by the Mortgagee, Mort�agor shall execute such additional doct�mentation t� be filed in the.United States Co�yrigllt Office or tlae United States Patent and Tr�demarlc Of'fice as the Mortga�ee may reasoz7aUly require from time to time, 4,5 Fttrtihei•Iclenti�'ication of Collateral� C�ntii�tic�usPerfectinn, Mort�;agor shall,ifso rec�uestec� by the Mortgagee;#uinish to tlle Mortgagee, as ofien as tl�.e 1Vlort�agee s11a11 reasonably request, statements and schedules further identifying and describing the Coll�teral azld such other reports in connection with tl�e Collateral as the M�rt�agee may reasonably req�.rest, all in reasonable detail. Mortgagor shall not cha�lge its name, idetitity oi� cor�orate structure in atly mai�ner unless Mortgagor shali lzave givei7 the Mortgagee at least thirty (30) days' prior written notice thereof and shall have tal�en all action: (or rriade arrangements to talce s�tch act:ioia substantially simultaneo�.�sly with suc11 el�ange if it is impossil�le to talce such action in advai�ce} necessary or reasonably requested Uy the Mort�a�ee to.amend suclx ftna�icing . statement or continuation statement so that it is not seriously n�islelding. Mc�rtgagor shall nat reii�corporate or reorganize itself under the laws of any jurisdiction other thaia lowa without the prior written consei�t of the Mortga�ee, Mortgagor acicnowledges that it is not authorized#a file any ainendment or termination staterrient wit11 respect to any finazlcing statement i�elating to any security interest granted - heieullder without the prior writte�l consez�t of the Mortg�tigee and agrees that it will �Zat clo so witllottt t�e prior written consent af the Mortgagee, subject to Mortgagar's ri�hts under Section 554,9509(4)(b) of the UCC. - 4.6 Rights of Mor��agee. In addition to Mortgag�e's rigllts as a"Securad Party"under the UCC, Mor�tgagee i�aay, b�.�t sh�ll not Ue obligated to, at any time witl�out notice and at the expetlse of Mortgagor; (a) give notice td any person of Mortgagee's rights hereuncler and enforce sllch ri�l�ts at law ar in ec�uity; � (b) insure, protect, detend and preserve tihe Collateral or any riglxts or inteiests of Mot�g�gee therein, (c) inspect the Collateral; and (d) endorse, �;ollect ai�:d receive any rigl�.t ta payment of money owing to Mortgagor�.�i�cler or from the Collateral, 4,7 R�zl?ts of Mortga�ee on DefaLllt, Upon the occurrence o� an Evez�t of Derault under t11is Mortgage, then in adeli�ion to all of Mort�;agee's ri�hts as a"Secureel Party" under the UCC or otheiwise at law, Mortgagee s11a11 have the Followin� rights, sLrbject, in each case, to the Gamin� Laws; (a) Mortgagee may; (i) upon wii�ten notice, require Mortgagor to assemble az�y or all of the - Collateral and make it available to Mortgagee at a place designated by Mortgagee;{ii) without prior notice, enter upon the Subject Property or other place where any of the Collateral may be located and talce pdssessioi�z of, coilect, sell, leas�, licezzse and dispose of any ar �.11 of tl�e Coll�teral, and store the same at [11] _ _ _ _ _ __ _ _ - __ __ locations accepta�le to Mortg�gee �t Mortgagor's expense; (iii) sell, �ssi�n 1nd deliver at �ny place or iia azly lawfitl manner all or any part of the Collateral and bid az7d beconae purchaser �t any such sales in accordance with the UCC; (U) Mortgagee may; for the account of Mortgagor ancl at Mortgagor's expe�Yse; (i) o�erate,use, coilsume, sell, lease, license or dispose of tl�e Coll�teral as Mortg�gee deems appi_optiate for the purpose of perfoiming any or all of the Secured Obligations; (ii) ei�ter into any a�reemeilt, comp��omise, or settlement, inclltdi�ig insurance claims, which Mort�agee may deem desirable or proper with i•espect to any of the Collateral, atld (iii) endorse and deliver evidences of title for, and receive;�ei�foree and collect by legal �ction or otherwise, all indebtedness ancl oUligations now or hereafter owing to Mortg�gor iz1 conilection with oi oti account of any or all of t11e Collateral; and � (c) In disposing of Collateral heretuider, Mortgagee may disclaim all warranties oi' title, ; possession,quiet enjayment az�d the lilce. A�iy proceeds of any disposition of any Collater�tl may l�e�pplied l�y Mortgagee to ti7e payment of expenses inct�rred vy Martgagee in connectioil with the fo�•egoin� ' includin� attorneys' fees, and the balai�ce of such praceeds may be applied by Mortgagee toward tl�e payinent of the Secured Obligations i�a such oider of application as Mortgagee i�zay from time tn time - elect, 4,8 T'owei_of Attorney_. Moi•tga�;or hereby irrevocably appoints Mortgagee as Mort�a�or's ; attnrney�in-fact(sizch agency being coupled with an interest), and as suc11 attoi-��ey-in-fact Mortga��; n1ay, � witLlout the obli�ation ta do so, in Moi�t�agee's nazlle, ar in the name of Mortgz�or,�repare, execute atld file or record f'inlncing statements, coiatirluation statements, applications :Cor re�istr�tza�1 and like papers necessary to ereate; perfect or preserve ariy of Mort�agee's security interests and ri�hts in. or to any of the . Collatezll, ai�d, upon a,i�Event of Def�ult.hereunde�, Uut st�Uject to the Gaming Laws,take any otller action requi��ed of Morigagor;provided,however,that Moi�t��gee as such attorney-in-fact shall be accountable o�11y for such fitnds as are actually received by Mortg�gee, 4.9 Possession aild Use of Collateral, Except as otherwise pravided in this Section or tl�e other IZ.elated Documents, sa long as no Event of Defattlt exists under this Mortgage ancl no Default or �vent of Defat�lt exists under any of the Related Documents, M,oi~tgagor inay possess, use, mave,tran�fer ar �lispose - of any oF the Collateral in the ordin�iy course of Mortga�or's business and in accoidance with t11e Cr�dit ` Agreeinent, ARTI(;LE V RI(7H7CS .�liTl� IDUTIES Oi�" 'I'HE PA�TI]ES 5.1 Title. Mortgagor represants and warrants that Mort�agor lawfillly 1lolcis and possesses(a) a valid leasehold interest in the Real Pro�ei:ty and (U) fee simple title to the Sul�ject Property that is not the Real Property without limitation o�1 the right to encttmber (uialess otl�erwise disclased in the Credit A�reement), and tl�z�t except as specifically provided herein this Mort�age is a fii•st and �rior lien on the Subject Prnperty, subject only to the Permitted Liens (as defined in the Credit A�reement) or Liens allowed under tlle Credit A�reeznent, This Mortgage is not a lien on the Land unless title thereto is acqtiired by Mortgagor, Mortgagar cloes not have any iiaterest in any real property,ilot encumbered hereby, � whicl� is Lxtilizecl zn atly tnaterial nlanner in connection wit11 the use or operation of the Subject Piopert� or whicl�is necessary and required for the use and operation of the Subject Propet-ty. [12] S.2 Taxes and Assessments, Mort�agor shall pay prior to delinqtiency all taxes, �ssessments, levies and cl7arges iinposed by any p��Ulic o�quasi-pLlblic autl7ority or utility c�m�ai�y which are or wllich may become a lien upon or cause a loss in value of�tlae Stibject Property or aily interest tllereii�,Mort�agoi� shall also pay ��ior to dc�linqtiency all taxes, assessments, levies ai�d �h�rges impased by any public authority upon Mortglgee by reason ol its izlteiest in any �ecured Obligation or in the Subject Property, oz by reason of any payment made to Mortgagee pursuant to any Secured Obligatioi�; provided, liowevei, Mortgago�shall l�zave no obligati�n to pay taxes which may l�e imposed from tirne to ti�ne upon ivZortgagee azld which are measured by and imposed upon Mortgagee's net iilcome, � 5.3 Tax and Itisurance Inlpourids. At Mortgagee's option and upoil its demai�d following the occurrence and d�tring tl�e continuation of v1 Lvent of Default; Mortgagor shall; until all Secured Obli�atioiis have been paid in Full, pay to Mortg��ee mo��tlily, anntially or as otherwise direated t�y � Mortgagee an amouni estimat�d by Mort�agee to be ec�ual to; (a) all.t��xes, asscssinents and levies in�posecl by any public o.r quasi-public authority or �.�tility comp�ily which are or may b�;come a lien upon t11e Subject Property or Collate�al ai�d will became due for the tax year during which sttch paymez�t is sn directed; and (b) pzemi�.uns for Fire, other hazard and mort�age ii�sr.u�ance requirecl or requ�sted ptirsLiant ; to the Relatecl Documenta wllen same are next dtte, IF Mort�;agee determines th�t �ny amotults paid by Mortgagor are iiisuffzcient for t11e p�ynlezlt in full of such taxes, assessmants, levies or ins�lr�nce premiums, Mort�agee shall notify Mort�a�or of the i��creased �mouzlts required to pay all amounts dt�e, whereupon Mo�•tgagar shall �ay to Mort�agee within thirty (30) days thereafter the additioiial amount as stated in Mort�;agee's notiee. All sums so paid sllall not bear interest, except to the extetlt arid in any znizlimutn amount required by law; and Mortgagee sh�ll apply said fuz7ds to the payment of, or at the sole optioi� o��Mort�a�;ee release said fi.mds to Mort�agor !'or the application to and payn�tent_of, sltch �uins, �, tax�s, assessments, levies, char�es, and insurance preiniiams. Upon an Event of Default l�y Mort�agor , hereunder or under any Secured OUligation, Mortga�ee may apply all or �i1y part af said sums to any _ Secured Obligatian or t� cure st.tch Event of Delault, as well as to cure any other �vents or conclitions of , �vent Default not cur�d by such application. Upon assignment of this Mortgage, Mortga�ee shall have the right to assign �11 amounts collected and in its pos�ession to its assignee whereupotl Mortga�ee shall - be releasecl fi•om all liability with respect theieto, WitlZin tllirty (30) days�followin� full rep�yment of t11e S�cured Obligations (otller thaza full rep�yment of the Secured Obli��ttions as a eonsequence of a � fareclosure or c�nveya�lce in lieu of foreclosure oI'the 1iei�s and sectirity interests securing t11e 5ecured � Obligations) or �t sucll earlier time as Mort�a�ee rnay elect, the l�alazlce of all amounts collectecl and in Mortgagee's possession shall be p�id to Mort�a�or or the persons atheiwise legally et�titled thereto. - S.4 I'erformance c�f Secured OUli�ations. Mortgagor shall promptly �ay and perform each ' Secured Obligation wl�ei� clue. 5.5 Liens, Enetunbrances and Char�es; Mort�;agor shall immediately clischar�e any liezl not approved l�y Mortgagee ii7 writing that has or may att�in priority over this Mortgage, it bein� expressly ; aciciiowled�ed and agteed that Permittecl Liens shall constitute liens approved by Mortgagee in writing, � Mortga�;or shall pay when due �11 obligatioi�.s sectued by or reducible to liens and ezacumbrances whicl� shall now or hereafter enctunber or appeai to encumber all or any part of t11e Subject Praperty or az�y iiltei�est therein, whether senior or suhordinate llereto, 5.6 Dama es; Insurance and Condemilation proceeds, The followitlg (whe�her now existing or hereafter arisin�) are all absolutely atld ii•revocably assi�ned by Mortgagor to 1VIortg�tgee and, provided an �vent of Default has occurred anel is continuing and �t tlle request of Moz°tgagee, silall be paid directly ' [13� ta Mortgagee in accarclance with aily applicable Suction of the Creclit Agz�eement: (i) all awai�ds o[' dama�es and all other compensatioil`payable dii�ectly or ii�directly by reason oC a conclemi�ation or proposed coiidemnatioii fot�public or private use affecti�lg all oz•atly part of, or any interest in, the Sttbject Property or Coll��teral; (ii) all other clairris arid awards for dainages to, or decre�se in value of, all or any part of, or �ny interest in, tlie SuUject Pioperty or Collateral; (iii) all proceeds of az�y insurailce policies payable by reasqn of loss sustained to all or any patt of the Sul�jecl Propei�ty or Collateral; and (iv) all interest wllich may accrue on any of the fore�c�in�;, Subject to applicable law, and without re�ard to any reqt�ii•errient contained iz1 Sectioz15,7(cl) of this Mortgage,ttpotl the occtirrence and cluring;t11e continuatiori of an�verit of Default, Ivlortga�ee; (x) in�y at its discretion apply �11 oz� any of the praceeds it receives to its expenses iia settiiiig; prosecutii�g or def'endii��; any claii�l; (y) after payn�ent of subpart (x) above, shall distribute.sur,h of the remainii�g proceeds referred to in the aUove subp�rts (i) t]Zrou�h (iv) to Mortga�;or foi use in satisfyiiig �ny oGlig��ion to �rebuild, re��aii, raplace, or modify a�1y .strti�ctutes, inlprovements, �'ixtures, ap�urtenances, or other collatex•al on,the Larid ai�d under tlae ieims oF a.ny fr�nchise �greeme�lt ' vetweeii lYlort�lgor ai�c� nile or mare frai�chisors, or under the terms of the Prima.ry Le�ses; �i1d (z) n�ay apply t1�e balance to the �ecured Obligations in sucl� ord�i aild amouiits�as Mortgagee it1 its sole discretion may choose, or Mort��ee inay, in its sole dis�retion, release all or any p�trt of tlae praceeds to IVIo�t�agor � upon az�y conclitiozls Mort�;agee may impose, sltbject to any restrictions contaiil�d i�x tl�e Ci•edit A.greernerit.�Ll��oz� tlze occurrence a�1d d�.iiing the contii�.uatiozl of an Eveiit of Default, Mort�a�ee inay� coznmei�ae, appear ii�i, defe��d or prosecute any assigned claim �r action atld may adjust, coi�promise, � settle aza.d collect. aIl elaims ancl�aw�ids assi�i�ed to �Mort�agee; provided, however, in no event sl�all �� . Mortga�;c-e oi• any c�f its of:Cicers; directors, einploye�s, ager�ts, �dvisors oz represeiatai:ives be i,esponsible i for any f�lilur� to collect any claim or award, �xcept for aily failure resultin� fi•om tl�e �ross negligence or = willfiil z�liscandiict of Mortbagee ar its employees or a�ents. 5:7 Nlaiz�tetiance and Preservation of tl�.e Suvject PropertX. S�ibject to tlie provisions of tl�e . Credit A�;z�eernent, Martga�ot� covenants: (a) to i�lsure the Subject Property and Collate�al against such risks as 1Vlortgage� may reasanably require �nd, at rea.sonaUle Mortgagee's request, to provide evidence ; of sucl�:insurance tn IV�ortgagee, aild to com�ly with t��e requirements of any insurance companies insurizlg � � tl�e �t.tbject Pro�erty ai�d Collateral, all in accordance witl� Sec1:ion 5,1(d) of the Credit Agreei�nent (or any other applicable Section �f the Creclit Agreeme�lt); (b) ta lceep the Slrb,j�ct Propez•ty in good �onditiotx and ' repair, ordinary wear anci tear excepted; (c) not to r�move or deznolisl� the S��bject Property or Collateral or �triy part thereof, nat to �lter, r�store or add to the �ubject Yroperty or Collateral and not to izlitiate or ac�Lliesce ii� ar�y change in any zoning or oth�r land classificatian wl�ich affects tlle Suvject Property or - Collateral without M�rtga�ee's prior written conseilt or as provided iz1 the Credit Agreement; (d) to complete or restoie prt�ir�ptl.y �nd ii�. goad a�1d warlcmazllik� manner the StGbject Pro�erty and Collateral, or aily part tl�:ereof' which may be damaged or destroye�l; (e) to comply r�vith aII laws, orclinances, re�ulatic��s and st�nd.ards, and all covenants, conditions, re5trictions and �quitable s�rvitudes, whethei public or private, of every lcind and ch�ractei. which affect the Subjec� Pro�e�ty oz Collatc�ral �iad pei•taii� to acts committed or coiiditians E;xist:itl� the�eon, including, without li�7aitatiozl, any worlc, �lteration, � iixlprover��ei�t or dematition maxidated by such laws, covanazlts or rcquirez�nents; (� i�ot to commit or permit waste af tlle �t�bject I'roperty or Collateral; (g) not to permit any zzaaterial structural. altercation of the �ubject 1'x�operty otl�.er tlaan the Project without the cazlsent of Mort�a�ee; and {17) to do a11 other acts wlxicl� from the character or use of the �ubject Property and Collateral may be reasanably �Zecessary to maintain a�1d preserve its value. 5,8 Uefense and Notice of Losses,� Claims and Actions, At Mortgagar's sole expense; Mortga�;or shall �Tatect, preserve and defencl the Subject Property and titl� to and ri�ht of possession of` [�� the Sirbject Propeiiy and Collateial,the sectitrity hereof ai�d the 1�i�hts�nd pow�is of Moitgagee l�er�under � against all adverile cl�iins. Morlga�or shall give Mart�agee prqmpt notice i�1 writin�; of�:lie asse�tion ot any claim, �f the filin� of azay �ction or pracee�ling, c�f the occurreilce of azly datnage to tlle Subject 1'roperty �nd Collateral and of any coxldemnation offer or action. 5.9 Due. oti Sale or Encumbrance. Exce�t as otherwise expressly pezinitted in the Credit Agreement, if llie Sut?ject Property or any interest tl�ezein, or any clirect or indirect it�teiest in Mort�agor, shall l�e sold, trans.ferred, mortgaged, assigi�ed, further encumbered or leased, whether directly or indirectly, wl7etlier voluiitarily, involui�tGtrily oz: by operation of law, without the priar writteil consent of ' Mortgagee, tllen Mort�agee, in its sole discretion, may declare.all Secured Obligations imcnediately due and payable. 5,10 Relea�esi Extensioirs, Modifications and Acldition�l Security. Withaut i�:otice t� or th� coz�se�at, �ppz:oval or �greement oF any �ersons or entities havin� any ii7terest at any titne in tlle Subjeci: Prope:rty anct Gollateral or in ai�y man�er oblig�te� under tl�e Secured Obli�ations ("Izlterested Parties"), Mortgagee rzlay, fi•om time to time, rele�se any persoi� or eiatity from liabi�ity for the payment or ' perfarmai�ce oI'any�ectt�ecl Obligation, talce any aetion o�malce �i1y<<greei�lent extei�:diiig the inaturity or � otllerwise altering the ternls oz• increasin� tl�e anzount of �ny Secured Ubligation, or acce}�t additional secu��ity or i•elease�ill ar a portion of"t1�e Sttl�,ject Praperty at�d otl?er security for t.h� �ecured Obligatiotls. None of the toie�oing actioi�s s11a11 i�elease or reduce the person�lliaUility oi'any af said Iilterested P�rties, , or rclease o��impair tli�<��iority�f the lien aild securzty interests creat.ed l�y tllis Ivlortga�;e upon tlae�Libject � i Property �t�id tlae CollateraL - S.l l. ��abro�ation, Mortg�gee shall be sul�rogated to the ]ien of all ei�cumbrailces, whether ' released of record c�r not, paid in whole or in part liy Mortgagee pursuant to this Mortgage or any other RelatE;d llocumeiat ar by the proceeds of�any loan secured.by this Mort�age. 5,1� Ri..�llt af Ins�ection. Mort�a�ee, its age�lts anci eillployees, may enter the Subject Property, ' at aily reasonable time ai�d Lipon reasoilab�le prioi° notice to�Mortgagor, foi tl�e purpase of iilspectin� the � � Su�j�ct Prop�rty and as�ertainin� Mort�a�or's coinpliance�with tl�e ternls 1lereof. �� i 5,13 �asements. If an easemezlt or c�tller incorporeal ri�llt (collectively, az1 "�;asernent") _ constztutes any portien oftla� Subject Property, Mor.1:gagor sha11 riot amEncl, change, teiminat� oz�modify - such Easement, or any righ� thereto or iiiterest ther�iil, without t11e priar wr.itten consent of'Mdrt�;��ee, whicl.� corzsei�t in�y be wit�il7eld in Mo�tgagee's reasonable discretion, �nd any such �mendment, cllange, termination ar in�dificatio�� witllout such prior written consent sllall be d�;emed void �nd of no force or effect, Morl:�agor ��rees to l�erf'orm all obligatiozls aild a�reemei�ts with respect to said �;asemei�t and shall not talc� �ny actioia or oz�nit to talce any action, whicl� would affect or permit the termination the�eof. Upon receipt �i' notice, or �tl.�erwise b�coming aware, of ai�y def�ult or pLlrport�d default ui�dcr aziy �aserlient; liy any party tlaereto, Mortgagor shall promptly natify Mortga�,ee in wzitii�g oF such default or purparted defal�lt a�1d s11�11 deliver to Mortgagee copies of all ilotices; deinands, camplaints or oth�r . communications ��eceived or given by Mortga�or witlY respLct ta ai�y suc11 clefault or��urparted defr�.ult, 5.1�1 Perform�tice b� �Vlort a ee, Should Mort�a�or fail ta malce 'an;y payment or perfor�n a�1y act whicll it is obligated to�nal<e or perforin hereunder or undei the Credit Agreemei3t,then tlie Mortgagee, without �ivin� i�otic� to Martg�gor, o.r any successor izi interest of Nlortgagor, and without releasing Mortga�or from any abligation hereunder, may inalce such paymei�t or perform such act and incur any [15] ; li�tl�ility, or expend whatever �mounts, in its reasoi�able discretion, it may deeir�ilecessary therei"or, All sums incui�red or ex�ended by the Mortg�igee, under the, terms of t11is Section, sl�iall become dl�e and payable by M�rtgagor to the Mortgagee on dem�lnd and shall bear interest uritil paid at an annual percentag� r�te eqt�al to tl�e Default Rate expressed in the Credit �lgreement. In no eve�lt shall such payment or performance of any such act by Mortgagee be construed as a.waiver of t13e default occasioned - by Ivlortgagor's failure to malce sucll payznent(s) or pez'fQ111'l SL1C11 aCt�S�, � 5.15 Ri�ht of Mor.t��ee to A��ear. Ii' tllere b� comzncncccl or pending any suit ox action affecting the �ubject�Pi�operty or the Collateral, or any part thereof, or the title thereto, or if any adverse claiixz for or a�ainst the Subject Property or. the Collateral, or any �art thereof, be m�de or asserted, the Mort�agee (unless such suii, action oi:claim is beiil��ontested in good iaitli by Mort�agor ancl Mortga�or sb,all have established a�1d maintaizZed adec�uate reserves in accordailce with�cnerally acc�pted accotti�tin� principles for t11e ftill payinent and satisfactioil of �uch suit or �ctioi� if d�terinined advet�sLly to 1Vl�ortg�gor), may appear� or iritervene in the sLtit or �ction aild retaizl coun�el th�rein aild defezld same, or othexwisc,talce such action tllereii� as they may be advised, and may �ettle c�r �;onlprot�zlise same or tl7e adverse claim; �nci in tlaat behalf and for azzy of t17e purp�ses may �ay and expezzd such reasonal�l� su�ns = of maney,a�the M:ort�agee may deem to be necessary ancl IVlortgagor si1a11 reimburse Mart�;agee, f'or such reasozzaUle sums�;xpended,togetlzer with accr�.ied interest therenn, at t11e DeI'�ult Itate wllic;h is deF'ii�ed in the Credit A�reement. - � _ 5.1 C Erlvironnaental Iiad�mnitv. ; (a) Mort�a�or agrees to indemnify, �rotect, defend and save ll�rrnless Mortgagee, as well as its respective, officers, employees, ��gezlts, attoz•neys an�l sliarehold�rs (individually, an "IndemiaiCied I'�i•ty" �ind`eollective�y,the"Indernnified Parties") from aiicl agaiiist any �nd all lcisses,damages, expenses oi liabilities, of any Icind o�natur� fi�om any investigatiozls, suits, r,laims or demancls, inclttding reasonable c;:ou.nsPl f�es inc�.�rred in iilvesti�a.ting or defending such claim, sufferecl by any of them and catised by, rel�.ting to, arising out of, resultin�; from �r in. ��y way connected with; (a) the preseilce in, on ar under � the SttUject`Property of any I-Iazardous Nlateri�ls, as defined by reference in tlie Credit Agreement, or any releases oi• discharges of' any I�azarclotzs Materials o��, under oz• fiam the Subject Property; (b) any violatioz� of Hazardous Materials L,aws (as defined in thG Credit Agreement); or {c} arly activity cariied oz� or undeitalceil on a�• off the Subj�ct Prop�rty, whether prior to or d�lrin� t17e term of the Credit = A.greement, aild wllether by Mortgagor or any predecessor in title or any employees, a�ents, contractoz�s ; �� or subeoz7tractors of M�ort�a�or c�r any piedecessor in title, or any thiid person.s at any tirne occtlpyiri� 07 �� presei�t on the ��.ibject Property, in coni�ection with the handlin�;, t�eatrn�i�t, remaval, storage, deco�ltamirration,clean-up,t��ulspot•t or disposal of ai�y Hazai�dotzs Materials at any time located or present on or under tl�e �t�bject Pi�operty, T'he for�go�ii�� indemnity slaal� further apply to any resi�lL�al contarninatior� on oa Lulder the Subject Property, or affectin�; any n�tu�al iesources, and to any , coi�tai7�izlation.of amy pro�erty or zlatural resottrces,, arisi�g in corulection witli the:�ei�eration, use, h�i�lcilin�;, stc�rage,transport or disposal of�ny such Haz�rdous Materials, azld ixxespective of whether any of such activities were oi will be undertalcen 'in accordaiace with applicable laws, regulatiozls, codes and , ordinances. It �s �rovicled, l�owever, that Mort�agor shall not bc- ol�liga.tecl to incleznniFy, protect, defend or savc;l�ia.i°rnless an Iz�demi�ified Party if, aizd to the extent that, any such loss, daina�e,expense or li��ility ; was caused by the �ross ne�ligei�ce or intentional naisconduct of such �zldenl�lifiec[ I�arty. Mort�a�or acknowledges that Martgagee's appraisal oFthe S�bject Pr�perty is sucl�tl`�at Mortgagee would�1ot extend the Loan but for tl�e liability undertalcen by Mortgagor for the obli�ations ui�cl�r this Sectiozx, The oblig�tions �CMortgagor under this �ection aze seplrate fxom and iz1 additioz�to 1;1�e obli�ations to pay the C�� indebtedness �videnced by lhe Note, t11e obligations under the Credit Agr�ement�nd the other obligations secr�red by, or imposecl uncler, t11is IVlort�age. The lial�ility of IVlortga�or ilnde��t11is �ection 5,16 s11a11 not � be limitecl to or ineasttred by tl�e amour�t of tlZe indebtedi�ess secured 1lerel�y or t:lle val.ue oT the St�Uject : FiQperty.�Martg�gat� s11all ��e fitlly liable for�a11�obli�a�tioils of Mortg�g;or Liilder. tl�is��ection. Mortgagor waives the right�io assert aily statltte of'limitataons �s � bar ta the e��.force�ll�nt of this Seetion oi� to any action br�ught to enforce tliis Section 5,16, This �ection 5.16 shall not affect, ii3lpair ar waive ai�y rights or remedies of Mortgagee o� �ny obligations of Mo��tga�or with respect to Ha.zardous Materials created or imposed by �Iazardous Materials Laws (including Mort�;age�'s rights of reiinbursemezit or contribution _ under Hazardous M�tezials Laws). The remedies under tllis Sectioil 5.16 are cuixlttlative and in. addition to all remec�ies provided by law, (U) In case any action shall be brought agaiiist any Ii�demnified P1rty based u�on 1ny .of the aboye and in respect to which indernnity may be sou�llt ag�iilst Mort�;a�or;.Ivlortga�ee shall proinptly notify Mortga�;o� in wri_tii��, �,iid Moitgagor sha11 �ssume t�ie defense tllereof, incltixdii�g the em��loyment� � 01'counsel selected b�.lVlortga�o.r and reasonal?ly satisf�cta.ry to the Indemnifiecl Pzrty,.the pay�nent of all costs and�xpcn.ses and tlle ri�llt to ne�otiate and cailsent to s�ttlement��on il�e consent�f the�iidenlnified Party, 1.Jpoi�. r�asc�n�l�le determination made by an Izldemniiied Party that such coui�sel would ha.ve a coi��L'li�t re�resez�tin��such Izsdemnified Party ar�d Mortiga��r, th� a�plicabl�e Iriclemnified Paity s1�a11 have the ri�ht to einpl�y, at the expense o�Mort�agor, separate counsel ii1 any such action azld to pat•ticipate in t�1e deCe��se tl�zereof. Moitga�ai° s1��11 not l�� liable far �i�y sett�ernent of any s�.ich �ctiQi� �Pfect�cl without -.�ts con:sent; but il settled witl� Mortga�or's cozlsent, or zf there be a fin,al judgrnent I'or the cl�imant iia aiay st:tch actioiz, lVlortgagor a�rees to iz�demnify, defend aild save hartnless such Indemni�ed P�rties frona aizd : a�aiilst aia� loss or liaGility by reason of suc�1 settlement or,judgtnent, `>.l7 Erivirat�n�enta.l Certificate. Concui:reiztly with t11e execution of tl�e Credit Agreemetlt, ;Mort�agor. sl�iall execute ai� itlstrumen.t entitled "Certificate and Ii�demniiica.tio�1 IZegaxding Hazardous lYlaterials" (�vhi�h, together with all amendments, modifications, exl:ei�sions, re�lewals or restatements th�rcof, is referred to Ilerein as t:he "�nvir�nniental Certi�'icate"). Mortgagor furthex� acl�nowledges �ncl _ agrees th.at it is bound by the lerins and conditions of the �i�vironmental Certificate. , : i,18 Princi�al Pla�e of Btisiness. Mortga�;oz's p:rincipal plac� ai'business is in Dtibuque Cotiilty in t11e Stat� ofIowa. Iylort�agor d�es nat do bLtsiness undei° any tz��de name except as previotisly disclosed in wi°itin� tc-� Mort�;�t�ee, Mortgagar transacts business under t11e names �Q Casino, Mystique, Dtrbuque Gieyliauzld i'arlc, Q Sports Bar, and Q Sports Boalc]. Mortgagor will immediately i1c>tify Mortga�ee in writin� af any chan�e in its place of l�usiness or tha adaption or chai7ge of any tr�.de name or fictitious business name by it, and will L�pon request of Mortga�ee, execute any additianal f"in�ncin� statements or other �ertiiicates necessary to ref�ect any such adopti�n or chan�e in trade naine or fir.titious bL�siness �Zame, � ART'I�LE VT DEFAUIJT P1��VIS�'VLVS 6,1 Events of Default. The term "Eve�1t of Default" s11a11 mPan the �xistezlee oi�ai�y Evei�t of Default as cle:�ined in the Credit Agreement� C.2 �hts and Rc;inedies, A.t any time�fter an.Evei�t of Default,Mort�a�ee shall have all ri�hts at�d r�medies available at law or ii� equity, or as provid�d under a�1y oCher Related I)occ.rment, inclltdin�, [l�l witl�out lirriitatian, the following (but iz1 each case expressly strbject to any limitatiorYs or restr.ictions oi7 such rig�ts and reinedies uild�r the Gamin� L,aws); � (a) All sun�s secured hereliy s�1a11, ati tlle optioi� of Mortgagee, a�1d upon the �ivii�.� of ilotice reql�ired by the Credit Agreement, if any, becozrie immediately di.ie and payable; (U) Wit11 or withoui notice,ancl withot�t releasing Mort�agor fz•om any Secured Obligatioil, and without Uec�min�a mortgagee in possession, to cure any breacll or Tvent of Default.o.f Iv1o��tga.gor and, in connection therervith, to enter upon the Subject Pro�erty aiad do such acts and tl�zngs �s Mortgagee deems.necessary or desirable to �rotec;i the sectu�ity hereof, including, withotrt liixiitation, (i) to �ppear in and defend any actiozi or proceeding purportii�� to �Cfect the security of this Mortga�e ox the rigl�ts oi powers of'Mortgagee under this Mortgage; (ii) to�ay,puichas�, contest or compromise any encuml�ra�lce, cl�arge, lien oi• claim of lien which, in the sole judgment of Mortgagee, is or may be senior in prioi•ity to this Nlort�;age, the j�.idgment of Ivlortgagee bein� conclt:tsivc as betwe�n the parties hereto; (iii) to obtaii� insl�r�nce; (iv) to pay��uly pxenait�ms or char_�es with respcct to iiasurance r�c�t�ired t�be carried u�lder this Moi•t�;�i�;�; ar (v) to employ ca�.izlsel; accolu�tants, cni�tractors at7d otller a�7piopri�te peisoi�s; (c) To fo�selosa t11is Mort�a�e un��r Iowa la.w, either,judicially or natljudzcially; (cl) To exercise any remedies �r�nted to rnortga�ees, assignees, ox� secured parties under Iowa la�v; � 1 (e) To apply to a c�urt. of coznpetent jurisdiction. for and obtain t�ie ex parte appointment of a ��eGeivei•of the Subj�ct Property as a matter of strict rif�ht�nd without re�arcl to tlle adequ�cy of.'the sec�,irity for tl�e repaym�i�t of the Sect�rcd Obligations, the existence of n declarati�n that the Secured Qbligations are imm�diately due atld pa,yable, or tlle filing of a notice of defati�lt, and Mort�agor hereby c;oi�sents to sucl� ex parte appointment of a receiver and waives notice of ariy hearing o.r praceeding; for sucll a��oii�t��aent; (I) 'To enter u�ion, �ossess, inana�c; and opez��te the Subject Piaperty ar any part tllereof, to talce and possess all docttments, l�oolcs, recoi�ds, papers ancl �ccotrzits of Mortg��or or the then owi�er of the Strbject Property, to malce, terminate, enf�rce or modiFy Leases of the �ubject Property upa�1 sucli - terms and ca�lditions as Mortgagee deeins proper, to zz�alce repairs, alterltions and iznprovemezlts to the SLtb,jer,t Pr�perty as necessar�, in Mortgagee's sole ju�l�i��.ent, to protect or ei�lla.tace tl�e security hei•eof; � (�) C1pon sa1L of the Subject 1'raperty i�1 comlectioi�. with ai�y judicial or nan judicial foreclosu�e, Mo.rtga�;ee inay credit bid (1s deteri�lined by Mortga�ee in its sole and �bsolute discretioia) all or ai�y pot�tion oF tl�e Securecl Obligations. In determiilin� such credit bzd, Moitgagee i11ay, but is not obligatecl to, talce into accoLlnt all or �ny of tlle followin�: (i) ap�raisals of the SuUject Property as such ap�raisals rriay be discnunted or aclj�.isted by Mortgagee in its sole aiZd al�solttte uirderwr.iting discretion; (ii) expei�ses aild casts iiicur�ed by Mort�age� wit11 respect to the Subject Property prior to foreclosuze; (iii) expenses�nd costs whicli Mortga�ee anticipates will ve incurred with res�Lct to ttle Subject Propeity afte�foreelasuie,l�ut prior to resal�,includiil�, witllout limitation, costs of strtitctival reports ai�cl ather due diligenc�, costs to carry t11e Subject 1'roperty p��ior tc� res�le, costs of resale (e,g. commissions, attori�.eys' fees, azld taxes), costs of ai�y hazaidous materials cl�ai�-up and monitoring, costs ofdel'eri�ed i�aintenai�ce, repair, refurbishrnent and r�troiit, c;osts of c�efendin� or settlin�; litigatioia affectiri� the Subj�ct I'ro��c�rty, �nd lost opportunity costs (if' any), ii�cludin� the tirne value of money duriilg any ai�i:icipated laolding [18] period by�Mortg��ee; (iv) declining�ie�7ds in re�l propeity values ge�lei:ally �nd with respect to properties ' simila�•to tlze.Subj ect 1'roperty; (v) anticipat�d discounts u�on resale of tlze Sl�bj ect I'roperty as a dist:ressed oi• foreclosecl propeity; (vi) the fact of additioii�l collateral (ii' any), for the Secuzec�. Oblig;ations; aild (v�i) sucll.other factars or mattez�s tllat MortgagGe (in its sale ancl al�soll�te elisct�etion) cleems appropriate, In,regarel to tl�e above, (:[)Mort�agor acicnowled�es and a�i.ees that; (w) Mc>i°tga�ee is not rec�ttirecl to t�se any or a11 oC tla� fo��ego'tng factors to de.termine tl�e a.mouiat of its credit bid; (x)this Sectiori,does not in�pose upon ivMort�;agee aiiy additional ol�ligations that are iiot impose;d by law at the time tlle creclit bid _ is made; (y) tlie anzount of Mortgagee's crec�it bic� neecl not: ha��e aiiy relation to any iaaci-to-val�,te r�tios specifi�d in tlxe Related Documents or previously discu.ssed between Mortgagor.ai�d 1Vlortgagee; �nd (z) Moz�tgagee's credit�id may be (at Mortgagee's sole and aUsolute discretion) higller or lower tk1a�� a�1y ' appraised value of the Subject Property, and (II) Mortglgee acicnowlecl�es ' and agrees that: (aa) Mort�agor's interest in the Premises constYtutes a leasehold ult�rest (bb) its rights and�t�.emedi�s are express�y limited to Moz�tgag;o�'s ri�;ht, title a�d iz�terest i:n arid to the �ubject P��operty; (1�) �Ii1�the event Nloitgagee shall izlsf'itute jt�dicial prnceedi�l�s to forecl�ose�tl�e 1�ie�.7laereof, and ' shall be appointed as a r��eiver or a Mortgagee ii1 possession oltl�e �ubject 1'roperty, Mort�a�ee durin� _ such time as it s11a11 be a rec:eiver or mortgagee in�ossessi�n of t11e SL1l�ject Property pursuant to an order or decree eiitc�•ed i:� such jticlicial proceedin�s; sl�a�l have, a.ncl Mort�;a�or hez•eby �iyes �ixcl �raiits to Ivlort�a�e�, st�bject to a�ay limitations oi restrictioi�s contaiizec�in.tlle Pri�nary L,eases, trie ri�lat,power an�d ;:: �utlzority to tnalce and enter izlto leases �f t11e Subject Property or the portio��s tliereoi'Ior such r�e,n:ts and foi such��erior.ls of occupaney and t�pon sucl�. conditzons and provisions 1s suclz rcceivei or Mox�tga�ee iia � �ossession may deezn desirable, it Ueing t11e ii�tentio�l of Mo�tgagor t11at wllile Moz•tgagee is a recezver or � rn.ort�;agee in possessior�. of the Subject Property ��ursuant to an or•der or elecree ei�tex�c� ii�. s�,ich judiaial 1��•oceedin�s, M��t�a�ee sliall bc deemed t� be anet shall Ue tlie attoz�iaey-in-fact of Moi,t�agor I'or tl�.e : ��urp�ose ot'zn�lzi�� and enteiing into :leases oI parts or�portions of the, Sttbject P��<�perty f�r �he rents and t.i��on t11e te.rrtls, coi-�ditians and provisions ��eemed clesirable to.Mortga�ee and with like elfect: as if such ��:asEs l��d been macle by Mortga�or as the owt�er ii1 fe�; simple of the Subject Pi•operty free and ele�r of ari� coiiditions c�r limitations est�blished by tl�is Mortgage. The power and authority l�ereby �ivei7 nz�.d - grat�ted by Mortgagor to Mort�agee sh�ll be deei7led to be coupled vvith an intere:�t and shall not be revocable 1�y 1vlort�a�or l�ut shall be, ii� all c�ses, expz�essly sttbject to any restrictions or lii�litations cont�ined in the I'rimary Leases; Lvery ri�;ht,p�r�ver aald remedy �r�nted tn Moi�tgagee in tliis Martga�e shall I�e curnulative an�l i�nt - �xclLrsiv�,�u1d in additio�l ta�lll lights,powers and ren�edies�ranted at law or ir�eq�lity or 1�y statute,�nd each sucli ri�ht, pow�r arld remedy may be exercised fram time to time and as oftei� and in suc;h ord�r as may be deerned �xpedient by Mort�agee, and the exercis�of any s�ich ri�ht,power or remedy sha11 zlot be deemed a waiver o£t1�.e ri�ht to exercisP, at t11e tii�le or thereafier, any t�ther i�ight,pow�r oi xemedy. � 6,3 �.�plication of Foreclosure Sale I'ioceeds and Othei Suins. All sums received b�r Mort�agee Luicier �5ection 3.3 or Secti�n 6.2 of this Mortgage, less all costs and expez�ises incurred by : Mort�a�ee or .�r1y receiver under Sectioi13.3 or Sectioi� 6.2 of this Mortga�;e, ixicludin�, without linlitatian, reasc�nable attorrieys' fees, shall be distzibuted t� the persons legally entitlecl tliereto for application to the Seccu�ed Obli�ations each in acc;ordancc with t11e Cz�edit Agzeeinent;��rovided, laowever, Mortgagee sl7all have no liability for func�s not actually receiv�d by Martga�ee� 6.4 No Cure or Waiver. Neither Mot�t�a�ee's i�or any receiv�r's entry upon �nd talcing possession of all oi• azly part of the �ubj�ct Properl.y, �Zor any collectiorl af rents, issues, prafits, i��suraz�ce [19] proceeds, condemnatio�� roceeds or damages, otller secl�rity or pz�oceeds of other sec�Yrity, or other stuns, nor tl�e applicatioz�of any collected sum to any Secllred Obligation, nor tlle eaercise ar failltre to exercise of any other rigllt or r�emedy Uy Mo�°tgagee or atly receiver s11a11 cllre o��waive aily breach,,Ev�nt oI'Default or notice of.def'ault under tl�.is Mort�a�e, or i1u11ify the et'fect of�ny i�otice of de#ault (unless all Secured Obligations t11en due h�ve been paid and perlormed and Mortg�t�or has cured all.other defaults), or impair tlle status of the security, or prejudice Mortga�ee in the exercise of at�y right or reinedy, or be construed as an af�rmation t�y Mortga�ee of any tenaiacy, lease or• c�ption or a suborclinatian of the lien of tllis { Nlort�;age. 6.5 Payment of Casts, Expenses and Attori�e 's Fees, Mortgagor agrees to pay to Martgagee immediately and witi�out dernand all costs aild expenses incurred by Mort�a�ee.pursl�ant to Section 6.2 of this Mort�age {includii��, without limit�tion, court costs �nd ieasonaUle attorneys' fees, w(Zether ' ii�aLirred in litigation oz not) witll interest fr�m the date oC expenditiire until said 5ums llave beeil paid at �� the rate of inter�st then applic�bl�e to tlze�piincipal b�lance of the Note as specified tl�ierezzl, � � . 6,6 . Pawer to Fil� Notices and Cure DeI'�ults, Mortgagor ]Zez•eby irxevocably a��oints Mort�;a�;ee ar�ci its s�.tecesso�s and assigns, as its attorney�in-fact,whicll agency is caupled with an interest, (a) to execute az�d record�ny notices o�'coznpletio�l, cessatioi�o�'labor,or ai�y otller notices t11�t 1Vlort�agee eleeia�s �.ppro�ri�te to p��otect Mort�agee's interest, (b) upon tl�� issiiance of a order of:Cor�closure of this ,1Vlort�age, to execu#:e af1 ii�.st:ruments or assi�nrnent o� �lzrther assuranc� with respect to tlie Leases azid Rezlts (if an� suc11 I1eas�s and Rent:s exist), as may be necessary or desirabl� for s��cli purpose, (c) to �a��epare, execute �.nd �ile or record finai�cin� stateinent�s, contint�ation statemet��s, applicatiorls foi� = registration azid lil�e papers �lec�ssat•y to create, perfect or preserve Nlortga�ee's security iiit�rests and i�ights in oi•to ai�y of.the Collatcral, anc� (d)upon the occ;uz•rence of an event, act or omissioi� which, with i�;otice oz passa�e of titne or botla, would constitute an Fvent of Default, Mortgagee may �erforn�. any ol�ligation oi'Mortgagor I�ereunder; providec�, however, th.at: (i) Mortgagee as sttch attarney-in-fact s11�11 �;nly be accountable for such funds as are actually receivecl by Mortga�ee; and (ii) Mort:gagee sl�all not U� liable to Mort�agor ot any other person or entit� for any [ailure to act under tlzis Section., �,7 Reinstatement, Tl�is Mortga�e shall remain in F�tll force and effect and continue to b� ; effPctive should.afly petition be filed l�y or a�ainst Mor�gagor for liquida�ion or reorganizatiozl, sho�.11d = Mortga�;or becorn�. insolvent or i��alce ai7 assi�nment for the benefit of creditors or should a receiver ox trustee ve appoint�d for all or any significanti�ar�t ol Moitgagoi°'s property allcl assets, and shall coi�tintie � - to be �ffective or Ue rPinstated, as the case may be, if at at1�time payment and performance of'the Securecl Obli�ations, ar ariy �ait ther.eof, is, pLtrsLt�nt to applic�ble law, rescindect or reduced itx amount, nr �Z1L�st other�is� b� restored oe returned by any abli�Pe of the ,�ecured Obligatiozis, whether as a "voidable pref'erence," "frattduleiat conveyance," or otherwise, all as thougll such payment or perforznance 11�1d ilot be�n m�de, Iri the ev�ilt t11at any pay,ment, or any part therec�f, is resciiided, recluced, restiored o�retuii�ec�; the Secuied`Obli�ations s1�a11 b� reinstated and deemed reduced only by such anlount pa.id ancl ilot so rescinded,:redlxced, restored or returned. ARTIC'L� �II : 1�IISC�I.�L,AI��U� PIZOVI�IOI�� 7.1 Additional Provisions, The Relatecl Doctrments contain or incoipoF•ate by reference tlie � entir� agraement of the p�z�ti�s with respect to mfttters conten�plated herein and �u�ersede al� prior neg�tiatiozzs, The Related Doclzinezlts grant fllrther rigllts to Mort�agee aiad contain fuith�r a�reemei�ts [zo� _ ' a7.ld aifiinlative anci zie�ative c�veiia��ts by Moi�gagor which apply to tlais Mortgage ancl to the StlUject P�opez°ty ai�d C;ollateral and such �'iu�th�r rights and agreements ai�e irlcorpolated l�erein by tllis refeience. ; 7.2 Ivlei.�er. No inergei,sh�ll occt�z• as a res��lt of Mortgagee's acc�tiiring any other estate in, or `: ai�y othe�• lien on, tl�e �ubject Propeity unless Mort�lgee co�lsents to a me��ger it�w��iti.ng, ' ; '7,3 Obli�atic�ns of Mort�agor, Joint and Several, If more than or�e pet�soz�� has executPd this Ivlortga�e as "Mort�a�or", the obligations of all such persons hereunder shall be joit�t atld several. - 7.4 Time is of the_Essezace. Mortga�or �grees that TIM� IS OF' THE LSSENCE hereof ir� coilnection with aIl obligations of Mortg��;or herein or in the Note, 7.5 Waiver of lVlarsh�llin�Ri�11ts, Mortga�or; for itself and for all parties claizning tl�rough or trnder Mortga�oi�, an�i for all parties who may acqLiire a lien ori or izlterest in tlae Sltbject Propexty, hereby waives all rigl�ts to have t11e Subj ect Property or �ny other propei�ty, includin�, without limitation, t11e Collateral, wl�icll��s �Zaw �r later may be security fGr any Sec�,�red Obl'agation ("Other Property") m�rshall�d upoia�ily.fc�reclost�re of this Mortgage or on a foa��closure of any otller lier�or security interest a�aiiist �ny seatirity for any of the Secured Ubligations. M�rtga�ee shall have the ri��1t to sell, an.d any - coLxrt in which f'oreclosure proceedings may be broupht sl�all have the rigl�t to oider a.sal� of, t11e.Sl�bject I'Lq1�e��ty �z1d any. ar all of the Collateral or Ot11er Property �s a wl�ole or ii1 se�aratc p�z�cels, in any ordei� that Moit�a�;ee may desigriate, Ii� regaid to the foze�oiil�, Mort�agee acl<rio��led�es and a�rees that: ; (:�a) Mor•t�;�g�r's intc�rest in the Premises co��stitutes � leaseh�id interest (Ub) its iights,and remedies are ��:pressly lirnitecl tc� Mort�ago��'s right, title and intez�est ii�atld to the Sttbject Property. 7,G Rules of Cc�nst�uction; Definiti�ns, Wl�:en the ic�ezltity of tl�e parties ar athFr circumstances ncial�e it appr�priate tlie�i7la�cttline gender inclttdes the feminine ox.neuter, and the singu�ar nuulber iriclud�s the plural. The terill "�ubjeet Property" means all and any part of the �ubject Propert� a�1c1 �� "��C'c�llateral" means ail. and any part di the Collat�ral, and ariy interest in tlle �ubject Property and � Collateral, respec;tively. Notwithstandin� anythizlg set forth hezein, Mortgagor a�rees and aclaic�wl�dge� ' that e�ich of 1`�Iort�a�ar and Mortgagee has participated in the negotiation and draftii�g of this doiumezlt, and tl�at tl�is Mai°tgage shall not be in�erpreteci oi aoilstrued apainst or in favor o�any party by vii�ue of �� tlie i�lentity,interest or affiliation o#�its p�eparer. Capitalized.terms iaot otherwise defined herein sha1117ave ` the meaiain�; �iven such tei��als iz� tlxe Creclzt Agreezment, 7,7 Successors ii� Inte.rest, The tea�zris, covez�a.nts, and conditions laerein contained s�all be bincli��g upozl and irittr�� to the benefit of the suc�cessors and assigns of t17e parties hereto; provided; h�wever, t:hat this �ection does not waive or znodify tl�e provisions of aziy applica�le pr�vision in the R.elated Docltmei�ts regaading transfeis o�int�rest in tlle Stibject Property oi tl�e Mort�a�or, 7.8 Exect�ti�n in Cout�terparts, T11is Mortgage may Ue executed in ai�y number of counterparts; cach oF wl7ic11, whezl exccuted and delivered ta Mortgagee, will be deemed to b� an ori�ii�.a1 and �11 a�' � , which., talcen toget.11er, will l�e de��led ta be one and the same instrumezlt. 7,9 Iowa Law, T11is M�rt�age shall be gc�veri�ed.by and coi�strL�ed iz1 ��ccorcla�lce with the 11ws of the �tate of Iowa withotit re�ard to cozlflict of law principles. � '7.10 Notices. All notiaes or othei�communicatioi�s r�;c�uired ot•permitted to be given puas�uant to � th� provisions of this Mortgage shall be in writing �nd shall be considered as prop�rly given if delivered [21] perso�lally or sent by �zst class U.S, mail, postage p��epaid, except tl�at notice of a 17efault m�y Ue sent by certified mail, return receipt requested, or by OveriYi�;ht Express Mail or l�y overnight commercial courier service, charges pre�aid, Notices so sent shall be effective three (3) d�ys �ifter mailin�, if mailed by first cl�ss mail,and otherwise upoz�receipt at the address�s set forth below;larovided,however,that non-receipt 4 of any con�inunicatia�i as the result of any claan�e oF�ddress of whicll the sending party was not notified - or as tlae rest�lt of a refitsal to accept delivery sl�.all be deemed receipt of sucl� communieation., For pluposes of iiotice, t11e addresses of the �az�ties shall l�e; Mortga�oT llUBUQUC RACING �.SS�CIATION,I,TD, 1855 Greyhouncl Parlc Road _ Dubuque, IA 52001 Attn; Alex Dixan, PresidPnt and CF.,O T'el, No,: (563) S$5-30�2 r�x No,: Mort�agee MIpW�STON�'B�NI� 89S M�in Street L�ubuc�ue, Iowa 52001 - �-1ttn: Wayiie Br�.cicoil, First Vic� Presidenfi TeL No.: (563) 539-0�28 Fax No. (563) 589-0860 i Any party sliali have tl�e rigl�t to�change its �ddre;ss fo1 notice kiereunder ta any otller J.ocation within the coi�tinei�t:ai Uriiteci �tates by the �iving of thirty (30) days' notice to the other party in the i1lai�rier set forth l�erein�lbove. Martgagor shall forward to Mortgagee, without delay,.any notices, letters �r ot�lei° �onimui�ications d�;liverecl to tlie Subj�ct Property or to Moi°tgagor na��ning Mortga�ee, "Lei�der" � c�x• any simillr clesig�ation �s acldre;ssee, or� wl�iGh could reasonably be deci�led to.�ffect the cozlstt�uctioii of t17� Irnpiovements or the ability of Mortg�gor to �erform its obligations to Mort�;agee unaer the Note �- or the Credit Agreement, 7.11 Afte�� Acc�ui�,ed Pia �erty, The lien of this Mortgage will �utoinatically �ttacll, without furtl�er act, to all �fter acqtlired property ol any nature whatsoevet attacl�:ed to, located ii�, oi�, or used ii� the aperatzoia�f the 5u�je�t Property or any pait therc,of, owned by Mortgagor or in which Martga�or 11as - ar� interest, and Martg��i covenants and warrants tl�at it will have good and abs�itat� title to all of the ' � aforesaid. ai'te� acq�,�irecl pioperty it acqtlixes, free of ai�y lien or eilcumbrat�ce, `7,12 �1ssi�tunent and Suborcliilation of IVlana��ement A. re�lent to Mort��e, PLu�suant to this Mort�a�� or a�zy additional documei�t rec�uizecl by Mort�a�ee, aily in�nageinezit agre�ment with respect to the Prer��ises, if any, ishezeby assignec�to Mort�agee an�l the rights of the inaiaag�r tlrereunder shall be subordinated to t.he lieii of this Mortga�e and sL�ch mailager shall consent to slxch suborclinatioii and assignment t��on rec�uest from Mortga�ee, Mortgagor shall give Mortga�ee written iaotice of any change of ma��a.�einent or termizlation or modification of aia� sucll mana�ement agreement within thirty (30) d�ys, I'ailure to pzovide such written notice sh�ll constitlate a��veilt of Default l�:ereurider. 7.13 No A�ricultLual Land. Moit�a�or herel�y represents aiad warrants tha.t the SubjeLt�Property do�s not itZclt�de any "agricultural land" as deF'ined in.Iowa Code Section 9II.1, [?2] 7.14 Acicnowled�mLnt re�diii�G��min�Mattexs, 'I'he p�irties acicnowledge and agree tl��t, if any provision c�ntaiiled in this Moz�tga,�e (i) viol�t�s any of the Gaming Laws or ti�e terms oFthe Gaming Lice�lse, (ii)jeo��arc�izes the Gaming License, or (zii) otherwise causes or would caus� Mortgagor to be ot�t of compliai�ce witl�the Iow1 Racing and Gamin�Commissio�l,thei� such provisiail shall automatically aiad immediately Ue cleemed to be cleleted ai�.d stricicen from this Ivlortgage. The pai�ties fi�rthet• - acicnowled�e azlci a�ree that this Mortgage azlcl t11e effectivetless 1lereof is expressly subject to tlle approval of the Iowa Racin� a��d Uamin� Commission, 7,15 W�ivef of Jury Tri�l, ArTLR CONSUL'CA.TION WITI-I GOUNSEL, MORTGAGQI� H�R�BY KNU�WINGLY, VOLUNTARILY; .�1NID INTENTIONALLY W�IVES AN�Y� RIGI-IT ; MORTCI.AGOR IvIt�Y HAVI; TO A TFZIAL BY JURY WITII RESPI?C'T 'TO ANY LITIGA l ION BAS�D UPON TIIIS MORTGAG�, OR ARISING UTJ:I' OF, UNDER O1Z IN CC3NNECTIUN WIT�I �NY OI�Tl-IE OTHER RL;LATCD DOCUMEN'I'S, OR:ANY COURS� OF CONDtJCT, COUR�E O�' DEALING, �TAT�M�NT {W�IETH�R VERBAL QR WP.I1'T�N) OR.AC'I'ION OF� MORTGA.GOR On MURTCtAGEE Al�ID �C��NOWL�DG�S T�IAT T�IIS PROVI�ION I� A MATERIAL, INDUCFMEN�' FOR MORTGAGZE MAI�INCr TH� LO�N EVID�NCED BY TI�E I�OTE W�IIC�-T I� SE�;URL;D BY 'I'I-�IS MORTGAGE. AItTI�;i.� '6�III r,�c�s��o�.� �017�� rri�v��zo�s �,1 1�epresentations; W�rr�nties; Cavena�lts. li�lortga�or liereby represei�ts, warrants ai�d _ co��Ena.nts that: (a) (i) I;ach Prima��y I,ease, as �anci�ded, is in iiill f'orce and effect except as set fortla on T�hibi:l l3 aitached hercto, (ii) all rent and otller Lh�rges tllerein have been pa�d to the exteilt t11ey are pa,yable to th� da.te hereot; (iii) Mort�;agor enjoys the c�Ltiet and peaceful possessian of the property deinised thereby, {iv} to the best of its lcnowledgc, Nlortga�or ia not in clefault L�ncler any of tlle terms - tliei�eof aild thare are no circiimstances which, witli the passage of tim.e or �the giving of notice or both, _ wo�tld constitute an evei�t of defatllt thereund�r, and (v) to the l�est of Mort�a�or's ki�awl�d�;e,.tl�e lessor � theretrrider is ��ot in ciefa�ilt und�r any �f the terms or �rovi�sio�ns thereof on t11e p�rt of the� lesso� to be - obscrvec� or perFormed; ; (t�) Mortgagor shall promptly pay, wllei� due �z�d payaUle, the ren.t and other char�es pay�ble pursu�nt I:� each.l'rimary Lease, and will timely perform a.z1d�bserve�11 ofthe other terms, covena.�lts and coi�.ditiot�.s recluirec� to be performLd aiid ok�served by Mortgagor as lessee turcler sucll Przmary L,ease subject to the teims of that certain ��bordin�tion A�r�ement of e�ven date h�rewith by azlcl among Mortgagee, Mc�rt�agor azld t1�e City of:Dubuc�ue; . (c). Mort�;agor sh�ll notify Moz•tgagee iz1 writin� of any material dc�faixlt by Moit�agor in the; perfarmance or observance of any material terms, aovezlants or canditioi�.s an the l��rt a C Mo�t�a�ar to be p�r��rmed or obse�ved ttnde�the Primary Lease within three (3) I3usin�ss Days after Mort�7gor recPives writtei� notice or has actual lciiowled�e c�f such default, except in each case where the failure to so notify Mort�agee col�ld not reason�bly b� expected to i�esult in � Material Adverse Effec�; �d) M�rtgagor shall, imi�lediately upon receipt ther�oF, deliver a copy of each material written notice given to Mortga�or by the lessor pursuant to the Primary Leases �nd promptly notify Mort��gee in _ Cz3� vv�iting of any material deFault by the lessor in the performance or observance of �ny of the teims, covez�aiits or conditians on tlze p�rt of tl�e.lessor ta be perfc�i•mecl or ol�se,zved thereunder promptly afler : Mortgago��lc�lows of such default; (e) Unless reqtti��ed Linder the terms of any Primaiy.Le�se, Mortgagor shall �1ot, witllout the prior wi�ittei� c;onsent of Mortg�gee (whicll .may 1�e �ranted oz withheld in Mortgagee's ieasonable - discretion) termi�late, nlaterially inodify or surrender suc11 Primary Le�se if such action could xe�is��lably - be expected t� result izi a Material Adverse Effect, and any such attenapt�d. terznination, material modif"icatio�l.or.surret�.der witliout Mortgagee's prior written consez�t shall Ue void; (� ` Mortgagor shall, witllin twenty{20) days �fter written xequest rroz�l Mortgagee, use its coimnercially reasanable efforts to obtain from the lessor and deliver to Mortgagee a certificate setting forth tlle name of the ten�nt tllereuilder a�1d statiiag tllat eacl� Primary L,ease is in full Iorce �nd e:Ffect, is uivnodified or, if�i1y PtitYlary Lease 11as �e�n mo�lifietl, the clate of each moclificatiozl (�together �ith � co�ies of each such modiCicatio�), that no notice of terminatioi� thereon has been served on Mort�agor, statin.g tliat to s�.ch lessor's lalowledge, ��o de�ault or event wllicla witll notice or lapse of tirne (o� l�oth) woulcl become a default is existizlg under s�rc11 Primary Lease, statin�the date to whiGl� rent has been paid, and specifyiii�;tlle nature oi'a.ny deC�ults, if aiay, and coz�tainii�,g such otller statements and represezltations ' as may be �eason�Uly reqttested by Mo.rtgagee; (�) In t11e evei�t that azay Prima�y Lease is rejected or clisatfirined by tl�e lessoz� thereunder (ar by a�1y-i•eceiver;trustee, Gustodiail or othex party wl�.o �;ucceeds t� the ri�llts of such lessor) pu�'SLlc�11t t0 . ai�y barilcrul�t�;y, insolvei�cy, reorganization, moratoiium oz similar law, Mortgagor covc�narits that it will n�t elect to tr�at such Piimary Lease as terminated under Title 11, U.S.C,, Secti.on 365(l�.) ox any si�nilar or successoi• la.w,or 3�ight and hereby assi�ns to Mort�a�ee the sole and c�xclusive right to malce or refrain from zi�alcizig any suc;h ele�tion, ai�.d Mortgagor agrees t11at ai�y such selection, if n�acle t�y Mortgagor, shall be void anr� af no fazce or effect; (h) If tl�e 4ess�r under any Priznary Le�se (or any receiver, trustee, custadian or other party . who succeeds to t11e ri�hts c�f such lessor) r�jects or disaffirn�zs such Primary Lease pursu�nt to any baillcrupt�y, ii�solvency, reor�ailizatioza, mQratorium or sii��.ilar law and Mortga�ee electis to have Mort�agor rem�in i��possession Llnder any le�al right Mortga�oi•may have to occ�.�py the premises le�sed pursuant to such Prirnary Lease, (i) Mort�a�ox sh�ll remai�l in possession and s11a11 peiPorm all acts necessary for Mnrtgagor to retain its legal rights and to remain in such possession for the; unexpired teznl of such Primary Lea.se (in�ludin� all renuwals thereo�, whethei such acts az•e rec��.tit�ed under the tllen existizig terms az�d provisions of suel� Primary T ease or c�therwise, and (ii) all �f the terms anci provisioils of this Moit�age at�d the Lien created hereby shall remaii� in full force and effect an.d sha11 be extended �utomatic��lly t�.such possessiozl, occupancy aild intez�est af Mortga�oi; (i) Mort�agor sha.11, at Mort�a�or's sole cost and expense, appear in ancl defE;ild any actio��or proceeding arisi��g ui7der or i�1 any manner connectecl with ariy Pzimary Le�se or the obligations, dtities or liabilities of the lesso�r or Mort�;agor thereuilder. 1Vlortgagee may, but shall not be obligated to, talce �ny action Mortg��ee deems necessaz�y or . desirabl� to cure a.t1y deI'ault by Mortgagor ui�der any Primary Lease. Mortga�or agrees ta indemnify, defend and hold the Mort�a�e� l�armless fiom. and against any ancl all liability, loss o�•darnage which t11e Mortgagee ma.y incur under any Primary Lease l�y reaso�l of the mortga�e of Mortgagor's interest ia1 such [2G] _. Primary Lease and from any and all c1�irlis and demands whatsoever_ which may be ass�rted agaiz�:st Mortga�ee by reas�ii of�u1y alleged ui�dertaking ot�oblig�tioz� on Mortga�ee's pazt to perfoi�zn or,cliscl�ar�e any c�f'tl�e terms, covenants or a�reements contained in sucli Primary Lease, except to the extent tl�at any sucl� cl�ims anc� den3ands arise otrt of the gross ne�ligeilce or willft�l rn.isconduct oI'the Mortg��ee. 8,2 No.Nler�ez�, So.loilg as any c�f tlae Ii�deUtedness or the pUligatians rein�iin unpaid or unperfori�zed, t11� fee title to and tl�ie leasehald estate ii� the premises sul�ject to 1i�y 1'riniary Lease shall not merge but shall aiways be lcept separate anc� distiilct i�otwithstanding the union of si�clx estates in tl�e � lessor oi• Mortg��ot,,ar in;a tl�iirel party, by purchase or other.wise. If Mort�agor acquires the fee title ar f any other estate, title �i intei�est in the property deinised by any Primary Le1se, or any part thereof, the Liez� of this Mori:gage shall attach to, cover and be a Lien upon suc11 acquired estate, title or interest anc� tlle same shall ther�u�oi1 be a�1d beconle a.part of the Sttbject Property with t11e same Corce and efI-'e�t as if sp�cifically ��encumbereci herein. Mortgagor agrees t�Q execute all ii�s�ruments.a�1el doclt�l�eiats tl�at � Mort�;a�ee may�reaso�l�bly require to ratify, contirm ancl further evidence the Lien of this Mart�age on tlae acq�ir�d �state, tztle or interest. Fuithermor�, Morl�a�or heieby a�poiz�ts Martgagee as its true ai�d lawful attorn�y-ir�-�'act to execute �tnd deliver, following a�xd durixlg the Gontinuailc�e of an Event of Default, all such instrunle�lts ai�d documents in the ��ame aild on behalf of Moit�agoi. 'I'lai� �ower, l�eiilg coupled wit11 an.inteiest, shall be irrevocable as lozag as any portion oCth� Indebteclness ieinaii�s`ura��icl; 8.3. 1VIo�•l,�ag,ee,as Lessee, If any Prizzlary Lease zs tcr�ninated pi�ioz to tl�e �latlir�tl;expii�ation o;E its tei°rn �tuP tc� c�efaL�lt by Mortga�or or azly tenant tllereunc�ez�; ai�d if 1VZortgagee or its desig�lee �cquires . from tla� lessox a new lease o:f the premises, 1Vlortgagor shall ha.ve no right, title or interest in or ta strcll . -: i�ew le�se or.t11�leasehoicl estatP cz�e�ted t11er�;by, or renewal privileges tliereii� conta.inecl; 8.� � No t�.ssi n�ent, If this Moi:t�a�e c;onstitutes a prohibited collatezal assignin�;nt of any Primai�y L,ease iinde�the terms o`f sucl� Pximary Lease, thez2 t11e assi�nt�ent of such Prit�nary LPase in this Mort��;e witl be deemed conditioilecl upori the receipt of any conscnt expressly required ur�der sucli I'rimary L,case and Mortg�gee has no liability or ol�ligation tk�ere�uider l�y reason ol its acceptance of this Mort�,ag�, Mortgag��will be liable for the obli�ations of the ten��Yt �rising out of stzch Friinary Lease far only tl�iat peiiod of tinle for w�lich Mortgagee i� in possession of the �'rcmises or liave� acq�.�ired, by foreclosure or otherwise, �nd �re holding all of Mortga�or's x�i�ht, titl� a.nd int�rest tl�erein. IlVi��12'C'.A.1�'I'c +A� �JEFC11z� �IGNI1vG. 7C�iE 'I'�k�19��5 C»'TIIIS AG1��IVI�I�'�" ��ICJiJI,�) l3� R�+A.l� C��Y+'�1+iJ�.��' 13�CC.;"E4.�JS� ClI�TI��' �'�If�S�: 7['�k2]VI� il� `�Vlk�]C'TII�IG AIaE �+'�TI'OIt��.l�]LL. � 1�0 C�"�"�� "fl'�±.I2IVV�S (��3. 012AL P12C�1VII�� I�C)`�' �Cll�'TAIl�]C,l) Il'd "�"I�� WI��`�""��1{;I�I C(�1�T'I�.�l.�'�' SO�AY �� ..�',CA.I.,LY l�l�FOT�.C��. 'i�(�YJ n%I�1.�' C:��AI��E 7'I-�lE '�"�I21V1� O� `�"�-�� R.��.1V�El�t'fi �T�TL�' I3�' AI�OTI�IIE][a WI��'I"�"�+:I�A:G12��1V��I�7Co 1VIC►�7CC��.(��9R ,A.C��1�1`JW�..EDG�� T'k3[E R�C��k''d' CJF' A: COP3I C9I+' 'I'I�I� ��CTJIVt�1V7C AT TI�� T'Yl�I� �"�' W�.S SIGI�I:L�. . [.,�r�m�czi�cCer^c�f'1'n,�e laater�tion-crlly Lef't�lccnli, Si�nratic�e l�czge.��ollowJ [��] _ IN WITNESS WHEREOF, Mortgagor has executed this Mortgage, effective as of the day and year set forth above. MORTGAGOR: DUBUQUE RACING ASSOCIATION LTD. By: Alex Dixon President and Chief Executive Officer STATE OF IOWA ) ) ss: COUNTY OF DUBUQUE ) This instrument or record was acknowledged be ► z yen September't , 2023 by Alex Dixon as CEO and President of Dubuque Racing Asso"'.tion, td. 4'f ` 401, @r ' TONYA A TRUMM ` r . ; •f Commission Numb 7 6067 i ' Public ,e.:� My Comm.Exp..a of f L By signing below, the City of Dubun'e, Iowa (the "City"), is signing this Mortgage solely to evidence the City's consent to Mortgagor's execution and delivery of this Mortgage and not as an indication that the City is pledging any interest that the City owns in the real estate subject to this Mortgage. CITY: CITY OF DUBUQUE,IOWA By: rad M. avan 4, ayor Attest: tri-eruic N. B,citfcl&r, City Clerk L a.GSc-. , Ia55,;5 4 C'�Jr.A CAaxle- STATE OF IOWA ) ) ss: COUNTY OF DUBUQUE ) This instrument or record was acknowledged before me on September 1 , 2023 by Brad M. Cavanagh, as Mayor of the City of Dubuque,Iowa, and Adrienne N.Breitfelder,as City Clerk of the City of Dubuque, Iowa. - J (Y? L.l o+ TUSDEE LYNN BLUS Notary Public CorAelon Number 942479 My Comm.Exp..g Ot*ao aF [Signature page to Leasehold Mortgage, Fixture Filing and Security Agreement with Absolute Assignment of Leases and Rents] E��YI�I'�' � (Description of L,ai�d) Lot 1 af CH�IPLAIN SCHMIT 1 I�LAND in the City of Dtrbltque, Iowa, accordiz�g to the Ylat recordecl as InstrLtment #f2023-7679, records of Dubuque County, Io�v1. ��Ig�3IT I3 � (Primary �,eases) ' That certain Amended and Restated Le�s�; Agreeinent dated Septeznber 19, 2,023, by and betweezi Dubuqlte Racing Assaci�tion, S�I:d, and tl�.e City of DLibuque, Iowa. � ; i STATE OF IOWA SS: DUBUQUE COUNTY CERTIFICATE OF PUBLICATION I, Kathy Goetzinger, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher of the Telegraph Herald, a newspaper of general circulation published in the City of Dubuque, County of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper on the following dates: 09/13/2023 and for which the charge is 38.09 Subscribed to be ore m, a Notary Public in and for Dubuque County, Iowa, this 13th day of September, 2023 Notary Pun and for Dubuque County, Iowa. so,. A JANET K. PAPE 'y Commission Number 199659 z • My Commission Expires /o w a 12/11/2025 Ad text CITY OF DUBUQUE, IOWA OFFICIAL NOTICE PUBLIC NOTICE is hereby given that the City Council of the City of Dubuque, Iowa, will hold a public hearing on the 18th ,day of September 2023, at 6:30 p.m. in the Historic Federal Building, 350 West Sixth Street, 2nd floor, Dubuque, Iowa, at which meeting the City Council proposes to dispose of an interest in real property to the Dubuque Racing Association Ltd, by Lease Agreement. The real property encumbered by the Lease Agreement is 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. At the meeting, the City Council will receive oral and written comments from any resident or property owner of said City to the above action. The official agenda will be posted the Friday before the meeting and will contain public input options, The'Cit); Council agenda can be accessed at: htt://city'ofdlibilque,novusagenda,com/AgendaPublic/ or by contacting the City Clerk's Office at 563-589-4100, ctyclerk@cityofflubuque.org. Writterr6o•ftnients regarding the above public hearings may be submitted to the City Clerk's Office, before said time of public ' • ' Via-einair'at'ctybretk@cityofdubuque.'orgor By mail to',City Clerk's Office, City Hall, 50 W. 13th St., Dubacrad; PA-52-001‘,- At saidjtfme-afid'place of public hearings the City Council Will-reeei-Veany Written comments. Copies -of kipporting documents for the public hearings are on file-ifirtht 'City'Clerk's Office and niay'be"vie-wed Monday thrbtighTtiday between 8:00 a.m. and 5-.00 p.in.• Individuals with limited English proficiency, vision, hearing, speech, or other impairments requiring special assistance should contact the City Clerk's Office at (563) 589-4100, ctyclerk@cityofdubuque.org as soon as feasible, Deaf or hard -of -hearing individuals can use Relay Iowa by dialing 711 or (800) 735-2942. Published by order of the City Council given on the llth day of September 2022. Trish L. Gleason, Assistant City Clerk lt 9/13 •