Hunter Equity, LLC, Dubuque 2012_FedEx Subordination AgreementMasterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Hunter Equity, LLC /2013 Dubuque, LLC (Fed Ex)
DATE: June 27, 2012
Dubuque
bierd
All-America City
1
2007
On March 19, 2012, the City entered into a Development Agreement with Hunter Equity,
LLC to construct a facility in the Dubuque Industrial Center Economic Development
District for FedEx. The Development Agreement requires the Developer to construct a
building of not less than 80,000 square feet of floor space at an estimated cost of
approximately $2,500,000.
The Development Agreement provides that the City will execute a subordination
agreement in favor of the Developer's first mortgage lender in a form reasonably
acceptable to the City and the Developer's lender.
City Attorney Barry Lindahl recommends City Council approval of a Consent and
Subordination Agreement with CrossFirst Bank.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
THE CITY OF
Dui
Masterpiece on the Mis • sippi
MEMORANDUM
BARRY LINDA L
CITY ATTORN Y
To:
Mich el C. Van Milligen
City anager
DATE: June 26, 2012
RE: Hunter Equity, LLC /2013 Dubuque, LLC (FedEx)
On March 19, 2012, the City entered into a Development Agreement with Hunter Equity,
LLC to construct a facility in the Dubuque Industrial Center Economic Development
District for FedEx. The Development Agreement requires the Developer to construct a
building of not less than eighty thousand (80,000) square feet of floor space at an
estimated cost of approximately $2,500,000.
The Development Agreement was subsequently assigned to 2013 Dubuque, LLC, a
subsidiary of one of FedEx's approved builders.
The Development Agreement provides that the City will execute a subordination
agreement in favor of the Developer's first mortgage lender in a form reasonably
acceptable to the City and the Developer's lender. Attached is a Consent and
Subordination Agreement for the project. The Consent and Subordination Agreement
acknowledges that CrossFirst Bank, a Kansas City corporation, is making a loan to the
Developer in the amount of $5,592,000. Pursuant to the Consent and Subordination
Agreement, the City consents to the mortgage and agrees to subordinate the
Development Agreement to the mortgage. In the event the Developer defaults under
the Development Agreement and the City enforces its rights and remedies, which
includes electing to have title to the property reinvested in the City, the City agrees its
rights and title to the property are subject and subordinate to the lien of the bank's
mortgage. If the City sold the property to another developer, the bank's mortgage would
have to be satisfied. The bank also has 90 days in which to cure the default if it so
chooses.
I have reviewed the Consent and Subordination Agreement and find that it is in
acceptable form. I recommend that the Consent and Subordination Agreement be
submitted to the City Council for consideration and approval.
BAL:tis
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001 -6944
TELEPHONE (563) 583 -4113 / FAx (563) 583 -1040 / EMAIL balesq @cityofdubuque.org
Attachment
cc: Cindy Steinhauser, Assistant City Manager
Dave Heiar, Economic Development Director
Bill Kutsunis, Esq.
Kevin Deeny, Esq.
F: \USERS \tsteckle \Lindahl \Fed -Ex (Hunter Equity) \MVM_ Consent& SubordinationAgreement _062612.doc
CONSENT AND SUBORDINATION AGREEMENT
(Lot 4, Dubuque Industrial Center North First Addition)
THIS AGREEMENT is entered into as of June , 2012, by and between the City of Dubuque,
Iowa, a municipality (City), established pursuant to the Iowa Code and acting under authorization of Iowa
Code Chapter 403, as amended (Urban Renewal Act), with an address of 50 W. 13th Street, Dubuque,
Iowa 52001 ( "City "), and CrossFirst Bank, a Kansas corporation, with an address of 4707 W. 135t''
Street, Leawood, Kansas 66224 ( "Bank ").
WHEREAS, City and 2013 Dubuque, LLC ( "Borrower ") are parties to a Development
Agreement dated March 19, 2012 ( "Development Agreement ") originally with Hunter Equity, LLC and
assigned to Borrower on April 2, 2012; and
WHEREAS, the Development Agreement was filed on , 2012 as Document No.
in Book at Page ; and
WHEREAS, Bank is making a $5,592,000 loan ( "Loan ") to Borrower which shall be secured by a
Mortgage and Security Agreement up to the amount of $5,592,000 ( "Mortgage ") and other collateral
documents encumbering the real property and improvements (to be constructed thereon) (collectively
"Loan Documents ") legally described on Exhibit A attached hereto and made a part hereof ( "Property");
and
WHEREAS, as a condition of making such Loan, the Bank requires the City to execute this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. The City consents to Borrower granting a Mortgage up to the amount of $5,592,000 to the
Bank which shall encumber the Property and be a lien upon the Property in order to secure the Loan. The
City acknowledges and agrees that Borrower intends to and is permitted to construct an approximately
84,209 sq. ft. Federal Express facility on the Property ( "Project "), and that the sole purpose for the Loan
is to fund the Project.
2. The City has approved the plans and specifications for the Project as required under the
Development Agreement.
3. The City agrees that the proceeds to which Borrower is entitled under the Development
Agreement, including, without limitation, 50% of the cost for the `Extension Improvements" described in
Section 2.2 of the Development Agreement are to be paid to Borrower as a credit on its purchase price
when it acquires the Property.
4. The City agrees to deliver written notice to the Bank contemporaneous with any notice to
Borrower concerning the failure, breach or default by Borrower of its obligations under the Development
Agreement. In the event Borrower fails to cure such default within the cure period provided in Section
4.2 of the Development Agreement, the City will provide the Bank with an additional thirty (30) days to
commence cure of such default by Borrower and the Bank may, at its option, elect to cure such default.
4. The Bank shall not be deemed to have assumed Borrower's obligations under the Development
Agreement unless and until the Bank has acquired title and control of the Property and Project and has
notified the City in writing of the Bank's intent to assume Borrower's obligations under the Development
062512bal
Agreement and upon the condition the applicable terms and conditions of the Development Agreement
regarding such assumption are met or waived.
5. The City subordinates its rights and interests under the Development Agreement (including,
without limitation, its rights under Section 4.3 of the Development Agreement) to the Property to the lien
and interest of the Bank and its Mortgage and security instruments which encumber the Property
(including, without limitation, any extensions, modifications, and amendments thereof) but only up to the
amount of the Loan amount first stated herein. In the event the City enforces its rights and remedies
under the Development Agreement or elects to have title re -vest in the City, the City agrees that its rights
and title to the Property shall be subject and subordinate to the prior lien of the Bank's Mortgage and
other security instruments which encumber the Property (including, without limitation, any extensions,
modifications, and amendments thereof) but only up to the amount of the Loan amount first stated herein..
6. This Agreement (a) is governed by Iowa law, (b) contains the entire understanding and
agreements between the City and Bank and all prior promises or agreements are merged herein, (c) cannot
be modified or terminated without a written agreement signed by the City and Bank, and (d) runs with the
land and is binding upon the City and Bank and their successors and assigns.
(Signatures continued on next page)
062512bal
IN WITNESS WHEREOF, the parties have set their hands as of the date first shown above.
ATTEST:
STATE OF IOWA
ss:
COUNTY OF DUBUQUE
City of Dubuque, Iowa
By
1
Foy -D l3rrol,
ei-
Ric W. Jones, Mayor Pro —Tem
On this 3 r d day of Jul y , 2012, before me, a Notary Public in and for the State of Iowa, in and
* for said county, personally appeared Rey -B. -Biel and Kevin S. Firnstahl, to me personally known, who
being by me duly sworn, did say that they are the mayor and city clerk, respectively, of the City of
Dubuque, a municipal corporation, created and existing under the laws of the State of Iowa, and that the
seal affixed to said instrument is the seal of said municipal corporation and that said instrument was
signed and sealed on behalf of said municipal corporation by authority and resolution of its city council
and said mayor and city clerk acknowledged said instrument to be the free act and deed of said municipal
corporation by it voluntarily executed.
*Ric W. Jones, Mayor Pro -Tem
Tt 1 -1 L. t LC(4aWN
Commission Number 719986
My Commission Expires
062512ba1
NOTARY PUBLIC
CrossFirst Bank
By
Name
Title
STATE OF KANSAS )
) ss.
COUNTY OF JOHNSON )
On this day of June, 2012, before me appeared , to me
personally known, who being by me duly sworn, did say that he is the of
CrossFirst Bank, a Kansas corporation, and that the foregoing instrument was signed in behalf of said
corporation by authority of its Board of Directors, and said acknowledged
said instrument to be the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal at my office the
day and year last above written.
Notary Public
Print Name
My commission expires:
00875718 -1 \10422 -000
062512bal
(Space above reserved for Register of Deeds certification)
MORTGAGE AND SECURITY AGREEMENT
Date of Document: June 2012
Preparer Information: Jay T Shadwick
Duggan, Shadwick, Doerr & Kurlbaum
11040 Oakmont
Overland Park, Kansas 66210
(913) 498 -3536
Taxpayer Information: 2013 Dubuque, LLC
4605 Dovetail Drive
Madison, Wisconsin 53704
Grantor /Mortgagor: 2013 Dubuque, LLC
4605 Dovetail Drive
Madison, Wisconsin 53704
Grantee/Mortgagee: CrossFirst Bank
11225 College Blvd , Suite 150
Overland Park, Kansas 66210
Legal Description: See Exhibit A attached hereto
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE is made as of the day of June, 2012, by 2013 Dubuque, LLC, an Iowa
limited liability company ( "Borrower) to and in favor of CrossFirst Bank, a Kansas corporation, 4707 West
135th Street, Leawood, Kansas 66224 ( "Lender ")
WITNESSETH, That Borrower, in consideration of the debt hereinafter mentioned and created and in
further consideration of the sum of $1 00 to it paid by the said Lender, receipt of which is hereby
acknowledged, does by these presents, irrevocably and absolutely sell, convey, transfer, assign, mortgage
and warrant unto the said Lender all that estate as described in Exhibit A in and to that lot, piece, parcel, or
tract of land ( "Land ") with the buildings, structures and improvements now thereon or that may hereafter be
erected thereon ( "Improvements ") situate, lying and being in the County of Dubuque, State of Iowa,
described on the attached Exhibit A, which is made a part hereof, and possession of said Land and
Improvements are now delivered unto said Lender,
Borrower, as further and additional security, hereby mortgages and pledges and grants a security
interest in all items of personal property located on the above - described Land and Improvements and owned
by Borrower which are not fixtures or appurtenances as described in the paragraph immediately below and
which are used or useful in the operation of the interest of Borrower in the Land and Improvements, including
all extensions, additions, improvements, betterments, renewals and replacements thereof now or to be
constructed and located on the above described Land and Improvements including all other personal property
hereafter acquired by Borrower and located on said Land and Improvements, including replacements of the
above described mortgaged personal property so described and acquired after the date of this Mortgage, it
being understood that the lien granted herein shall continue in force until the Note secured hereby is paid in
full All of the foregoing mortgaged personal property shall hereinafter be defined as "Personal Property"
TOGETHER WITH all fixtures and appurtenances ( "Fixtures ") the same being defined hereinafter as
all articles of property which are or shall be in some manner annexed or attached to the above described
Land and Improvements or which are adapted to the proper use of and or placed within such Improvements,
including, but not limited to, all machinery, apparatus, equipment, fittings, fixtures, whether actually or
constructively attached to said property and including all trade, domestic and ornamental fixtures now or
hereafter located in, upon or under said Land and Improvements or any part thereof and used or usable in
connection with any present or future operation of said Land or Improvements, including, but not limiting the
generality of the foregoing, all heating, water, light, air conditioning, sprinklers, freezing, lighting, laundry,
incinerating and dynamo and generating equipment, engines, pipes, pumps, tanks, motors, conduits,
switchboards, plumbing and plumbing fixtures, lifting, cleaning, fire prevention, fire extinguishing, refrigerating,
ventilating and communications apparatus, boilers, ranges, furnaces, oil burners or units thereof, appliances,
vacuum cleaning systems, elevators, escalators, fork lifts or similar equipment, shades, awnings, screens,
storm doors and windows, gas and electric fixtures, mantels, built -in mirrors, cabinets, partitions, ducts and
compressors, rugs and carpets, draperies, furniture and furnishings, shrubbery and plants, and all other
goods and property which may be included within the definition of fixtures and appurtenances described
above in that they are in some manner annexed and attached to the above described Land or are adapted to
the proper use of any or all Improvements erected on such Land or are placed within such Improvements, and
all of the above goods and property described immediately above, by virtue of such annexation and
adaptation, are and shall at all times be deemed Fixtures and an accession to the freehold and a part of the
Land described above
TOGETHER WITH all estates and rights of Borrower in and to the above - described Land,
Improvements, Personal Property and Fixtures and all buildings, structures, improvements, access rights,
easements, rights of way or use, servitudes, licenses, tenements, hereditaments and appurtenances now or
hereafter belonging or pertaining to Borrower or to the Land, Improvements, Personal Property and Fixtures,
TOGETHER WITH all rents, issues, profits and avails now due or which may hereafter become due
under and by virtue of any leasing, whether written or verbal, or any letting of, or any agreement for the use or
2
occupancy of the above - described Land or Improvements or any part thereof which may have been
heretofore or may be hereafter made or agreed to by Borrower,
AND TOGETHER WITH any and all awards made to Borrower and any future owners of the
premises by any governmental or other lawful authorities for the taking or damaging by eminent domain all of
the whole or any part of the premises, including any costs for any changes of grade of streets
TO HAVE AND TO HOLD THE SAME unto Lender, its successors and assigns, together with all and
singular the tenements, hereditaments and appurtenances thereunto belonging, and all the estate, right, title
and interest of said Borrower in and to the said described Land, Improvements, Personal Property and
Fixtures and the streets and alleys adjoining or adjacent to the same (all of which said Land, Improvements,
Personal Property, Fixtures and additional security as described above may hereinafter sometimes be
referred to as the "Premises") and Borrower for itself, its successors and assigns, does covenant with Lender,
its successors and assigns, that it is lawfully seized of the Premises and has good right to sell and convey the
same, that Borrower owns marketable fee simple title to the Property, that the Premises are free from all e-
ncumbrances, Lender, its successors and assigns, shall quietly enjoy and possess the Premises, and that
Borrower will warrant and defend the title to the same against all lawful claims not hereinbefore specifically e-
xcepted
The address of the Premises is 1590 Innovation Drive, Dubuque, Iowa.
WHEREAS, Borrower (and other obligors who joined as "Borrower" under the Note described below),
being justly indebted to said Lender in the sum of $5,592,000.00 lawful money of the United States which
shall be legal tender in payment of all debts and dues, public and private, at the time of payment, for money
borrowed and secured to be paid pursuant to a Promissory Note in the same amount of ( "Note ") of even date
herewith, made, executed and delivered by Borrower to Lender conditioned for payment at the office of
Lender, 4707 West 135th Street, Leawood, Kansas 66224, or such other place as the legal holder of the
said Note secured by this Mortgage may from time to time in writing designate, payable as set forth in said
Note, which is incorporated herein by this reference and made a part of this Mortgage The maturity date of
the Note is
It being expressly agreed that the whole of said "Indebtedness" (as that term is defined hereafter)
shall at the option of the holder of said Note become due and payable as provided therein after an Event of
Default
As long as the Indebtedness Secured Hereby does not exceed $5,592,000.00 (excluding accrued
interest, as it pertains to this Premises, whether or not added to principal, costs, fees, charges, and advances
for the protection of the Premises and /or for other purposes authorized under this Mortgage), Borrower and
Lender hereby agree that this Mortgage shall also secure, in addition to the aforesaid amount to be disbursed
hereunder and all indebtedness or obligations of Borrower to Lender, any future additional advances which
Lender may hereafter make at any time while this Mortgage remains unreleased of record to, or for the benefit
of Borrower, its successors or assigns or pursuant to any of the provisions of this Mortgage and the Note
secured hereby
And Borrower does hereby covenant, promise and agree to and with Lender as follows
ARTICLE I - COVENANTS, AGREEMENTS, WARRANTIES OF BORROWER
Borrower has agreed and does by these presents covenant and agree to perform and fulfill all the
provisions hereof and of the Note secured hereby, including specifically but without limiting the generality of
the foregoing
(1 1) Borrower shall duly and punctually pay each and every installment of principal and interest on
the Note and all other sums due hereunder (hereinafter the "Indebtedness" or the "Indebtedness Secured
Hereby ") as and when the same shall become due, and shall duly and punctually perform and observe all of
3
the covenants, agreements and provisions contained herein, in the Note and any other instrument given as
security for the payment of the Note
(1 2) Borrower shall pay when due and before any penalty attaches all general and special taxes,
ground rents, water charges, sewer charges, and other fees, taxes, charges and assessments of every kind
and nature whatsoever, whether or not assessed against Borrower, if applicable to the Premises or any
interest therein, or the Indebtedness Secured Hereby, or any obligation or agreement secured hereby and will
upon demand furnish to the Lender proof of the payment of any such taxes, assessments and charges, in the
event that the Borrower has deposited in escrow sums required by the Lender under Paragraph (1 9) hereof,
Borrower shall nevertheless be required to pay any deficiencies or amounts required in addition to the
amounts so deposited in escrow to completely pay and discharge the obligations of Borrower for payment of
such taxes, assessments, ground rents and other charges and assessments as hereinabove stated The
Borrower shall not be obligated to pay any income tax, profits tax, excise tax or other tax or charge that may
be payable by the Lender, excepting only such which may be levied against such income expressly as and for
a specific substitute for taxes on the Premises and then only in an amount computed as if Lender derived no
income from any source other than its interest hereunder In the event of a court decree or an enactment
after the date hereof by any legislative authority having jurisdiction over the Premises of any law deducting
from the value of real estate for the purposes of taxation any lien thereon or imposing upon a mortgagee the
payment of the whole or any part of the taxes or assessments or charges or liens herein required to be paid
by Borrower, or changing in any way the laws relating to the taxation of mortgages or debts secured by mor-
tgages or a mortgagee's interest in mortgaged premises, or the method of collecting taxes, so as to affect the
Mortgage or the Note or Lender, then, in any such event, the entire Indebtedness Secured Hereby shall
thereupon immediately become due and payable at the option of Lender
(1 3) Borrower shall not be required to pay, discharge or remove any tax, assessment, tax lien,
imposition or charge upon or against the Premises, or any part thereof, or resolve any zoning or ordinance
violations so long as Borrower shall not be in default and shall in good faith contest the same or the validity
thereof by appropriate legal proceedings which shall operate to prevent the collection of the tax, assessment,
lien or imposition so contested and /or the sale of the Premises, or any part thereof, to satisfy the same,
provided, that Borrower shall, prior to the date such tax, assessment, lien, imposition or charge is due and
payable, have given such security as may be demanded by Lender to insure such payments and prevent any
sale or forfeiture of the Premises by reason of such nonpayment Any such contest shall be prosecuted by
Borrower with due diligence and Borrower shall promptly after final determination thereof pay the amount of
any such taxes, assessments, liens, impositions or charges so determined, together with all interest and
penalties which may be payable in connection therewith Notwithstanding the provisions of this Section 1 3,
Borrower shall (and if Borrower shall fail so to do, Lender may, but shall not be required to) pay all such taxes,
assessments, liens, impositions or charges notwithstanding such contest if in the opinion of Lender the
Premises shall be in jeopardy or in danger of being forfeited or foreclosed Any such payments made by
Lender may be made out of any escrows held by Lender and if such escrows be insufficient for these
purposes any sums expended by Lender in excess of such escrows shall be so much additional Indebte-
dness Secured Hereby and shall be due and payable on demand together with interest thereon at the rate
specified in the Note
(1 4) Borrower shall keep all Improvements in good and substantial repair and tenantable condition,
shall pay any debt, claim or other charge or repairs or improvements that may have been made or may
hereafter be made on, or which may become a lien against the Premises or any part thereof, and shall not
permit any lien or encumbrance of any kind which may be or become superior to this Mortgage, to accrue or r-
emain on the Premises or any part thereof, and if any law or ordinance requires or shall hereafter require the
demolition of any portion of any building remaining on said Premises after a partial loss by fire before the
same may be rebuilt, Borrower shall keep Lender insured against loss by reason of the cost of such
demolition, reasonable wear and tear and damage by fire only excepted, hereby granting to said Lender in the
event of foreclosure full authority as attorney irrevocable of Borrower to cancel such insurance and retain the
return premiums thereof
(1 5) Borrower shall not permit or suffer any strip or waste of the mortgaged Premises, nor any
violation of any law, ordinance, governmental rule or regulation affecting the same or the use thereof, and Bo-
4
rrower agrees to pay all sums, including costs and attorney fees which Lender may incur in any proceedings
to prevent the commission of waste
(1 6) Borrower shall retain in full force and effect and not allow to lapse or be revoked any licenses
issued by any agency to Borrower for the operation by Borrower of any business on the Premises
(1 7) Borrower shall perform and observe all the obligations imposed upon it under any leases of the
Premises described herein and shall not do or permit to be done anything to impair the security thereof, and in
the event of a default in this Mortgage to assign to Lender upon the demand of said Lender any and all leases
of the Premises described herein and also Borrower's rights under any subleases thereof and any and all
rents and income from said leases or subleases, and for the purpose of making such assignments Borrower
hereby grants the power and authority to and constitutes and appoints said Lender or such persons as may
be designated by it, the attorney irrevocable of Borrower to make such assignments of then existing leases,
and agrees that after such assignments Lender may modify and otherwise deal with all such leases or
subleases with the same power and discretion which Lender would have if it were the owner and landlord
(1 8) Borrower shall not execute any lease on the Premises described herein or any part thereof
providing for payment of rent for more than one (1) month in advance without the express consent in writing
by Lender
(1 9) Borrower shall deposit, at the option of the Lender exercised only after an Event of Default, toge-
ther with and in addition to required installment payments, an amount, as reasonably estimated by the Lender,
which, when added to such other deposits, will be sufficient to pay all insurance premiums, taxes and all
assessments, both general and special, ground rents and other fees and charges which may become due
and to pay such additional amounts as may be necessary to make up any deficiency in the funds available to
pay the same on or before the date when such insurance, taxes and assessments become due and payable
( "Escrow Deposit ") Such Escrow Deposit shall be held in trust by said Lender without interest to Borrower
and free of any lien or claim of any creditors of Lender, to be used by said Lender to pay such insurance,
taxes and assessments as the same become due and payable Any excess in such deposits shall be
credited on subsequent deposits to be made hereunder
(1 10) Borrower shall pay on demand to Lender, or Lender may at its option add to the principal
balance then due any sums advanced or paid by Lender on account of any default of this Mortgage of
whatever nature by Borrower for taxes, repairs, insurance or any sums paid by Lender, including attorney's
fees in prosecuting, defending or intervening in any legal or equitable proceeding wherein any of the rights
created by this Mortgage are in the sole judgment of Lender jeopardized or in issue, and Lender may apply to
any of these purposes any sums paid hereunder by Borrower as interest or otherwise
(1 11) Borrower shall remain liable upon the covenants herein and in any other instruments securing
the Note and upon the Note secured hereby notwithstanding any forbearance, extension or other indulgence
given by Lender to any future owner of the Premises described herein or other person, notice of any such
forbearance, extension or other indulgence being hereby expressly waived
(1 12) Borrower shall appear in and defend any suit, action or proceeding that affects the value of the
Premises, the Indebtedness Secured Hereby or the rights or powers of Lender and should Lender elect also
to appear in or defend any such action or proceeding, or should Lender be made a party to such action by
reason of this Mortgage, Borrower shall, at all times, indemnify and on demand reimburse Lender from any
and all loss, damage, expense or cost arising out of or incurred in connection with any such suit, action or
proceeding, including costs of evidence of title and attorney's fees, and the sum of all such expenditures shall
become so much additional Indebtedness Secured Hereby and shall be due and payable on demand
together with interest thereon at the rate specified in the Note
(1 13) Borrower shall upon request by Lender execute and deliver such further instruments, and
assurances and shall do such further acts as may be necessary or proper to carry out more effectively the pu-
rposes of this Mortgage and without limiting the foregoing, to make subject to the lien hereof any property
agreed to be subjected hereto or covered by the granting clauses hereof, or intended so to be Borrower shall
5
pay any recording fees, filing fees, stamp taxes or other charges arising out of or incident to the filing or
recording of this Mortgage, such further instruments and assurances or the issuance and delivery of the Note
(1 14) Borrower shall, at its sole cost and expense furnish, or cause to be furnished, to Lender
within (a) sixty (60) days after the end of each of its fiscal years, (i) financial statements of Borrower and
any guarantor for such fiscal year, including a balance sheet and a profit and loss statement, all in
reasonable detail, and (u) an operating statement for the Premises and rent rolls reflecting the rental
status of the same, for such fiscal year, including the names of tenants and subtenants, spaces occupied
expressed in square feet, annual rental under each lease, the unexpired term thereof, and all renewal
options, (b) thirty (30) days after the same are filed, federal and state income tax returns with all exhibits
and schedules attached of Borrower and any guarantor, and (c) thirty (30) days after the end of each
calendar quarter, operating and income and expense statements and rent rolls of Borrower All such
financial statements, operating statements, and rent rolls shall be certified as being true and correct by
Borrower After an Event of Default, Lender shall have, in addition to and not in limitation of such other
rights and remedies that Lender may have hereunder, the right, at the sole cost and expense of Borrower
(Borrower hereby agreeing to be responsible for all costs incurred by Lender, its employees, or third
parties hired by Lender in connection with such examination), to examine, copy, and audit the books and
records of Borrower either with employees of Lender or with independent third parties hired by Lender at
the expense of Borrower Borrower furthermore agrees to cooperate with Lender and any such third
party if such examination and audit of such books and records occurs In the event Lender incurs any
cost in connection with such examination and audit and such costs are not reimbursed by Borrower to
Lender within ten (10) days after demand, then they shall become part of the Indebtedness and shall
accrue interest at the Default Rate until paid
(1 15) Borrower shall maintain until the Indebtedness Secured Hereby has been paid in full all insu-
rance policies to keep the Land, Improvements, Fixtures, Personal Property and appliances covered by this
Mortgage now or hereafter on the Premises insured against loss by fire, lightning and such other risks custo-
marily covered by Standard Extended Coverage endorsement together with a vandalism and malicious
mischief endorsement or an all perils endorsement in an amount not less than the full replacement cost of all
such improvements, including the cost of debris removal, and satisfactory to Lender, shall provide
Comprehensive General Public Liability insurance in amounts satisfactory to Lender, shall provide, if the
Premises are now or hereinafter determined to be in a "flood plain area" as defined by the Federal Insurance
Administration pursuant to the Federal Flood Disaster Protection Act of 1973 (PL -93 -234) or any similar
agency or law, Federal Flood Insurance in maximum amounts obtainable up to the principal amount of the
balance due under the Indebtedness Secured Hereby, shall provide Rental Insurance coverage in an amount
and term satisfactory to Lender, shall provide, if there be any pressure -fired vessels within the Premises,
Broad Form Boiler and Machinery Insurance on all Equipment and Fixtures and objects customarily covered
by such insurance and providing for the full repair and replacement cost coverage, and shall provide such
other insurance as Lender may be determined to be needful, in such sums as Lender from time to time may
determine, all of said insurance to contain a standard mortgagee loss payable clause (New York Standard
clause), acceptable to Lender, with Lender and its successors or assigns to be named as the sole mortgagee,
and to be from companies qualified to do business in the State of Iowa and satisfactory to Lender and contai-
ning clauses therein requiring thirty (30) days prior written notice of cancellation thereof to be given to Lender,
and to deposit certificates and a xerox copy of all such policies in a form acceptable to Lender with and made
payable to Lender in case of loss, full power being hereby given to Lender to settle and compromise claims or
to bring suit to recover thereunder, and in Lenders discretion to apply the net proceeds therefrom after dedu-
cting all costs of collections, including attorneys' fees, in reduction of the Indebtedness Secured Hereby or, the
Lender may apply the net proceeds toward repair, reconstruction or restoration of the Premises In event of
foreclosure Lender is hereby authorized to assign each such policy to the transferee of said Premises hereby
appointing said Lender attorney irrevocable so to do or, if Lender shall so elect, to cancel or transfer such
insurance and to retain any premiums or proceeds and to apply same to the Indebtedness Secured Hereby
(1 16) Borrower covenants and agrees with Lender (and in certain of the following provisions
Borrower makes representations and warranties to Lender) that
6
(a) Neither the Borrower nor, to the actual knowledge of the Borrower, any other person has ever
caused or permitted any Hazardous Material to be placed, held, located or disposed of on, under or at the
Premises or any part thereof or into the atmosphere or any watercourse, body of water or wetlands or any
other real property legally or beneficially owned (or any interest or estate in which is owned) by the Borrower
(including, without limitation, any property owned by a land trust the beneficial interest in which is owned, in
whole or in part, by the Borrower), and neither the Premises nor any part thereof has ever been used
(whether by the Borrower or, to the best knowledge of the Borrower, by any other person) as a treatment,
storage or disposal (whether permanent or temporary) site for any Hazardous Material For purposes of this
Agreement "Hazardous Material" means and includes any hazardous substance or any pollutant or contami-
nant defined as such in (or for purposes of) the Comprehensive Environmental Response, Compensation,
and Liability Act, any so called "Superfund" or "Superlien" law, the Toxic Substances Control Act, or any other
Federal, state or local statute, law, ordinance code, rule, regulation, order or decree, regulating, relating to, or
imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or
material, as now or at any time hereafter in effect, asbestos or any substance or compound containing
asbestos, or any other hazardous, toxic or dangerous, waste, substance or material,
(b) Borrower will not place, hold, locate or dispose of on, under or at the Premises or any part thereof
or into the atmosphere or any watercourse, body of water or wetlands or any other real property legally or
beneficially owned (or any interest or estate in which is owned) by the Borrower (including, without limitation,
any property owned by a land trust the beneficial interest in which is owned, in whole or in part, by the
Borrower) any Hazardous Material, nor will Borrower permit or cause any other person to do any of the
aforesaid,
(c) Borrower hereby indemnifies the Lender and agrees to hold the Lender harmless from and
against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every kind
whatsoever for any occurrence that takes place prior to Lender, through a receiver or otherwise, taking pos-
session of the Premises, including attorneys' fees, paid, incurred or suffered by, or asserted against, the
Lender for, with respect to, or as a direct or indirect result of, the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emission, discharging or release from, the Premises or into or upon
the land, the atmosphere, or any watercourse, body of water or wetland of any Hazardous Material (including,
without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under
the Comprehensive Environmental Response, Compensation and Liability Act, any so- called "Superfund" or
"Superlien" law, or any other Federal, state or local statute, law, ordinance, code, rule, regulation, order or
decree regulating, relating to or imposing liability or standards of conduct concerning any Hazardous
Material)
(d) Borrower's representations and warranties are subject to the information set forth in the Phase I
Environmental Site Assessment dated February 2, 2012 by Terracon Consultants, Inc (Project No
07127701), a copy of which has been delivered to Lender
(1 17) (a) To Borrower's actual knowledge, the Premises and the sidewalks, curbs and alleys
adjoining or abutting the Premises, and the condition, repair, maintenance, use and occupation thereof
by Borrower comply with all applicable restrictive covenants, zoning ordinances and building codes, flood
disaster laws, applicable health, safety and environmental laws and regulations, laws relating to the
disabled (including but not limited to The Americans with Disabilities Act of 1990, 42 U S C §§ 12101 et
sec and regulations thereunder [hereinafter called the "ADA "] and /or the Fair Housing Amendments Act
of 1988, 42 U S C §§ 3601 et sec and regulations thereunder [hereinafter called the "FHAA "]), as any of
the same are amended from time to time, and all other applicable laws, statutes, ordinances, rules,
regulations, orders, determinations and court decisions (all of the foregoing hereinafter sometimes
collectively called "Applicable Laws ") without reliance upon grandfather provisions or adjacent or other
properties Borrower or Borrower's tenants have obtained all requisite zoning, utility, building, health and
operating permits from the governmental authority or municipality having jurisdiction over the Premises
All engineering specifications with respect to the Premises are within applicable engineering standards
Borrower shall promptly make, or cause to be made, all changes, alterations and improvements
necessary to comply with all future laws, statutes, ordinances, rules, regulations and other requirements
7
(b) Borrower shall promptly perform and observe, or cause to be performed and observed, all of
the terms, covenants and conditions of all instruments of record affecting the Premises, non - compliance
with which may affect the security of this Mortgage, or which shall impose any duty or obligation upon
Borrower or any tenant or other occupant of the Premises or any part thereof, and Borrower shall do or
cause to be done all things necessary to preserve intact and unimpaired any and all easements,
appurtenances and other interests and rights in favor of or constituting any portion of the Premises
(1 18) Borrower is the landlord under a Lease dated 2012 ("Lease ") with FedEx
Ground Package System, Inc ("Tenant ") which is in full force and effect and encumbers the Premises
ARTICLE II - RIGHTS OF LENDER
(2 1) If Borrower has failed to timely pay taxes as required under this Lease within five (5) days after
written notice (except no notice is required if immediate payment by Lender is required to protect the
Premises), Lender may pay all taxes and assessments, with interest, costs, penalties and charges accruing
thereon, which may at any time be or become a lien on the Premises described herein or any part thereof
(2 2) If Borrower has failed to timely pay its insurance premiums or has allowed its insurance
coverage to lapse and has failed to cure such breach within five (5) days after written notice, Lender may pay
the premiums for any insurance required hereunder
(2 3) After Borrower's failure to do so within fifteen (15) days after written notice (provided, Lender is
not required to provide any notice or only provide reasonable notice under the circumstances in the event
Lender must take immediate action to protect the Premises), Lender may incur and pay expenses in pro-
tecting Lender's rights hereunder and the security hereby granted, to enter upon the Premises and make
repairs, procure insurance, and may pay any debt, claim or other charge which Borrower should have made,
procured or paid (the receipt of the creditor or proper tax official being conclusive evidence of the amount,
validity and fact of payment thereof)
(2 4) In the discretion of Lender after an Event of Default, or after default by Borrower to a third party,
Lender may pay any balance due on any item of Personal Property or Fixture made part of the Premises and
owned by Borrower, and Borrower hereby covenants to notify Lender promptly of the existence of and the
exact details of the said obligation, and Lenders written request assign to Lender any and all right, title and
interest that Borrower may have in and to any and all security interests, and Borrower hereby grants the
power and authority to Lender, and irrevocably constitutes and appoints Lender or such persons as may be
designated by Lender, the attorney of Borrower, if Lender shall so elect, to make such assignments
(2 5) If Borrower shall fail to comply with any of the covenants or obligations of this Mortgage (subject
to any applicable notice and cure period), the Lender may, but shall not be obligated to, without further
demand upon Borrower and without waiving or releasing Borrower from any obligations in this Mortgage
contained, remedy such failure on the part of the Borrower, and the Borrower agrees to repay upon demand
all sums incurred by the Lender in remedying any such failure together with interest thereon at the rate as
specified in the Note All such sums, together with interest as aforesaid shall become so much additional
Indebtedness Secured Hereby, but no such advance shall be deemed to relieve the Borrower from any failure
hereunder
(2 6) Lender may add all amounts paid under the foregoing provisions to the principal sum secured
hereby All of said sums shall be immediately due and payable, shall bear interest at the highest rate
permitted to be charged on delinquent installments of principal and interest under the Note Lender is hereby
authorized to apply to any of these purposes or to the repayment of, any amount so paid by Lender, any sums
paid hereunder by Borrower as interest or otherwise
(2 7) Nothing contained in this Mortgage shall constitute any consent or request by the Lender,
express or implied, for the performance of any labor or services or for the furnishing of any materials or other
property in respect of the Premises or any part thereof, nor as giving the Borrower or any lessee under any
leases any right, power or authority to contract for or permit the performance of any labor or services or the
8
furnishing of any materials or other property in such fashion as would create any personal liability against the
Lender in respect thereof or would permit the making of any claim that any lien based on the performance of
such labor or services or the furnishing of any such materials or other property is prior to the lien of this
Mortgage
(2 8) Borrower will permit the Lender's authorized representatives to enter the Premises at all
reasonable times and hours for the purpose of inspecting the same, provided, the Lender shall have no duty
to make such inspections and shall not incur any liability or obligation for making or not making any such
inspections
(2 9) Without affecting the liability of Borrower or any other party liable for payment of any
Indebtedness Secured Hereby or performance of any obligation contained herein, and without affecting the
rights of the Lender with respect to any security not expressly released in writing, the Lender may, at any time,
and without notice to or the consent of any party in interest with the Premises or the Note (a) Release any
person liable for payment of all or any part of the Indebtedness Secured Hereby or for performance of any
obligation herein, (b) Make any agreement extending the time or otherwise altering the terms of payment of all
or any part of the Indebtedness Secured Hereby, or modifying or waiving any obligation, or subordinating,
modifying or otherwise dealing with the lien or charge hereof, and /or (c) Resort to any chattel mortgages,
pledges, contracts of guarantee, collateral, security, assignments of rents and leases or other securities, and
exhaust any one or more of said collateral and the security hereunder, either concurrently or independently
and in such orders as it may determine
(2 10) In the event that the Premises covered hereby or any part thereof shall be damaged by fire or
other hazard against which insurance is held, the amounts paid by any insurance company pursuant to the
contract of insurance shall, to the extent of the Indebtedness then remaining unpaid, be paid to said Lender,
and, in its sole discretion, may be applied to the debt, or if the proceeds of said insurance shall be sufficient, to
retire said Indebtedness, or released for the repairing or rebuilding of the Premises
ARTICLE III - CONDEMNATION
Borrower has agreed and by these presents does covenant and agree that should the Premises or
any part thereof be taken or damaged by reason of any public improvement or condemnation proceeding, or
under right of eminent domain, or in connection with any deed in lieu thereof, the Lender shall be entitled to all
compensation, awards, and any other payment or relief therefor, and shall be entitled at its own option to
commence, appear in, and prosecute in its own name any action, or proceedings, or to make any compro-
mise or settlement in connection with such taking or damage All such compensation, awards, damages,
rights of action and proceeds are hereby assigned to said Lender, who may after deducting therefrom all its
expenses, including attorney's fees, release any moneys so received by it or apply the same on any
Indebtedness Secured Hereby and Borrower shall execute such further assignments of any compensation,
awards, damages, rights of action and proceeds as Lender may require
ARTICLE IV - NOTICES
Notices shall be in writing, by registered or certified mail, overnight delivery or hand delivery and the
mailing or delivery of notices to the following addresses, or to such other place any party hereto may by notice
in writing designate, shall constitute service of notice hereunder
(a) If to the Lender at its address at
CrossFirst Bank
4707 West 135th Street
Overland Park, Kansas 66211
Attn Real Estate Loans
(b) If to the Borrower at its address at
9
with a copy to
2012 Winnemucca, LLC
4605 Dovetail Drive
Madison, Wisconsin 53704
Attn Carl E Ruedebusch
Bill Kutsunis, Esq
350 Junction Road
Madison, Wisconsin 53717
ARTICLE V - COMPLIANCE WITH LAW
Borrower covenants and agrees to comply with any law of the State of Iowa or with the requirements of any
ordinance, condition, rule, regulation of any department of the city and county in which said Premises are
situated, relating to said Premises or any part thereof
ARTICLE VI - EVENTS OF DEFAULT AND REMEDIES
(61) It shall be an "Event of Default" under this Mortgage if (however, the phrase "upon the
occurrence of an Event of Default" or "after the occurrence of an Event of Default" (or other similar
phrases) as used herein, shall all refer to the existence of a default (one that is not cured) after the
passage of any applicable notice and cure period
(a) The Borrower shall fail to pay any principal or interest due under the Note when and as the
same becomes due (whether at the stated maturity or at a date fixed for any installment
payment or otherwise) and such failure is not cured with five (5) days
(b) The Borrower shall fail to comply with or perform any of the terms, conditions or covenants of
the Note, any Loan Document described in the Note, or this Mortgage, or an event of default
occurs under the terms of any Loan Document described in the Note, subject to any
applicable notice and cure period described herein or in the Loan Documents In the event
of a default which falls under this subparagraph (b) and does not have a specified notice and
cure period hereunder or under any other Loan Document, Borrower shall have thirty (30)
days after written notice from Lender to cure such default prior to Lender's right to exercise
its remedies, provided, however, if such default requires Borrower to perform construction or
repairs to the Property and the default cannot reasonably be completed in thirty (30) days,
Borrower shall be deemed to have cured the default if it commences its cure within thirty (30)
days after written notice and continues to diligently complete the cure and completes the
cure within a reasonable period
(6 2) NOW, THEREFORE, if said Note and the interest thereon be paid when due, and said
agreements be kept and performed as aforesaid and if no Event of Default occurs, then these presents,
including the lease hereinafter set forth, shall be void, and the Premises hereinbefore conveyed shall be
released at the cost of said Borrower But if an Event of Default shall occur, then the whole of said
Indebtedness Secured Hereby shall at the option of Lender, without notice become immediately due and
payable for all purposes, and this deed shall remain in force Notwithstanding the foregoing, if the Note and
the interest thereon is otherwise paid in full, then this deed shall be released by Lender
(6 3) Upon the occurrence of any Event of Default and any applicable notice and cure period
permitted under the Note has expired, Lender and /or Trustee may also immediately undertake any one or
more of the following remedies
(a) Institute an action to foreclose this Mortgage, or take such other action as the law may allow,
at law or in equity, for the enforcement thereof and realization on the Premises, and proceed thereon to
final judgment and judicial sale or execution thereon for the entire unpaid balance of the Debt, including
10
interest at the rates and pursuant to the methods of calculation specified in the Note, together with all
costs of suit, interest at the Default Rate described in the Note on any judgment obtained by Lender from
and after the date of any judicial sale of the Premises until actual payment is made to Lender of the full
amount due Lender, and an attorneys' reasonable fee for collection, any usage or custom to the contrary
notwithstanding
(b) Lender personally, or by its agents or attorneys, may enter into and upon any of the Premises
and may exclude Borrower and its agents wholly therefrom without liability for trespass, damages or
otherwise and Borrower agrees to surrender possession to Lender on demand after the happening of any
Event of Default Upon such an entry, Lender may (i) use, operate, manage and control the Premises
and conduct the business thereof, either personally or by its agents or receivers and exercise all rights
and powers of Borrower with respect thereto either in the name of Borrower or otherwise as Lender shall
deem best, (u) restore the Premises, (iii) complete the construction of any Improvements under
construction or renovation and in the course of such completion may make such changes in the
contemplated or completed Improvements as Lender may deem desirable and may insure the same, and
(iv) do all such maintenance as to Lender may reasonably deem advisable Lender shall be entitled to
collect and receive all rents, and after deducting the expenses of conducting the business thereof and of
all necessary maintenance and amounts necessary to pay for Impositions, premiums for insurance and
other proper charges upon any of the Premises, as well as just and reasonable compensation for the
services of Lender and for all attorneys and agents properly engaged and employed by Lender, Lender
shall apply the remaining rents in such order as Lender may elect, to the payment of the Indebtedness
and /or performance of Borrower's obligations, and the payment of any other sums required to be paid by
Borrower under any of the Loan Documents Lender shall be liable to account only for rents actually
received by Lender
(c) Lender may have a receiver appointed to enter into possession of the Premises, collect the
rents and apply the same as the court may direct Lender shall be entitled to the appointment of a
receiver without the necessity of proving either the inadequacy of the security or the insolvency of
Borrower or any other person who may be liable to pay any of the Indebtedness and /or perform any of
the obligations and Borrower and each such person shall be deemed to have waived such proof and to
have consented to the appointment of such receiver Should Lender or any receiver collect rents, the
moneys so collected shall not be substituted for payment of the Indebtedness nor can they be used to
cure the Event of Default, without the prior written consent of Lender, but any net amount of such rents,
after Lender's costs and expenses as herein contemplated, shall be applied toward the outstanding
Indebtedness Borrower hereby expressly consents to the appointment of a receiver for the Premises
upon the occurrence of any Event of Default, and waives any requirement for the posting of any bond or
other security in connection with such appointment and such receiver, and for any hearing in connection
with such appointment
(d) Lender shall also have such rights and remedies in respect of any of the Personal Property
Security and Fixtures as are provided by the UCC and such other rights and remedies in respect thereof
which Lender may have at law or in equity or under any of the Loan Documents, including the right to
take possession of the Premises wherever located and to sell all or any portion thereof at public or private
sale, without prior notice to Borrower, except as otherwise required by law (and if notice is required by
law, after 10 days' prior written notice), at such place or places and at such time or times and in such
manner and upon such terms, whether for cash or on credit, as Lender in its sole discretion may
determine Lender shall apply the proceeds of any such sale first to the payment of the reasonable costs
and expenses incurred by Lender in connection with such sale or collection, including reasonable
attorney's fees and legal expenses, and second to the payment of the Indebtedness and performance of
the Borrower's obligations, and then to pay the balance, if any, as required by law Upon the occurrence
of any Event of Default Borrower, upon demand by Lender, shall promptly assemble any personal
property and Fixtures included in the Premises and make it available to Lender at a place to be
designated by Lender which shall be reasonably convenient to Lender and Borrower Both Borrower and
Lender shall be eligible to purchase any part or all of such property at any such disposition
(e) Lender may elect to cause any of the Premises to be sold as follows
11
(1) Lender may proceed as if all of the Premises were real property in accordance with
subparagraph (e)(2) below, or Lender may elect to treat any of the Premises which consists
of a right in action or which is property that can be severed from the Land and
Improvements without causing structural damage thereto as if the same were personal
property and dispose of the same in accordance with subparagraph (e)(3) below, separate
and apart from the sale of real property, the remainder of the Premises being treated as
real property
(2) Should Lender sell the Premises or any part thereof which is real property or which Lender
has elected to treat as real property, upon such election, Lender may proceed to foreclose
this Mortgage in respect of said real property pursuant to and in accordance with Iowa law
Lender may sell any of the Premises, in whole or in one or more parcels, at public venue
(to be designated by Trustee), to the highest bidder, for cash Lender may in the Lender's
discretion set the time of any such sale at any commercially reasonable time Upon such
sale, Lender shall execute and deliver a deed of conveyance of the property sold to the
purchaser or purchasers thereof Lender shall receive the proceeds of said sale out of
which the Lender shall pay (i) the costs and expenses of a reasonable attorney's fee, (u) to
Lender, upon the usual vouchers therefor, any of the Indebtedness, including money
advanced for ground rents, Escrow Deposits, insurance, maintenance, abstracts, title
reports, judgments upon statutory lien claims and any other advances hereunder and
interest thereon at the Default Rate, as herein provided, (iii) the amount unpaid on the Debt,
including the interest accrued thereon at the Default Rate, (iv) the remaining obligations of
Borrower, and (v) the balance of such proceeds, if any, shall be paid as required by law
The purchaser at any foreclosure sale shall not be obligated to look to the application of the
proceeds thereof If the Lender should become the purchaser, it shall be entitled to credit
any portion of the unpaid balance of the Indebtedness against the amount of the purchase
price The purchaser at any sale or foreclosure sale hereunder may disaffirm any
easement granted or Lease made in violation of any provision of this Mortgage, and may
take immediate possession of the Premises free from, and despite the terms of, such grant
of easement or Lease Borrower hereby expressly waives any right which Borrower may
have to direct the order in which any of the Premises shall be sold in the event of any sale
or sales pursuant hereto In the event of a sale or other disposition of any of the Premises,
and the execution of a deed or other conveyance pursuant thereto, the recitals in such
deed or conveyance of facts, such as default, the giving of notice of default and notice of
sale, terms of sale, purchaser, payment of purchase money, and any other fact affecting the
regularity or validity of such sale or disposition, shall be conclusive proof of the truth of such
facts, and any such deed or conveyance shall be conclusive against all persons as to such
facts recited therein In case of any sale under this Mortgage by virtue of judicial
proceedings, or under the power of sale, the Premises may be sold in one parcel and as an
entirety or in such parcels, manner or order as Lender in its sole discretion may elect
Notwithstanding anything to the contrary contained herein, Lendershall (to the extent
permitted by applicable law) allocate or apply the proceeds of sale (including the amount of
any credit bid) in such manner and in such priority as Lender may elect in its sole and
absolute discretion
(3) Lender may cause any such sale or other disposition to be conducted immediately, or
Lender may delay any such sale or other disposition for such period of time as Lender
deems to be in its best interest Should Lender desire that more than one such sale or
other disposition be conducted, Lender may, at its option, cause the same to be conducted
simultaneously, or successively on the same day, or at such different days or times and in
such order as Lender may deem to be in its best interest
(f) Lender, at its option, may set aside any declared acceleration of maturity of the Note,
whereupon the terms and provisions therein stated and the covenants, terms and conditions in this
12
Mortgage shall revive and continue with the same force and effect as if such acceleration had not
occurred
(g) Upon the occurrence of an Event of Default hereunder, Lender in pursuance of the
foregoing remedies, or in addition thereto, shall be entitled to resort to its several securities for the
payment of the sums secured hereby in such order and manner as Lender may think fit without impairing
Lender's lien in, or rights to, any of such securities and without affecting the liability of any person for the
Indebtedness
(6.4) To the extent permitted by applicable law, Borrower knowingly, intentionally and
voluntarily agrees with Lender that the following waivers and releases are a material
inducement to Lender making the loan secured by this Mortgage and that Borrower
has had the opportunity to discuss the following waivers and releases with its legal
counsel:
(a) Consent to Jurisdiction, Venue, etc. Borrower hereby consents to the jurisdiction of the
courts of the State in and for the county in which the Premises is located with respect to
any action, suit or other legal proceeding commenced by Lender pursuant to any of the
Loan Documents, and hereby waives any right to transfer any such action to any other
court
(b) Waiver of Redemption. Borrower hereby wholly waives the period of redemption and any
right of redemption of any of the Premises after sale under this Mortgage, or sale upon
foreclosure of this Mortgage, as provided under any law of the State of Nevada now or
hereafter in effect If title to any of the Premises shall become vested in any person who
shall not waive (or who shall not be legally capable of waiving) the right of redemption in
the event of foreclosure of (or sale under) this Mortgage, then such transfer of title shall
constitute an Event of Default
(c) Waiver of Marshalling, etc. Borrower, for itself and its successors in title, hereby waives
all rights at law or in equity to have the Premises marshaled in the event of the foreclosure
of this Mortgage Borrower will not at any time insist upon, plead, or in any manner
whatsoever claim or take any benefit or advantage of any present or future laws pertaining
to the administration of the estates of decedents, exempting any of the Premises from
attachment, levy or sale under execution, or providing for any stay of execution, exemption
from civil process, or extension of time for payment, or providing for the valuation or
appraisal of any of the Premises prior to any sale or sales thereof which may be made
pursuant to any provision herein, or pursuant to the decree, judgment or order of any court
Borrower hereby covenants not to hinder, delay or impede the execution of any power
herein granted or delegated to Lender, but to suffer and permit the execution of every
power as though no such law or laws had been made or enacted
(d) Waiver of Notices. Borrower hereby waives all notices not herein elsewhere specifically
required, of Borrower's default or of Lender's exercise, or election to exercise, any option or
election under this Mortgage
(e) Waiver of Personal Service. Borrower hereby waives personal service of process in any
action or proceeding at any time commenced to enforce this Mortgage, and agrees that
such process shall be deemed properly and adequately served if sent to Borrower at the
address provided in or pursuant to Article IV hereof for the giving of notices to Borrower, by
certified or registered mail, return receipt requested, in the manner provided in Article IV
hereof, for the giving of notices to Borrower
(f)
Foreclosure Subject to Leases. In the event that Lender shall have the right to foreclose
this Mortgage, Borrower authorizes Lender at its option to foreclose subject to the rights of
any tenants, and the failure to make any such tenants parties to any such foreclosure
13
proceeding and to foreclose their rights will not be asserted by Borrower as a defense to
any proceeding instituted by Lender to collect any of the Indebtedness or any deficiency
after foreclosure
(6 5) Each right, power or remedy herein conferred upon the Lender is cumulative and in addition
to every other right, power or remedy, express or implied, now or hereafter arising at law or in equity and each
and every right, power and remedy herein set forth or otherwise so existing may be exercised from time to
time as often and in such order as may be deemed expedient by the Lender and shall not be deemed a
waiver of its right to exercise at any time thereafter any other right, power or remedy, subject, however, to
Borrower's right to receive notice and the opportunity to cure as may be provided in this Mortgage or in any
other Loan Document executed in connection herewith No delay or omission by the Lender in the exercise of
any right, power or remedy accruing hereunder or arising otherwise shall impair any such right, power or
remedy or the right of the Lender to resort thereto at a later date or be construed to be a waiver of any default
or event of default under this Mortgage or the Note Any agreement made by Borrower and Lender pursuant
to this Mortgage shall be superior to the rights of the holder of any intervening lien or encumbrance
(6 6) Upon an Event of Default, Lender (or the holder or owner of any debt secured by this
Mortgage) shall immediately have the right without further notice to Borrower to set off against the Note
and any other debts secured by this Mortgage all debts of Lender (or such holder or owner) to Borrower,
whether or not then due, including all depository account balances, cash and any other property of the
Borrower now or hereafter in the possession of the Lender and the right to refuse to allow withdrawals
from any account (collectively "Setoff ") or to exercise any recoupment, administrative freeze or stay or
similar rights As additional security for the payment of the Indebtedness, the Borrower hereby grants to
the Lender a security interest in, a lien on and an express contractual right to set off against including all
depository account balances, cash and any other property of the Borrower now or hereafter in the
possession of the Lender The Lender may, at any time upon the occurrence of an Event of Default
Setoff against the Indebtedness whether or not the Indebtedness (including future installments) are then
due or have been accelerated, all without any advance or contemporaneous notice or demand of any
kind to the Borrower, such notice and demand being expressly waived
ARTICLE VII - UNIFORM COMMERCIAL CODE
(71) Borrower and Lender agree that this Mortgage shall constitute a security agreement
within the meaning of the UCC with respect to all sums on deposit with the Lender with respect to
insurance proceeds or condemnation proceeds ( "Deposits ") and with respect to any personal property
and fixtures included in the definition herein of the word "Premises ", which property may not be deemed
to form a part of the real estate described in Exhibit "A" or may not constitute a "fixture" within the
meaning of the UCC, and with respect to any property or collateral described on Exhibit B attached
hereto and made a part hereof, and all replacements of such property, substitutions and additions thereto
and the proceeds thereof (all such property being sometimes hereinafter collectively referred to as the
"Collateral "), and that a security interest in and to the Collateral and the Deposits is hereby granted to
Lender and the Deposits and all of Borrower's right, title and interest therein are hereby assigned to
Lender, all to secure payment of the Indebtedness and to secure performance by Borrower of the terms,
covenants and provisions hereof Upon the occurrence of an Event of Default under this Mortgage,
Lender, pursuant to the appropriate provisions of the UCC, shall have the option of proceeding with
respect to the Collateral in accordance with its rights and remedies with respect to the real property, in
which event the default provisions of the UCC shall not apply The parties agree that, in the event Lender
shall elect to proceed with respect to the Collateral separately from the real property, ten (10) days' notice
of the sale of the Collateral shall be reasonable notice The reasonable expenses of retaking, holding,
preparing for sale, selling and the like incurred by Lender shall include, but not be limited to, reasonable
attorneys' fees and legal expenses incurred by Lender Borrower agrees that, without the written consent
of Lender, Borrower will not remove or permit to be removed from the Premises any of the Collateral
except that so long as the Borrower is not in default hereunder, Borrower shall be permitted to sell or
otherwise dispose of the Collateral, when obsolete, worn out, inadequate, unserviceable or unnecessary
for use in the operation of the Premises, upon replacing the same or substituting for the same other
Collateral at least equal in value to the initial value to that disposed of and in such a manner so that said
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Collateral shall be subject to the security interest created hereby, and so that the security interest of
Lender shall be first in priority, it being expressly understood and agreed that all replacements of the
Collateral and any additions to the Collateral shall be and become immediately subject to the security
interest of this Mortgage and covered hereby Borrower shall, from time to time, on request of Lender,
deliver to Lender an inventory of the Collateral in reasonable detail Borrower covenants and represents
that all Collateral, and all replacements thereof, substitutions therefor or additions thereto, unless Lender
otherwise consents, now are and will be free and clear of liens (other than the lien of taxes not yet due or
payable), encumbrances or security interests of others Borrower shall, upon demand execute and
deliver to Lender such financing statements and other documents in form satisfactory to Lender, and will
do all such acts and things as Lender may at anytime, or from time to time, reasonably request or as may
be necessary or appropriate to establish and maintain a first perfected security interest in the Deposits
and Collateral, subject to no liens (other than the lien of taxes not yet due or payable), encumbrances, or
security interests of others
This Mortgage also constitutes a financing statement for the purpose of the UCC and shall
constitute a "fixture filing" under such statutes and shall be filed in the real estate records of the County in
which the Land is located For such purpose the name and address of the debtor and the secured party
are as set forth below
Name and Address of Debtor
2103 Dubuque, LLC
4605 Dovetail Drive
Madison, Wisconsin 53704
Debtor's Entity Number (Iowa)
Address of Property 1590 Innovation Drive
Dubuque, Iowa
Name and Address of Secured CrossFirst Bank
Party 4707 W 135th St
Leawood, Kansas 66224
This financing statement covers the Collateral Some of the items or types of property comprising
the Collateral are or are to become fixtures on the real property described in this Mortgage Borrower is
the record owner of the real property described herein upon which the foregoing fixtures and other items
and types of property are located
ARTICLE VIII - MISCELLANEOUS
(8 1) Borrower further acknowledges and agrees with Lender that Lender, before sale hereunder,
and the purchaser at sale hereunder, for further security, shall be subrogated to the lien, though released of
record, of any prior encumbrance or vendor's lien on said Premises paid out of the proceeds of this loan
(8 2) Such expenses and fees as may be incurred in the protection of said Premises and the
maintenance and execution of this Mortgate including the fees of any attorney employed by the Lender for the
collection of any and all of the Indebtedness Secured Hereby, or foreclosure by sheriff's sale or court
proceedings or in any other litigation or proceedings affecting said Premises, including any litigation to
establish or preserve the lien of this Mortgage or its priority, shall be paid by the Borrower
(8 3) No waiver by Lender of any term, obligation or covenant of Borrower herein shall at any time
thereafter be held to be a waiver of the other terms hereof, or of the obligation to repay Note secured hereby
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(8 4) After an Event of Default in any of the covenants or agreements contained herein, or
contained in said Note, then Lender may perform the same, and all expenditures made by Lender in so doing
shall draw interest at the rate set forth in the Note secured hereby, and shall be repayable immediately and
without demand, and together with interest and costs accruing thereon, shall be secured by this Mortgage
(8 5) Borrower further covenants and agrees that all data, financial or otherwise, heretofore or
hereafter furnished to Lender, is complete, true and correct
(8 6) Borrower further agrees and covenants that if a trustee's sale under either any prior or junior
mortgage or any junior lien of any kind on the within described Premises, or any part thereof, should be
instituted, or in the event of any levy or sale upon execution or other proceedings of any nature whereby the
owner of said Premises shall be deprived of owner's title or right of possession to said Premises or any part
thereof, then in either event, said Lender may, at its option, immediately declare the entire Indebtedness and
Note secured hereby due and payable and start such proceedings or take such action as Lender shall deem
necessary to protect its interest in the Premises
(8 7) In the event Borrower shall sell, convey, transfer, or encumber the described Premises at
any time subsequent to the date hereof, except such sale, conveyance, transfer or encumbrance made with
written consent of the Lender, or if full possessory rights therein shall be transferred, the entire Indebtedness
Secured Hereby, together with any advances secured hereby, shall at the option of Lender, become due and
payable The above provision shall apply to each and every sale, conveyance, transfer or encumbrance,
whether voluntary, involuntary or by operation of law and regardless of whether Lender has consented or
waived its rights, by action or non - action, in connection with any previous sale, transfer, conveyance or
encumbrance, whether one or more In the event that Borrower or any subsequent owner or transferee of the
Premises or of full possessory rights therein shall be a limited liability company or partnership, the sale,
conveyance, transfer or encumbrance of a membership or partnership interest without Lender's prior written
consent shall be deemed the equivalent of a sale, conveyance, transfer or encumbrance of the Premises,
likewise in the event that Borrower or any subsequent owner or transferee of the Premises or of full
possessory rights therein shall be a corporation, the sale, conveyance, transfer or encumbrance of a
controlling interest in such corporation shall be deemed to be the equivalent of a sale, conveyance, transfer or
encumbrance of the Premises The foregoing prohibition on transfer also applies to the transfer, pledge,
assignment or conveyance to a third party of any member's, owner's, shareholder's, partner's or entity's rights
to profits, losses, or distributions Notwithstanding the foregoing any such sale or transfer by Carl E
Ruedebusch to any trust, limited liability company, family member, or for estate planning purposes is
permitted as long as he remains the Manager of the Borrower with all voting control Lenders consent
hereunder shall not be unreasonably withheld
(8 8) In the event the ownership of the Premises described herein or any part thereof becomes
vested in a person other than Borrower, the Lender may, without notice to Borrower, deal with such successor
or successors in interest with reference to the Mortgage and the Indebtedness Secured Hereby, and in the
same manner as with Borrower, without in any way vitiating or discharging Borrowers liability hereunder or
upon the Indebtedness Secured Hereby Except as otherwise provided, no sale of the Premises described
herein and no forbearance on the part of said Lender and no extension, whether oral or in writing, of the time
for the payment of the Indebtedness Secured Hereby, given by Lender, shall operate to release, discharge,
modify, change or affect the original liability of the Borrower, either in whole or in part In the event of a sale of
the Premises, any such funds then on deposit with Lender automatically and without the necessity of further
notice or written assignment shall be transferred to and thereafter held for the account of the new owner, to be
applied in accordance with Articles I, II and VI
(8 9) No waiver by Lender of any default or other indulgence shall be effective unless expressed in
writing executed by Lender
(8 10) Neither the exercise by Lender of any right or remedy herein given or reserved, nor delay or
failure by Lender to exercise any such right or remedy, in case of one or more defaults, shall constitute a
waiver thereof, or stop Lender thereafter from exercising the same or any other right or remedy at any time in
respect of the same or any subsequent default or defaults All such rights and remedies shall be cumulative
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and none shall be exclusive of the other or others or of any right or remedy now or hereafter given or allowed
by law
(811) Intentionally Deleted
(812) When all Indebtedness Secured Hereby has been paid, this Mortgage and all assignments
herein contained shall be void and this Mortgage shall be released by the Lender at the cost and expense of
the Borrower, otherwise to remain in full force and effect
(8 13) This Mortgage and each and every covenant, agreement and other provision hereof shall be
binding upon the Borrower and its heirs, administrators, representatives, successors and assigns including
without limitation each and every from time to time record owner of the Premises or any other person having
an interest therein and shall inure to the benefit of the Lender and its successors and assigns Wherever
herein the Lender is referred to, such reference shall be deemed to include the holder from time to time of the
Note whether so expressed or not and each such holder of the Note shall have and enjoy all of the rights,
privileges, powers, options and benefits afforded hereby and hereafter and may enforce all and every of the
terms and provisions hereof, as fully and to the same extent and with the same effect as if each such from
time to time holder is herein by name specifically granted such rights, privileges, options, benefits and is
herein by name designated by the Lender
(8 14) The unenforceability or invalidity of any provisions hereof shall not render any other provision
or provisions herein contained unenforceable or invalid
(8 15) The rents, issues and profits of the Premises are hereby pledged as additional security for
the Indebtedness Secured Hereby and Lender shall have the right, at any time after an Event of Default in the
payment of the Indebtedness Secured Hereby or in the performance of any of the terms, covenants and
conditions of this Mortgage, without further notice and without regard to the adequacy of security for the
Indebtedness Secured Hereby and with or without the appointment of a receiver, to enter upon and take
possession of the Premises and collect such rents, issues and profits, and apply the same less the cost of
operation, maintenance and repair and collection, management and attorney fees, in reduction of any
Indebtedness Secured Hereby in such order or proportion as Lender may determine
(8 16) IT IS FURTHER MUTUALLY AGREED by and between the parties hereto that all notice to
any party of the exercise of any and all options reserved by Lender pursuant to this Mortgage is hereby
expressly waived
(8 17) To the extent allowed by law, Borrower and any successor, transferee or assignee of the
ownership of the Premises hereby waives all rights of Redemption, Homestead, Moratorium or any rights
pursuant to any Stay or Extension rights granted or permitted under or pursuant to the laws of the State of
Iowa
(818) Borrower represents that the Indebtedness is a business loan, transacted solely for the
purpose of carrying on or acquiring the business of Borrower
(8 19) The word "Lender" or "holder" as used herein shall be construed as descriptive of Lender
and of any subsequent holder or holders hereof, and all of the covenants and agreements of the Borrower
herein contained shall be binding upon its successors and assigns and if the context so requires, "Lender"
and the pronouns referring to them shall be construed as plural, neuter, masculine or feminine
(8 20) This Mortgage and all the provisions hereof are to be governed, construed and enforced by
and according to the laws and statutes of the State of Iowa
(821) Whenever the singular or plural number, or masculine, feminine or neuter gender is used
herein, it shall equally include the other, and every mention of the Borrower or Lender shall include the heirs,
executors, legal representatives, administrators, successors and assigns of the party so designated
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(8 22) All the terms, covenants and conditions hereby shall bind Borrower and its successors and
assigns, jointly and severally, and shall inure to the benefit of and be available to the successors and assigns
of Lender
(8 23) Borrower acknowledges that Lender may and shall have the right to sell participation
interests in this loan Notwithstanding any such participation, Borrower need look only to Lender for any
approvals required
(8 24) BORROWER AND LENDER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER OR ON ANY
MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS MORTGAGE, THE NOTE, THE
GUARANTY, THE INDEBTEDNESS, THE RELATIONSHIP BETWEEN BORROWER AND LENDER OR
THE PREMISES.
(8 25) If the Premises shall be damaged or destroyed, in whole or in part, by fire or other
casualty, Borrower shall give Lender prompt written notice of the occurrence All insurance proceeds on
the Premises, and all causes of action, claims, compensation, awards and recoveries for any damage of
all or any part of the Premises or for any damage or injury to it for any loss or diminution in value of the
Premises, are hereby assigned to and shall be paid to Lender Lender shall apply any sums received by it
under this Section first to the payment of all of its costs and expenses (including, but not limited to, legal
fees and disbursements) incurred in obtaining those sums, and then, as follows
(a) In the event that (x) the proceeds of insurance does not exceed fifty (50 %)
percent of the then outstanding secured indebtedness and (y) not more than fifty (50 %) percent of the
Improvements located on the Premises has been destroyed, then if
(I) no default is then continuing hereunder or under any of the other Loan
Documents and no event has occurred which, with the giving of notice or the passage of time or both,
would constitute a default hereunder or under any of the other Loan Documents, and
(u) the Premises can, in Lender's judgment, with diligent restoration or
repair, be returned to a condition at least equal to the condition thereof that existed prior to the casualty or
partial taking causing the loss or damage within the earlier to occur of (x) six (6) months after the receipt
of insurance proceeds or condemnation awards by either Borrower or Lender, and (y) six (6) months prior
to the stated maturity date of the Note, and
(iii) all necessary governmental approvals can be obtained to allow the
rebuilding and reoccupancy of the Premises, and
(iv) there are sufficient sums available (through insurance proceeds or
condemnation awards and contributions by Borrower, the full amount of which shall at Lender's option
have been deposited with Lender) for such restoration or repair (including, without limitation, for any costs
and expenses of Lender to be incurred in administering said restoration or repair) and for payment of
principal and interest to become due and payable under the Note during such restoration or repair, and
(v) the economic feasibility of the Improvements after such restoration or
repair will be such that income from their operation is reasonably anticipated to be sufficient to pay
operating expenses of the Premises and debt service on the indebtedness secured hereby in full with the
same coverage ratio considered by Lender in its determination to make the loan secured hereby, and
(vi) Borrower shall have delivered to Lender, at Borrower's sole cost and
expense, an appraisal report in form and substance satisfactory to Lender appraising the value of the
Premises as so restored or repaired to be not less than the appraised value of the Premises considered
by Lender in its determination to make the loan secured hereby, and
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(vii) Borrower so elects by written notice delivered to Lender within five (5)
days after settlement of the aforesaid insurance or condemnation claim, then, Lender shall, solely for the
purposes of such restoration or repair, advance so much of the remainder of such sums as may be
required for such restoration or repair, and any funds deposited by Borrower therefor, to Borrower in the
manner and upon such terms and conditions as would be required by a prudent interim construction
lender, including, but not limited to, the prior approval by Lender of plans and specifications, contractors
and form of construction contracts and the furnishing to Lender of permits, bonds, lien waivers, invoices,
receipts and affidavits from contractors and subcontractors in form and substance satisfactory to Lender
in its discretion, with any remainder being applied by Lender for payment of the indebtedness secured
hereby in whatever order Lender directs in its absolute discretion
(b) In all other cases, Lender shall elect, in Lender's absolute discretion and without
regard to the adequacy of Lender's security, sums paid to Lender by an insurer may be retained and
applied by Lender, after deduction of Lender's reasonable costs and expenses of collection, toward
payment of the secured indebtedness in such priority and proportions as Lender in its discretion shall
deem proper (such application to be without payment of the prepayment penalty (as described in the
Note), except that if a default has occurred, or an event with notice and /or the passage of time, or both,
would constitute a default, then such application shall be subject to payment of the prepayment penalty
computed in accordance with the Note)
(8 26) (a) The parties agree that Borrower has substantial duties of performance apart from its
mere financial obligations under this Mortgage, the Note and the other Loan Documents, and that parties
other than the Borrower could not adequately and fully perform the covenants to be performed by Borrower in
this Mortgage The parties also agree that this Mortgage is an agreement for the making of loans and for the
extending of debt financing or financial accommodations No assumption of or assignment of this Mortgage
shall be allowed in bankruptcy Should an assumption of or assignment of this Mortgage be permitted in
violation of this covenant, the parties agree that Lender will not have adequate assurance of performance
unless and until Lender is allowed access to adequate financial and other information to satisfy itself that the
trustee or proposed assignee is fully able to assume the financial and personal covenants of Borrower under
this agreement, in full accordance its terms, and that sufficient collateral is pledged and sufficient bonds or
letters of credit are posted by the trustee or proposed assignee to guarantee performance of such obligations
The parties further agree that the definition of the term "adequate assurance" as set forth in section 365(b)(3)
of the Bankruptcy Code of 1978 shall be applicable directly or by analogy to any determination of adequate
assurance in connection with this Mortgage
(b) In the event Borrower becomes a debtor in bankruptcy, the debtor in possession or
trustee shall not be permitted to use, sell or lease any of the Premises, whether or not in the ordinary course
of business, without providing adequate protection to Lender The parties agree that the language in Section
361 of the Bankruptcy Code of 1978 shall be the definition of the term "adequate protection" in connection
with any use, sale or lease of the Premises The cash payment referred to in that section shall mean the full
payments required under the Note and all other indebtedness which this Mortgage secures, plus payment
representing the full replacement value of the Premises used, sold or leased, the replacement liens referred to
in that section shall mean liens on property the actual market value of which is equal to or greater than the
replacement cost of the Premises used, sold or leased, and the term "indubitable equivalent" as used in that
section shall mean protection afforded by either grants of administrative expense priority, grants to Lender of
ownership interests in a continuing business surviving the bankruptcy, or grants to Lender of protected
securities issued by a continuing business surviving the bankruptcy, which completely compensate Lender for
the loss of the present value (computed at the then market rate of interest for commercial loans) of its interest
in the Premises For purposes of computation, the value of the Premises shall be the actual market cost of
replacement real estate in approximately the same location and condition as the Premises, and with similar
improvements
(c) The parties agree that because of the extreme financial importance to Lender of this
transaction, Lender will be irreparably harmed by any stay of its collection efforts or the exercise of its
remedies under this Mortgage
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(d) The parties agree that in the event a plan of reorganization is proposed under Chapter
11 of the Bankruptcy Code of 1978, the plan will be fair and equitable to Lender, as a secured creditor, only if
Lender realizes under the plan the indubitable equivalence of its interests in the Premises The term
"indubitable equivalent" in such context shall have the same meaning as previously set forth herein
(8 27) Borrower will protect, indemnify, save harmless and defend Trustee and Lender from and
against any and all liabilities, obligations, claims, damages, penalties, causes of action, costs and
expenses (including, without limitation, reasonable attorneys' fees and expenses) imposed upon or
incurred by or asserted against Lender and /or Trustee by reason of (a) ownership of an interest in the
Premises, (b) any accident or injury to or death of Persons or loss of or damage to or loss of the use of
property occurring on or about the Premises or any part thereof or the adjoining sidewalks, curbs, vaults
and vault spaces, if any, streets, alleys or ways, (c) any use, non -use or condition of the Premises or any
part thereof or the adjoining sidewalks, curbs, vaults and vault spaces, if any, streets, alleys or ways, (d)
any failure on the part of Borrower to perform or comply with any of the terms of this Mortgage, (e)
performance of any labor or services or the furnishing of any materials or other property in respect of the
Premises or any part thereof made or suffered to be made by or on behalf of Borrower, (f) any negligence
or tortious act on the part of Borrower or any of its respective agents, contractors, lessees, licensees or
invitees, or (g) any work in connection with any alterations, changes, new construction or demolition of
the Premises Borrower will pay and save Trustee or Lender harmless against any and all liability with
respect to any intangible personal property tax or similar imposition of the State in which the Premises is
located or any subdivision or authority thereof now or hereafter in effect, to the extent that the same may
be payable by Lender in respect of this Mortgage or the indebtedness secured hereby All amounts
payable to Lender or Trustee under this paragraph shall be payable on demand and shall be deemed
Indebtedness secured by this Mortgage and any such amounts which are not paid within ten (10) days
after demand therefor shall bear interest at the Default Rate from the date of such demand In case any
action, suit or proceeding is brought against Trustee or Lender by reason of any such occurrence,
Borrower, upon request of Trustee and /or Lender, as the case may be, will, at Borrower's expense, resist
and defend such action, suit or proceeding or cause the same to be resisted or defended by counsel
designated by Borrower and approved by Trustee and Lender
(8 28) Any property management agreement for the Premises entered into hereafter with a
property manager shall contain a provision whereby the property manager agrees that any and all
mechanics' or other lien rights that the property manager or anyone claiming by, through or under the
property manager may have in any of the Premises shall be subject and subordinate to the lien of this
Mortgage and shall provide that Lender may terminate such agreement at any time after the occurrence
of an Event of Default hereunder The failure of any such property management agreement to contain
such provisions, however, shall not affect the superiority of this Mortgage The Mortgage shall be
superior in all respects to any and all mechanics' or other lien rights that the property manager or anyone
claiming by, through or under the property manager may have in any of the Premises, Lender may
terminate any such property management agreement at any time after the occurrence of an Event of
Default hereunder Any such property management agreement or a short form thereof, at Lender's
request, shall be recorded with the Recorder of Deeds of the county where the Premises are located In
addition, if any property management agreement in existence as of the date hereof does not contain a
subordination provision, Borrower shall cause the property manager under such agreement to enter into
a subordination of the management agreement with Lender, in standard recordable form, whereby such
property manager subordinates present and future lien rights and those of any party claiming by, through
or under such property manager to the lien of this Mortgage
written
IN WITNESS WHEREOF, Borrower has executed these presents as of the day and year first herein
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2013 Dubuque, LLC
By
Carl E Ruedebusch, Manager
STATE OF
COUNTY OF
) ss
Before me, a Notary Public, in and for said County and State, personally appeared the above -
named 2013 Dubuque, LLC by Carl E Ruedebusch, its Manager, who acknowledged that he did sign
the foregoing instrument on behalf of the company, and that the same is his free act and deed as such
member and as an individual
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the county
and state aforesaid on the day and year first above written
My commission expires
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Notary Public