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Claim by State Central Bank
1 IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY State Central Bank, Plaintiff, vs. Brian P. Tedrow, Susan M. Elliott, State of Iowa, Masonic Temple Association, Robert E Young Jr 01311 EQCV097764 C7 ORIGINAL NOS ~; _ ~, cro -- ~. c: _ rr -t:_ ; z~ •~ - `' ~- , City of Dubuque, and ~~ =:; c~ Cynthia Cain, Defendants. m TO THE ABOVE-NAMED DEFENDANT(S): YOU ARE NOTIFIED that a petition was filed on February 13, 2009, in the office of the Clerk of this Court naming you as the defendant in this action. A copy of the petition is attached to this Original Notice. The attorneys for the Plaintiff are A. Theodore Huinker and William N. Toomey and the law firm of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., whose address is 200 Security Building, 151 West 8th Street, Dubuque, Iowa, 52001; whose telephone number is (563) 556-4011; and whose facsimile number is (563) 556-7134. You must serve a motion or answer within 20 days after service of this Original Notice upon you and, within a reasonable time thereafter, file your motion or answer with the Clerk of Court for Dubuque County at the county courthouse in Dubuque, Iowa. If you do not, judgment by default may be rendered against you for the relief demanded in the petition. If assistance of auxiliary aids or services is required to participate in court due to a disability such as hearing impaired, call the Americans With Disabilities coordinator at (319) 833-3332. If you are in need of dual party telephone relay services, call Relay Iowa TTY at 1-800-735-2942. Q~ (SEAL) .~.. ., --~ ... CLERK OF COURT Dubuque County Courthouse 720 Central Avenue, Dubuque, Iowa, 52001 IMPORTANT: YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. T ~~ _~ -~1 _,~ ~1 STATE OF IOWA } RETURN OF ORIGINAL NOTICE } ss. with attachments as indicated. Dubuque County } The within notice with attachments as indicated was received this day of , 2008, and I certify that I served the same on the defendants named below by delivering a copy thereof to each of said defendants personally at the time and place set opposite their respective names: Names of Defendants Month Day Year City or Township County State FEES Service - $ Copies - $ Official Title Mileage - $ STATE OF IOWA } RETURN OF ORIGINAL NOTICE } ss. with attachments as indicated. County } The within notice with attachments as indicated was received this day of , 2008, and I certify that on the day of , 2008, I served the same on the defendant (A)_ at his or her dwelling house or usual place of abode, by there delivering a copy thereof to a person residing therein who was then at least eighteen years old, (a)_ which place was not a rooming house, hotel, club, or apartment building; (b)_ which place was a rooming house, hotel, club or apartment building, and that the person to whom the copy was delivered was a member of defendant's family, or the manager, clerk, proprietor, or custodian of such place (strike the incorrect words); (B)_ a(n) , by delivering a copy thereof to of said defendant; in the City or Township of in County, State of Iowa. •-------------------------------------------------------------------------------Official Title ACCEPTANCE OF SERVICE Due, timely, and legal service of the within Original Notice with attachments as indicated is hereby accepted by me, and I acknowledge receipt of copy thereof this day of , 2008. STATE OF IOWA } } ss. COUNTY } 2008. (SEAL) The above Acceptance of Service signed and acknowledged before me by the said to be his/her voluntary act and deed this day of _ Notary Public for the State of Iowa s IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY State Central Bank, Plaintiff, 01311 EQCV097764 vs. Brian P. Tedrow, Susan M. Elliott, State of Iowa, Masonic Temple Association, Robert E. Young, Jr., City of Dubuque, and Cynthia Cain, Defendants. FIRST AMENDED PETITION IN EQUITY FOR FORECLOSURE OF REAL ESTATE WITH NOTICE OF FORECLOSURE WITHOUT REDEMPTION NOTICE THE PLAINTIFF HAS ELECTED FORECLOSURE WITHOUT REDEMPTION. THIS MEANS THAT THE SALE OF THE MORTGAGED PROPERTY WILL OCCUR PROMPTLY AFTER ENTRY OF JUDGMENT UNLESS YOU FILE WITH THE COURT A WRITTEN DEMAND TO DELAY THE SALE. IF YOU FILE A WRITTEN DEMAND, THE SALE WILL BE DELAYED UNTIL TWELVE MONTHS (or SIX MONTHS if the petition includes a waiver of deficiency judgment) FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS AONE-FAMILY OR TWO-FAMILY DWELLING OR UNTIL TWO MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS YOUR RESIDENCE BUT NOT AONE-FAMILY OR TWO-FAMILY DWELLING. YOU WILL HAVE NO RIGHT OF REDEMPTION AFTER THE SALE. THE PURCHASER AT THE SALE WILL BE ENTITLED TO IMMEDIATE POSSESSION OF THE MORTGAGED PROPERTY. YOU MAY PURCHASE AT THE SALE. IF YOU DO NOT FILE A WRITTEN DEMAND TO DELAY SALE AND IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE- FAMILY OR TWO-FAMILY DWELLING, THEN A DEFICIENCY JUDGMENT WILL NOT BE ENTERED AGAINST YOU. IF YOU DO FILE A WRITTEN DEMAND TO DELAY THE SALE, THEN A DEFICIENCY JUDGMENT MAY BE ENTERED AGAINST YOU IF THE PROCEEDS FROM THE SALE OF THE MORTGAGED PROPERTY ARE INSUFFICIENT TO SATISFY THE AMOUNT OF THE MORTGAGE DEBT AND COSTS. IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS NOT A ONE-FAMILY OR TWO-FAMILY DWELLING, THEN A DEFICIENCY JUDGMENT MAY BE ENTERED AGAINST YOU WHETHER OR NOT YOU FILE A WRITTEN DEMAND TO DELAY THE SALE. Page 1 of 6 COMES NOW the Plaintiff, State Central Bank, and hereby submits the following Petition in Equity for Foreclosure of Real Estate: 1. The Plaintiff elects foreclosure without redemption pursuant to Code of Iowa section 654.20. The mortgaged property is not used for agricultural purposes. The mortgagor resides in a residential unit on the mortgaged property. The mortgaged property is not cone-family or two-family dwelling. This Petition does not include a waiver of deficiency judgment. 2. Plaintiff. The Plaintiff is a banking corporation organized under the laws of the State of Iowa with an office in Dubuque County located at 1805 John F. Kennedy Road, Dubuque, Iowa, 52002. 3. Defendants A. Defendant Brian P. Tedrow is a single person and the owner of the real property that is the subject of this action. B. Defendant Susan M. Elliott is made a party to this action because she may claim some right, title, or interest in the real property that is the subject of this action as the mortgagee under a certain mortgage that was recorded by the Dubuque County Recorder on September 13, 2006, as File 2006-00014272. C. Defendant State of Iowa is made a party to this action because it may claim some right, title, or interest in the real property that is the subject of this action, including but not limited to liens on such property from judgment(s) and or order(s) in Dubuque County case numbers OWCR071144, SRCR075890, STA0014312, STA0014313, STA0015587, and STA0015588, and in addition thereto, a tax lien on such properly which lien was recorded by the Dubuque County Recorded on December 11, 2008, as File 2008-00017026. D. Defendants Masonic Temple Association and Robert E. Young, Jr., are made parties to this action because they may claim some right, title, or interest in the real property that is the subject of this action, including but not limited to a lien on such property from judgment(s) and or order(s) in Dubuque County case number SCSC063918. E. Defendant City of Dubuque is made a party to this action because it may claim some right, title, or interest in the real property that is the subject of this action, including but not limited to covenants, restrictions, penalties, fees, charges, claim for damages, or other interest(s), arising out of the "Agreement for Covenants and Restrictions" entered into between the City of Dubuque and predecessors in title to Brian P. Tedrow, which document was recorded by the Dubuque County Recorder on December 21, 2000, as document 14833-00. Page 2 of 6 F. Defendant Cynthia Cain is made a party to this action because she may claim some possessory right or title or interest in the real property that is the subject of this action. 4. Real Property. The real property that is the subject of this action (hereinafter "the Real Property") is situated in Dubuque County, Iowa, and is legally described as: The Northerly 26 feet and 5 inches of Out Lot 436 in the City of Dubuque, Iowa. The Real Property is also identified by the local address 1876 Central Avenue, Dubuque, Iowa, 52002. 5. Promissory Note. On September 12, 2006, Defendant Tedrow executed and delivered to the Plaintiff a promissory note in the initial principal sum of $87,500.00, a promissory note in the initial principal sum of $25,000.00, and a promissory note in the initial principal sum of $127,500.00. On September 12, 2007, Defendant Tedrow executed and delivered to the Plaintiff an additional promissory note in the initial principal sum of $87,500.00. On March 13, 2008, Defendant Tedrow executed and delivered to the Plaintiff an additional promissory note in the initial principal sum of $19,600.00. By their terms, these notes were and or are secured by the mortgage described hereunder. On June 26, 2008, Defendant Tedrow consolidated his debt to the Plaintiff by executing and delivering to the Plaintiff a promissory note (hereinafter "the Note") in the initial principal sum of $234,400.00. By its terms, the Note is secured by the mortgage described hereunder. A true and correct copy of the Note and all endorsements thereon is attached hereto as Exhibit A and by this reference made a part hereof. 6. Mort~a~e. On September 12, 2006, Defendant Tedrow executed and delivered to the Plaintiff a mortgage (hereinafter "the Mortgage") upon the Real Property. By its terms, the Mortgage is security for the above-described notes, and secures principal credit in the amount of $151,000.00, plus interest, loan charges, attorneys' fees, advances and interest accrued on advances, and other charges as described in paragraph 3 of the Mortgage. The Mortgage was recorded by the Dubuque County Recorder on September 13, 2006, as File 2006-00014271. A true and correct copy of the Mortgage as recorded is attached hereto as Exhibit B and by this reference made a part hereof. 7. Purchase Mone~g_a.ge. The Mortgage is a purchase money mortgage as defined by Iowa law. 8. Default. Defendant Tedrow failed to make the payment of $1,400.00 that was due and payable on the Note on September 26, 2008, and has ceased making his $1,400.00 payments due on the 26th day of each month since such date. 9. Notice of Acceleration. Defendant Tedrow failed to cure the above-described default, and the Plaintiff delivered written notice to Defendant Tedrow on November 13, 2008, notifying him of the acceleration of the entire indebtedness under the Note. The Plaintiff Page 3 of 6 made demand for payment of the entire indebtedness under the Note, which demand has been refused. A true and correct copy of this notice is attached hereto as Exhibit C and by this reference made a part hereof. 10. Amount of Debt. As of December 12, 2008, the amount due and owing under the Note, as accelerated, is $235,694.10 of principal, plus $4,423.45 of accrued interest through December 11, 2008, plus $45.83 for interest for each day on and after December 11, 2008. 11. Homestead. The Real Property is not the homestead of Defendant Tedrow and no person has any homestead rights therein. 12. Election to Foreclose. The Plaintiff is the owner and holder of the Note and the Mortgage. The Plaintiff, by the commencement of this action, does hereby elect to exercise its right to enforce the payment of the whole of the Note and foreclose upon the Mortgage. 13. Priority of Liens. The rights, title, interests, liens, and claims that each and every of the Defendants may have in the Real Property are junior and inferior to those of the Plaintiff. 14. Attorneys' Fees. The "Collection Costs and Attorney's Fees" term of the Note and paragraphs 4 and 19 of the Mortgage provide for the payment by Defendant Tedrow of the Plaintiff s court costs and attorneys' fees and expenses in the event of suit to enforce such instruments. The Plaintiff has also incurred $350.00 in abstracting fees for the purpose of preparing this action, and pursuant to paragraphs 4 and 19 of the Mortgage, this sum is considered part of the indebtedness secured by the Mortgage. Attached hereto as Exhibit D and by this reference made a part hereof is an Affidavit of Attorneys' Fees filed pursuant to Code of Iowa section 625.24. 15. Protective Advances. Pursuant to the terms of the Mortgage, the Plaintiff is entitled to accruing costs including but not limited to any advances made by the Plaintiff for the collecting, insuring, preserving, or protecting of the Real Property. Pursuant to the terms of the Mortgage, these costs are considered a part of the indebtedness secured by the Mortgage, and shall bear interest at the Note rate from the date of disbursement. 16. Deficiency Not Waived. The Plaintiff does not waive any deficiency for any portion of the judgment remaining unsatisfied after the Sheriff s sale of the Real Property. WHEREFORE, Plaintiff State Central Bank prays: 1. Money Jud i ent. For personal judgment against Defendant Tedrow and for judgment in rem against the Real Property for: a. the amount due and owing under the Note as accelerated, to wit: $235,694.10 of principal, plus $4,423.45 of accrued interest through December 11, 2008, plus $45.83 for interest for each day on and after December 1 1, 2008; Page 4 of 6 b. court costs, reasonable attorneys` fees and expenses, the $350.00 cost incurred in abstracting fees, and additional sums for continuing the abstract of title or for other purposes authorized by the Note, the Mortgage, and or Iowa law; and c. any protective advances made and authorized by the Note, the Mortgage, and or Iowa law. 2. Priority of Liens. That the Mortgage be established as the first-priority lien upon the Real Property, and that the indebtedness owing to the Plaintiff pursuant to the Note and the Mortgage and the judgment thereon be declared a lien upon the Real Property that is senior and superior to the rights, title, interests, liens, and claims of each and every Defendant in this action. 3. Foreclosure and Sheriffs Sale. That the Mortgage be foreclosed, that special execution issue for the sale of the Real Property to satisfy the money judgment entered in this action, including any interest, costs, attorneys' fees and expenses, protective advances, and other costs and expenses accruing prior to the Sheriff s sale, that upon the completion of the sale and proper payment a Sheriff s deed conveying the property be provided to the successful bidder, that the Court issue a Writ of Possession to the Sheriff commanding the Sheriff to put the purchaser in possession of the Real Property, and that from and after the Sheriff s sale, the rights, title, interests, liens, and claims of each and every Defendant in and to the Real Property, including any equitable or statutory right of redemption, be forever cut off and barred. 4. Deficiency Judgment. That general execution issue against Defendant Tedrow for any portion of the money judgment remaining unsatisfied after the Sheriff s sale. 5. Immediate Appointment of Receiver. That a receiver be appointed to take charge of the mortgaged premises at once and to hold possession of the same until the debt is fully paid or the property is sold at Sheriff s sale, and that all rents and profits derived from said premises be collected and applied by the receiver toward the satisfaction of the debt. 6. Additional Relief. For such additional relief as may be just and equitable. STATE CENTRAL BANK By: Fuerste, Carew, Coyle, Juergens & Sudmeier, , By: William I)V. '~mey, AT00(~~7 Page 5 of 6 200 Security Building 151 West 8th Street Dubuque, Iowa 52001 Phone: (563) 556-4011 Fax: (563} 556-7134 Attorneys for the Plaintiff CERTIFICATION OF SERVICE: I certify that on ~ r ~r ~ 3 , 2009, I served this document by United States mail, First Class mail, upon the following person(s) at the addresses} so indicated: Brian P. Tedrow John D. Freund Pamela D. Griebel 1876 Central Avenue Drake & Freund, P.C. Assistant Attorney General Dubuque, IA 52002 1005 Main Street, Suite 200 Hoover Building, 2nd Floor Dubuque, IA 52001 Des Moines, IA 50319 Masonic Temple Association Robert E. Young, Jr. Cynthia Cain c/o Jack Smeltzer 1155 Locust Street 1876 Central Avenue 1155 Locust Street Dubuque, IA 52001 Dubuque, IA 52002 Dubuque, IA 52001 ~.. c-o i Page 6 of 6 T~,DUOw Loan Number 1D02D0211 Date 06/26/08 Maturity Date 06/26/10 LoanAmount$ 234,4D0.00 RenewalOt 10 0 2 0 012 8 1OD200130 STATE CENTR-AL BANK C}~T'r'RP~ AVE 1605 JOHN F KENNEDY ROPE UE I.A 52001-3609 DIIBIIQIIE, IA 52002 BORROWER'S NAME AND ADDRESS I LENDER'S NAME AND ADDRESS "t" includes each borrower above jointly and severally. "You° means the lender, its successors and assigns. For value received, I promise to pay to you, or your order, at your address listed above the PRINCIPAL sum of 234 , 400.00 Two hundred thirty four thousand four hundred & no/100 Dollars5 J"01dE 26, 2008 . No additional advances are contemplated under this note. ^ Single Advance: I will receive all of this principal sum on ^ Multiple Advance: The principal sum shown above is the maximum amount of principal 1 can borrow under this note. On 1 will receive the amount of $ and future principal advances are contemplated. Conditions: The conditions far future advances are ^ Open End Credit: You and I agree that I may borrow up to the maximum amount of principal more than one time. This feature is subject to all other conditions and expires on ' ^ Closed End Credit: You and I agree that I may borrow up to the maximum only one time (and subject to all other conditions!. 7 00 INTEREST: I agree to pay interest on the outstanding principal balance from J~~% 26, 2D08 at the rate of % per year until JANE 26, 2010 DEFAIILT RATE: 21.00% ^ Variable Rate: This rate may then change as stated below. ^ index Rate: The future rate will be the following index rate: ^ No Index: The future rate will not be subject to any internal or external index. It will be entirely in your control. ^ Frequency and Timing: The rate on this note may change as often as A change in the interest rate will take effect % or less than ^ Limitaticns: During the term of this loan, the applicable annual interest rate will not be more than %. The rate may not change more than % each Effect of Variable Rate: A change in the interest rate will have the following effect on the payments: ^ The amount of each scheduled payment will change. ^ The amount of the final payment will change. ACCRUAL METHOD: Interest will be calculated on a 365/360 basis. POST MATURITY RATE: I agree to pay interest on the unpaid balance of this note owing after maturity, and until paid in full, as stated below: ^ on the same fixed or variable rate basis in effect before maturity (as indicated above!. © at a rate equal to 21.00 ^ LATE CHARGE: if a payment is made more than days after ii is due, I agree to pay a late charge of ^ ADDITIONAL CHARGES: In addition to interest, I agree to pay the following charges which above: PAYMENTS:1 agree to pay this note as follows: innin - JDLY 26, 2008 © Interest: I agree to pay accrued interest Monthly Beg q Month! Be inning - JULY 26, 2008 © Principal: I agree to pay the principal ~' S 1400.00 ^ instagmerrts: i agree to pay this note in Z 4 payments. The first payment will be in1 4 O O D O O f $ and will be due On the 26th. -of each month . A payment of $ will be due monthly with a balloon payment on June 2 6 , 201 O . thereafter. The final payment of the entire **SALLOON NOTE** , unpaid balance of principal and interest wilt be due ^Unpeid Interest: Any accrued interest not paid when due (whether due by reason of a schedule of payments or due because of Lender's demand) will become part of the principal thereafter, and will bear interest at the interest rate in effect from time to time as provided for in this agreement. ~~+ ESTATE MORTGAGE DATED 9/12/06 ON 1876 CENTRAL AVE. DIIBIIQIIE, IA (THE NO AODITIONALTERMS: NORTHERLY 26 FEET AND 5 INCHES OF ODT LOT 436 IN TIC CITY OF DIIBIIQI7E, IOWA) GENERAL BIISIS7ESS SECIIRITY AGREEMENT AND t7CC FILING DATED 9/12/06 & 2001 CHEVROLET SILVERADO IITILITY TRIICK VIN#1GBJK39II81F101845 ® If checked, this note is a credit agreement subject to Iowa Code § 535.17 and the following notice is applicable to this note. IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THESE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. ® SECURITY: This note is separately secured by !describe separate PURPOSCONSOLIDATE tDEBTn is documem by type and date}: ' THIS NOTE IS SECI7RED BY ALL EXISTING & F't7T0RE SIGNATURES: I AGREE TO THE TERMS OF THlS NOTE (INCLUDING ~~S77ETC,~ttD~~RI'Iy Trrrn.RESTS BB~E7yTWEEaNt~aTAE MAKER (S) ApND THOSE ON PAGE 21. I have received a copy on today's date. rnra~sTSc ~H to0r Y~ r,H~e~rusRe. Fa~ilure'fc T.sr fc'°II,P"~~~~N wrO~r dome cr~bea `a~riot ineen me ~ epreemerrt w1A not Beare this rmte.l ~'~/ {~ytt ~~ t a7 ~/ IAN P TEDROW Signature for Lender /~~ UNIVERSAL NOTE j O 7994, 1e9t Bankers Systems, Inc.. St Cbud, MN Form UN-IA 3/42DD2 are ^ are not included in the principal amount (Page 7 of 21 -` . FXHIBI~ :~ - - - ~ - ~- -~_. m= Dc'INITIDNS: As useD on page 1---~+ °". ",Nho sins this riote t-is (can. "~ " "me" or "my means each ~6orr g and each other person or legal entity (includi.._ guarantors, endorsers, and sureties) who agrees to pay this note (together referred to as "us"1. "You" a "Your" means the Lender and its successors and assigns. APPLICABLE LA.W: The law of the state of Iowa will govern this note. Any term of this note which is contrary to applicable law will not be affective, w Jess the law permits you and me to agree to such a variation. ,If any provision of this agreement cannot be enforced according to its terms, this fact will not af'rect the enforceability of the remainder of this agreement. No modification of this agreement may be made without your express written consent. Time is of the essence in this agreement. COMMISSIONS OR OTHER REMUNERATION: I understand and agree that any insurance premiums paid to insurance companies as part of this note will involve money retained by you or paid back to you as commissions or other remuneration. In addition, I understand and agree that some other payments to third parties as part of this note may also involve money retained by you or oald hack to you as commissions or other remuneration. PAYMENTS: Each payment I make on this note will first reduce the amount I owe you for charges which are neither interest nor principal. The remainder of each payment will then reduce accrued unpaid interest, and then unpaid principal. If you and I agree to a different application of payments, we wil( describe our agreement on this note. I may prepay a part of, or the entire balance of this loan without penalty, unless we specify to the contrary on this note. Any partial prepayment will not excuse or reduce any later scheduled payment unvl this note is paid in full )unless, when I make the prepayment, you and I agree in writing to the contrary). INTEREST: interest accrues on the principal remaining unpaid from time to time, until paid in full. If I receive the principal in more than one advance, each advance will start to earn interest only when I receive the advance. The interest rate in effect on this note at any given time wilt appty to the entire principal advanced at that time. You and I may provide in this agreement for accrued interest not paid when due to be added to principal. Notwithstanding anything to the contrary, I do not agree to pay and you do not intend to charge any rate of interest that is higher than the maximum rate of interest you could charge under applicable law for the extension of credit that is agreed to here (either before or after maturity). If any notice of interest accrual is sent and is in ercor, we mutually agree to correct it, and if you actually collect more interest than allowed by law and this agreement, you agree to refund it to me. INDF~C RATE: The index will serve only as a device for setting the rate on this note. You do not guarantee by selecting this index, or the margin, that the rate on this note will be the same rata you charge on any other loans or class of loans to me or other borrowers. ACCRUAL METHDD: The amount of interest that I will pay on this loan will be calculated using the interest rate and accrual method stated on page 1 of this note. For the purpose of interest calculation, the accrual method will determine the number of days in a "year." If no accrual method is stated, then you may use any reasonable accrual method for calculating interest. POST MATURITY RATE: For purposes of deciding when the "Post Maturity Rate" (shown on page 11 applies, the term "maturity" means the date of the last scheduled payment Indicated on page 1 of this note or the date you accelerate payment on the note, whichever is earlier. SINGLE ADVANCE LOANS: If this is a single advance loan, you and I expect that you will make only one advance of principal. However, you may add other amounts to the principal if you make any payments described in the "PAYMENTS BY LENDER" paragraph below, or if we have agreed that accrued interest not paid when due may be added to principal. MULTIPLE ADVANCE LOANS: If this is a multiple advance {oan, you and I expect that you will make more than one advance of principal. tf this is closed end credit, repaying a part of the principal will not entitle me [o additional credit. PAYMENTS BY LENDER: If you are authorized to pay, on my behalf, charges I am obligated to pay (such as property insurance premiums), then you may Veat those payments as advances and add them to the unpaid Principal under this note, or you may demand immediate payment of the charges. SET-OFF: I agree that you may set off any amount due and payable under this note against any right I have to receive money from you. 'Right to receive money from you" means: (1} any deposit account balance I have with you; (2) any money owed to me on an item presented to you or in your possession for collection or exchange; end 13) any repurchase agreement or other nondeposit obligation. Any amount due and payable under this note" means the total amount of which you are entitled to demand payment under the terms of this note at the time you set off. This total includes any balance the due date for which you properly accelerate under this note. If my right to receive money from you is also owned by someone who has not agreed to pay this note, your right of set-off will apply to my interest in the obligation and to any other amounts I could withdraw on my sole request or endorsement. Your right of set-off does not apply to an account or other obligation where my rights are only as a representative. It also does not apply to any Individual Retirement Account or other tax-deferred retirement account. You will not be liable for the dishonor of any check when the dishonor occurs because you set off this debt against any of my accounts. 1 agree to hold you harmless from any such claims arising as a result of your exercise of your fight of set-off. REAL ESTATE OR RESIDENCE SECURITY: If this note is secured by real estate or a residence that is personal property, the existence of a default and your remedies for such a default will be determined by applicable law, by the terms of any separate instrument creating the security interest and, to the extent not prohibited by law and not contrary to the terms of the separate security instrument, by the "Default and ^R°morriee" neranraohs herein. (1} I fail to make a par ton time or in the anbunt due; (Z} I fail to keep the property insu. i* required; I31 I fzil to pay, or keec any promise, on any debt or agreement I have with you; (4) any ocher creditor of mine attempts to collect any debt I oti~e him through court proceedings; !5} I die, am declared incompetent, make an assignment for the benefit of creditors, or become insolvent (either because my liabilities exceed my assets or I am unable to pay my debts 2s they become du=_); 161 I make any written statement or provide any financial information that is untrue or inaccurate at the time it was provided; (7) I do or fail to do something which causes you to believe that you will have difficulty collecting the amount I owe you; f81 any collateral securing this note is used in a manner or for a purpose which threatens confiscation by a legal authority; (9) I change my name or assume an additional name without first notifying you before making such a change; (101 I fail to plant, cultivate and harvest crops in due season; 1111 any loan proceeds are used fora purpose that will contribute to excessive erosion of highly erodible land or to the conversion of wetlands to produce an agricultural commodity, as further explained in 7 C.F.R. Part 1940, Subpart G, Exhibit M. REMEDIES: Except as provided in the next paragraph, if this note is secured by agricultural land (as defined in Iowa Code § 17X.1} and I am in default on this note, you will give me notice of my right to cure. You may exercise your remedies only if I fail to cure my default within 45 days after you mail the notice for 45 days after actual delivery if you use a means other than certified matt). A notice of right to cure is not necessary and you may immediately exercise your remedies If you have: a) given me the notice with respect to two prior defaults, b} you have given me the notice with respect to a default occurring within 12 months before the current default, or I voluntarily surrender the agricultural land and you accept it in full satisfaction of the debt. Subject to the above limitations and any limitations imposed by Iowa Code Chapter 654A, if I am in default on this note you have, but are not limited to, the following remedies: 11) You may demand immediate payment of all I owe you under this note (principal, accrued unpaid interest and other accrued charged. 12) You may set off this debt against any right 1 have to the payment of money from you, subject to the terms of the "set-off" paragraph herein. (31 You may demand security, additional security, or additional parties to be obligated to pay this note as a condition for not using any other remedy. (41 You may refuse to make advances to me or allow purchases on credit by me. 151 You may use any remedy you have under state or federal law. By selecting any one or more of these remedies you do not give up your right to later use any other remedy. ey waiving your right to declare an event to be a defauh, you do not waive your right to later consider the event as a default if it continues or happens again. COLLECTION COSTS AND ATTORNEY'S FEES: I agree to pay all costs of collection, replevin or any other or similar type of cost if I am in default. In addition, if you hire an attorney to collect this note, I also agree to pay any fee you incur with such attorney plus court costs (except where prohibited by )awl. To the eMent permitted by the United States Bankruptcy Code, I also agree to pay the reasonable attorney's fees and costs you incur to collect this debt as awarded by any court exercising jurisdiction under the Bankruptcy Code. WAIVER: I give up my rights to require you to do certain things. I will not require you to: (1) demand payment of amounts due (presentment); (2) obtain official certification of nonpayment (protest); or 131 give notice that amounts due have not been paid (notice of dishonor). I waive any defenses I have based on suretyship or impairment of collateral. OBLIGATIONS INDEPENDENT: I understand that I must pay this note even if someone else has also agreed to pay it (by, for example, signing this form or a separate guarantee or endorsement). You may sue me alone, or anyone else who is obligated on this note, or any number of us together, to collect this note. You may do so without any notice that it has not been paid (notice of dishonor). You may without notice release any party to this agreement without releasing any other party. If you give up any of your rights, with or whhout notice, rt will net affect my duty to pay this note. Any extension of new credit to any of us, or renewal of this note by all or less than all of us will not release me from my duty to pay it. IOf course, you are entitled to only one payment in full.) I agree that you may at your option extend this note or the debt represented by this note, or any portion of the note or debt, from time to time without limft or notice and for any term without affecting my liability for payment of the note. 1 will not assign my obligation under this agreement without your prior written approval. FINANCIAL INFORMATION: I agree to provide you, upon request, any financial statement or information you may deem necessary. i warrant that the financial staiemenzs and information I provide to you are or will be accurate, correct end complete. NOTICE: Unless otherwise required by law, any notice to me shall be given by delivering it or by mailing it by first class mail addressed to me at my Iasi known address. My current address is on page 1. I agree to inform you in writing of any change in my address. I will give any notice to you by mailing it first class to your address stated on page 1 of this agreement, or to any other address that you have designated. CREDIT AGREEMENT: A "credit agreement° under Iowa Code § 535.17 means any contract made or acquired by a lender to loan money or extend credit for any purpose. A "credh agreement' does not mean a contract to extend credit by means of a credit card, or open end credit, or a home equity line of credit. This note is not subject to Iowa Code § 535.17 if it is a "credit agreement" made primarily for a personal, family, or household purpose where the credit extended is twenty thousand dollars or less. DATE DP TRANSACTIDN PRINCIPAL ADVANCE BDRRDWER'S INITIALS Inoc regWr~l PRINCIPAL PAYMENTS PRINCIPAL BALANCE INTEREST RATE INTEREST PAYMENTS INTEREST THROUGH: $ $ g % 6 S $ $ % 5 $ S g % 5 $ S $ % S $ g S % S $ $ g % S S $ $ % 5 $ $ $ % 5 $ S $ °,5 S $ S g % S $ $ $ % 5 O 7984, 1991 Benkera Bysteme. Inc., St. CIoW. MN Form UN-I0. 3/4r20D2 ,yayv c v, 4 NNIN NNE II ICI I INI I~ INN ~ ~ NNI NII NN IIII ~~ NI NN Doc ID: 005495590D06 Type: OEN Recorded: 09/13/2006 at 10:59:17 AtT Fee Amt: $32.00 Pape 1 of 6 Dubuque County Iona Kathy Flyrin Thurlov Recorder Fi1e200V~ooOJ.T~ f 1 State of owe S ce Above This Lme For Recording Data Prt~ Ix ~ to: Osig D. D~it3 FIi: 563-583-364 ~~ ~ ~ ~` OPEN-END RT,Ai, ESTATE MORTGAGE D~~~ ~ 52002 (With Futnre Advance Clause) 1. DATE AND PARTIES. The date of this Mortgage is ... SEPT>s~„48„ER,1z,., 2006,,,,,, ~ the parties ~ (heir addresses are as follows: MORTGAGOR: BRIAN ,P, TEDROW ,• ............................... A.,SII3GLE PERSON................................. ........................................................... ............................................................ 3355,SiJISS$T,_PARIC, CIRCLE DUBi~~LTS_ IA ,,,52002 ........................................................... ............................................................ ^ Refer to the Addendum Which is attached and incorporated herein for additional Mortgagors. LENDER: STATE CENTRP.L SANK .,1805, JOHN F IOT~INEDY ROAD ......................... ..................................................................................... ,_DUHII trS IA 52002 -.Q...1. . ..................................................................................................... ............................................................................................................................. 2. MORTGAGE. For good and valuable consideration, the receipt and sufficiency of which is acknowledged, and [o secure the Secured Debt (hereafter defined), Mortgagor grants, bazgains, warrants, conveys and mortgages to Lender the following described property: DTII~SIIQUETHI ~Y 26 FEET AND 5 ]NCHES OF OIIT LOT 436 IN THE CITY OF The ro ,e u located is ... ............................ 1676. CENTRAL. AV;ENL7E„,„•_., P P rtY ~ .. DUBUQUE .......................... at ..... . (County) ........................... .DUBUQUE..................................., Iowa ........52002, ..........................(~dress~ .... (City) ('Lff Code) ...... Together with all rights, easements, appirtrnanrra, royalties, mineral rights, oil and gas rights, crops, timber, all diversion payments or third party payments made to crop producers, and ali existing and future improvements, structures, fixtures, and replacements that may now, or at any time in ttre future, be part of the real estate described above (all referred to as "Property"). The term Property also includes, but is not limited to, any and all water wells, water, ditches, reservoirs, reservoir sites and dams located on the real estate and all riparian and water rights associated with the Property, however established. NOTICE: THiS MORTGAGE SECURRC CREDIT IN THE AMOUNT OF ~ ...... isi, ooo;,DD . ....................... . LOANS AND ADVANCES UP TO THLS AMOUNT, TOGETHER WITH INTEREST, ARE SENIOR TO INDEBTIDNESS TO OTHER CREDITORS UNDER SUBSEQUENTLY RECORDED OR FILED MORTGAGES AND LIENS. MA70MITM OBLIGATION LII41TP. The total principal amount of [he Secured Debt (hereafter defined) secured by this Mortgage at any one time shaII not exceed the amount stated above. This limitation of amount does not include interest, loan charges, commitment fees, brokerage commissions, attorneys' fees and other chazges validly made pursuant to this Mortgage and does not apply to advances (ar interest accrued on such advances) made under the terms of this Mortgage to protect Lender's security and to perform a~ of the covenants contained in this Mortgage. Future advances are contemplated and, along with other future obligations, are secured by this Mortgage even though all or part may not yet be advanced. Nothing in this Mortgage, however, shall constitute a commitment w make additional or, futurc loans or advances in any amount. Any such wmmitment would need to be agreed to in a separate writing. SECURED DEBT DEFINED. Tire term "Secured Debt' includes, but is not limited to, the following: A. The promissory note(s), contract(s), guatanty(s) or other eyide~ce of debt described below and all extensions, renewals, modifications or substitutions (Evidence of Debt) :........................................ .......................... CERTAIN PBOMISSORY,NDTS6 TO,STATE CENTRAL BANK,IN ..............................:... ... .......... ........ ..... .......................... ........... ,,,.,,,,,THE AMOUNT OF, ~240,~ ODO; OD DATED, SEPTEMSER,12,_, 2D06,,,,,,,,,,,,,,,,,,,,,,,,,,,,, .........FIRST PAYMENT DUE;,•OCTOSER, 12 20D6 „-.,,,,,.„ ................................... ..................... ..1..................... ........... ......... MORTGAGfi , NL4TIIRITY e.. SEP'.F;~dSSR..12 [.. 2 031 ............................ . ..................................... • ~ • - (e.;.. 6otrower't name, nor! amours[, farererr rare, marurtry dare) 3. 4. IOWA - AGRIC~L.TURAL/COMMFACIAL MORTGAGE INDT FOR FNMM FHLMC, FHA OR VA USE, AND NOT FDA CONSUMER PURPDSESI ~ peye 1 Of 6 O 1993 Ssnkers Symmns, luc, St Cloud, MN n-80D387.23411 Fam AG1C0-MTWA !27/85 Y~/yJ/ f EXFi1Bi~f= B. ~'. ~._ m - • B. All future advances from lender to ivlortgagor or other future obligations of Mortgagor to Lender under any promissory note, contract, guaranty, or other evidence of debt existing now or executed after this ivlortgage whether or not this Mortgage is specifically referred to in the evidence of debt and whether or not such future advances or obligations are incurred for any purpose that was related or unrelated to the purpose of the Evidence of Debt. C. All obligations Mortgagor owes to Lender, which now exist or may later arise, to the extent not prohibited by law, including, but not limited to, liabilities for overdrafts relating to any deposit account agreement between Mortgagor and Lender. D. All additional sums advanced and expenses incurred by Lender for insuring, preserving or otherwise protecting the Property and its value and any other sums advanced and expenses incurred by Lender under the terms of this Mortgage, plus interest at the highest rate in effect, from time to time, as provided in the Evidence of Debt. E. Mortgagor's performance under the terms of any inStrl,ment evidencing a debt by Mortgagor to Lender and any Mortgage securing, guarantying, or otherwise relating to the debt. If more than one person signs this Mortgage as Mortgagor, each Mortgagor agrees that this Mortgage wiIl secure all future advances and future obligations described above that are given to or incurred by any one or more Mortgagor, or any one or more Mortgagor and others. This Mortgage will not secure any other debt if Lender fails, with respect to such other debt, to make any required disclosure about this Mortgage or if Lender fails to give any required notice of the right of reSC]SSIOn. 5. PAI'MEN'TS. Mortgagor agrees to make all payments on the Secured Debt when due and in accordance with the terms of the Evidence of Debt or this Mortgage. 6. WARRANTY OF TITLE. Mortgagor covenants that Mortgagor is lawfully seized of the estate conveyed by this Mortgage and has the right to grant, bargain, warrant, convey, sell, and mortgage the Property and warrants that the property is unencumbered, except for encumbrances of record. 7. CLAIMS AGAINST TITLE. Mortgagor will pay all taxes, assessments, liens, encumbrances, lease payments, ground rents, utilities, and other charges relating to the Property when due. Lender may require Mortgagor to provrde to Lender copies of all notices that such amounts aze due and the receipts evidencing Mortgagor s payment. Mortgagor will defend title to the Property against any claims that would impair the lien of this Mortgage. Mortgagor agrees to assign to Lender, as requested by Lender, any rights, claims or defenses which Mortgagor may have against parties who supply labor or materials to improve or maintain the Property. S. PRIOR SECURITI' IN'T`ERESTS. With regazd to any other mortgage, deed of trust, security agreement or other lien document that created a prior security interest or encumbrance on the Property and than may have priority over this Mortgage, Mortgagor agrees: A. To make all payments when due and to perform or comply with all covenants. B. To promptly deliver to Lender any notices that Mortgagor receives from the holder. C. Not to make or permit any modification or extension of, and not to request or accept any future advances under any note or agreement secured by, the other mortgage, deed of trust or security agreement unless Lender consents in writing. 9. DUE ON SALE OR ENCUMBRANCE. Lender may, at its option, declare the entire balance of the Secured Debt to be immediately due and payable upon the creation of any lien, encumbrance, transfer, or sale, or contract for nay of these on the Property. However, if the Property indudes Mortgagor's residence, this section shall be subject to the restrictions imposed by federal law (12 C.F.R. 591), as applicable. For the purposes of this section, the term "Property" also includes any interest to all or any part of the Property. This covenant shall run with the Property and shall remain in effect until the Secured Debt is paid in full and this Mortgage is released. 10. TRANSFER OF AN INTEREST IN THE MORTGAGOR If Mortgagor is an entity other than a natural person (such as a corporation or other organization), Lender may demand immediate payment if (1) a beneficial interest in Mortgagor is sold or transferred; (2) there is a change in either the identity or number of members of a partnership or similaz entity; or (3) there is a rhanve in ownership of more than 25 percent of the voting stock of a corporation or similaz entity. However, Lender racy not demand payment in the above situations if it is prohibited by law as of the date of this Mortgage. 11. ENTITY WARRANTIES AND REPRESENTATIONS. If Mortgagor is an entity other than a natural person (such as a corporation or other organization), Mortgagor makes to Lender the following warranties and representations which shall be contimiing as long as the Secured Debt re**+ain~ outstanding: A. Mortgagor is an entity which is duly organized and validly existing in the Mortgagor's state of incorporation (or organization). Mortgagor is in good standing in all states in which Mortgagor transacts business. Mortgagor has the power and authority to own the Property and to carry on its business as now being conducted and, as applicable, is qualified to do so in each state in wlrich Mortgagor operates. B. The execution, delivery and perfo~a*+~P of this Mortgage by Mortgagor and the obligation evidenced by the Evidence of Debt are within the power of Mortgagor, have been duly authorized, have received all necessary governmental approval, and will not violate any provision of law, or order of court or govermnental agency. C. Other than disclosed in writing Mortgagor has not changed its name within the last ten years and has not used any other trade or fictitious name. Without Lender's prior written consent, Mortgagor does not and will not use any other name and will preserve its existing name, trade names and franchises until the Secured Debt is satisfied. ~. PROPF-.'RTY CONDITION, ALTF TIONS AND INSPECTION. Mortgagor will keep the Property in good condition and make all repairs that are reastsaably necessary. Mortgagor will give Lender prompt notice of a~ loss or damage to the Property. Mortgagor will keep the Property free of nonous weeds and grasses. Mortgagor will not initiate, join in or consent to any change in any private restrictive covenant, zoning ordinance or other public or private restriction limiting or defining the uses which may be made of the Property or any part of the Property, without Lender's prior written consent. Mortgagor will notify Lender of all demands, proceedings, claims, and actrons against Mortgagor of any other owner made under Taw or regulation regazding use, ownership and occupancy of the Property. Mortgagor will comply with all legal requirements and restrictions, whether public or private, with respect to the use of the Property. Mortgagor also agrees that the nature of the occupancy and use will not change without Lender's prior written consent. No portion of the Property will be removed, demolished or materially altered without Lender's prior written consent except that Mortgagor has the right to remove items of personal property comprising a part of the Property Thar become wom or obsolete, provided drat such personal property is replaced with other personal property ad least equal in value to the replaced personal property, free from any title retention device, security agreement or other encumbrance. Such „ ll page 2 of 6 O 1993 BaMcers Symms. I„e., St. Cloud. MN (7-BOD-397-23411 Form AG/CO-MTWA 621A5 ~1--~// ~ ' .replacement of personal property will be deemed subject to the security interest created by this Mortgage. Mortgagor shall not partition or subdivide the Property without Lender's prior written consent. Lender or Lender's agents tea ectionof the option, enter the Property at any reasonable time for the gutpase of iaspect;_ng the Property. Any insp Properly shall be entirely for Lender's benefit and Mortgagor will in no way rely on Lender's inspection. 13. AU'THOItTTY TO PERFORM. If Martegeament ails ~ePeli n dacume t that hasaprion-ty over this Mortgage ~Lende~ may, other mortgage, deed of trust, security gr without nonce, perform the duties or cause them to be performed. Mortgagor appoints Lender as attorney in fact to sign Mortgagor's name or gay anY ~o~ necessary for performance. If nay constructton on the Property is discontimied or not carried on in a reasonable manner, Lender may do whatever is necessary to protect Lender's security interest in the Property. This tray include cotnpleting the construction. Lender's right to perform for Mortgagor shall not create an obligation to perform, and Lender's failure to perform will not preclude Lender from ezerctsmg anY of L~d~ s other rights tinder the law or this Mortgage. Any amounts Paid by Lender for insuring, preserving ar otherwise protecting the Property and Lender's security interest will be due on demand and will bear interest from the date of the payment until pazd in full at the interest rate in effect from time to time according to the terms of the Evidence of Debt. 14. ASSIGNMENT OF LEASES AND RENTS. Mortgagor grants, bargains, warrants, and conveys as additional security all the right title and interest in and to any and all: A, Existing or future leases, subleases, licenses, guaranties and anY other written or verbal agreements for the use and occupancy of any portion of the Property, including any extenstons, renewals, modificarions or substitutions of such agreements (all referred to as "Leases"). B. Rents, issues and profits (all referred to as "Rents"), including but not limited to security deposits, minimrtm rent, percentage rent, additional rent, cotnman area ma,ntrr,anCe charges, pazking charges, real estate taxes, other applicable taxes, ;ncnrance Pr~~ contributions, liquidated damages following default, cancellation premiums, loss of rents" men*'an~e, guest receipts, revenues, tool ma have that in bany w Y pertain o o~are~oa account the intangibles, and aU rights and claims which Mortgag y use or occupancy of the whole or any part of the Property. Mortgagor will promptly provide Lender with true and correct copies of all existing and future Leases- Mortgagor may collect, receive, enjoy and use the Rents so long as Mortgagor is not in default. Mortgagor will not collect in advance any Rents due is future lease periods, unless Mortgagor fast obtains Lender's written consent. Upon default, Mortgagor will receive any Rents in trust for Lender and Mortgagor will not commingle the Rents with anY other funds. Any amounts collected shall be applied at L,ender's discretion to payments on the Secured Debt as therein provt~ ,~~ssions two rental the Property, including, but not ]invited to, all taxes, assessments, ;ncnrance premiums, repairs, agents, and to any other necessary related expenses including Lender's attorneys' fees and court costs. Mortgagor acknowledges that this assignment is immediately effective between the parties to this assignment and effective as to third parties on the recording of this Mortgage. Mortgagor agrees that Lender is entitled to notify Mortgagor or Mortgagor's tenants to make payments of Rents due or to become due directly to Lender after such recording, however bender agrees not to notify Mortgagor's tenants until Mortgagor defaults and Lender notifies Mortgagor of the default and demands thaI Mortgagor and Mortgagor's tenants pay all Rents due or to become due directly to Lender. Immediately after Lender gives Mortgagor the notice of default, Mortgagor agrees that either Lender or Mortgagor may immediately notify the tenants and demand that all future Rents be paid duectly to Lender. On receiving the notice of default, Mortgagor will endorse and deliver to Lender any payments of Rents. If Mortgagor becomes subject to a voluntary or involuntary bankruptcy, then Mortgagor agrees that Lender is entitled to receive relief from the automatic stay in banl¢uptcy for the purpose of making this assignment effective and enforceable under state and federal law and witkrin Mortgagor's banlavptcy proceedings. Mortgagor covenants that no default exists under the Leases or any applicable landlo livable IawrtMortga sot twill p or mp~y agrees i0 mainta;n and to require the tenants to comply with, the Leases and anY aPP notify Lender of anY noncomPhance- 1f Mortgagor neglects or refuses to enforce compliance with the terms of the Leases, then Lender may, at Lender's option, enforce compliance. Mortgagor will obtain Lender surrender off theoProperty Mortgagor consents to sublet, modify cancel, or otherwise alter the Leases, to accept _ covered by such Leases (unless the Leases so require), or to assign, compromise or en~~mbloss~or damage that Lender Rents. Mortgagor will hold Lender harmless and indemnify Lender for any and all liability, may incur as a consequence of the assignment under this section. 15. CONDOMIIZILIIVLS; PLANI~'D UNIT DEVEt.OPMEN'TS. If the Property includes a unit in a condominium or a platmed unit development, Mortgagor will perform all of Mortgagor's duties under the covenants, by-laws, or regulations of the condominium or planned umt development. 16. DEFAULT. Mortgagor will be in default if anY of the following occur: A. Any parry obligated on the Secured Debt fails to make payment when due; B. A breach of any term or covenant in this Mortgage, any pnor mortgage or any construction loan agreement, sectuity agreement or any other document evidencing, guarantying, secunng or otherwise relating to the Secured Debt; C. 'The making or furnishing of any verbal or wntten representanon, statement or warranty to Lender that is f se or incorrect in any material respect by Mortgagor or any person or entity obligated on the Secured Debt; D. 'The death, dissolution, or insolvency of, appointment of a receiver for, or application of a~ debtor relief law to, Mortgagor or any person or entity obligated on the Secured Debt; E. A good faith belief by Lender at any time that Lender is insecure anth respect w anY Person or entity obligated on the Secured Debt or that the prospect of any paymem is impaired or the value of the Property is impaired; F. A material adverse change m Mortgagor's business including ownershrp, management, and ~`'~ conditions, which Leader in its opinion believes impairs the value of the Property or repayment of the Secured Debt; or G. Any loan proceeds are used for a purpose that will contribute to excessive erosion of highly erodible land or to the conversion of wetlands to produce an agricultural commodity, as further explained in 7 C.F.R. Part 1940, Subpart G, Exhibit M. 17. REMEDIES ON DEFAULT. In some instances, federal and state law will require Lender to provide Mortgagor with notice of the right to cure, mediation notices or other notices and may establish time schedules for foreclosure actions. Subject to these limitarions, if anY, Lender may accelerate the Secured Deht and foreclose this Mortgage in a manner provided by law if this Mortgagor is in default. page 3 of 6 07993 Bankers Sye[erns, InC-• St Cloud, MN (1-BOP397-23Ct1 form nG/CO-MTGIA 62,195 ,~L~/~// ' ~ "~ At the option of Lender, all or any part of the agreed fees and charges, accrued interest and principal shall become imme_iately due and payable, after ; ving notice if required by law, upon the occurrence of a default or anytime thereafter. In addition, Lender shall be entitled to all the remedies provided by law, the Evidence of Debt, other evidences of debt, this Mortgage and any related documents. All remedies aze distinct, cumulative and not exclusive, and the Lender is entitled to all remedies provided at law or equity, whether expressly set forth or not. The acceptance by Lender of any sum in payment or partial payment on the Secured Debt after the balance is due or is accelerated or after foreclosure proceedings aze filed shall not constitute a waiver of Lender's right to require full and complete cure of any existing default. By not exercising any remedy on Mortgagor's default, Lender does not waive Lender's right to later consider the evens a default if it conrinues or happens again. 18. REDEMPTION. Mortgagor agrees that ;a the evens of foreclosure of this Mortgage, at the sole discretion of Lender, Leader may elect to reduce or extend the period of redemption for the sale of the Property to a period of time as may then be authorized under the circumstances and under any section of Iowa Code Chapter 628, or any other Iowa Code section, now in effect or as may be is effect az tbe time of foreclosure. 19. EXPENSES; ADVANCES ON COVENANTS; ATTORNEYS' FEES; COLLECTION COSTS. Except when prohibited by law, Mortgagor agrees to pay all of Lender's expenses if Mortgagor breaches any covenant in this Mortgage. Mortgagor will also pay on demand all of Lender's expenses incurred in collecting, incl,ring, preserving or protecting the Property or is any i~eatories, audits, inspections or other examination by Lender in respect to the Property. Mortgagor agrees to pay all costs and expenses incurred by Lender in enforcing or protecting Lender's rights and remedies under this Mortgage, including, but not limited to, attorneys' fees, court costs, and other legal expenses. Once the Secured Debt is fully and finally paid, Lender agrees to release this Mortgage and Mortgagor agrees to pay for any recordation costs. All such amounts are due on demand and will beaz interest from the time of the advance at the highest rate in effect, from time to time, as provided in the Evidence of Debt and as permitted by law. 20. ENVIRONMENTAL LAWS AND NA7.AR770US SUBSTANCES. As used in this section, (1) "Environmental Law" means, without limitation, the Comprehensive Em~ironmental Response, Compensation and Liability Act (CERCLA, 42 U.S.C. 9601 et seq.), all other federal, state and local laws, regulations, ordinances, court orders, attorney general opinions or interpretive letters concerning the public health, safety, welfare, environment or a hazardous substance; and (2) "Hazazdous Substance" means any toxic, radioactive or hazardous material, waste, pollutant or contaminant which has chazar*Pr+~*+es which render the substance dangerous or potentially dangerous to the public health, safety, welfare or erNimnment. The term includes, without limitation, any substances defined as °hazazdous material,' "toxic substances," "hazardous waste" or "hazardous substance" under any Environmental Law. Mortgagor represents, warrants and agrees that, except as previously disclosed and acL~nowledged in writing: A. No Hazazdovs Substance has been, is, or will be located, transported, mannfarhlred, tteated~ refined, or handled by a~ person on, under or about the Property, except in the ordinary course of business and in strict compliance with all applicable Environmental Law. B. Mortgagor has not and will not cause, contribute to, or permit the release of any Hazardous Substance on the Property. C. Mortgagor will immediately notify Lender if (1) a release or threatened release of Hazardous Substance occurs on, under or about the Property or migrates or threatens to migrate fmm neazby property; or (2) there is a violation of any Environmental Law concerning the Property. In such an event, Mortgagor will take all necessary remedial action in accordance with Environmental Law. D. Mortgagor has no knowledge of or reason to believe there is any pending or threatened investigation, claim, or proceeding of any kind relating to (1) any Hazardous Substance located on, under or about the Property; or (2) any violation by Mortgagor or any tenant of any Environmental Law. Mortgagor will ;mmttt;arrty notify Lender in writing as soon as Mortgagor has reason to believe there is any such pending or threatened investigation, claim, or proceeding. 1n such an event, Lender has the right, but not the obligation, to participate in nay such proceeding including the right to receive copies of a~ documents relating to such proceedings. E. Mortgagor and every tenant have been, are and shall ,-r,na;n in full compliance with any applicable Environmental Law. F. There are no underground storage tanks, private dumps or open wells located on or under the Property and no such task, dump or well will be added unless Lender first consents in writing. Cs. Mortgagor will regulazly inspect the Property, monitor the activities and operations on the Property, and confirm that all permits, licenses or approvals required by airy applicable Environmental Law are obtained and complied with. H. Mortgagor will permit, or cause any tenant to permit, Lender or Lender's agent to enter and inspect the Property and review all records at any reasonable time to determine (1) the existence, location and nature of any Hazardous Substance on, under or about the Property; (2) the existence, location, nature, and magnitude of any Hazardous Substance that has been released on, under or about the Property; or (3) whether or not Mortgagor and any tenant are in compliance with applicable Environmental Law. I. Upon Lender's request and at any time, Mortgagor agrees, az Mortgagor's expense, to engage a qualified environmental engineer to prepare an environmental audit of the Properly and to submit the results of such audit to Lender. The choice of the environmental engineer who will perform such audit is subject to Lender's approval. J. Lender has the right, but not the obligation, to perform any of Mortgagor's obligations under this section at Mortgagor's expense. K As a consequence of any breach of any representation, warranty or promise made in this section, (1) Mortgagor will indemnify and hold Lender and Lender's successors or assigns harmless from and against all losses, claims, demands, ]iabiliries, damages, cleanup, response and remediation costs, penalties and expenses, including without limitation all costs of litigation and attorneys' fees, which Lender and Lender's successors or assigns may sustain; and (2) at Lender's discretion, Lender may release this Mortgage and in return Mortgagor will provide Lender with collateral of at leas[ equal value to the Property secured by this Mortgage without prejudice to any of Lender's rights under this Mortgage. L. Notwithstanding any of the lanp+n,age contained in this Mortgage to the contrary, the terms of this section shall survive any foreclosure or satisfaction of this Mortgage regazdless of any passage of title to Lender or any disposition by Lender of any or all of the Property. Any claims and defenses to the contrary are hereby waived. 21. CONDEMNATION. Mortgagor will give Lender prompt nonce of any action, real or threatened, by private or public entities to purchase or take any or all of the Property, including any ~"P**+a*+ts, through condemnation, eminent domain, or airy other means. Mortgagor further agrees to notify Lender of any proceedings instituted for the establishment of any sewer, water, conservation, ditch, drainage, or other district relating to or binding upon the Property or any part of it. Mortgagor authorizes Lender to intervene in Mortgagor's name in airy of the above described actions or claims and to page 4 of 6 O 1993 Banbrs 6ys[ems, Int., R Clwd, MN f1-900-397-23a1) Fmm AG/C0.MTG-IA 621196 " collect and receive all sums resulting from the action or claim. Mortgagor assigns to Lender the proceeds of any award or claim for damages connected with a condemtlation or other taking of all or any part of the Property. Such proceeds shall be considered payments and will be applied as provided in this Mortgage. This assignment of proceeds is subject to the terms of any prior mortgage, deed of trust, security agreement or other lien document. 22. INSURANCE. Mortgagor agrees to maintain ~ncnra„re as follows: A. Mortgagor shall keep the improvements now existing or hereafter built on the Property insured against loss by fire, hazards included within the term "extended coverage" and any other hazards, including floods or flooding, for which Lender requires insurance. This incnra„ce shall be mainrainPA in the amounts and for the periods that Lender requires. The in>;nr•ance carrier providing the insurance shall be chosen by Mortgagor subject to Lender's approval, which shall not be unreasonably withheld. If Mortgagor fails to maintain the coverage described above, Lender may, az Lender's option, obtain coverage to protect Lender's tights in the Property according to the terms of this Mortgage. All irsurance policies and renewals shall be acceptable to Lender and shall include a standard "mortgage clause" and, where applicable, "lender loss payee clause." Mortgagor shall immPAi~ely notify Lender of cancellation or terminarion of the insurance. Lender shall have the right to hold the policies and renewals. If Lender requires, Mortgagor shall immediately give to Lender all receipts of paid premi„mc and renewal notices. Upon loss, Mortgagor shall give immediate notice to the insurance carrier and Lender. Lender tray make proof of loss if not made immediately by Mortgagor. Unless Lender and Mortgagor otherwise agree in writing, ;t,snrance proceeds shall be applied to restoration or repair of the Properly damaged if the restoration or repair is economically feasible and Leader's security is not lessened. If the restoration or repair is not economically feasible or Lender's security would be lessened, the insurance proceeds shall be applied to the Secured Debt, whether or not then due, with any excess paid to Mortgagor. If Mortgagor abandons the Property, or does not answer within 30 days a notice from Lender that the incnranrA carrier has offered to settle a claim, then Lender may collect the i„snrase proceeds. Lender may use the proceeds to repair or restore the Property or to pay the Secured Debt whether or not then due. The 30-day period will begin when the notice is given. Unless Lender and Mortgagor otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of scheduled payments or Change the amount of the payments. If the Property is acquired by Lender, Mortgagor's right to any insurance policies and proceeds resulting from damage to the Property before the acgn;~;tion shall pass to Lender to the eztenL of the Secured Debt immediately before the acquisition. B. Mortgagor agrees to maintain comprehensive general liability insurance naming Lender as an additional insured in an amount acceptable to Lender, ins„ring against claims arising from any accident or occurrence in or on the Property. C. Mortgagor agrees to maintain rental loss or business interruption i„s,u~auce, as required by Lender, in an amount equal to az least coverage of one year's debt service, and required escrow account deposits (if agreed to separately in writing), under a form of policy acceptable to Lender. 23. NO ESCROW FOR TAXES AND INSURANCE. Unless otherwise provided in a separate agreement, Mortgagor will not be required to pay to Lender funds for taxes and insurance in escrow. 24. FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Mortgagor will provide to Lender upon request, any financial statement or information Lender may deem necessary. Mortgagor warrants that aIl financial statements and information Mortgagor provides to Lender are, or will be, accurate, correct, and complete. Mortgagor agrees to sign, deliver, and file as Lender may reasonably request any additional documents or certifications that Lender may consider necessary to perfect, continue, and preserve Mortgagor's obligations under this Mortgage and Lender's lien status on the Property. If Mortgagor fails to do so, Lender may sign, deliver, and file such documents or certificates in Mortgagor's name and Mortgagor hereby irrevocably appoints Lender or Lender's agent as attorney in fact to do the things necessary to comply with this section. 25. JOIlVT AND II~TDIVIDUAL LIABIId1'Y; CO-SIGNERS; SUCCESSORS AND ASSIGNS BOUND. All duties under this Mortgage are joint and individual. If Mortgagor signs this Mortgage but does not sign the Evidence of Debt, Mortgagor does so only to mortgage Mortgagor's interest in the Property to secure payment of the Secured Debt and Mortgagor does not agree to be personally liable on the Secured Debt. Mortgagor agrees that Lender and any parry to this Mortgage may extend, modify or make any change in the terms of this Mortgage or the Evidence of Debt without Mortgagor's consent. Such a change will not release Mortgagor from the terms of this Mortgage. The duties and benefits of this Mortgage shall bind and benefit the successors and assigns of Mortgagor and -Lender. If this Mortgage secures a guaranty between Lender and Mortgagor and does not direcfly secure the obligation which is guarantied, Mortgagor agrees to waive any rights that may prevent Lender from bringing any action or claim against Mortgagor or nay party indebted under the obligation including, but not limited to, anti-deficiency or one-action laws. 26. APPLICABLE LAW; SEVERABII,TTY; IIVT'ERPRETATION. This Mortgage is governed by the laws of the jurisdiction is which Lender is located, except to the extent otherwise required by the laws of the jurisdiction where the Property is located. "This Mortgage is complete and fully integrated. This Mortgage may not be amended or modified by oral agreement. Any section or clause in this Mortgage, attachments, or any agreement related to the Secured Debt that conflicts with applicable law will not be effective, unless that law expressly or impliedly permits the variations by written agreement. If any section or clause of this Mortgage cannot be enforced according to its terms, that secion or clause will be severed and will not affect the enforceability of the remainder of this Mortgage. Whenever used, the singular shall include the plural and the plural the singular. The captions and headings of the sections of this Mortgage are for convenience only and arc not to be used to interpret or define the terms of this Mortgage. Time is of the essence in this Mortgage. 27. NOTICE. Unless otherwise required by law, any notice shall be given by delivering it or by mailing it by first class mail to the appropriate party's address on page 1 of this Mortgage, or to nay other address designated in writing. Notice to one mortgagor will be deemed to be notice to all mortgagors. 28. WAFTERS. Except to the extent prohibited by law, Mortgagor waives any rights relating to reinstatement, the m~ghalli g of liens and assets, all rights of dower and distributive share and all homestead exemption tights relating to the Property. ~~~/` page 5 of 6 O 1893 BerYrers Systems, Ir,L, sL Clwd, MN I7-900-39J-2341 Form AG/CO-MTG-V. 621/95 , 29, U.C.C. PROVi.SIONS. If checked, the following aze applicable to, but do not limit, this Mortgage: ^ Construction Loan. This Mortgage secures an obligation irlculred for the construction of an improvement on the Property. ^ Fixture Filing. Mortgagor grants to lender a security interest in all goods that Mortgagor owns now or in the future and that are or will become fi-lures related to the Property. ^ Crops; Timber, Minerals; Rents, Issues, and Profits. Mortgagor grants to Lender a security interest in all crops, timber and minerals located on the Property as well as all rents, issues, and profits of them including, but not limited to, all Conservation Reserve Program (CRP) and Payment in Kind (PIK) payments and similar governmental programs (all of which shall also be included in the term "Property"). ^ Personal Property. Mortgagor grants to Lender a security interest in all personal property located on or connected with the Property. This security interest includes all farm products, inventory, equipment, accounts, documents, inctntmPn+c, chattel paper, geIIeral mtanp bles, and all other items of personal pmperry Mortgagor owns now or in the future and that aze used or useful in the construction, ownership, operation, management, or maintenance of the Pmperiy. The term "personal property" specifically excludes that property described as "household goods" sectu~d in connection with a "COnaltmer" loan as those terms are defined in applicable federal regulations governing unfair and deceptive credit practices. © Filing As Financing Statement. Mortgagor agrees and acknowledges that this Mortgage also suffices as a financing statement and as such, may be filed of record as a financing s+arPntenr for purposes of Article 9 of the Uniform Commercial Code. A carbon, photographic, image or other reproduction of this Mortgage is sufficient as a financing statement. 30. OTHER TERMS. If checked, the following are applicable to this Mortgage: ^ Purchase Money Mortgage. This is a purchase money mortgage as defined by Iowa law. © Line of Credit. The Secured Debt includes a revolving line of credit provision. Although the Secured Debt may be reduced to a zero balance, this Mortgage will remain in effect until released. ^ Agricultural Property: Mortgagor covenants and warrants that the Property will be used principally for agricultural or farming purposes and that Mortgagor is an individual or entity allowed to own agricultural land as specified by law. ^ Additional Terms ...................................................................................................................... ............................................................................................................................................. ............................................................................................................................................. SIGNATURES: By signing below, Mortgagor agrees to the terms and covenants contained in this Mortgage and in any aitarhmrn~. Mortgagor also acknowledges receipt of a copy of this Mortgage on the date stated above on Page 1. ^ Actual authority was granted to the parties siaaning below by resolution signed and dated .................................... . Entity Name :......................................................... Entity Name:......................................................... .. ~.~~~...........q-.la...-o~ ....................................................................... (Sigmmre)BRTAN P TEDROSQ (l)ate) (Signature) (Date) .................................................................. ~.. ..................................................................a~.. (Signabue) _ ~ ) (Signature) (D ) ^ Refer to the Adliendtmt which is attached and incorporated herein for additional Mortgagors, signatures and acknowledgments. ACSNOWLEDGMENT: ._._. STATE OF ......:J:.°..~o` ....................... COUNTY OF ...~u....... ~~ ............. ss. Oa this ......1 .a.~.,_...... da of ........ ~'g-~'v V~-t~-........... DOS ................ before me, a Notary Y .......... .... Public in the state of Iowa, personally appeared ..... ~t' \ o-~^-... ~ :........~~.':.ro ~,v .................................. ~a;~m,ep t~me known to be the person(s) named in and who executed the foregoing instrument, and acknowledged that executed the S °~.~ ., nrcEsirll.Fl:tmltet. 146Q6 . ............................................... voluntary act and deed. My commission A(y Comm. Ezp. `t ~ (S~ ...... ...~ . ................................... Publtc) STATE OF ............................................. COUNTY OF ..........................................._...... } ss. On this ........................ day of ......................................., .............................. before me, a Notary Public in the state of Iowa, personally appeared .................................................................................. to me personally Imown, who being by me duly sworn or affirmed did say that that person is ........................... 1Bes~s, ......................................................................................................................................... of ~~~~ said entity, that (the seal affixed to said instrument is the seal of said entity or no seal has been procured by said entity) and thaz said instrument was signed and sealed, if applicable, on behalf of the said entity by authority of its board of directors/partners/members and the said ................................................................................ ............................................................................ acknowledged the execution of said instrument to be the voluntary act and deed of said entity by it voluntarily executed. My commission expires: ~~ ................................................................... (Notary Pubfic) (In the following statement "I" means the Mortgagor.) I understand that homestead property is in many cases protected from the claims of creditors and exempt from judicial sale; and that by signing this contract, I voluntarily give up my rights to this protection for this property with respect to claims based upon this contract. ......................................................................... .......................................................................... (Signature) (Date) (Signature) (Date) p 1993 Bankers Systems, Inc. .h. Cloud, MN (t-600.397-23411 Form AG/GO-MTG•IA 6I2~ l95 page 6 of 6 * ti ~. - ~ S~a_te enr~al . Bank - , - Date 1~Tovember 13, 2008 • _ Brian P. Tedrow _ ~ _~ ' ~ Sunstar Equipment ~ - _ ; ~ _ 1876 Central Ave. - Dubuque, Iowa 52001 ~ . ' FINAL.DEMAND FINAL DEMAND ' _ Re: Loan # 1 002002 1 1 Principal Balance: $234,10639 - Accrued Interest: $ 3,101.40 '. - Total as of 11/13/08 $237,207.79 ' - Interest per diem: $ 45.52069 Dear Brian; - Pursuant to the terms of a note between Brian P,. Tedrow and State Central ' Bank dated 6/26/08 ~ ~ in the original''amount of $ J234,400.00 . , we are . hereby placing you on fomiaLnotice that the entire balance remaining on the loan. as . detailed above is now considered to be dues and payable immediately.. • Unless funds are received in our bank by (10 days in future) to pay the account iri full, " we will exercise our legal options to dispose of the collateral and collect any deficiency ' ~ balance remaining from the obligor/guarantors. If you wish to discuss your account further, you may 'contact me at the address provided ~ - below. J ~ • ~ GOVERN YOURSELF ACCORDINGLY J pectfully, - 1~ /~ Craig D. DeB '. ~, ~ , - - ~ Senior V.P. - ~ ' ~~ - ~ "EXHIBIT _ ,a_ c m 1 e05 JFK Roed, Dubuque, Iowa 52002 563-583-3646 • Fex 563-563-3691 ~ + Toll Free 866-377-136: ~ ~ } ~~ IN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY State Central Bank, Plaintiff, vs. Brian P. Tedrow, Susan M. Elliott, State of Iowa, Masonic Temple Association, Robert E. Young, Jr., and EXHIBIT D AFFIDAVIT OF ATTORNEYS' FEES Parties in Possession, Defendants. ~ STATE OF IOWA ) ss: COUNTY OF DUBUQUE ) I, William N. Toomey, being first duly sworn, hereby depose and state that I am a member of the firm of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., that we are the attorneys for the Plaintiff in the above-entitled cause, that I have read the foregoing Petition and am familiar with the contents thereof, that I am in possession of the original note and mortgage at issue in that action, and that the allegations contained therein are true as I verily believe. I further depose and state that I am a regularly practicing attorney in the Courts of the State of Iowa, that the attorneys' fees prayed for in the Petition are for services rendered and to be rendered by myself and Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., as attorneys for the Plaintiff, and that there is not and has not been an agreement, express or implied, between myself or Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., and the Plaintiff or any other person, except other practicing attorneys engaged with me as attorneys in this cause, for any division or sharing of the fee to be taxed. STATE OF IOWA ) ss: DUBUQUE COUNTY } i oomey, AT00 27 Signed and sworn to before me on this December 12, 2008, by William N. Toomey. Nc~'t~ry~'ublic ~- ~Ppti~AL ~ JAYNE A. BAUSCH ((// Z ,~~:;,~ ~ COMMISSION) NO. 164473 "~_;;;~; ~ MY COMMISSION IXPIRES ic~:a 3- (y_ p y ~ NOTICE Unless you notify us within thirty days after you receive this notice that you dispute the validity of this debt or any portion thereof, we will assume that the debt is valid. If you notify us in writing within the thirty-day period following your receipt of this notice that the debt or any portion thereof is disputed, then we will obtain verification of the debt and mail you a copy of such verification. Upon your written request within the thirty-day period following your receipt of this notice, we will provide you with the name and address of the original creditor to whom this debt was owed, if different from the current creditor. This is an attempt to collect a debt and any information you provide will be used for that purpose. FUERSTE, CAREW, COYLE, 3UERGEN5 & SUDMEIER, P.C. By am N. Toomev/~T0007927 200 Security Building 151 West 8th Street Dubuque, Iowa 52001 Phone: (563) 556-4011 Fax: (563) 556-7134 Page 1 of 1