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HomeMy WebLinkAbout2012 Lawsuits • CIVIL PROCESS WORKSHEET JOHNSON COUNTY SHERIFFS OFFICE•PO BOX 2540, 511 S CAPITOL ST, IOWA CITY, IA 52244-2540•(319) 356-6030 PLAINTIFF: DAVID A AND KAREN K BACULIS Docket No 12-01359 State IOWA vs. Court No EQCV074324 County JOHNSON DEFENDANT: CITY OF IOWA CITY Ref No Received 03/12/2012 Requestor(s) Phone ALSO INCLUDED CONDEMNATION APPLICATION ORDER OLSON,DOUGLAS V (319) 351-8993 SELECTION COMMISSIONERS, NOTICE OF PUBLIC 1100 5 ST STE 107, CORALVILLE, IA 52241 HEARING,AMMENDMENT TO NOTICE OF PUBLIC MEETING AND ORDER FOR HEARING ON TEMPORARY WRIT OF INJUNCTION Name CITY OF IOWA CITY Zone Party Type DEFENDANT Phone (319) 356-50301 Fax Address 410 E WASHINGTON ST IOWA CITY 34588 52240- E-Mail Employer Comments SERVE MATTHEW HAYEK MAYOR OR MARIAN KARR CITY CLERK Documents Document Serve by Date OE PSR Description/Special Instructions ORIGINAL NOTICE AND E ❑ PETITION Service Information Date 1 11. Time f L\ Type ,‘i-C"C, (:4›�� Party O f; IC cs>i r Relationship C.-j-l-V= ai 'C Race r Sex F DOB Location ‘-` 1 4 4:1,19104/04 Sf Miles t Fee Officer "), Attempts Log Date Time Server Notes Date Time Server Notes Notes: O Ce- lqj7 --. _ ®. )lalte te• r, r w Printed:Monday,March 12,2012 Johnson County Sheriffs Office Page 1 of 1 t• • THE IOWA STATE BAR ASSOCIATION FOR THE LEGAL EFFECT OF THE USE OF Official Form No.301 Douglas V. Olson THIS FORM,CONSULT YOUR LAWYER dl -, e0c 3TArt� THE IOWA DISTRICT COURT �„ SJOHNSON COUNTY David A. Baculis, Sr.,and Karen K. Baculis ❑ Plaintiff(s), LAW EQUITY Ek—Q.3 No. � �,v7t � +-y 1331 DATE PETITION FILED:_ VS. City of Iowa City, Iowa ORIGINAL NOTICE Defendant(s). TO THE ABOVE-NAMED DEFENDANT(S): You are notified that a petition has been filed in the office of the clerk of this court naming you as the defendant(s) in this action. A copy of the petition (and any documents filed with it) is attached to this notice. - hJ The names) and address(es)of the attorney(s)-for the plaintiff(s)(is) (-are) Douglas V.Olson • `-'¢ __..ems NJ The attorney's(el)phone number(e) (is) (ere) 319-351-8993 - "'"d ; facsimile number(s) 319-351-0860 You must serve a motion or answer within 20 days after service of this original notice upon you, and within a reasonable time thereafter, file your motion or answer with the Clerk of Court for Johnson County, at the county courthouse in Iowa City Iowa. If you do not,judgment by default may be rendered against you for the relief demanded in the petition. If you require the assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district ADA coordinator at(319)398-3920 ,( ' VV • (If you are hearing impaired, call Relay Iowa TTY at 1-801-735-29 .) ...'...' )L. .'' ”' • I - ./ 16 *4 , (SEAL) "�`�" CLER 10F COURT Johns. County Courthouse Iowa City , Iowa 52240 IMPORTANT:YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS ®The Iowa State Bar Association 2003 301 ORIGINAL NOTICE FOR PERSONAL SERVICE IOWADOCS® Revised January,1999 A ' '11 IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY, :4•`pi kµ1 DAVID A. BACULIS, SR., AND ) 3 r? KAREN K. BACULIS, ) Plaintiffs, ) &. I 'V(D73 LEquity No. 7 7 vs. ) ` r CITY OF IOWA CITY, IOWA, ) vi a7110 0-11 Defendant. ) o© .cam PETITION COME NOW the Plaintiffs, David A. Baculis, Sr., and Karen K. Baculis, by and through their undersigned attorney and for cause of action against the Defendant states as follows: 1. That the Defendant has initiated an Application for Condemnation in the Sheriff's Office of Johnson County, Iowa, a copy of which Application sans exhibits is attached hereto, marked Exhibit"A", and by this reference made a part hereof. 2. That the Plaintiffs herein are the property owners of the property subject of the above referred to Application for Condemnation. 3. That the Notice of Public Meeting of Compensation Commission to assess damages for taking of property set said meeting for January 11, 2012, at 9:00 a.m., a copy of which Notice of Public Meeting of Compensation Commission is attached hereto, marked Exhibit"B", and by this reference made a part hereof. 4. That the Plaintiffs were ready,willing, and able to attend the Public Meeting of Compensation Commission originally scheduled for January 11, 2012, at 9:00 a.m. 1 5. That due to funding approvals taking longer than anticipated the Defendant cancelled the Public Meeting of Compensation Commission scheduled for January 11, 2012, at 9:00 a.m., as evidenced by the e-mail received by the undersigned attorney from the Defendant dated January 5, 2012, a copy of which is attached hereto, marked Exhibit"C", and by this reference made a part hereof. 6. That on or about February 15, 2012,the Defendant rescheduled the Public Meeting of Compensation Commission for March 30, 2012, at 9:00 a.m., without conferring with the undersigned attorney or the Plaintiffs, a copy of which Amendment to Notice of Public Meeting of Compensation Commission is attached hereto,marked Exhibit"D", and by this reference made a part hereof. 7. That the above-named Plaintiff, David A. Baculis, Sr., is engaged in business in the State of Texas and annually returns to the State of Texas in the early part of the year to attend to his business including repairs and maintenance of rental properties. The Defendant was aware of this fact and without consultation with the Plaintiffs or the undersigned attorney, still reset hearing in this matter for March 30, 2012. 8. That the Plaintiff, David S. Baculis, Sr., is in the State of Texas attending to his business and anticipates returning to the State of Iowa by April 15, 2012, and as such will be unavailable to attend and participate in the Public Meeting of Compensation Commission now scheduled for March 30, 2012. 9. That the Plaintiffs have not previously requested a continuance of Public Meeting of Compensation Commission although the City of Iowa City has previously cancelled the meeting scheduled for January 11, 2012, unilaterally. 10. That it is essential to the rights of the Plaintiffs that David A. Baculis, Sr., be present at the Public Meeting of Compensation Commission in order to 1d 2 n • receive evidence as presented by the Defendant and present his evidence and testimony as.appropriate. 11. That the Sheriff of Johnson County has been requested by the Plaintiffs for a continuance of the Public Meeting of Compensation Commission to a date subsequent to April 15, 2012, and have been advised by the Office of the Johnson County Sheriff that in its opinion the Johnson County Sheriff has no authority to continue the meeting. 12. That the Plaintiffs will be greatly and irreparably injured unless the Defendant is enjoined from scheduling the Public Meeting of Compensation Commission before April 15, 2012. 13. That the Plaintiff, Karen K. Baculis, makes this Petition her Affidavit so as to comply with the applicable Rules of Civil Procedure. 14. That no Petition for the same relief or a part thereof has been previously been presented and refused by any Court or justice. 15. That the Plaintiffs have no other remedy available at law other than a Writ of Temporary Injunction from the Court to restrain the Defendant from scheduling the Public Meeting of Compensation Commission prior to April 15, 2012. 16. That the undersigned attorney certifies pursuant to Iowa Rule of Civil Procedure 1.1507 that by telephone conversation with City of Iowa Assistant Attorney Eric Goers, said Defendant was notified of Plaintiffs intention to seek a Writ of Temporary Injunction. WHEREFORE, THE PLAINTIFFS PRAY for a Writ of Temporary Injunction enjoining the Defendant from scheduling the Public Meeting of Compensation Commission in the pending Application for Condemnation in the Sheriff's Office of, - 4�"'. _ Johnson County, Iowa, until a date subsequent to April 15, 2012. 7-1 N FURTHER, PLAINTIFFS PRAY for such other and further relief as the Court deems just and equitable. 3 z<2 y n Douglas V. Olson ISA#AT0006002] P.O. ox 5312 1100 Fifth Street, Suite 107 Coralville, Iowa 52241-0312 Telephone: 319-351-8993 Fax No: 319-351-0860 ATTORNEY FOR PLAINTIFFS STATE OF IOWA ) )SS. JOHNSON COUNTY ) I, Karen K. Baculis, being first duly sworn on oath, depose and state that I am one of the Plaintiffs named in the above entitled action; that I have read the foregoing Petition seeking a Writ of Temporary Injunction, know the contents thereof, and state that the statements and allegations contained therein are true as I verily believe. I further state that I make this my Affidavit in support of an injunction under Iowa Rule of Civil Procedure 1.1502. Karen K. Baculis Subscribed and sworn to before me by the aforesaid Karen K. Baculis this /2— day of , 2012. - � ,r� DOUGLAS V.OLSON �jf i Commission Number 100917 r• �` 2 My`om fission Expires No Public i d for said State and County r _ , l fl 4 0 IN THE SHERIFF'S OFFICE OF JOHNSON COUNTY, IOWA IN THE MATTER OF THE CONDEMNATION OF ) =�"- :. CERTAIN RIGHTS IN LAND FOR ) USE IN THE WEST SIDE LEVEE ) f--+n PROJECT ) =�►'. ) David A. Baculis, Sr., and Karen K. ) - 7,Baculis, Property Owners ) ) by the ) APPLICATION FOR ) CONDEMNATION ) CITY OF IOWA CITY, IOWA, ) ) Applicant. ) TO: PATRICK R. GRADY, CHIEF JUDGE, SIXTH JUDICIAL DISTRICT YOU ARE HEREBY NOTIFIED that the Applicant City of Iowa City, Iowa, a municipal corporation, desires to take, acquire and condemn a fee simple interest, permanent easement interest and temporary easement interests in the properties hereafter described, together with any and all leasehold interests, easement interests and other legal or equitable interests therein, and together with all structures and appurtenances located upon the properties sought to be condemned. The City of Iowa City desires the rights specified in the properties sought to be condemned for use for the WEST SIDE LEVEE PROJECT. 1. PROPERTY TO BE ACQUIRED; PUBLIC USE OR PURPOSE FOR THE TAKING. A. FEE SIMPLE INTEREST. The property in which the City seeks to acquire a fee simple interest for the WEST SIDE LEVEE PROJECT is shown and legally described on the attached acquisition plat. Said Acquisition Plat is marked Exhibit "A" and by this reference made a part hereof. The fee simple interest in Exhibit"A" will be used by the City of Iowa City 1 ,6i4e<Dlr' ` 4 Ir for the public purpose of constructing, repairing, maintaining, and using certain street, storm sewer, sanitary sewer and/or water main, and related public improvements to be constructed in conjunction with the WEST SIDE LEVEE PROJECT. The parcel depicted in Exhibit"A" is legally described as a tract of land located in Lot 2 of Paden's Resubdivision of Lots 1 & 4, Charles Subdivision. PROPERTY ADDRESS: 2128 South Riverside Drive, Iowa City, IA B. PERMANENT EASEMENT INTEREST. The property in which the City seeks to acquire a permanent easement interest for the WEST SIDE LEVEE PROJECT is shown and legally described on the attached permanent easement plat. Said permanent easement plat is marked Exhibit "B" and by this reference made a part hereof. The said permanent easement interest in Exhibit"B" will be used by the City of Iowa City for the public purpose of excavating for and installing, constructing, operating, maintaining, using and reconstructing a storm sewer for the conveyance of storm water, and all necessary appliances and fittings for use in connection with said public improvement, together with adequate protection thereof and also a right-of-way with right of ingress and egress thereto, over, through and across the permanent easement area and public improvements to be constructed in conjunction with the WEST SIDE LEVEE PROJECT. The parcel depicted in Exhibit"B" is legally described as a tract of land located in Lot 2, Paden's Resubdivision of Lots 1 & 4, Charles Subdivision. PROPERTY ADDRESS: 2128 South Riverside Drive, Iowa City, Iowa 1. In connection with this condemnation of the permanent storm sewer easement, it is specifically provided as follows: a. This permanent storm sewer easement is being condemned for the purpose of excavating for and installing, constructing, operating, maintaining, using and reconstructing a storm sewer in connection with CITY's WEST SIDE LEVEE PROJECT and also a right-of-way-with right of ingress and egress thereto over, through and across the permanent easement ares N 2 • b. CITY shall have the following rights in connection with the above uses: i. The right of grading the Easement Area for the full width thereof,and the right to extend the cuts and fills for such grading into and on said Easement Area. ii. The right, from time to time, to trim and cut down and clear away all trees and brush on the Easement Area which now or hereafter, in the opinion of CITY, may be a hazard to said Easement Area, or which may interfere in any manner with CITY's exercise of its rights herein. iii. The right to enter onto land beyond the Easement Area and conduct emergency repair which may extend minimally beyond the Easement Area, without obtaining a separate temporary easement. CITY's right to do such work shall be effective only upon CITY's prior notice to OWNERS, and with minimal disruption of area. In the event of such emergency repair, CITY agrees to restore said area substantially to its prior condition, as set forth in Paragraphs c and d below. c. CITY shall promptly backfill any trench made by it, and repair any damages caused by CITY within the Easement Area, including any damages by virtue of future excavation or use of the Easement Area, but excluding the replacement of trees, shrubs and brush on the Easement Areas. CITY shall indemnify OWNERS against loss or damage which occurs as a result of CITY's negligent acts or omissions in the exercise of its easement rights herein. Once the Easement Area has been completely restored as set forth above and except as expressly provided herein, CITY shall have no responsibility for maintaining the Easement Area. d. CITY shall remove and stockpile existing topsoil from areas to be excavated; and that following installation of the Project, all areas within the Easement Area which are disturbed shall have stockpiled topsoil respread and seeded within a reasonable time after construction is complete and the Easement Area restored substantially to its original condition with the exception of the replacement of trees, shrubs,and brush. C. TEMPORARY CONSTRUCTION EASEMENT INTERESTS. The properties in which the City seeks to acquire temporary construction easements for the WEST SIDE LEVEE PROJECT is shown and legally described on the attached temporary construction easement plats. Said temporary easement plats are marked Exhibits "C" and "D" and by this reference made a part hereof. The said temporary easement interests shown in Exhibits "C" and "D" tt!311 be used by the City of Iowa City for the public purpose of facilitating CITY's construction *The WEST SIDE LEVEE PROJECT. ter' ?' 'p7 3 The parcel depicted in Exhibits "C" and "D" are legally described as tracts of land located in Lot 2 Paden's Resubdivision of Lots 1 &4, Charles Subdivision. PROPERTY ADDRESS: 2128 South Riverside Drive, Iowa City, IA 1. In connection with this condemnation of temporary construction easements, it is specifically provided as follows: a. These temporary construction easements are being condemned for the purpose of facilitating CITY's construction of the WEST SIDE LEVEE PROJECT, which grant to CITY shall include necessary grading, excavation, piling of dirt, regrading, restoration, storage of materials and equipment, and ingress and egress of persons and equipment to the Temporary Easement Areas, as needed to complete the Project. b. The areas sought to be condemned for the temporary construction easements are reserved to the Condemnee until the date the area is actually required for construction of the Project. Said temporary easements shall terminate immediately upon completion of the particular portion of the project for which said property rights are sought, but in no event shall the temporary construction easements extend beyond two (2) years from the date CITY becomes entitled to possession of the temporary construction easement areas upon deposit with the sheriff of the amount assessed in favor of OWNER pursuant to Iowa Code Section 6B.25. c. With respect to the Temporary Construction Easements, CITY shall have the following rights and obligations: i. CITY shall have the right to make excavations within the Temporary Easement Areas, and to grade as CITY may find reasonably necessary for the construction. CITY covenants and agrees to protect such excavations during construction; to promptly fill said excavations following construction; and to hold OWNER harmless from third party liability during said construction. ii. CITY shall promptly backfill any trench made by it, and repair any damages caused by CITY within the Temporary Easement Areas, but excluding the replacement of trees, shrubs and brush on the Easement Areas. CITY shall indemnify OWNER against loss or damage which occurs as a result of CITY's negligent acts or omissions in the exercise of its easement rights herein. Once the Temporary Easement Areas have been restored to substantially their prior condition and except as expressly provided in this Temporary Easement Agreement, CITY shall have no further responsibility for maintaining the Temporary Easement Areas. iii. CITY shall have the right of ingress and egress to and from the Temporary Easement Areas by such route within the Temporary Easement Areas as shall occasion the least practical damage and inconvenience to OWNER. , - iv. CITY shall have the right to trim or remove all trees and bruslV ihich may interfere with the exercise of CITY's rights pursuant to this Temporary Easement Agreement. 4 d. Existing driveways, fences, underground drainage tile or other site features, with the exception of trees, shrubs and brush, which are removed or disturbed shall, to the extent reasonably possible, be replaced by CITY to conform with features or items removed during construction. CITY further agrees that all grassed areas disturbed by the construction shall be seeded within a reasonable time after construction is complete. e. CITY covenants and agrees to remove and stockpile existing topsoil from areas to be excavated, to be used in the event of any repair. Following installation of the Project, all areas within the Temporary Easement Areas which are disturbed will be graded to form a uniform slope, and topsoil shall be replaced and respread over disturbed areas, thereby restoring said areas substantially to their prior condition, with the exception of the replacement of trees, shrubs and brush. 2. NAMES OF RECORD OWNERS AND HOLDERS OF LIENS AND ENCRUMBRANCERS OF THE PROPERTY. The names and addresses of all record owners and holders of liens and encumbrancers with respect to Exhibits "A", "B", "C", and "D", as far as shown, are as follows: A. TITLEHOLDERS: David A. Baculis, Sr., and Karen K. Baculis 2128 South Riverside Drive Iowa City, IA 52246 B. LIENHOLDERS, ENCUMBRANCERS, LEASEHOLDERS, EASEMENT HOLDERS AND OTHERS: Johnson County, Iowa `'�; �. do Johnson County Auditor ;Ho- County aCounty Administration Building 913 South Dubuque Street Iowa City, IA 52240 — t' m0] r\) Johnson County, Iowa ' LD do Johnson County Treasurer County Administration Building 913 South Dubuque Street Iowa City, IA 52240 5 3. LANDS NECESSARY TO ACHIEVE THE PUBLIC PURPOSE AND LANDS PROPOSED TO BE ACQUIRED FOR THE PROJECT. The fee simple parcel in Exhibit "A", the permanent easement interest in Exhibit "B", and the temporary construction easement interests in Exhibits "C" and "D" are required by the City of Iowa City for the public purpose of constructing, repairing, maintaining, and using certain street, storm sewer, sanitary sewer and/or water main, and related public improvements to be constructed in conjunction with the WEST SIDE LEVEE PROJECT. The City further asserts that said interests constitute the necessary minimum amount of and interests in land to achieve the purpose herein identified, and that no portion of said parcels is being acquired as an uneconomic remnant. 4. GOOD FAITH EFFORTS MADE BY THE CITY TO NEGOTIATE THE PURCHASE OF THE PROPERTY. The City represents and warrants that it has undertaken the following activities in attempting to negotiate the purchase of the interests in Exhibits "A", "B", "C", and "D" from the property owner: a. On January 10, 2011, the Iowa City City Council considered commencement of the WEST SIDE LEVEE PROJECT and the proposed acquisition of properties for said project, and thereafter adopted Resolution No. 11-17, declaring the City's intent to proceed with and authorizing the acquisition of property rights for the project, including the property interests identified above, and authorizing and directing the City Manager or designee, in consultation with the City Attprney's office, to establish, on behalf of the City, an amount the City believes to be„just compensation for the property to be acquired, and to make an offer to purchase the property fot the established fair market value. 6 • b. The City subsequently hired two licensed appraisal firms for the WEST SIDE LEVEE PROJECT (Cook Appraisal Service of Iowa City, Iowa, and Commercial Appraisers of Iowa, Inc., of West Des Moines, Iowa) to appraise and determine the fair market value of the property interests identified above to be acquired from the owners identified above. c. On August 26, 2011, the Iowa City Attorney's Office mailed to the property owner an offer to purchase the above identified interests in Exhibits "A", "B", "C" and "D" for the WEST SIDE LEVEE PROJECT at the fair market value thereof, as set forth in the appraisal and as established by the City Council, together with copies of the appraisals. The offer was also accompanied by a cover letter offering to meet with the property owners. The City Attorney's Office and City's Project Engineer have had numerous conversations with the property owners. To date, the City has been unable to negotiate acquisition of the property interests described above from the owners thereof named above. NOW, THEREFORE, pursuant to a regularly adopted resolution by the City Council of the City of Iowa City, YOU ARE HEREBY REQUESTED to appoint a Compensation Commission to appraise the damages caused by this appropriation; said Commission to consist of six commissioners who shall be residents of Johnson County, Iowa. �� , ti� YOU ARE FURTHER REQUESTED to give written notice to the City of Iowa City, Iowa as soo s the commissioners have been appointed. / Dated `l 3 , 2011. CITY OF IOWA CITY, IOWA By:7,-----6 Eric R. Goers ATT0002835 Assistant City Attorney 410 E Washington Street Iowa City, IA 52240 319.356.5030 319-356-5008 Fax icattomey@iowa-city.org APPROVEDAM/LQ(468490- ' J4 if (Date) -0-drpr .0 , Chief Judge, Sixth Judicial District / In accord with Iowa Code Section 6B.3(7), I, the undersigned, certify under penalty of perjury and pursuant to the laws of the State of Iowa that this Original Application for Condemnation has been approved by the Chief Judge of the Sixth judicial District. L- v-r( at - •(-7aoa 5/y y..431. Eric R. Goers ATT0002835 UU Assistant City Attorney City Iowa City, Iowa Filed in my office at Iowa City, Iowa, on , 2011. Sheriff of Johnson County, Iowa ( j - - L ,= LI j, a-- '._Lti C..1 ' P — .�.: _ �: .r.-_ r--c cn N 8 • 4 • IN THE SHERIFF'S OFFICE OF JOHNSON COUNTY, IOWA IN THE MATTER OF ) THE CONDEMNATION OF ) CERTAIN RIGHTS IN LAND FOR ) -- USE IN THE WEST SIDE LEVEE ) -- PROJECT David A. Baculis, Sr., and Karen K. ) = fes Baculis, Property Owners ) ' •. 47- c, by the ) ORDER SELECTING AND ) APPOINTING COMPENSATION ) COMMISSIONERS AND CITY OF IOWA CITY, IOWA, ) ALTERNATIVE COMMISSIONERS ) BY THE CHIEF JUDGE OF THE ) SIXTH JUDICIAL DISTRICT OF ) IOWA Applicant. ) An Application for Condemnation having been filed with me by the City of Iowa City, Iowa for the selection and appointment, by lot, of six suitable persons as by law provided to act as a Compensation Commission to assess and appraise the damages sustained by reason of the condemnation of certain specified rights in certain land described by Applicant, in its Application filed in the above entitled matter, I hereby DESIGNATE, SELECT and APPOINT as the members of said Compensation Commission required in this mater the following persons: NAME ADDRESS QUALIFICATIONS 1. Ernest Galer, 1749 W. Benton St.,Iowa City, IA 52240 LICENSED REAL ESTATE BROKER/ 2. Barbara Kennedy, 413 N. Mt. Vernon Dr., Iowa City, IA SALESPERSON 52240 1. Jefri Palermo, 1017 Village Green Blvd., Iowa City, IA KNOWLEDGEABLE 52240 OF PROPERTY VALUES BY VIRTUE OF 2. J. George Swisher, 3868 Martin Lane NE, Iowa City, IA OCCUPATION 52240 1. Donna Farber, 11 Arbor Hill Circle, apt. 31, OWNERS OF CITY Iowa City, IA 52245 PROPERTY 2. Leonard Greenwood, 908 14th Avenue, Coralville, IA 52241 I further DESIGNATE, SELECT and APPOINT the above named JEFRI PALERMO to act as Chairperson of said Commission and BARBARA KENNEDY is appointed to act as Alternate Chairperson. Pursuant to Section 6B.5 of the Code, one of the above-named Compensation Commissioners shall be subject to challenge without cause by the Applicant City of Iowa City, Iowa, and one of the above named Compensation Commissioners shall be subject to challenge without cause by the party or parties representing the ownership interest of the property being condemned. I further DESIGNATE, SELECT and APPOINT the following persons to serve as alternate members of said Compensation Commission, to serve in the event that any of the said members having the same qualifications are unable to serve for any reason or in the event any such members are stricken from the panel as by law provided: NAME ADDRESS QUALIFICATIONS 1. Le Ann Tyson, 1408 Brookwood Dr., Iowa City, IA 52240 LICENSED REAL ESTATE BROKER/ 2. Bill Wittig, 2 Lyn-Den Dr. NE, Iowa City, IA 52240 SALESPERSON 3. W.A. (Wesley) Fotsch, 301 S. Dubuque St., Iowa City, IA 52240 4. Richard Brown, 2905 Saddle Club Rd. NE, Iowa City, IA 52240 1. Lily French, 2359 12th St., Coralville, IA 52241 KNOWLEDGEABLE OF PROPERTY VALUES BY VIRTUE OF 2. William Peters, 1437 Buresh Ave., Iowa City, IA 52245 OCCUPATION 3. Renee Hanrahan, 2230 Sandy Beach Rd. NE, Solon, IA 52333 4. Myron Smalley, 4418 Dane Rd. SW, Iowa City, IA 52240 1. Jerry Dzczech, 2807 Broken Woods Dr., Coralville, IA 52241 OWNERS OF CITY PROPERTY 2. Jerry Musser, 21 George Street, Iowa City, IA 52246 3. =Leslie Cullers, 1408 10th Street, Coralville, IA 52241 4.`Stuart Thomas;383 Sierra Trace, Coralville, IA 52241 • 2 IN THE SHERIFF'S OFFICE OF JOHNSON COUNTY, IOWA IN THE MATTER OF ) _ :;•1 THE CONDEMNATION OF ) `= N) CERTAIN RIGHTS IN LAND FOR ) -0 1 II USE IN THE WEST SIDE LEVEE ) _�� -' a PROJECT ) ry ) CD David A. Baculis, Sr., and Karen K. ) Baculis, Property Owners ) ) NOTICE OF PUBLIC MEETING by the ) OF COMPENSATION ) COMMISSION TO ASSESS ) DAMAGES FOR TAKING OF CITY OF IOWA CITY, IOWA, ) PROPERTY ) Applicant. ) ) TO: Titleholders: David A.Baculis, Sr. and Karen K. Baculis 2128 South Riverside Drive Iowa City, IA 52246 Lienholders, Encumbrancers,Leaseholders, Easement Holders and Others: Johnson County,Iowa Johnson County,Iowa do Johnson County Auditor do Johnson County Treasurer County Administration Building County Administration Building 913 South Dubuque Street 913 South Dubuque Street Iowa City, IA 52240 Iowa City, IA 52240 and all other persons, companies or corporations having any interest in or owning any of the following describe real estate: Fee simple interest described and depicted in Exhibit "A", legally described as a tract of land located in Lot 2 of Paden's Resubdivision of Lots 1 & 4, Charles Subdivision, with a property address of 2128 South Riverside Drive, Iowa City, Iowa. Permanent Storm Sewer Easement interest described and depicted in Exhibit"B", legally described as a tract of land located in Lot 2 of Paden's Resubdivision of Lots 1 & 4, Charles Subdivision, with a property address of 2128 South Riverside Drive,Iowa City,Iowa. 1 �� /t/.4g e i "./3 I HEREBY ORDER that upon being informed of a vacancy in the compensation commission, the Sheriff of Johnson County, Iowa, shall notify Alternate Commissioners in the order above provided having the same qualifications as the person or persons unable to serve or stricken from the panel, such notification to be given to Alternate Commissioners in the same manner as the original Compensation Commissioners were notified. The Alternate Commissioner first notified who is available to serve as a Compensation Commissioner shall then serve in the place of the Commissioner who was unable to serve or who was stricken from the panel. I further direct that the above named Alternate commissioners shall not be subject to challenge without cause. I FURTHER HEREBY ORDER that the Commissioners, and such Alternate Commissioners as are hereafter selected by the Sheriff due to the absence or removal of a Commissioner, shall appear at the time and place designated for the meeting of the compensation Commission in the Notice of Meeting of Compensation Commission to Assess Damages for the Taking of property, and that prior to said meeting, the above named Commissioners and Alternate Commissioners shall not communicate with the Applicant City of Iowa City or the owner or tenant of the property being condemned regarding the condemnation of proceedings. TO THE SHERIFF OF JOHNSON COUNTY, IOWA: Attached hereto please find a duplicate of the Application for Condemnation in the above matter. Dated _, 2011. de. /tel Chief Judge oft e Sixth Judicial District t, •wa Filed in my office at Iowa City, Iowa, this , 2011. Sheriff of Johnson County, Iowa •r' -C.T 6 L_ L1 Cssi C, 0 :7t.: 3 Temporary Construction Easement interests described and depicted in Exhibits "C" and "D", legally described as a tract of land located in Lot 2 of Paden's Resubdivision of Lots 1 & 4, Charles Subdivision, with a property address of 2128 South Riverside Drive, Iowa City,Iowa. PUBLIC NOTICE IS HEREBY GIVEN: 1. That the City of Iowa City desires the condemnation of interests in the above- described properties for the WEST SIDE LEVEE PROJECT, as follows: A. The City seeks to acquire the fee simple interest in the parcel of pr'c erty-shown' a and described on the acquisition plat attached hereto as Exhibit ``S".;n ade a part hereof by this reference for the public purpose of faciiitatton_CITY's construction of the WEST SIDE LEVEE PROJECT. = B. The City seeks to acquire a permanent storm sewer easement interest in the parcel of property shown and described on the acquisition plat attached hereto as Exhibit "B" and made a part hereof by this reference, for the public purpose of facilitating CITY's construction of the WEST SIDE LEVEE PROJECT. 1. In connection with this condemnation of the permanent storm sewer easement,it is specifically provided as follows: a. This permanent storm sewer easement is being condemned for the purpose of excavating for and installing, constructing, operating, maintaining, using and reconstructing a storm sewer in connection with CITY's WEST SIDE LEVEE PROJECT and also a right-of- way with right of ingress and egress thereto over,through and across the permanent easement area. b. CITY shall have the following rights in connection with the above uses: i. The right of grading the Easement Area for the full width thereof, and the right to extend the cuts and fills for such grading into and on said Easement Area. ii. The right, from time to time, to trim and cut down and clear away all trees and brush on the Easement Area which now or hereafter, in the opinion of CITY, may be a hazard to said Easement Area, or which may interfere in any manner with CITY's exercise of its rights herein. iii. The right to enter onto land beyond the Easement Area and conduct emergency repair which may extend minimally beyond the Easement Area, without obtaining a separate temporary easement. CITY's right to do such work shall be effective only upon CITY's prior notice to OWNERS, and 2 • with minimal disruption of area. In the event of such emergency repair, CITY agrees to restore said area substan- s ,. tially to its prior condition, as set forth in Paragraphs c and d '/ `Z: below. N. • c. CITY shall promptly backfill any trench made by it, and repair any - damages caused by CITY within the Easement Area, including any `'� V( damages by virtue of future excavation or use of the Easement Area, C':\Q' but excluding the replacement of trees, shrubs and brush on the \V) Easement Areas. CITY shall indemnify OWNERS against loss or damage which occurs as a result of CITY's negligent acts or omissions in the exercise of its easement rights herein. Once the Easement Area has been completely restored as set forth above and except as expressly provided herein, CITY shall have no responsibility for maintaining the Easement Area. d. CITY shall remove and stockpile existing topsoil from areas to be excavated; and that following installation of the Project, all areas within the Easement Area which are disturbed shall have stockpiled topsoil respread and seeded within a reasonable time after construction is complete and the Easement Area restored substan- tially to its original condition with the exception of the replacement of trees, shrubs, and brush. C. The City seeks to acquire the temporary construction easement interests in the parcel of property shown and described on the acquisition plats attached hereto as Exhibits "C" and "D" and made a part hereof by this reference, for the public purpose of facilitating CITY's construction of the WEST SIDE LEVEE PROJECT. 1. In connection with this condemnation of the temporary construction easements, it is specifically provided as follows: a. The temporary construction easements are being condemned for the purpose of facilitating CITY's construction of the WEST SIDE LEVEE PROJECT ("Project"), which grant to CITY shall include necessary grading, excavation, piling of dirt, regrading, restoration, storage of materials and equipment, and ingress and egress of persons and equipment to the Temporary Easement Areas, as needed to complete said Project. b. The term of the Temporary Construction Easements will be for the period of time required by CITY to complete the construction of the public improvement, but in no event shall the duration of the Temporary Construction Easements extend beyond the date two (2) years after commencement of construction of the project. 3 c. With respect to the Temporary Construction Easements, CITY shall have the following rights and obligations: i. CITY shall have the right to make excavations within the Temporary Easement Areas, and to grade as CITY may find reasonably necessary for the construction. CITY covenants and agrees to protect such excavations during construction; to promptly fill said excavations following construction; and to hold OWNER harmless from third party liability during said construction. ii. CITY shall promptly backfill any trench made by it, and repair any damages caused by CITY within the Temporary Easement Areas, but excluding the replacement of trees, shrubs and brush on the Easement Areas. CITY shall indemnify OWNER against loss or damage which occurs as a result of CITY's negligent acts or omissions in the exercise of its easement rights herein. Once the Temporary Easement Areas have been restored to substantially their prior condition and except as expressly provided in this Temporary Easement Agreement, CITY shall have no further responsibility for maintaining the Temporary Easement Areas. , iii. CITY shall have the right of ingress and egress to and from the Temporary Easement Areas by such route within the ...J Temporary Easement Areas as shall occasion the least practical damage and inconvenience to OWNER. iv. CITY shall have the right to trim or remove all trees and brush which may interfere with the exercise of CITY's rights pursuant to this Temporary Easement Agreement. d. Existing driveways, fences, underground drainage tile or other site features, with the exception of trees, shrubs and brush, which are removed or disturbed shall, to the extent reasonably possible, be replaced by CITY to conform with features or items removed during construction. CITY further agrees that all grassed areas disturbed by the construction shall be seeded within a reasonable time after construction is complete. e. CITY covenants and agrees to remove and stockpile existing topsoil from areas to be excavated, to be used in the event of any repair. Following installation of the Project, all areas within the Temporary Easement Areas which are disturbed will be graded to form a uniform slope, and topsoil shall be replaced and respread over disturbed areas, thereby restoring said areas substantially to their 4 prior condition, with the exception of the replacement of trees, shrubs and brush. 2. That a Compensation Commission has been appointed, as provided by law, for the purpose of appraising the damages which will be caused by the taking of the above- described permanent easements and temporary construction easement. 3. That the Compensation Commission will, on January 11, 2012, at 9:00 a.m., meet in the Office of the Sheriff of Johnson County at 511 South Capitol Street, Iowa City, Iowa, and will then proceed to view the properties and to assess and appraise the damages, at which time you may appear before the Commissioners if you care to do so. 4. That the Compensation Commission is required to meet in open session (open to the public) to view the property being condemned and to receive evidence, but may deliberate in closed session, as provided by Section 6B.14 of the Iowa Code. CITY OF IOWA CITY, IOWA By: ,--'TO'O 2 4( cfrl. Eric R. Goers AT0002835 Assistant City Attorney 410 East Washington Street Iowa City, IA 52240 319-356-5030 319-356-5008 Fax eric-goers@iowa-city.org i O c� • 5 Subj: Baculis condemnation . • Date: 1/5/2012 10:52:53 A.M. Central Standard Time From: Eric-Goers(a�iowa-city.orq To: lawolson@aol.com CC: Jason-Reichart(a�iowa-city.orq Doug, As I mentioned on the phone today, I have called off the condemnation hearing set for January 11th, as the funding approvals have taken longer than we anticipated. We will send out an amended notice when we have a new condemnation date. It will likely be no sooner than March 1st As I mentioned on the phone, it remains my hope that we will be able to reach a voluntary settlement, and one in which we might be able to agree to one or more of your clients' non-monetary requests (like the fencing), but we will reschedule the condemnation hearing in order to ensure the project moves forward. Eric Goers Assistant City Attorney 410 East Washington Street Iowa City, IA 52240 319-356-5030 319-356-5008 Fax eric-goersiowa-city.orq Notice: Since e-mail messages sent between you and the City Attorney's Office and its employees are transmitted over the internet, the City Attorney's Office cannot assure that such messages are secure. You should be careful in transmitting information to the City Attorney's Office that you consider confidential. If you are uncomfortable with such risks, you may decide not to use e-mail to communicate with the City Attorney's Office. Without written notification that you do not wish to communicate with the City Attorney's Office via e-mail communication, the City Attorney's Office will assume you assent to such communication. This message is covered by the Electronic Communication Privacy Act, 18 U.S.C. Sections 2510-2515, is intended only for the use of the person to whom it is addressed and may contain information that is confidential and subject to the attorney-client privilege. It should not be forwarded to anyone else without consultation with the originating attorney. If you received this message and are not the addressee, you have received this message in error. Please notify the person sending the message and destroy your copy. Thank you. Q lT b z7.7:1 -7Z7 /77 6 t%^ I Thursday, January 05, 2012 AOL: LawOlson • •„ , ! • • • IN THE SHERIFF'S OFFICE OF JOHNSON COUNTY, IOWA IN THE MATTER OF ) THE CONDEMNATION OF ) CERTAIN RIGHTS IN LAND FOR ) USE IN THE WEST SIDE LEVEE ) PROJECT ) ) David A. Baculis, Sr., and Karen K. ) AMENDMENT TO Baculis, Property Owners ) NOTICE OF PUBLIC MEETING ) OF COMPENSATION ) COMMISSION TO ASSESS by the ) DAMAGES FOR TAKING OF ) PROPERTY ) CITY OF IOWA CITY, IOWA, ) Applicant. ) cr r• TO: Titleholders: rn David A.Baculis, Sr.,and Karen K.Baculis 2128 South Riverside Drive Iowa City, IA 52246 Lienholders, Encumbrancers, Leaseholders, Easement Holders and Others: Johnson County,Iowa Johnson County,Iowa do Johnson County Auditor c/o Johnson County Treasurer County Administration Building County Administration Building 913 South Dubuque Street 913 South Dubuque Street Iowa City, IA 52240 Iowa City, IA 52240 and all other persons, companies or corporations having any interest in or owning any of the following describe real estate: Fee simple interest described and depicted in Exhibit "A", legally described as a tract of land located in Lot 2 of Paden's Resubdivision of Lots 1 & 4, Charles Subdivision, with a property address of 2128 South Riverside Drive, Iowa City, Iowa. Permanent Storm Sewer Easement interest described and depicted in Exhibit"B", legally described as a tract of land located in Lot 2 of Paden's Resubdivision of Lots 1 & 4, Charles Subdivision, with a property address of 2128 South Riverside Drive,Iowa City,Iowa. 1 d -11hi.iA/• " ' • ` Temporary Construction Easement interests described and depicted in Exhibits "C" and "D", legally described as a tract of land located in Lot 2 of Paden's Resubdivision of Lots 1 & 4, Charles Subdivision, with a property address of 2128 South Riverside Drive, Iowa City, Iowa. PUBLIC NOTICE IS HEREBY GIVEN: On or about November 22, 2011, the City of Iowa City, Iowa, a municipal corporation, did serve a Notice of Public Meeting of Compensation Commission to Assess Damages for taking of Property on the above-listed interested parties. Subsequent to service, the City learned that an environmental assessment was not complete for the property and the condemnation hearing needed to be postponed. The City is amending this Notice in order to provide timely notice of the new meeting date of the Compensation Commission. This Amended Notice hereby provides public notice that: 1. The Compensation Commission will, on March 30, 2012, at 9:00 a.m., meet in the Office of the Sheriff of Johnson County at 511 South Capitol Street, Iowa City, Iowa, and will then proceed to view the properties and to assess and appraise the damages, at which time you may appear before the Commissioners if you care to do so. 2. The Compensation Commission is required to meet in open session (open to the public) to view the property being condemned and to receive evidence, but may deliberate in closed session, as provided by Section 6B.14 of the Iowa Code. CITY OF IOWA CITY, IOWA By: a/5/,q Eric R. Goers AT0002835 Assistant City Attorney 410 East Washington Street Iowa City, IA 52240 319-356-5030 319-356-5008 Fax eric-goers@iowa-city.org • , it/ a p f E R 2 • G7 IN THE IOWA DISTRICT COURT FOR JOHNSON COUN-`1? DAVID A. BACULIS, SR., AND ) --� , rn KAREN K. BACULIS, ) i.�=- Plaintiffs, ) ) Equity No. E7 CVC' 7`/ 3 2 vs. ) CITY OF IOWA CITY, IOWA, n ) Defendant. ) c-v e C-1 ro N at"' r. ORDER . M1 �c r NOW, on this Imo^ day of PjA(1/1 , 2012, the Court having been presented with and considered the Petition filed herein by the Plaintiffs requesting that a Temporary Writ of Injunction be issued and being fully advised in the premises FINDS that said Motion should be set for hearing. IT IS, THEREFORE, ORDERED that the Petition filed herein requesting a Temporary Writ of Injunction be issued is set for hearing on the 'y of , feei , 2012, at m o'clock,A. m. at the Johnson County Courthouse in Iowa City, Iowa. -TLCr 14. -, t„,;,1 yl(gZ„ c414,11 c(71 4u. curl TriA,a, Ca9 4-E#1 « CIOMS 10)4642)11/1/1, c/C kta(/(C( Ahaila `C-6-1.111/41-- Judge of the Sixth Judicial District of Iowa END OF CASE FILE CIVI. ESS WORKSHEET JOHNSON COUNTY SHERIFFS OFFICE•PL 511 S CAPITOL ST, IOWA CITY, IA 52244-2540•(319) 356-6030 PLAINTIFF: LOPATKA, DANIEL ROBER I Docket No 12-00836 State IOWA vs. Court No LACV073653 County JOHNSON DEFENDANT: CITY OF IOWA CITY Ref No I I Received 02/14/2012 Requestor(s) Phone ADVANCE FEES PAID SECOND NOTICE LOPATKA, DANIEL ROBERT (319)621-2957 128 1/2 NORTH CLINTON APT#7, BOX 3104, IOWA CITY, I 1 Name (CITY OF IOWA CITY Zone Party Type DEFENDANT Phone Fax Address 410 E WASHINGTON IOWA CITY IA 52240- E-Mail I Employer Comments SERVE SOMEONE IN THE ADMIN OFFICE. MNI Information Race Sex Birth Date Age Hair Height Weight SSN Eyes Skin Notes Documents Document Serve by Date OE PSR Description/Special Instructions NOTICE ❑ ❑ ORIGINAL NOTICE AND ❑ ❑ PETITION Service Information q Date 02.--C 2.--C q � ti Time pp 3 r Type ( �/ f! Party //, . �1- I 1�-- Relationship C i c,(dt( � Race Sex r DOB Location gip `C c A cIJt-)&-C&-'. , c(4 Miles -o.2 Fee /S ,-CAD Officer 5-2— Attempts S2— Attempts Log Date Time Server Notes Date Time Server Notes Notes: _ M G c- • / '/'14/LL-e.- YJ s c/49 Printed:Tuesday,February 14,2012 Johnson County Sheriffs Office Page 1 of 1 IN THE DISTRICT COURT IN AND FOR JOHNSON COUNTY Daniel Robert Lopatka, ) No. LACV073653ter-' Plaintiff ) T%� N No c' r -71 v. ) z1 to ) 1 City of Iowa City, ) SECOND NOTICEYa -v Defendant. ry (pc, r) _ To the above named Defendant(s), You are hereby notified a second and final time that a Petition was filed against you in a court of law in Johnson County, IA with the clerk of court naming you as a defendant in this action. You are requested to respond in a timely matter pursuant to receipt of service of this Notice, with the same-said Clerk of the District Court at the county courthouse in Iowa City, or default judgement will be found against you. The Petition and the Original Notice were previously served upon you by one Adam Jira, of Iowa City, witnessed by myself, two copies thereof hand-delivered to the front desk in the lobby of the City Offices after the close of business on 10-27-11, one copies addressed to the City of Iowa City, and a second copies addressed directly to the City of Iowa City-Care of Cynthia Ambrose, Department of Finance, along with accompanying personal cover letter. To date there has been no response either to the Plaintiff or to the Court. Please review and respond to the Petition and Notice(s). You are being served again with this Notice, along with the Petition and Original Notice, for your benefit. Please respond to the Clerk in an affordable manner and contact the Plaintiff in due time. 0?����1 ��� X13 �'i f'I Cordially, / l - /.2 M)331) Alla Daniel R. Lopatka P.O. 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CV �U C $ - 2 / t C/') 5;1 QgVil C. - wo • `t'Ysrt `I Spri.) aa ck-rerac'I pr Tr. �14so� �41e., �� �ow1 �% j Way ) ,,() e .17el > r S ra d'hocei I.v t�I h 4 et 'r 42 G{n0 (�3�v � � o J_ .� / r �j1 S er � rcSte ' , I25. r1 "trAe AC A-ovrif (54) // alae e›.7-7Ct0,001 afica, riz J77tiltir ro verld TQL / r r,st.�,oa� 3 �gal' 445 hc3`�7qJ S / 'vnJ ere of �, o ���' f--6c , ! d� ��.� c 14-t PIQ,n.41frgs- ,-401 Q kth -(1w- al, re-phsi M9 ab ni cr. .-- -"1-14frah (7)7 _I cIy OrgQP , Jr n1 d r 1 z✓-f ei4rd p r k J _ -4rrpt'Qr P 4'1d St-p O•,df e er,1'4 4 tvi 1'4 iC, : 455' erf Axl 101‘J re ekiekirwr Pez,„ "/„1"); 7-.)9--) Da hr e( ber-t- fki)i-kr-r lT7 O (3'% V °//. # aster CD 17; - ---6t.ja " '/ TA CDC .' Z�J 0 ) +v ..C=' 'r7 q - ,. C)-.% �a C-) f'.' a y Y END OF CASE FILE IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY MICHELLE HOGAN, ) ) Plaintiff, ) Equity No. CVCV074410 ) v. ) ) ACCEPTANCE IOWA CITY HOUSING AUTHORITY, ) OF SERVICE ) Defendant. ) I,Marian K. Karr,hereby accept service of the following on behalf of Defendant: 1. Petition for Writ of Certiorari; 2. Original Notice; 3. Order for Writ of Certiorari; and 4. Writ of Certiorari. - )ezA . J/-/9-/ . Marian . Karr Date City Clerk, City of Iowa City • 173 fJ IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY MICHELLE HOGAN, ) C \/QV WY/ U Plaintiff, ) No. v. ) ORIGINAL NOTICE ) IOWA CITY HOUSING AUTHORITY, ) ) Defendant. ) TO THE DEFENDANT: You are herebynotified that on the ' dayof (9t' `x`2012, a Petition for Writ of Certiorari has been filed in the office of the Clerk of the ab. e court, affecting your rights as the Defendant. A copy of the Petition and any documents filed with it is attached to this notice. The attorney for the Plaintiff is Elizabeth Norris, whose address is 1700 S. 1st Ave., Suite 10, Iowa City, IA 52240. The attorney's phone number is (319) 351-6570 and fax number is (319) 351- 0079. You must serve a motion or answer within 20 days after service of this Original Notice upon you, and within a reasonable time thereafter, file your motion or answer with the Clerk of Court in the Iowa District Court for Johnson County, at the courthouse in Iowa City, Iowa. If you do not,judgment by default may be rendered against you for the relief demanded in the application. If you require the assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district ADA coordinator at 6th district: 319-398-3920, ext.1100. (If you are hearing impaired, call Relay Iowa TTY at 1-800-735-2942). (i)j-rt CLE OF COURT Johnson County Courthouse Iowa City, IA 52240 The Attorney who is expected to represent the interested party should be promptly advised by the interested;party of the service of this notice. -4rLi 3.73 v IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY MICHELLE HOGAN ) Plaintiff ) Equity No. •) , v. ) ) PETITION FOR WRIT OF (--) .o IOWA CITY HOUSING AUTHORITY, ) CERTIORARI C-� Defendant. ) -1-`A cs dG d' COMES NOW Plaintiff, by and through her counsel, Elizabeth A. Norris of Iowa Legal Aid, and for her Petition for Writ of Certiorari states to the Court as follows: 1. Plaintiff Michelle Hogan ("Hogan") is a resident of Iowa City, Johnson County, Iowa. 2. Defendant Iowa City Housing Authority ("ICHA")is a department of the City of Iowa City. 3. ICHA is an inferior tribunal or board within the meaning of Iowa R. Civ. P. 1.1401. 4. Hogan is a Section 8 Voucher recipient in the Section 8 housing program administered by ICHA. She resides at 2025 Plaen View Drive in Iowa City, Iowa. 5. On November, 2011, Housing Program Assistant Denise Kinnison, an employee of ICHA, sent a notice to Hogan advising her that her Section 8 Voucher assistance was being terminated effective December 31, 2011. The notice stated that Hogan's assistance was being terminated because Hogan had failed to report income as required under the housing assistance program. 6. Hogan timely appealed that decision. vows. ; -" Page 1 of 3 • 7. An amended notice of termination was mailed to Hogan on January 17, 2012, stating an additional reason for termination was that Hogan had failed to provide true and complete information. 8. An informal hearing on Hogan's appeal was held on February 7, 2012. 9. By a written decision dated March 7, 2012, Douglas Boothroy, serving as hearing officer, upheld the ICHA's termination of housing assistance to Hogan. 10. Hogan has a handicap as defined in the Fair Housing Act Amendments at 42 USC §3602(h). 11. Hogan requested a reasonable accommodation from the ICHA to allow her to retain her housing assistance. The ICHA denied that request. 12. Defendant has acted illegally in this matter because Defendant denied Hogan's request for reasonable accommodation in violation of federal law,the decision to terminate assistance constitutes an abuse of discretion, and because, after consideration of relevant factors and the evidence presented, the decision of the ICHA is not supported by substantial evidence of the record. 13. Because of Hogan's limited finances, the termination of a housing subsidy will cause her and her three minor children great harm. 14. WHEREFORE, Hogan respectfully requests that the Court: A. Issue a writ of certiorari commanding Defendant to certify to this Court the record of the relevant proceedings; L.Y B. Set this matter for hearing; C. Hold that Defendant's' decision to terminate Hogan's Section 8 Voucher assistance i illegal and unenforceable; m Page 2 of 3 D. Tax the costs of this action to Defendant; and E. Grant such other relief as may be just and equitable under the circumstances. Respectfully submitted, 61" Eli eth A.Norris AIN:AT0005912 Iowa Legal Aid, Iowa City Regional Office 1700 S. 1st Ave., Suite 10, Iowa City, Iowa 52240 tel.: 319-351-6570 I fax: 319-351-0079 E-mail: enorris@iowalaw.org ATTORNEY FOR PLAINTIFF F!1 l V — ;r–C-? Na. i..3 c.a 2 ev Page 3 of 3 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY MICHELLE HOGAN, ) )) No. QA/Qii0-7c-i(-1( Plaintiff, ) ,_I r7, o V. ) oc - •' # ) C'3 M t o C.-, cit r IOWA CITY HOUSING ) ORDER FOR WRIT OF CERTIOR AUTHORITY -� o � CJt `J' Defendant. ) NOW on this 5 day of 10OA 2012, this matter comes before the Court on Plaintiffs Petition for Writ of Certiorari. The Court finds that the Writ of Certiorari should issue. The Court, therefore, orders the Clerk to issue the Writ of C rt. rari commanding Defendant to certify to this Court on or before the 7 day of a( , 2012 the complete record of the proceedings complained of in the petition as well as any other records pertaining to the facts of the case now before this Court. Dan K.Thornhill JUDGE, SIXTH JUDICIAL DISTRICT OF IOWA M N IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY MICHELLE HOGAN, ) ) Plaintiff, ) No. C C\1 D7 Lf-L+/O ) v. ) ) IOWA CITY HOUSING ) WRIT OF CERTIORARI AUTHORITY ) ) Defendant. ) ) TO: Defendant Iowa City Housing Authority: WHEREAS,in Plaintiffs petition, it has been made to appear to the Iowa District Court for Johnson County that you are proceeding illegally in terminating Plaintiffs Section 8 Rental Assistance,you are therefore commanded to certify and return to this Court on or before the qday of ll_ , 2012,the complete record of the proceedings complained of in the petition as well as any other records pertaining to the fact of the case now before this Court, and to have then and there this writ. WITNESS my hand and the seal of this Court at Iowa City, Johnson County, State of Iowa this Ste'._day ofoe i , 2012. LODEMA BE KL Y Lodema Berkley, Clerk CA)Cil&ali?,(; designee END OF CASE FILE CIVIL PROCESS WORKSHEET JOHNSON COUNTY SHERIFFS OFFICE•PO BOX 2540, 511 S CAPITOL ST, IOWA CITY, IA 52244-2540•(319)356-6030 PLAINTIFF: BROWNE,ANTHONY Docket No 12-01949 State IOWA vs. Court No CVCV074442 County JOHNSON DEFENDANT: CITY OF IOWA CITY Ref No Received 104/12/2012 Requestor(s) Phone ADVANCE FEE PAID BROWNE,ANTHONY 1434 MCKINLEY PL, IOWA CITY, IA 52240 Name CITY OF IOWA CITY Zone Party Type DEFENDANT Phone (319) 356-5030 Fax Address 410 E WASHINGTON ST IOWA CITY 34588 52240- E-Mail I Employer Comments Documents Document Serve by Date OE PSR Description/Special Instructions APPLICATION ❑ ❑ DEMAND FOR JURY ❑ ❑ ORIGINAL NOTICE AND ❑ ❑ PETITION Service Information Date 0`i--1 ,7,) -/2, Time ( � Z" Type Party 4. A Q.i KA Rpt Relationship CA' 1 j- C_ (eV f- Race L"-) Sex E DOB Location qi 0 6 CLAAS L. jC4(-• Miles l'(X) F � e Officer �Z-- Attempts Log Date Time Server Notes Date Time Server Notes Notes: 477 edw f Gtn -rr, 1 Q %ill?Cc°i ^' Printed:Thursday,April 12,2012 Johnson County Sheriffs Office Page 1 of 1 December 2010 CIVIL PROCEDURE Ch I, p.81 Rule 1.1901—Form 4: Form of Original Notice for Publication. IN THE IOWA DISTRICT COURT FOR (� COUNTY1l Plaintiff(s),PIN /�ci « , 1 f��['�'ak No. ( V l.J,/ E) t'1 1 1T? Jt� � vs.UO64tkj 1 INSER',"LAW7 OR"EQUITY") Defendant(s),PIN 1L% C Ilk ORIGINAL NOTICE TD THE ABOVE-NAMED DEFENDANT(S): You are notified that a petition has bgen filed in the office of the clerk of this court naming you as a defendant in this ac on,which petition prays' '1 1 . 4 f OV ►' >, -J '. The v torneTforthe plaintiff(s)is r.^ t . I.1-V`Cl V j P,l 0 v„;�t,� ,whose address is q � Ci 4,14.\ `it,u2 ff `C. . ,Iowa / r r { ThOatfijerncy i aphone number is 1 l �l( ( Z j �{ ;`facsinJiile number tl..,112,:` ,~" i� '`9 Il.ck 110,0 -1+tet+ V V\L.0 e +Jt • You must serve a motion or answer on or before the2 4;( 1, 4,A OVA .-2f—' and, within a reasonable time thereafter, file your motion or aasver with the Clerk of Court for o IA Y, 5 U 'i% County, at the courthouse in [0 uP� L . . (II,. Y( (x 0 Iowa. If you do not,judgment by default may be rendered against you for the relief demande in the petition. If you require the assistance of auxiliary aids or services to participate in court because of a disability,immediately call M`C your district ADA coordinator att'V: 3ea0 EA., (( . (If you are hearing impaired,call Relay Iowa TTY at 1-800-735-2942). (SEAL) 1 LOassc\ u BQ,cy;v.h�(,, CLERK F COURT t\J County Courthouse —;. Mrf, ,Iowa �-. IMPO T C �X� ik�� •{ ‘.vi • YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE'IO PROTECT YOUR INTE [Report 1976; Report 1978, effective July 1, 1979; amendment 1979; Report April 3, 1986, effective July 1, 1986; April 30, 1987,effective July 1, 1987; October 31, 1997,effective January 24, 1998;November 9, 2001, effective February 15,2002] 'Hem male a general uaf mens of the claim or claims end.subject le the limitation in Iowa R.4v.P.1.403(1),the relict demanied Gams R Civ.P.13020)). 2D.te ineeded here met not be In.,than 21 days after the clay of Ur hal futlwalion albs original robot(Iowa R.Civ.P.1389). C) • C) "se a U .71 "�. —+n C f-- R C"- • ,r_ IN THE DISTRICT COURT FOR JOHNSON COUNTY STATE OF IOWA Anthony Browne, C!\[ -iqq(19 Plaintiff, * CASE NO# C- V. r 17* City of Iowa City, * ORIGINAL PETITION AT LAW 4.11 -11 .7`) (IMMEDIATE HEARING REQUESTED) , Defendant. * [JURY DEMAND FILED] G�, - L-. * ..-• 'y __I A.FACTS 1.The Plaintiff Anthony Browne is a 41 year old Iowa City resident and is employed as a Software Engineer at Administrative Information Systems,the administrative division of Information Technology Services at the University of Iowa. 2.The Defendant City of Iowa City is a municipality subject to the laws of the State of Iowa and the Iowa Constitution. 3.November 27th,2006,Iowa City Code Title 10 PUBLIC WAYS AND PROPERTY,Chaplet 3 • tea. COMMERCIAL USE OF SIDEWALKS,Section 5 USE BY MOBILE VENDORS[hereinafter L0-3'-3],Par1 A 7 I Application For Permit:(2)-General Provisions:division(a) [hereinafter(A)(2)(a)]read: 1 "No more than 5 permits shall be issued each calendar year for the City Plaza and no more than 2 permits shall be issued for each calendar year for the 100 200 and 300 blocks of Iowa Avenue..." 4. 10-3-5(A)(2)(a)allowed 5 mobile vending permits for City Plaza,2 for Iowa Ave,and 7 total permits. 5. 10-3-5(A)(2)(a)limits the duration of each permit to one calendar year. 6. 10-3-5(A)(2)(a)provides that the City must hold,every year,a fair application process for the total number of available permits to operate a mobile food vending unit in City Plaza or on Iowa Aver. 1 • 7. 10-3-5(A)(1)(b)directs that all applications shall be submitted to the City Manager by Jan.31st of the calendar year. 8. 10-3-5(B)(1)states that the City Manager will grant or deny the permit"within a reasonable amount of time...no later than 60 days." 9.On November 28th,2006, 10-3-5(A)(2)(a)was amended[ORDINANCE NO 06 4744]to read: "No more than six 6 permits shall be issued each calendar year for the City Plaza and no more than two 2 permits shall be issued each calendar year for the 100 200 and 300 blocks of Iowa Avenue..." 10.This allowed 6 permits for City Plaza,2 for Iowa Ave,and 8 total permits. 11.On or about,January 31,2009,the annual application process for Iowa City 2009 mobile vending permits was held by the City Manager and 8 permits were issued to: 1. Aladdin 2. George's Gyros(J&P Ventures LLC/Mark Paterno&Pete Johnson) 3. Marco's Grilled Cheese(J&P Ventures LLC/Mark Paterno&Pete Johnson) 4. Nacho Taco ru 5. LaVallees CD 6. Pop's Italian Beef .-; 7. CorNroC � —+ ' 1 8. Sweet Uncle Pete's —In 1r� 12.On or about January 31,2010,the annual application process for Iowa City 2010 maile.vendiing peen was held by the City Manager and 8 permits were issued to: I. Aladdin 2. George's Gyros(J&P Ventures LLC/Mark Paterno&Pete Johnson) 3. Marco's Grilled Cheese(J&P Ventures LLC/Mark Paterno&Pete Johnson) 4. Nacho Taco 5. LaVallees 6. Pop's Italian Beef 7. CorNroC 8. Hawk Dawgs(formerly Sweet Uncle Pete's) 2 13.March 23`d,2010, 10-3-5(A)(2)(a)was amended[ORDINANCE NO 10 4386]to read: "No more than eight 8 permits shall be issued each calendar year. All permits shall be issued for City Plaza except that up to two 2 permits may be issued for the 100 200 and 300 blocks of Iowa Avenue." 14.This limited the total number of permits to 8,but the total was already 8.(emphasis added) 15.ORDINANCE NO 10 4386 was touted in the local press at the time as increase in mobile vendors in downtown Iowa City'. 16.The actual effect of this amendment is that it significantly changed the previous terminology 10-3-5(A) (2)(a)employed,from clearly stating"6 permits on City Plaza,2 on Iowa Ave,8 total"to phraseology that now described this as:"8 total permits,all on City Plaza,but 2 may be issued on Iowa Avenue."(emphasis added) 17.On December I,2010,Assistant City Manager Dale Helling and Administrative Assistant Kathi Johnansen submitted a letter(2010-12-02 Info Packet)to the City Council which stated,among other things: In recent years it has become more difficult and time consuming for the Administrative Assistant to administer the permitting process and monitor the vendors for compliance.Thus,there are several changes in the mobile vending program that staff wishes to recommend: 1. A maximum number of vendors are issued permits.Originally,there were five and this was increased to six.It was further increased to eight when the two Iowa Avenue vendors were moved to City Plaza.Currently there are seven vending permits issued. With the proliferation of sidewalk cafes on City Plaza,placement of mobile vendors has become increasingly difficult primarily due to less space outside the fire lane for vending carts to operate and objections from businesses with sidewalk cafes on City Plaza to having vending carts operating in close proximity to their outdoor diners.Mobile vendors were previously assigned two locations each from which they could operate.This has been reduced to one space each due to a decline in the number of suitable locations available. Staff recommendation:No new applications accepted until the number of permitted vendors is reduced to five through attrition "] .';:.? 1"City allows more food vendors on Ped Mall,"http://www.dailyiowan.com/2010/03/10/Mettfof16135.htm(, (Daily Iowan website,last visited March 19,2012). `~ 1i 3 W, 18.This letter was factually incorrect in two key places.First,paragraph 1 begins with:"...A maximum number of vendors are issued permits.Originally,there were five and this was increased to six."As noted above,the total was 7;then in 2006 it was increased to 8.The 2010 amendment only reaffirmed that the total was 8.Secondly,the letter states:"...Currently, there are seven vending permits issued."As noted above,there were 8 permits issued in 2010. 19.On or about January 31,2011,the annual application process for Iowa City 2011 mobile vending permits was held by the City Manager and 6 permits were issued to: 1. Aladdin 2. George's Gyros(J&P Ventures LLC/Mark Paterno&Pete Johnson) 3. Marco's Grilled Cheese(J&P Ventures LLC/Mark Paterno&Pete Johnson) 4. Nacho Taco 5. Pop's Italian Beef 6. CorNroC 20.It is unknown by the Plaintiff,at this time,whether LaVallees or Hawk Dawgs were denied permits for 2011,whether they applied at all,or whether they voluntarily dissolved their operation. 21.May 3rd,2011. 10-3-5(A)(2)(a)was amended[ORDINANCE NO 11 4426]to read: "No more than six 6 permits shall be issued each calendar year. All permits shall be issued for City Plaza except that up to two 2 permits may be issued for the 100 200 and 300 blocks of Iowa Avenue..." 22.This amendment,for the first time ever,lowered the total number of permits below 7 to 6.(emphasis added) 23.On October 24,2011,Anthony Browne,the Plaintiff,contacted Adam Bentley from the City Manager's Office by email inquiring about the mobile vending application process."Anthony Browne"anthony.browne@live.com To:"Adam Bentley"adam-bentley@iowa-city.org;Subject:ambulatory vs mobile vending carts;Date:Mon,24 Oct 2011 12:11:25 3. c ri • fig J�, 4 24.Mr.Bentley responded by email with a phone number and a request to call him.From:Adam Bentley Adam-Bentley@iowa-city.org To:Anthony Browne anthony.browne@live.com;Subject:RE:ambulatory vs mobile vending carts;Date:Mon,24 Oct 2011 18:02:00 25.When the Plaintiff called Mr.Bentley,he hastily told the Plaintiff that it was impossible to file an application,as the City Manager's Office would not be holding an application process this year.He followed up later with an email that listed a couple reasons."Adam Bentley"Adam-Bentley@iowa-city.org To:"Anthony Browne" anthony.browne@live.com CC:"Dale Helling"Dale-Helling@iowa-city.org;Subject:RE:ambulatory vs mobile vending carts;Date:Fri,4 Nov 2011 15:14:04 26.After some inquiries were made by the Plaintiff,the Plaintiff signaled by email to Mr.Bentley that he would enforce any legal options available to him including,but not limited to,petitioning the Johnson County District Court for a writ of mandamus:if the application process was not conducted by the City Manager's Office for 2012. "Anthony Browne"anthony.browne@live.com To:"'Adam Bentley'Adam-Bentley@iowa-city.org;CC:"'Dale Helling"'Dale-Helling@iowa-city.org,tom-markus@iowa-city.org,matt-hayek@iowa-city.org,roSs)Wilburit4iowa- .;-- k city.org, city.org,regenia-bailey@iowa-city.org,susan-mims@iowa-city.org,mike-wright@iowa-city.org;SObj t:RE: � W � ambulatory vs mobile vending carts;Date:Mon,7 Nov 2011 08:22:39 --��'� rri r<a 27.After some time,Mr.Bentley responded that he had conferred with the City Attorney and that tis Office had decided to conduct the application process after all.He informed the Plaintiff that he could submit an application and forwarded a blank form to the Plaintiff. "Adam Bentley"Adam-Bentley@iowa-city.org To:"Anthony Browne" anthony.browne@live.com;CC:"Eleanor M.Dilkes"Eleanor-Dilkes@iowa-city.org,"Tom Markus"Tom- Markus@iowa-city.org,"Dale Helling"Dale-Helling@iowa-city.org,Subject: Mobile Vending Permit Application; Date:Wed,9 Nov 2011 22:31:22 28.On or about January 31,2012,the annual application process for Iowa City mobile vending permits was held by the City Manager and 6 permits were issued to: 5 1. Aladdin 2. George's Gyros(J&P Ventures LLC/Mark Paterno&Pete Johnson) 3. Marco's Grilled Cheese(J&P Ventures LLC/Mark Paterno&Pete Johnson) 4. Pedro's Taco(formerly Nacho Taco,acquired 2012 by J&P Ventures LLC/Mark Paterno&Pete Johnson) 5. Pop's Italian Beef 6. CorNroC 29.Two applications were denied from: 1. Hillery's BBQ 2. AJ's to Go 30 Anthony Browne,the Plaintiff,timely submitted an application for a permit to operate a mobile vending unit on City Plaza or on Iowa Ave.on behalf of Hillery's BBQ,which has operated three BBQ restaurants in Illinois and Wisconsin for over 30 years.The Plaintiff timely hand delivered the application to Adam Bentley of the City Manager's Office prior to January 31st,2012.The application contained three years of previous health department records from Lake County Illinois granting temporary use permits to Hillery's BBQ for its mobile vending units. 31.The Plaintiff received a denial letter March 13,2012 written by Assistant Adam Bentley from the City Manager's Office which read: "This note is to inform you that based on our evaluation;your cart was not chosen.We will hold your application and evaluate it further in the event one of the approved vendors is unable to operate for any reason..." 32.The letter did not contain the reasons for the denial. 33. 10-3-5(B)(1)reads: "Standards:The city manager or designee shall grant or deny the application for a mobile vendor permit in writing within a reasonable time,which shall be mailed by ordinary mail or personally delivered to the applicant,and state the reasons therefore no later than sixty(60)calendar days..."(emphasis added) 34.After a series of emails between the Plaintiff and the City Manager's Office,Management Intern,Simon Andrew emailed the Plaintiff and stated the reasons for denial were: rrt 6 • .. As there are only 6 permits available,the most important factor in the review process is prior satisfactory experience with the City of Iowa City. The six permits that were approved are operated by vendors that were permitted on City Plaza last vending season and are in good standing with the City." "Simon Andrew"Simon-Andrew@iowa-city.org To:"'Anthony Browne'"anthony.browne@live.com;CC:"Adam Bentley"Adam-Bentley@iowa-city.org;Subject:mobile vending application process;Date:Thu, 15 Mar 2012 14:37:17+0000 35.In response to further inquiries by the Plaintiff into the scoring method used,for the first time,Mr. Andrew submitted by email: "The application scoring process includes representatives from the City Manager's Office,Housing and Inspection Services,and the Parks&Recreation Department. A copy of the scoring guide is attached." "Simon Andrew"Simon-Andrew@iowa-city.org To:"Anthony Browne"'anthony.browne@live.com;CC:"Adam Bentley"Adam-Bentley@iowa-city.org;Subject:mobile vending application process;Date:Thu, 15 Mar 2012 14:37:17+0000 36.The score guide was simple and contained this formula to determine applicant's scores: 1) History of satisfactory cart operation by the owner/operator of this cart(20 point scale) a. Greater than four years'satisfactory operation: 15-20 points b. One to four years satisfactory operation: 10-14 points 2) Citations: a. Number of citations received by the cart scored on this application during the previous year of operation b. (10 point scale) Zero citations: 10 points c. Each citation:deduct one point.For more serious violations,two points may be deducted d. New carts receive the full ten points 3) Maintenance/Safety: a. Existing carts:maintained to initial standards b. New carts:meeting all expectations/requirements of the application c. (10 point scale) Review photos,descriptions,correspondence/citation history d. No maintenance/appearance issues: 8-10 points e. Minor maintenance concerns:5-7 points f. Major concerns:<5 points 37.Mr.Simon also provided these score results from the 2012 application process: 1) Marco's Grilled Cheese: 39.75 2) Georges'Best Gyros: 39.5 3) Pop's Italian Beef: 36.75 4) Pedro's Taco: 34.75yam: 5) Aladdin Pitas: 32 7 -0^ 6) The CorNroC: 27.5 7) Hillery's BBQ: 21.5 8) AJ's To Go: 17.75 38.Iowa Avenue locations for mobile vendors have never been congested.They remain the worst areas for mobile vending due their lack of traffic,in comparison to City Plaza.Most mobile vendors prefer to operate in City Plaza. 39.March 19,2012 at 12:13PM,the Plaintiff timely appealed the denial by City Manager's Office of his application to operate a mobile vending unit in City Plaza or on Iowa Ave by filing an appeal with the City Clerk. 40.Also on March 19,2012,but after the Plaintiff filed his appeal,Adam Bentley sent the plaintiff an email containing a PDF of the scores applicants received in the 2012 application process for each category,by judge,with judges names redacted."Adam Bentley"Adam-Bentley@iowa-city.org To: "Anthony Browne" anthony.browne@live.com;Subject:Follow-up;Date:Mon, 19 Mar 2012 14:33:31 +0000 41.The scores contained in the PDF described in paragraph#40 reveled to the Plaintiff,for the first time,that the four judges gave the Plaintiff's proposed mobile vending unit 10,0,0,and 0,out of 20,for"Previous Experience" for an average of 2.5 in this category.The Plaintiff received an average score of 10 for the category"Citations"and 9 for"Maintenance/Appearance."The Plaintiff therefore received a final score of 21.5 out of 40 points,ranking seven out of eight applicants. 42.The City Clerk timely placed the appeal on the City Council's March 20,2012 formal meeting. 43.March 20,2012,Adam Bentley represented the City Manager's Office at the Iowa City Council regarding the appeal.The Plaintiff was present also.Video of the council meeting was taken. 44.The Plaintiff's principal argument on appeal was that the City Manager's administrative rules regarding "seniority,"and their application to the Plaintiff specifically exceeded the authority provided by ordinptee 10-3nd therefore violated due process. = - "..,7 C4..) " n7 45.The Iowa City Council voted 5-1 to deny the Plaintiff's appeal'. 46. 10-3-5(G)reads: "Administrative Rules:The city manager is authorized to establish administrative rules not inconsistent with any ordinance to carry out the provisions of this chapter..." 47. 10-3-5(A)(2)(a)limits the duration of mobile vending permits to one year AND provides for a yearly application process for the total number of available permits,but it does not provide for"seniority."(emphasis added) 48.The City Manager's administrative rules,in particular the rules,informal or otherwise,which provide for seniority'and prevent scoring judges in the application process from giving credit to applicants for previous experience in jurisdictions other than Iowa City,exceed the scope of ordinance 10-3-5 and therefore violate any standard of due process embodied in the Iowa or US Constitution,both on their face and as applied to the Plaintiff,especially since the "Previous Experience"category is worth 20 out of 40 total points available to an applicant. (emphasis added) 49.The mobile vending unit designs the Plaintiff submitted with his application will take the manufacturer four to six weeks to construct. 50.The March 1 —Oct 1 period is,in effect,the main Iowa City mobile vending season and only lasts seven months.One month has already expired,as of the time of this writing 51.The Plaintiff very conservatively estimates that his proposed mobile vending unit will generate$25,000 in net profits per month,on average for 12 months,if it operates from March 1 —Oct 1 and if it operates on enough warm days from Oct 1 —March 1. A () 1 C.^) C M 1 2 Matt Hayek Mayor(At-Large)absent;Jim Throgmorton(District C)voted to reverse;Connie Ctihmpion49istrict,..,., B),Rick Dobyns(District A),Susan Mims Mayor Pro Tern(At-Large),Terry Dickens(At-Large),Michelle P-ayne(At-8 3 Large)voted to deny 3 Though the rules are termed "seniority,"these rules appear to have to two components: 1)seniority regarding the number of previous permits granted and 2)amount of overall mobile vending experience.Furthermore,credit for overall mobile vending experience regarding component 2)is restricted by the administrative rules to only include mobile vending experience with Iowa City.SEE:"Resident says city's food cart process unfair," http://www.press-citizen.com/article/20120329/NE WS01/303290013/Resident-says-city-s-food-cart-process- unfair(Iowa City Press Citizen website,Last visited April 7,2012) 9 • B.CLAIMS I. THE PLAINTIFF PETITONS THE DISTRICT COURT TO SUSTAIN A WRIT OF CERTIORARI PURSUANT TO IOWA RULE OF CIVL PROCEDURE 1.1401 AND ORDER IOWA CITY TO COMPLETE A NEW 2012 APPLICATION PROCESS FOR MOBILE VENDING CART PERMITS THAT REMOVES THE"SENORITY" REQUIREMENT PURSUANT TO IOWA CITY CODE 10-3-5(A)(2)(a) II. 2012 APPLICATION PROCESS FOR MOBILE VENDING CART PERMITS VIOLATED THE DUE PROCESS CLAUSES UNDER BOTH THE IOWA AND UNITED STATES CONSITUTIONS IN VIOLATION OF 42 U.S.C.§1983 1. The Fifth Amendment to the United States Constitution provides that"no person shall be...deprived of life,liberty,or property without due process of law."The Fourteenth Amendment to the United States Constitution prohibits a state from"depriving any person of life,liberty,or property without due process of law."The Fourteenth Amendment makes the Fifth Amendment applicable to the states and their political subdivisions.Article 1,section 9 of the Iowa Constitution provides that"no person shall be deprived of life,liberty,or property,without due process of law."Chicago,Burlington&Quincy R.R. Co.v.City of Chicago, 166 U.S.226,234-35, 17 S.Ct.581,584,41 L.Ed.979,983-84(1897); Bormann v.Board of Supervisors,584 N.W.2d 309,313(Iowa 1998) 2. The 2012 application process held by the City Manager for mobile food vending permits on City Plaza or Iowa Ave.was not adequate to protect Plaintiff's substantial right to obtain a permit and operate a mobile food vending unit in City Plaza or on Iowa Ave with conservative estimated annual net profits of $300,000 3. The reasons for denial of the permit were not provided with the City Manager's denial letter i. Reasons were not completely given to the Plaintiff,until after plaintiff's appeal was filed and hours before the council meeting where the appeal was heard by the Iowa City Council,in violation of 10-3-5(B)(1) 4. The score process was illegal i. Administrative rules exceeded the scope of ordinance 10-3-5 ii. Placed too much emphasis on seniority iii. Didn't adequately reflect credit for operation in other jurisdictions iv. Gave current permit holders unfair advantage v. Made it impossible for new vendors to compete with existing vendors vi. Created monopoly for existing vendors(J&P Ventures LLC/Mark Paterno&Pete Johnson now hold 3 out of 6 permits) vii. Score Guide,score results,and historical data not published or provided to applicants 5. The City Manager's denial of the Plaintiff's application for a mobile vending permit was illegal, unreasonable,arbitrary,capricious,and discriminatory. O �`O f ru 10 C.RELIEF REQUESTED WHEREFORE,the Plaintiff respectfully requests the Johnson County District Court to grant the following relief: 1. Declare and adjudge that 2012 application process was illegal and sustain the Plaintiff's writ of certiorari, nullifying the 2012 process and ordering any other necessary relief the Court see fit to have the City of Iowa City proceed with a new application process,without the"seniority"requirement,for six total 2012 mobile food vending permits for City Plaza or on Iowa Ave.,forthwith and with due speed. 2. Award the Plaintiff compensatory damages,as well as court costs. Res ctfully Submitted,� /J �a Dated: �j 011,6 V l { 6 G�c "L' Anthony Browne ; 1434 McKinley Place Iowa City,Iowa,5246 anthony.browne@live.com ti ti 'gyp 11 IN THE DISTRICT COURT FOR JOHNSON COUNTY STATE OF IOWA Anthony Browne, * \ r a Plaintiff, * CASE NO# v C/ l-�V v VVC1 • c:p V. * — O rl 3Ad City of Iowa City, * - N rt .13 Defendant. * JURY DEMAND ▪ . N * I- 1,4 COMES NOW the Plaintiff,Anthony A.Browne,pro se,and hereby demands a trial by jury on all issues so triable.The Plaintiff specifically requests a jury trial on the issue of compensatory damages,especially if the Court grants the Plaintiff's writ of certiorari. { • pectfully Submitted, �; rrA, Dated: ` � I� A#.(iP.t I p)/ ��Y`) Anthony Brown 1434 McKinley lace Iowa City,Iowa,52246 anthony.browne@live.com C o h 1 4• K+ aR 1 V4J � rri 1 IN THE DISTRICT COURT FOR JOHNSON COUNTY STATE OF IOWA Anthony Browne, Plaintiff, * CASE NO# CV C---V V. City of Iowa City, * Defendant. * APPLICATION FOR IMMEDIATE HEARING AND RELIEF * COMES NOW the Plaintiff,Anthony A.Browne,pro se,and states: c� C� WHEREAS,the Plaintiff is losing a minimum of$25,000 every 30 days;WHEREAS,the mobile food ve>uhng sen o is Mar 1-Oct 1;WHEREAS,one month of the vending season has expired;WHEREAS,the 2012 season-Ttas beeiiQ c(.1 N unusually warm,the Plaintiff respectfully requests an immediate hearing on his petition for writ of certiorayhat _ the Court order the return forthwith,and requests the court to issue immediate relief. oma; N R-.'-ctfully Submitted, q\rikri/ 11 ' r Dated: LI kt Anthony Browne 1434 McKinley ' ce Iowa City,Iowa, rP 246 anthony.browne@live.com ti C rncor-' 1 END OF CASE FILE CIVIL PROCESS WORKSHEET JOHNSON COUNTY SHERIFFS OFFICE• PO BOX 2540,511 S CAPITOL ST, IOWA CITY, IA 52244-2540•(319)356-6030 PLAINTIFF: WEST BANK Docket No 12-02939 State IOWA vs. Court No EQCV074611 County JOHNSON DEFENDANT: ESTATE OF MARY CONKLIN; MATT Ref No Received 06/11/2012 DEFENDANT: CITY OF IOWA CITY DEFENDANT: ALL PARTIES IN POSSESION OF 1� Requestor(s) Phone MOYERS STONE,ANNA (319) 354-1104 321 E MARKET ST, IOWA CITY, IA 522442150 Name ICITY OF IOWA CITY I Zone I Party Type DEFENDANT Phone Fax Address 410 E WASHINGTON ST I IOWA CITY IA 52240- E-Mail I Employer Comments ISERVE MARIAN KARR OR MAYOR MATTHEW HAYEK MNI Information Race Sex Birth Date Age Hair Height Weight SSN Eyes Skin Notes Documents Document Serve by Date OE PSR Description/Special Instructions ORIGINAL NOTICE AND ❑ ❑ PETITION Service Information Date t/ Time Type G 14,( Party Relationship Race Sex DOB Location Miles Fee Officer Attempts Log Date Time Server Notes Date Time Server Notes Notes: Printed:Monday,June 11,2012 Johnson County Sheriffs Office Page 1 of 1 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY WEST BANK, Plaintiff, No. ?Ja -Qxic-) (-Rouvs. ESTATE OF MARY A. CONKLIN, MATTHEW ORIGINAL NOTICE' W. CONKLIN, CITY OF IOWA CITY, ALL PARTIES IN POSSESSION OF 1930 CALIFORNIA AVENUE, IOWA CITY, IOWA, and ALL UNKNOWN PERSONS WITH AN INTEREST IN THE ESTATE OF MARY A CONKLIN, Defendants. TO THE ABOVE NAMED DEFENDANT(S): YOU ARE HEREBY NOTIFIED that a petition has been filed in the office of the clerk of this court naming you as the defendant in this action. A copy of the petition(and any documents filed with it) is attached to this notice. The name and address of the petitioner's attorney is as follows: Anna Moyers Stone Phelan,Tucker,Mullen,Walker,Tucker&Gelman,LLP 321 East Market Street PO Box 2150 Iowa City,Iowa 522442150 Phone: 319-3541104 Fax: 319-354-6962 Email: stone@ptmlaw.com YOU ARE FURTHER NOTIFIED that you must serve a motion or answer within 20 days after service of this original notice upon you and,within a reasonable time thereafter, file your motion or answer with the Clerk of Court for Johnson County; Iowa at the county courthouse in Iowa City, Iowa If you do not, judgment by default may be rendered against you for the relief demanded in the Petition. If you require the assistance of auxiliary aids or services to participate in court because of a disability;immediately call your district ADA coordinator at 319-398-3920,Extension 1100. If you are hearing impaired, call Relay Iowa TTY at 1-800-735-2942. (seal) C Jerk the above Court _ Johnson County Courthouse ^' Iowa City Iowa 52240 rU I111PORTANT:: YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT =--- YOUR INTERESTS. • - •' LC . C (CV(On( ) .' CA IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY WEST BANK, Plaintiff, C)c--\/ 67agoi( No. vs. ESTATE OF MARY A. CONKLIN, PETITION IN EQUITY ,, MATTHEW W. CONKLIN, CITY OF IOWA FOR FORECLOSURE OF moVpAEZE CITY, ALL PARTIES IN POSSESSION OFNoy 1930 CALIFORNIA AVENUE, IOWA CITY, a-� IOWA, and ALL UNKNOWN PERSONS c- yr WITH AN INTEREST IN THE ESTATE OF cam - rl MARY A. CONKLIN, Defendants. �c NOTICE THE PLAINTIFF HAS ELECTED FORECLOSURE WITHOUT REDEMPTION. THIS MEANS THAT THE SALE OF THE MORTGAGED PROPERTY WILL OCCUR PROMPTLY AFTER ENTRY OF JUDGMENT UNLESS YOU FILE WITH THE COURT A WRITTEN DEMAND TO DELAY THE SALE. IF YOU FILE A WRITTEN DEMAND, THE SALE WILL BE DELAYED UNTIL TWELVE MONTHS (or SIX MONTHS if the petition includes a waiver of deficiency judgment) FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO-FAMILY DWELLING OR UNTIL TWO MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS YOUR RESIDENCE BUT NOT A ONE-FAMILY OR TWO- FAMILY DWELLING. YOU WILL HAVE NO RIGHT OF REDEMPTION AFTER THE SALE. THE PURCHASER AT THE SALE WILL BE ENTITLED TO IMMEDIATE POSSESSION OF THE MORTGAGED PROPERTY. YOU MAY PURCHASE AT THE SALE. COMES NOW, the Plaintiff, West Bank, by and through its attorneys, and, for its Petition in Equity for Foreclosure of Mortgage, states as follows: 1. The Plaintiff elects foreclosure without redemption pursuant to Iowa-Code Section. 654.20. The mortgaged property is not used for agricultural purposes. The mortgaged property is not currently the residence of the mortgagor. The mortgaged-property is a • one-family or two-family dwelling. This Petition does include a waiver-df deficiency. judgment. 1 PARTIES,JURISDICTION,AND VENUE 2. West Bank is an Iowa banking corporation lawfully doing business in the state of Iowa, with its principal place of business in West Des Moines,Polk County, Iowa. 3. West Bank has a branch of its Bank located in Iowa City,Johnson County,Iowa. 4. Defendant Mary A. Conklin ("Mary") was a resident of Johnson County;Iowa. 5. Mary died on July 18,2011 in Johnson County,Iowa. 6. Defendant Matthew W. Conklin ("Matt") is a resident of Bremer County, Iowa. Matt is Mary's only son and the sole beneficiary under the terms of Mary's Last Will and Testament. 7. Defendant City of Iowa City is a municipal corporation in Johnson County,Iowa. 8. Defendants All Parties in Possession of 1930 California Avenue, Iowa City, Iowa are those persons who may currently be in possession of 1930 California Avenue, in Iowa City,Johnson County, Iowa. 9. Defendants All Unknown Persons with an Interest in the Estate of Mary A. Conklin are those persons who may have an interest in Mary A. Conklin's estate. 10. Venue is appropriate pursuant to Iowa Code Section 654.3. STATEMENT OF FACTS 11. On or about December 6, 1999, Mary made, executed, and delivered to Hawkeye State Bank, a predecessor-in-interest to Plaintiff, a certain mortgage (the "Mortgage") in writing, creating a first and prior lien on the following described real estate situated in Johnson County,Iowa,to wit: Lot 53, in Part 1-A, Mount Prospect Addition to Iowa City, Iowa, according to the Plat thereof recorded in Book 9,Page 101,Plat Records of Johnson County,Iowa. (the "Real Estate"). The Real Estate is also identified as 1930 California Ave, Iowa City, Iowa 52240 on the Mortgage instrument. 12. On or about December 6, 1999, Mary made, executed, and delivered to Hawkeye State Bank, a predecessor-in-interest to the Plaintiff,a promissory note (the "Note") in writing for the sum of$69,937.95, plus interest, payable in full on December 5, 2029;A copy of said Note is attached hereto, marked as "Exhibit 1," and made a part heir€qf by this reference. Payment of the Note is secured by the Mortgage. 2 13. The Mortgage was recorded in the office of the Recorder of Johnson County, Iowa, on December 17, 1999 in Book 2878 at Page 58. A copy of said Mortgage is attached hereto, marked as "Exhibit 2," and made a part hereof by this reference. 14. The Mortgage was subsequently assigned from Hawkeye State Bank to West Des Moines State Bank, in an Assignment recorded in the office of the Recorder of Johnson County, Iowa on July 21, 2003 in Book 3591 at Pages 407-416. A copy of said Assignment is attached hereto, marked as "Exhibit 3," and made a part hereof by this reference. 15. West Des Moines State Bank later changed its name to West Bank, the Plaintiff, and all assignments to West Des Moines State Bank were then held by West Bank This change is shown in an Affidavit of Articles of Amendment to Articles of Incorporation recorded in the office of the Recorder of Johnson County, Iowa on May 11, 2004 in Book 3732 at Page 664-667. A copy of said Affidavit, which includes a copy of the Articles of Amendment to the Articles of Incorporation of West Des Moines State Bank filed with the Iowa Secretary of State, is attached hereto, marked as "Exhibit 4," and made a part hereof by this reference. 16. Mary filed for Chapter 7 Bankruptcy, Bankruptcy No. 05-05970 in the United States Bankruptcy Court for the Southern District of Iowa. However, in that proceeding, Mary reaffirmed her debt to West Bank by a Reaffirmation Agreement, signed by West Bank and Mary on August 30, 2005, a copy of which Agreement is attached hereto, marked as "Exhibit 5," and made a part hereof by this reference. 17. Mary(also, hereinafter, the "Mortgagor") was the owner and holder of the Real Estate. The Real Estate and premises thereto constitute a one-family or two-family dwelling. The Real Estate was the residence of the Mortgagor, but is no longer her residence due to her being deceased. Furthermore, it is believed that Mary did not live in the Real Estate or use it as her residence for about a year before her death. The Real Estate is not agricultural property nor used for agricultural purposes. 18. Mary is now deceased, having died on July 18, 2011 in Johnson County, Iowa. A copy of her obituary is attached hereto, marked as "Exhibit 6," and made a part hereof by this reference. 19. No administration of Mary's estate is planned or expected. 20. Mary's Last Will and Testament was admitted to probate without present administration pursuant to an Order dated March 26, 2012 and filed in Johnson County ProbateNo. ESPR029582. A copy of Mary's Last Will and Testament is also attached hereto, marked as "Exhibit 7," and made a part hereof by this reference. 21. Mary has failed to pay the monthly installments of the Note, and is no .in default pursuant to the terms of the Note and Mortgage. 3 22. As of June 6, 2012, the amount due and owing the Plaintiff from Mary under the Note is the sum of $53,457.62 in principal, plus $1,888.13 in accrued interest, plus interest at the default rate provided by the Note from and after June 6, 2012. 23. Matt is made party to this cause of action because he, to the best information and belief of the Plaintiff, may have or claim to have some right, title, interest, lease, lien, or claim in or to the mortgaged premises. Any such rights or claims are junior and inferior to the lien of Plaintiff's mortgage. 24. The City of Iowa City is made party to this cause of action because it, to the best information and belief of the Plaintiff, may have or claim to have some right, title, interest, lease, lien, or claim in or to the mortgaged premises. Any such rights or claims are junior and inferior to the lien of Plaintiff's mortgage. 25. All Parties in Possession of 1930 California Avenue, Iowa City, Iowa are made party to this cause of action because they, to the best information and belief of the Plaintiff, may have or claim to have some right, title, interest, lease, lien, or claim in or to the mortgaged premises. Any such rights or claims are junior and inferior to the lien of Plaintiff's mortgage. 26. All Unknown Persons with an Interest in the Estate of Mary A. Conklin are made party to this cause of action because they, to the best information and belief of the Plaintiff, may have or claim to have some right, title, interest, lease, lien, or claim in or to the mortgaged premises. Any such rights or claims are junior and inferior to the lien of Plaintiff's mortgage. 27. Plaintiff is unaware of the parties who may be in possession of the Real Estate and cannot ascertain the identity and whereabouts of the unknown persons who may have an interest in the Estate of Mary A. Conklin. Plaintiff hereby requests that notice to such defendants be by publication. An Affidavit indicating same is attached hereto, marked as "Exhibit 8," and made a part hereof by this reference, all in compliance with Iowa Rule of Civil Procedure 1.310. 28. Plaintiff is the owner and holder of the Note and Mortgage. 29. Plaintiff is not required to give notice of right to cure because the Real Estate is not the residence of the mortgagor. Iowa Code Section 654.2D(8). 30. Plaintiff submits that Iowa Code Section 654.4B is inapplicable in the present circumstance because the borrower is deceased and mortgage mediation or counseling would be ineffective and unnecessary. Furthermore, Matt, Mary's only-child and sole beneficiary, has no desire to redeem or own the Real Estate. Plaintiffhereby requests that compliance with this Code Section, and any other notice, be waived. 31. Plaintiff has inspected the Real Estate with the undersigned. The premises are in a deplorable condition; Mary did not inhabit the house for about a year before her-death, and appears to have not taken care of the Real Estate while she did live there. The City of Iowa City has received complaints regarding maintenance and upkeep of the Real 4 Estate. In order for the house to be marketable and habitable again, Plaintiff will have to undertake a complete cleaning of the house and yard, as well as advance and install new items in the house such as appliances, carpet, and paint. Furthermore, the utilities running to the Real Estate have not been assigned or handled in sometime. Therefore, Plaintiff hereby requests that a receiver be appointed to hold and manage the Real Estate during the pendency of this foreclosure to take those actions deemed necessary and advisable to make the premises both habitable and marketable. 32. Mary also had a checking account with Plaintiff, which currently carries a balance of $1,148.20. There is no expected administration of Mary's estate, and the Note allows for a set-off of amounts due with checking account balances of the borrower. Therefore, the Plaintiff hereby further requests that the balance of Mary's checking account be applied to the balance due on the Note. 33. In accordance with the provisions of the Note and Mortgage, Plaintiff hereby declares the entire indebtedness thereunder immediately due and payable. 34. The Mortgage provides that if default shall be made in the payment of the Note or any part of the interest thereon, the Mortgage may be foreclosed upon; and Plaintiff, by the commencement of this action,does elect to foreclose on the Mortgage. 35. Plaintiff has incurred costs for creating and continuing the Abstract of Title to the Real Estate for the purposes of preparing for the foreclosure of the Mortgage, and under the terms of the Mortgage, this sum is considered a part of the indebtedness secured by the Mortgage. 36. The Note and Mortgage provide for payment of attorneys fees in case of suit thereon. An Affidavit of Attorneys Fees, as required by Iowa Code Sections 625.22 and 625.24 is attached hereto, marked as "Exhibit 9," and made a part hereof by this reference. Pursuant to the terms of the Note and Mortgage, the Plaintiff's attorney fees are considered part of the indebtedness secured by the mortgage and shall bear interest at the applicable Note rate from the date of expenditure until repaid. 37. Pursuant to the terms of the Note and Mortgage, the Plaintiff is entitled to accruing costs, including, but not limited to, any advances made by the Plaintiff for any taxes or other obligations that may materially affect the Plaintiff's interest in the Real Estate, and for the insuring, maintaining, and preserving of the Real Estate. Pursuant to the terms of the Note and Mortgage,these costs are considered a part of the indebtedness secured by the mortgage and shall bear interest at the applicable Note rate from the date of expenditure until repaid. 38. Plaintiff hereby waives deficiency judgment in this foreclosure action. WHEREFORE, Plaintiff prays for judgment in rem as to and against the Real Estate.for the sum of $53,457.62 in principal, plus $1,888.13 in accrued interest, plus interest at the default rate provided by the Note from and after June 6, 2012, plus court costs, reasonable attorney fees and expenses, and any costs incurred for title searches or abstract continuation, plus any protective advances made and authorized by the Note,Mortgage, or Iowa law. 5 PLAINTIFF FURTHER PRAYS that a Receiver be appointed to take charge of the mortgaged premises at once and to hold possession of the same until the debt is fully paid and that all rents and profits derived from said premises be collected and applied by the receiver toward the satisfaction of Plaintiff's judgment. PLAINTIFF FURTHER PRAYS that the Mortgage be established as a first and prior lien against the Real Estate,that the indebtedness owing to the Plaintiff pursuant to the Note and Mortgage and any judgment thereon be declared a lien upon the Real Estate that is senior and superior to the rights, title, interests, liens, and claims of each and all of the Defendants, and that the Mortgage be foreclosed and all claims, rights, title, and interest of the Defendants in this suit, and each of them, in or to or upon the Real Estate, may be decreed to be junior and inferior to the rights and liens of this Plaintiff, and that the right, title, and interest of the Defendants, and each of them, be forever barred and foreclosed. PLAINTIFF FURTHER PRAYS that the mortgage described herein be foreclosed, and that special execution may issue for the sale of the mortgaged Real Estate or so much thereof as is necessary to satisfy Plaintiff's judgment, together with interest, costs, and accruing costs, to satisfy the judgment to be entered herein. PLAINTIFF FURTHER PRAYS that in the event that any of the above-named Defendants file a demand for delay of sale herein, the execution sale be delayed for a period of not more than two (2) months from the entry of judgment, in the event the mortgaged real estate is not their residence,and for a period of not more than six (6) months from the entry of judgment in the event the mortgaged real estate is their residence, and hereby waives any right to deficiency judgment against Defendant Estate of Mary A. Conklin which might arise out of this proceeding. PLAINTIFF FURTHER PRAYS that if possession be not immediately surrendered to the grantee of the Sheriff's Deed to be issued under said execution, that a writ of possession may be issued directing the Sheriff of this county to put such grantee in possession of the premises. PLAINTIFF FURTHER PRAYS that in the event Plaintiff is required to advance any further sums for taxes, utilities, maintenance, insurance upon the Real Estate, or such other items as may be necessary to make the Real Estate both habitable and marketable, Plaintiff be given an additional lien against the real estate for the amount so advanced. PLAINTIFF FURTHER PRAYS for the approval, upon the request of Plaintiff, of the sale of the Real Estate during the pendency of this action free and clear of the claims of defendants, provided that the court first finds that (a) all equitable titleholders who have not abandoned the Real Estate have consented to such sale; and (b) the terms of such sale are commercially reasonable. PLAINTIFF FURTHER PRAYS for such other and further relief as may be just and equitable in this matter. _ N C.... Cr:f ce N r r°1 : m CZ-227,7 C) ' 6 Respectfully submitted, PHELAN,TUCKER,MULLEN, WALKER,TUCKER&GEL.MAN,L.L.P. By: A / 1 4 • . •yens Stone AT0008876 321 East Market Street PO Box 2150 Iowa City,Iowa 52244-2150 Phone: 319-354-1104 Fax: 319-3546962 Email: stone@ptmlaw.com ATTORNEYS FOR PLAINTIFF,WEST BANK c-; �7 _n `► GJ y W 7 n I J _•\ ADJUSTABLE RATE NOTE I ` CI9 C�U f NOTICE TO BORROWER: THIS NOTE CONTALNS A PROVISION ALLOWING FOR CHANGES IN THE INTEREST RATE. INCREASES IN THE INTEREST RATE WILL RESULT IN HIGHER PAYMENTS. DECREASES IN THE INTEREST RATE WILL RESULT IN LOWER PAYMENTS. •12.06.1999 IOWA CITY IOWA [Date] [City] [State] 1930 CALIFORNIA AVE,IOWA CITY,IA 52240 [Property Address] , 1. BORROWER'S PROMISE TO PAY In return for a loan that I have received, I promise to pay U.S. $ 69,937.95 (this amount is called "principal"), plus interest, to the order of the Lender. The Lender is HAWKEYE STATE BANK,ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF IOWA I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder." 2. INTEREST INTEREST BEGINS ACCRUING ON DECEMBER 10,1999 Interest will be charged on unpaid principal until the full amount of principal has been paid. I will pay interest at a yearly rate of 7.500 %. The interest rate I will pay will change in accordance with Section 4 of this Note. The interest rate required by this Section 2 and Section 4 of this Note is the rate I will pay both before and after any default described in Section 7(C) of this Note. Interest will be calculated on a ACTUAL/365 basis. 3. PAYMENTS (A) Scheduled Payments I will pay principal and interest by making payments when scheduled:(mark one) ❑ I will make my scheduled payments on the first day of each month beginning on ® I will make scheduled payments as follows: 359 MONTHLY PAYMENTS OF S488.79 BEGINNING 01.05.2000 AND 1 PAYMENT OF 3486.20 ON 12.05.2029. THIS ISA VARIABLE RATE LOAN AND THE PAYMENT AMOUNTS MAY CHANGE AFTER THE 36TH PAYMENT AND EVERY 36TH PAYMENT THEREAFTER. EXHIBIT D AL_ 0 In addition to the payments described above, I will pay a "balloon payment" of$ on The Note Holder will deliver or mail to me notice prior to maturity that the balloon payment is due. This notice will state the balloon payment amount and the date that it is due. (B) Maturity Date and Place of Payments I will make these payments as scheduled until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. My scheduled payments will be applied to interest before principal. If, on 12.05.2029 I still owe amounts under this Note, I will pay those amounts in full on that date, which is called the "maturity date." I will make my scheduled payments at 229 5.DUBUQUE STREET,IOWA CITY,IA 52240 rw or at a-different place if required by the Note Holder. • (C) Amount of My Initial Scheduled Payments —4 c--) Each of my initial scheduled payments will be in the amount of U.S. $ 488.79 This amount may change. (D) Scheduled Payment Changes Changes in my scheduled payments will reflect changes in the unpaid principal of my loanand in tlSeinterest rate that I must pay. The Note Holder will determine my new interest rate and the changed amount of my scheduled payment in accordance with Section 4 of this Note. 4. INTEREST RATE AND SCHED 7,D PAYMENT CHANGES (A) Change Dates Each date on which my interest rate could change is called a "Change Date." (Mark one) O The interest rate I will pay may change on the first day of and on that day every month thereafter. • The interest rate I will pay may change 12.05.2002 and on every 36TH MONTH thereafter. (B) The Index Beginning with the first Change Date, my interest rate will be based on an Index. The "Index" is: WEEKLY AVERAGE YIELD ON U.S.TREASURY SECURITIES ADJUSTED TO A CONSTANT MATURITY OF THREE YEARS,ROUNDED UP TO THE NEAREST 0.125 The most recent Index figure available as of the date Xl 45 days 0 before each Change Date is called the "Current Index." If the Index is no longer available, the Note Holder will choose a new index which is based upon comparable information.The Note Holder will give me notice of this choice. (C) Calculation of Changes Before each Change Date, the Note Holder will calculate my new interest rate by ADDING TWO&THREE FOURTHS percentage points( 2.750 %) to the Current Index. The result of this calculation: ❑ will not be rounded off. ❑ will be rounded off by the Note Holder to the nearest %. ® will be rounded off by the Note Holder up to the nearest 0.125 %. ❑ will be rounded off by the Note Holder down to the nearest %. Subject to the limitations stated in Section 4(D) below, this amount will be my new interest rate until the next Change Date. The Note Holder will then determine the amount of the scheduled payment that would be sufficient to repay the unpaid principal that I am expected to owe at the Change Date in full on the maturity date at my new interest rate in substantially equal payments. The result of this calculation will be the new amount of my scheduled payment. (D) Limits on Interest Rate Changes ® My interest rate will never be increased or decreased on any single change date by more than TWO percentage points from the rate of interest I have been paying for the preceding period. Il My interest rate will never be greater than 13.500 % or less than %. (E) Effective Date of Changes My new interest rate will become effective on each Change Date. I will pay the amount of my new scheduled payment beginning on the first scheduled payment date after the Change Date until the amount of my scheduled payment changes again. (F) Notice of Changes At least 25 days, but no more than 120 days, before the effective date of any payment change, the Note Holder will deliver or mail to me a notice of any changes in my interest rate and the amount of my scheduled payment. The notice will include information required by law to be given to me and also the title and telephone number of a person who will answer any question I may have regarding the notice. 5. BORROWER'S RIGHT TO PREPAY I have the right to make payments of principal at any time before they are due. A payment of principal only is known as a "prepayment." When I make a prepayment, I will tell the Note Holder in writing that I am doing so. I may make a full prepayment or partial prepayments without paying any prepayment charge. The Note Holder will use all of my prepayments to reduce the amount of principal that I owe under this Note. If I make a partial prepayment, there will be no changes in the due dates of my scheduled payments unless the Note Holder agrees in writing to those changes. My partial prepayment may reduce the amount of my scheduled payments after the first Change Date following my partial prepayment. However,any reduction due to my partial prepayment may be offset by an interest rate increase. 6. LOAN CHARGES If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that'the interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then: (i) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (ii) any sums already collected from me which exceeded permitted limits will be ce'funded to me. The Note Holder may choose to make this refund by reducing the principal I owe under this Note or by making a direct payment to me. If a refund reduces principal, the reduction will be treated as a partial prepayment. Form ADJ-NOTE 5/1/91 tpage2 of 41 RANKFRC CVCTFMC Mr CT r,nl In LAnl caono ,, onn ons ten..., • 7. BORROWER'S FAILURE It, t'AY AS REQUIRED (A) Late Charges for Overdue Payments If the Note Holder has not received the full amount of any scheduled payment by the end of 15 calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 5.000 % of my overdue payment of principal.,nd interest. ❑ I will pay this late charge promptly but only once on each late payment. (B) Set-Off I agree that the Note Holder may set off any amount due and payable under this Note against any right I have to receive money from the Note Holder, An amount due and payable under this Note is any portion of a scheduled payment not paid on or before its due date, even if the due date of the Note has not been accelerated. My right to receive money from the Note Holder includes any deposit account balance I have with the Note Holder (including savings, checking, and NOW accounts), any time deposit (including certificates of deposit), any money owed to me on an item presented to the Note Holder or in the Note Holder's possession for collection or exchange, and any repurchase agreement or other non-deposit obligation. If my right to receive money from the Note Holder is also owned by someone who has not agreed to pay this Note, the Note Holder's right of set-off will apply to my interest in the obligation and to any other amounts I could withdraw on my sole request or endorsement. The Note Holder's right of set-off does not apply to an account or other obligation where my rights are only as a fiduciary. It also does not apply to any IRA account or other tax-deferred retirement account. The Note Holder will not be liable for the dishonor of any check when the dishonor occurs because the Note Holder set off this debt against any of my accounts. I agree to hold the Note Holder harmless from any claims arising as a result of the exercise of the right of set-off. (C) Default If I do not pay the full amount of each scheduled payment on the date it is due, I will be in default. (D) Notice of Default If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is delivered or mailed to me. (E) No Waiver By Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full or does not exercise the right of set-off as described above, the Note Holder will still have the right to do so if I am in default at a later time. (F) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys' fees. 8. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if I give the • Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3(B) above or at a different address if I am given a notice of that different address. 9. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. --i is (NJ 10. WAIVERSr —r)I and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. • 11. SECURED NOTE In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the "Security Instrument"), dated the same date as the Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note. Some of those conditions are described as follows: This note is secured by Mortgage dtd 11/11/93 in the an. Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in i o f is sold or transferred(or if a beneficial interest in Borrower is sold or transferredand Borrower is not a natural person} S 0 0 C without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument.However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lender exercises this option, Lendershall give Borrower notice of acceleration.The notice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument.If Borrower fails to pay these sums prior to the expiration of this period,Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 12. BALLOON PAYMENT DISCLOSURE [Complete the balloon payment notice below if this Note provides for a balloon payment at Section 3(A) on page 1 of this Note.] THIS LOAN IS PAYABLE IN FULL I MUST REPAY THE ENTIRE PRINCIPAL BALANCE OF THE LOAN AND UNPAID INTEREST THEN DUE, WHICH MAY BE A LARGE PAYMENT. THE LENDER IS UNDER NO OBLIGATION TO REFINANCE THE LOAN AT THAT TIME. I WILL, THEREFORE, BE REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS THAT I MAY OWN, OR I WILL HAVE TO FIND A LENDER, WHICH MAY BE THE LENDER I HAVE THIS LOAN WITH, WILLING TO LEND ME THE MONEY. IF I REFINANCE THIS LOAN AT MATURITY, I MAY HAVE TO PAY SOME OR ALL OF THE CLOSING COSTS NORMALLY ASSOCIATED WITH A NEW LOAN EVEN IF I OBTAIN REFINANCING FROM THE SAME LENDER. WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED. Ct)-c !L� (Seal) MARY A.CONKLIN U -Borrower (Seal) -Borrower • [Sign Original Only] Ci iv C) S- 1 + N {! . CJ' r • O I • 01307 S 3 I FLED NO. BOOK AGE___ 99 DIC 17 11: 1 1 cup-f i RECORDER IOWA CITY, IOWA [Name, address and telephone number of prepared (Space Above This Line For Recording Data] MORTGAGE THIS MORTGAGE ("Security Instrument") is given on The mortgagor is MARY A.CONKLIN ("Borrower"). This Security Instrument is given to HAWKEYE STATE BANK , which is organized and existing under the laws of THE STATE OF IOWA , and whose address is 229 S.DUBUQUE STREET,IOWA CITY,IA 52240 ("Lender"). Borrower owes Lender the principal sum of SIXTY NINE THOUSAND NINE HUNDRED THIRTY SEVEN AND 951100 Dollars (U.S. $69,937.95 ) This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provides for monthly payments, with the full debt, if not paid earlier, due and payable on 12-05.2029 This Security Instrument secures to Lender: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to protect the security of this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender the following described property located in JOHNSON County, Iowa: LOT 53,IN PART I-A,MOUNT PROSPECT ADDITION TO IOWA CITY,IOWA,ACCORDING TO THE PLAT THEREOF RECORDED IN BOOK 9,PAGE 101,PLAT RECORDS OF JOHNSON COUNTY,IOWA. EXHIBIT a which has the address of 1930 CALIFORNIA AVE , IOWA CITY c-7. -- [Street' • C' [Ci><y1) 52240 r Iowa ("Property Address"); ' -' [Zip Codel _ Form 3016 9/90 111111 I 111 IOWA-Single Family - Fannie Mae/Freddie Mac UNIFORM INSTRUMENT F N 1 A 0 Bankers Systems,Inc.,St.Cloud,MN 11-800-397-23411 Form MD-1-IA 6/16/95 (page 1 of 6) 000058 TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument.All of the foregoing is referred to in this Security Instrument as the "Property." BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1. Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall promptly pay when due the principal of and interest on the debt evidenced by the Note and any prepayment and late charges due under the Note. 2. Funds for Taxes and Insurance. Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Lender on the day monthly payments are due under the Note, until the Note is paid in full, a sum ("Funds") for: (a) yearly taxes and assessments which may attain priority over this Security Instrument as a lien on the Property; (b) yearly leasehold payments or ground rents on the Property, if any; (c) yearly hazard or property insurance premiums; (d) yearly flood insurance premiums, if any; (e) yearly mortgage insurance premiums, if any; and (f) any sums payable by Borrower to Lender, in accordance with the provisions of paragraph 8, in lieu of the payment of mortgage insurance premiums. These items are called "Escrow Items." Lender may, at any time, collect and hold Funds in an amount not to exceed the maximum amount a lender for a federally related mortgage loan may require for Borrower's escrow account under the federal Real Estate Settlement Procedures Act of 1974 as amended from time to time, 12 U.S.C. § 2601 et seq. ("RESPA"), unless another law that applies to the Funds sets a lesser amount. If so, Lender may, at any time, collect and hold Funds in an amount not to exceed the lesser amount. Lender may estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with applicable law. The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumentality, or entity (including Lender, if Lender is such an institution) or in any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items. Lender may not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and applicable law permits Lender to make such a charge. However, Lender may require Borrower to pay a one-time charge for an independent real estate tax reporting service used by Lender in connection with this loan, unless applicable law provides otherwise. Unless an agreement is made or applicable law requires interest to be paid, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower and Lender may agree in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds, showing credits and debits to the Funds and the purpose for which each debit to the Funds was made. The Funds are pledged as additional security for all sums secured by this Security Instrument. If the Funds held by Lender e]ceed the amounts permitted to be held by applicable law, Lender shall account to Borrower for the excess Funds in accordance with the requirements of applicable law. If the amount of the Funds held by Lender at any time is not sufficient to pay the Escrow Items when due, Lender may so notify Borrower in writing, and, in such case Borrower shall pay to Lender the amount necessary to make up the deficiency. Borrower shall make up the deficiency in no more than twelve monthly payments, at Lender's sole discretion. Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to Borrower any Funds held by Lender. If, under paragraph 21, Lender shall acquire or sell the Property, Lender, prior to the acquisition or sale of the Property, shall apply any Funds held by Lender at the time of acquisition or sale as a credit against the sums secured by this Security Instrument. 3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under paragraphs 1 and 2 shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable under paragraph 2; third, to interest due; fourth, to principal due; and last, to any late charges due under the Note. 4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines and impositions attributable to the Property which may attain priority over this Security Instrument, and leasehold payments or ground rents, if any. Borrower shall pay these obligations in the manner provided in paragraph 2, or if not paid in that manner, Borrower shall pay them on time directly to the person owed payment. Borrower shall promptly furnish to Lender all notices of amounts to be paid under this paragraph. If Borrower makes these payments directly, Borrower shall promptly furnish to Lender receipts evidencing the payments. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender; (b) contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which may attain priority over this Security Instrument, Lender may,give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set fjth aboewithin 10 days of the giving of notice. c")---: --Form 3016 9/90 "(^ r-.) g Bankers Systems,Inc.,St.Cloud,MN(1-800-397-2341) Form MO-1-1A 8116195 (page 2(76)r— • rrt 117 000059 ;�; 5. Hazard or Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage" and any other hazards, including floods or flooding, for which Lender requires insurance. This insurance shall be maintained in the amounts and for the periods that Lender requires. The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's approval which shall not be unreasonably withheld. If Borrower fails to maintain coverage described above, Lender may, at Lender's option, obtain coverage to protect Lender's rights in the Property in accordance with paragraph 7. All insurance policies and renewals shall be acceptable to Lender and shall include a standard mortgage clause. Lender shall have the right to hold the policies and renewals. If Lender requires, Borrower shall promptly give to Lender all receipts of paid premiums and renewal notices. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged, if the restoration or repair is economically feasible and Lender's security is not lessened. If the restoration or repair is not economically feasible or Lender's security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. If Borrower abandons the Property, or does not answer within 30 days a notice from Lender that the insurance carrier has offered to settle a claim, then Lender may collect the insurance proceeds. Lender may use the proceeds to repair or restore the Property or to pay sums secured by this Security Instrument, whether or not then due. The 30-day period will begin when the notice is given. Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of the monthly payments referred to in paragraphs 1 and 2 or change the amount of the payments. If under paragraph 21 the Property is acquired by Lender, Borrower's right to any insurance policies and proceeds resulting from damage to the Property prior to the acquisition shall pass to Lender to the extent of the sums secured by this Security Instrument immediately prior to the acquisition. 6. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application; Leaseholds. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within sixty days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrower's control. Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate, or commit waste on the Property. Borrower shall be in default if any forfeiture action or proceeding, whether civil or criminal, is begun that in Lender's good faith judgment could result in a forfeiture of the Property or otherwise materially impair the lien created by this Security Instrument or Lender's security interest. Borrower may cure such a default and reinstate, as provided in paragraph 18, by causing the action or proceeding to be dismissed with a ruling that, in Lender's good faith determination, precludes forfeiture of the Borrower's interest in the Property or other material impairment of the lien created by this Security Instrument or Lender's security interest. Borrower shall also be in default if Borrower, during the loan application process, gave materially false or inaccurate information or statements to Lender (or failed to provide Lender with any material information) in connection with the loan evidenced by the Note, including, but not limited to, representations concerning Borrower's occupancy of the Property as a principal residence. If this Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the lease. If Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to the merger in writing. 7. Protection of Lender's Rights in the Property. If Borrower fails to perform the covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or regulations), then Lender may do and pay for whatever is necessary to protect the value of the Property and Lender's rights in the Property. Lender's actions may include paying any sums secured by a lien which has priority over this Security Instrument, appearing in court, paying reasonable attorneys' fees and entering on the Property to make repairs. Although Lender may take action under this paragraph 7, Lender does not have to do so. Any amounts disbursed by Lender under this paragraph 7 shall become additional debt of Borrower secured by this Security Instrument. Unless Borrower and Lender agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable, with interest, upon notice from 1Je ider to Borrower requesting payment. - 8. Mortgage Insurance. If Lender required mortgage insurance as a condition of mating-.She loan secured by this Security Instrument, Borrower shall pay the premiums required to maintain the mortgage insurance in effect. If,'for any reason, the mortgage insurance coverage required by Lender lapses or ceases to be in eff:ect,..Borr�ver shill pay the premiums required to obtain coverage substantially equivalent to the mortgage insurance pr`e*. sly;ia effect, at a cost substantially equivalent to the cost to Borrower of the mortgage insurance previously in effectoen an alternate mortgage insurer approved by Lender. If substantially equivalent mortgage insurance coverage is not available, .Borrower shall pay to Lender each month a sum equal to one-twelfth of the yearly mortgage insurance premium being paid:by Borrower when the insurance coverage lapsed or ceased to be in effect. Lender will accept, use and retain these payments as a loss reserve in lieu of mortgage insurance. Loss reserve payments may no longer be required, at the option of Lender, if mortgage Form 3016 9/90 Bankers Systems,Inc..St.Cloud,MN(1-800-397.2341) Form MO-1-IA 6/16/95 (page 3 of 6) 000061 insurance coverage (in the amount and for the period that Lender requires) provided by an insurer approved by Lender again becomes available and is obtained. Borrower shall pay the premiums required to maintain mortgage insurance in effect, or to provide a loss reserve, until the requirement for mortgage insurance ends in accordance with any written agreement between Borrower and Lender or applicable law. 9. Inspection. Lender or its agent may make reasonable entries upon and inspections of the Property. Lender shall give Borrower notice at the time of or prior to an inspection specifying reasonable cause for the inspection. 10. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of any part of the Property, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. In the event of a partial taking of the Property in which the fair market value of the Property immediately before the taking is equal to or greater than the amount of the sums secured by this Security Instrument immediately before the taking, unless Borrower and Lender otherwise agree in writing, the sums secured by this Security Instrument shall be reduced by the amount of the proceeds multiplied by the following fraction: (a) the total amount of the sums secured immediately before the taking, divided by (b) the fair market value of the Property immediately before the taking. Any balance shall be paid to Borrower. In the event of a partial taking of the Property in which the fair market value of the Property immediately before the taking is less than the amount of the sums secured immediately before the taking, unless Borrower and Lender otherwise agree in writing or unless applicable law otherwise provides, the proceeds shall be applied to the sums secured by this Security Instrument whether or not the sums are then due. If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the condemnor offers to make an award or settle a claim for damages, Borrower fails to respond to Lender within 30 days after the date the notice is given, Lender is authorized to collect and apply the proceeds, at its option, either to restoration or repair of the Property or to the sums secured by this Security Instrument, whether or not then due. Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of the monthly payments referred to in paragraphs 1 and 2 or change the amount of such payments. 11. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower ¢hall not operate to release the liability of the original Borrower or Borrower's successors in interest. Lender shall not be required to commence proceedings against any successor in interest or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made by the original Borrower or Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedy shall not be a waiver of or preclude the exercise of any right or remedy. 12. Successors and Assigns Bound; Joint and Several Liability; Co-signers. The covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of paragraph 17. Borrower's covenants and agreements shall be joint and several. Any Borrower who co-signs this Security Instrument but does not execute the Note: (a) is co-signing this Security Instrument only to mortgage, grant and convey that Borrower's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower may agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without that Borrower's consent. 13. Loan Charges. If the loan secured by this Security Instrument is subject to a law which sets maximum loan charges, and that law is finally interpreted so that the interest or other loan charges collected or to be collected in connection with the loan exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower. Lender may choose to make this refund by reducing the principal owed under the Note or by making a direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial prepayment without any prepayment charge under the Note. 14. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method. The notice shall be directed to the Property Address or any other address Borrower designates by notice to Lender. Any notice to Lender shall be given by first class mail to Lender's address stated herein or any other address Lender designates by notice to Borrower. Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph. 15. Governing Law; Severability. This Security Instrument shall be governed by federal law.and the law of the jurisdiction in which the Property is located. In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision. To this end the provisions of this Security Instrument and the Note are declared to be severable. - r. ? r Form 30'16 9/90 Bankers Systems.Inc..St.Cloud,MN(1.800-397.23411 Form MD-1-IA 6/16/95 (page 4 of 6) " 0000�� 16. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security Instrument. 17. Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrowermust pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 18. Borrower's Right to Reinstate. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earlier of: (a) 5 days (or such other period as applicable law may specify for reinstatement) before sale of the Property pursuant to any power of sale contained in this Security Instrument; or(b) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower: (a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees; and (d) takes such action as Lender may reasonably require to assure that the lien of this Security Instrument, Lender's rights in the Property and Borrower's obligation to pay the sums secured by this Security Instrument shall continue unchanged. Upon reinstatement by Borrower, this Security Instrument and the obligations secured hereby shall remain fully effective as if no acceleration had occurred. However, this right to reinstate shall not apply in the case of acceleration under paragraph 17. 19. Sale of Note; Change of Loan Servicer. The Note or a partial interest in the Note (together with this Security Instrument) may be sold one or more times without prior notice to Borrower. A sale may result in a change in the entity (known as the "Loan Servicer") that collects monthly payments due under the Note and this Security Instrument. There also may be one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written notice of the change in accordance with paragraph 14 above and applicable law. The notice will state the name and address of the new Loan Servicer and the address to which payments should be made. The notice will also contain any other information required by applicable law. 20. Hazardous Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous Substance affecting the Property is necessary,Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. As used in this paragraph 20, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in this paragraph 20, "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environmental protection. NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 21. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under paragraph 17 unless applicable law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further,:demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 21, including, but not limited to, reasonable attorneys' fees and costs of title evidence. - 22. Release. Upon payment of all sums secured by this Security Instrument, Lender.,shall release tliis'Security Instrument to Borrower. Iv - 0 00062 0 0 6 . - Form 3016 9/90 Bankers Systeme,Inc.,St.Cloud,MN(1-800-397.23411 Form MD-1-IA 6/1 6/95 �J (page 5 of 6) • 23. Waivers. Borrower t 4uishes all right of dower and waives all rig.. of homestead and distributive share in and to the Property. Borrower waives any right of exemption as to the Property. 24. Redemption Period. If the Property is less than 10 acres in size and Lender waives in any foreclosure proceeding any right to a deficiency judgment against Borrower, the period of redemption from judicial sale shall be reduced to 6 months. If the court finds that the Property has been abandoned by Borrower and Lender waives any right to a deficiency judgment against Borrower, the period of redemption from judicial sale shall be reduced to 60 days. The provisions of this paragraph 24 shall be construed to conform to the provisions of Sections 628.26 and 628.27 of the Code of Iowa. 25. Riders to this Security Instrument. If one or more riders are executed by Borrower and recorded together with this Security Instrument, the covenants and agreements of each such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Security Instrument as if the rider(s) were a part of this Security Instrument. [Check applicable box(es)] ❑ Adjustable Rate Rider ❑ Condominium Rider ❑ 1-4 Family Rider ❑ Graduated Payment Rider 0 Planned Unit Development Rider ❑ Biweekly Payment Rider ❑ Balloon Rider ❑ Rate Improvement Rider ❑ Second Home Rider ❑ Other(s) [specify] ❑ Purchase Money Mortgage. This is a purchase money mortgage as defined by Iowa law. BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any rider(s) executed by Borrower and recorded with it. -nn ...Q. (Seal) MARY A.CONKLIN U -Borrower (Seal) -Borrower [Space Below This Line For Acknowledgment] STATE OF IOWA ss: County of On this day of , before me, a Notary Public in the State of Iowa,personally appeared MARY A..PQNK4JN ..... , to me known to be the person(s)named in and who executed the foregoing instrument,and acknowledged that he/she/they executed the same as hislherltheir voluntary act and deed. My Commission Expires: 5—7—09— , 140LD Notary Wfilic in the State of Iowa N � I ( ( p. I e4:5A0-\-,. 113 .7) —< 7 G jj -: (..J t7 00006��+'`3 Form 3016 9/90 Bankers Systems,Inc.,St.Cloud,MN(1.800.397-2341) Farm M0-1-A 6/16/95 (page 6 of 6) age 1 of 1C) 01111111111,111111111110111111111111 Doc ID: 014774810010 Tvoe: GEN Recorded: 07/21/2003 at 03:36:26 PH Pee Ant: *10.948.00 Pape 1 of 10 Johnson County Iowa Kimberly A. Painter County Recorder BK 3591 Pc407-416 /_. . 1.7 Return to and Preparer ' Information John F.McKinney III,West Des Moines State Bank, 1601 22nd Street West Des Moines,IA 50266;(515)222-2331 ASSIGNMENT Now on this 18th day of July,2003,for good and valuable consideration,the adequacy of which is hereby acknowledged,Hawkeye State Bank,a financial institution chartered under the laws of the State of Iowa("Assignor"),hereby sells,assigns,conveys and transfers to West Des Moines State Bank,a financial institution chartered under the laws of the State of Iowa("Assignee"),all of its interests in loans,promissory notes, mortgages,security agreements,financing statements,guarantees,and other collateral as described in the Purchase and Assumption Agreement between Assignor and Assignee, together with all monies and interests due thereon now and in the future. The interests hereby sold,assigned,conveyed and transferred include,without limitation,the real estate mortgages described in Exhibit A,attached hereto and incorporated herein by reference. HAWKEYE STATE BANK WEST DES MOINES STATE BANK � Assignor 1 19 Assignee By: 6ILu i,f i36wt•Gac� B Y: 79.1---2_ William R.Bernau David R.Milligan President CEO and Chairman of the Board EXHIBIT 1 ____a_____ STATE OF IOWA ) )SS: COUNTY OF JOHNSON ) On this 17th day of July,2003,before me,the undersigned,a Notary Public in and for the said State, personally appeared William R.Bemau,to me personally known,who being by me duly sworn,did say that be is the President of Hawkeye State Bank,that the foregoing instrument was signed by him on behalf of the corporation by authority of its Board of Directors;and that the signature of the foregoing instrument is the voluntary act and deed of the corporation. otary Public in a d for said Stat BONNIE J.BUS STATE OF IOWA ) AL) I )SS: Irk) COMCOMMISSIO vtISSION NO. P7R::X8PS8 MY COUNTY OF POLK ) I oee f O-(�•t t ) c:, On this 17th day of July,2003,before me,the undersigned,a Notary Public in and for the said State, --- r,., personally appeared David R.Milligan,to me personally known,who being by me duly sworn,did say that he is the , C,.,1 CEO and Chairman of the Board of West Des Moines State that the foregoing instrument was signed by him on behalf of the corporation by authority of its Board of Directors;and that the execution of the foregoing instrument is '"'i -�- the voluntary act and deed of the corporation. 7"( -- P,u Q� _(/(i6� �Notary Publid• and forseJ :;I1Q"1 -1- ?age 2 of '1C) , _ JOHNSON COUNTY MORTGAGES 1 —1 -- I i Itislael Book# Paae# j Date Filed Book# Paae# i 11/2/1983 670' 147' , 7/24/1991. 1258; 164 11/3/1983 670 297 I 8/7/1991' 1265; 248 11/3/1983 670 3011 8/19/1991 1270' 15 — _ 11/28/1983 673104 I 1017/1991 1286 29 11/30!1983 673. 258 I 10!21/1991. 1290 90 - 11/30/19831 6731 267 10/24/1991 1291 72 2/9/19841 ._ 683; 266 j 11/12/1991; 1296: 41 3/22/1984; 689! 199 12/27/1991 1311 92 3/27/1984! 690 49 1/13/1992 1315 260 3/29/1984 690; 212 1 1/24/1992 1320 64 3/29/1984' 6901 234 3/25/1992~ 1346 38 4/25/1984' 694, 164, 3/27/1992 1347 91 5/1/1984, 695 140! 5/22/1992 1375 21 7/16/1984 714 282' 5/28/1992 1376 278 8/16/1984 723 102 — 5/28/1992 1376 279 11/30/19841 741, 174 6/5/1992 1382 224 1/23/1985; 749 158; 1 6/30/1992 1395 194 3/11/1985! 755 186: I 7/1/1992 1396 317 10!3/1985 804 831. 7/1/1992 1396 321 2/10/1986' 827 1501 7/1/19921 1397 - 32 1/28/1987 913 109; 7/1/1992 1397 40 319/1987; 9211 195 ' 7/1/1992 1397 95 5/18/1987' _ 940! 431 f 7/1/1992 1397 101 6/10/1987; 948; 72. l 1 7/1/1992 1397 107 6/3/1988 10051 406; I 7/1/1992 13971 122 7/18/1988 1014' 536; ( 7/8/1992 1401 45 9/27/1988; 1028 509 j 7/8/1992 1401 49 11/2/1988 1033. 5081 j 7/13/1992 1402 305 12/22/1988 1040; 292, _ 7 7/15/1992 1403 262 1/30/1989 1044! 5391 j 7/20/1992 1406 59 1/30/1989 1044 542 j 7/28/1992 1409 120 5/19/1989; 1059; 295 _ 8/13/1992 1418 71 6/28/19891 1066' 477, 9/4/1992 1428 220 7/3/1989 1068 282 9/18/1992 1434 347 7/26/1989 1072 462: ( 10/5/1992 1443 242 9/12/1989 1082 14` i 10/6/19921 1444 113 10/30/1989 1089 4841 j 11/5/1992! 14601 _ 150 12/27/1989 1097 _ 281 1 11/23/1992 14671 330 12/27/1989 1097 293 1 12/16/1992 1478! 187 1/8/19901099 70 12/28/1992 1482 90 3/15/19901 1110 228 12/31/1992 1485 __ 23 4/2/1990 1115 110 1/15/19931 _ 1490 158 4/6/1990 1116' 2251 I 3/2/1993 1508 85 4/24/1990_ 1120! 154; { 3/4/1993; 1509 116 4/25/1990 1120 286 3/8/1993 1510 � 48 5/22/19901 1128 282 _3/29/1993' 1517 _ `-'54 7/27/1990' 1151 244 4/14/19931_ 1525 t=; :"97 _ 9/4/1990 1165{ 39; _ 5/3/1993 1534,: _108 10/25/1990 1179 154! 5/17/1993 1543 _ 348 �' --- 11/2-071990 1185 231 - _.__ 5/24/1993 1548— iT r•,;39 1 5/1/1991; 12251 215 6/29/19931 1570,_-i 102 F1j 5/31/1991' _. 12361 226 7/1/1993 1572 --_.': x: 10 _ - 6/13/1991: 12421 - 38 7/1/1993 1572 h--' _r_,.2_66 ..f _ 6/13/1991; 1242 50 1 7/1/1993 1572' = X318 6/27/19911 1247' 194: 7/16/1993 1581: '7239 7/17/1991; 1255 224 7/20/1993 1582; 334 EXHIBIT A ?ago 3 of 10) Date Filed 1 Book# Page# DateFiled Book# Page # 7129/19931 1589 _ 205 — j I _ 2/13119951 18671 248 9/17/1993 1618 217 1 3/2/19951 1872, 314 9/23/1993, 1621 131 3/14/1995 1877 91 9/30/19931 1625, 315 3/31/1995 1883 167 10/27/1993' 1641' 299. ( _I 4/18/1995. 1890 44 11/15/1993 1655 32' f I 4/27/1995 18941 153 11/19/1993' 16581 _. 1191 t - I 5/4/1995 18981 109 11/19/1993' 1658 125' 5/23/1995 _ 1906: 122 11/23/1993 1659 314 I 6/21/1995 1920 14 12/8/1993 1669 99 I 7/19/1995. 1935 28 12/16/1993 1674 196; ; 7/31/1995 1941 181 12/21/1993 1677 125, 8/1/1995 1942' 132 1/3/1994 1683 3201 8/8/1995! 1948; 116 2/14/1994 1705 1161 8/15/19951 1952; 149 48' - 9/6119951 19631 325 2/15/1994' 1705 1561 ! 9/7/19951 19651 24 2/17/1994. 1706 1231 I 9/25/1995 19731 124 2/22/1994 - 1707 2411 ! 9/27/1995' 19741 257 3/3/1994 1713 27; 10/6/1995 1979 296 3/11/1994: 1716 187; I 10/12/1995 1982 75 3/18/1994 1720: 33110/17/1995 1984 164 4/1/19941 1725 1811- 10/24/1995 1987! 125 4/1/19941 1726 34 j 10/25/19951 1988! 41 4/4/1994 1726; 179 j 10/31/19951 19911 89 4/28/1994 1739: 60 _ � 11/211995 19921 62 5/5/1994 1743 j 150 J 11/6/1995 r 19931 290 5/12/1994 1747'! 106 1 11/8/1995 1995: 14 5/18/1994 17501 305 11/16/1995 1998! 44 5/26/1994 1754, 146 11/30/1995 20031 74 _ 6/10/1994: 1762: -- 202 11/30/1995 2003. 81 _ 6/14/1994: 1763' 2571 12/18/1995 2009 259 6/30/1994 _ 17731 103; 12/28/1995. 20141 48 7/1/1994 _ 1774 192 1/3/1996; 20161 208 7/1/1994, 1774 253 1/9/19961 2018 296 7/1/19941 1774 2661 ! 1/10/1996 1 2019 246 7/1/1994' 1774 268 1/12/1996! 2020 264 _ 7/1/19941 1774_ 276 l j 1/12/19961 2020 268 7/1/1994, _ 1774 280• I 2/2/1996 2030 35 7/1/1994! 1774 3011 2/8/19961 2032 134 7/1/1994' 1774 312 2/14/1996 2034 198 7/1/1994; 1774 3191 2/16/1996 2036 19 7/19/1994' 1783 1381 2/20/1996 2036 320 7/22/19941 1785: 207 _ 2/20/1996, 2036 324 8/3/19941 _1791 219 4/1/1996 2057; 322 8/5/1994; 17941 18 i 4/1/1996 2058; 53 _ 8/16/1994; 1798 276 4/1/1996• 2058, 74 _ 9/2/1994 1807; 124 1 4/2/1996 2059 89 9/16/1994 1812 271 ! I 4/5/1996 2062 101 9/26/1994, 1816 119 4/10/1996 2064 34 10/26/1994 1829 33 4/17/1996'1 20671 —,273 11/1/19941 1831! 88; 5/8/1996` 2078__ ` x129 11/1/1994' 18311 _ 178 5/110/19967: 2079Y _, ._ 7260 11/4/1994, 1833; 122 _ 5/20/1996, 2084;3--••- 5-226 11/30!1994' 18417 48 _ - 5/30/19961 2090- _._,133 ' ' 12/19/1994 1849 155: 5/30/1996 209 t c--; ry 137 1/27/1995. 1863; 188: 5/31/1996, 2091(I __1 37 ,:1 -••-.- -- 2/1/1995I 1864 214: i1 6/4/1996: 2094 156 2/8/1995 1866: 1661' ! 6/24/1996L 2108 r,)159 2/8/1995 1866' 2601 i 6/25/1996 2109 • r 84 r__ Date Filed Book# Page# Date Filed !kW._ Page# 1 T 6/28/1996 2111• 2161 2/20/19981 2425, 88 7/3/1996 2116 751 2/20/1998 2425 280 7/15/1996 2122 102 j 2/25/1998 2428 126 7/26/1996 2129 70 + 2/25/1998 2428. 133 8/7/1996 2136 288 -T 2/27/1998; - 2429 160 8/13/1996 2139 324 3/6/1998 2435 215 8/20/1996 2144; 107 1 3/16/1998 2442 11 - 8/26/1996 2147 5 I 4/211998. _ 2455 25 __ 8/29/1996 2148 195 4/8/1998! 24601 99 9/6/1996 2153; 68 j 4/14/1998142 64 240 9/13/1996 i 21561 98 I 4/16/1998 2465_ 316 9/23/1996' 2159 247 _ 5/6/1998 2480 82 9/25/1996 _ 2160 3291 5/13/1998 2485' 101 10/7/19961 2166 287, 5/22/1998 _ 2491' 260 11/4/1996 2181 18 i 5/27/1998 2494 18 11/5/1996 2181 235 6/2/1998 2499 179 11/12/19961 2183 155 _ 6/2/1999 2499 207 11/27/19961 2191 268 _ 6/10/1998 2507 8 12/23/1996 2203 101 _ 6/12/1998 2508 271 12/26/19961 2204 87, 6/12/1998 2508 278 1/17/1997' 2213 208' 6/1511998 _ 2508 317 — 3/6/1997 2233 130 I 6/15/1998— 2508 321 4/15/1997 2253' 160' I _ 6/15/1998, 25101 13 _ 4/22/1997 2256, 207 1 6/19/1998! 2515. 76 5/12/1997 2266' 314 ' 6/22/19981 2516 149 5/13/1997 2267, 168 6!29/1998; 2520 174 5/20/1997--- 2271; 296 _ 711/1998 2523 264 5/28/1997` 22761 242 7/1/1998; _ 2524: 64 5/28/1997' 22761 246 7/211998. 2525. 168 6/3/1997: 22801 197 7/2/1998; 2525! 173 6/5/1997 2282' 212 7/2/19981-- 178 6/13/19971 2287 106 k 7/6/1998j 2527 27 6/19/19971 2291; 2771 7/8/19981 25291 102 6/23/19971 22921 292' ' _ 7/16/1998; 2535 258 6/23/1997, 2292 2981 - 7/16/1998; 25351 270 6/23/19971 22921 302 7/20/1998, 2537, 24 6/23/1997, 2293; 198! 7/21/1998: 25381 208 7/1/19971 _ 2298 324 7/22/1998' 2539 152 7/3/1997'_ 2300, 3181 8/5/1998 2551 65 7/14/1997 2306 2641 8/14/1998 25571 245 7/24/1997 2312 305; I 8/17/1998 25581 237 7/24/1997 2312 311' 1 8/18/19981 2559r 84 - 8/26/1997 2331 1081 8/18/19981 25591 90 9/3/1997: 2336 53• 8/19/19981 2560t 9/12/1997; 23401 2351 } 8/19/1998! 25601 20633' 9/18/1997; 2343' 181• 8/19/1998 2560: 213 9/26/1997 2347, 308, i 8/28/1998 - 2566. 138 10/21/19971 2359, I 9/1/1998 2568 297 10/24/1997 2361' 153' r 9/11/1998 2575 145 11/5/1997 2367 30; { i 9/14/1998 2577 -- 37 _ 11/20/1997 2375 611 I ( 9/22/1998_ 2582;7'; '-,215 12/3/1997 2381 101 _ 9/29/1998 258699 220 ' 12/22/1997 2391 224; I 9/30/1998_ 25874 - - -117 ...G,.,: 12/23/1997: 2392 1131 ! 1 10/6/1998 2590 x;,290 ' _ 1/5/1998; 2398 3031 I 10/6/1998', 2590-1' 297 ;,w„�,� 1/6/1998 2400• 63! 10/8/1998. 259Z, _'�” _.243 L = g _ 1/12/1998 2403 227 10/14/1998 2594=.:� ,287 `"" 1/12/1998 2403, 236 10/23/1998 2602 - 1/23/1998' 2409; - 163 10/26/1998 2602 -:- 19 <_ P3C _ i., Date Filed Book 4 Page 4 1 Date Filed Book 4 Page 4 i 1 -- ----- - -10/30/1998 2606! 48, 9/2/1999 2820 85 11/2/1998 2608 i 60' 8/13/19991 2826 296 — 11/12/1998• 26141 286 1 1 9/13/1999 2826 300 11/16/1998 2617; 244, 1 1 9117/1999 2830 33 11/25/1998 2624 323 9/21/19991 2831 319 12/2/1998 2629 219 9/27/1999 2834! 9 12/22/1998 2644, 202 9/28/1999 2835: 32 12/23/1998 26451 76 10/1/1999 2837: 78 12/23/19981 2645; 82, - 10/4/1999— 2838 13 12/29/1998 2648 241 f 10/5/1999 2839 318 _ 12/29/1998! 2848 31j 10/6/1999 2841 199 1/7/1999 2654 1371 10/13/1999 2843 226 1/7/1999 2654 1551; I 10/13/19991 2843 324 1/1511999, 2659 2081 10/13/1999 2844 206 2/4/19991 2671', 2291 1 10/18/1999 2846 239 2/4/1999: 2671 2461 I I 10/26/19991 2851`. 152 2/12/1999 2677 1281 10/26/19991 2851 282 3/16/1999! 2694; 1361 1 11/1119991 2/12/1999 2677 134 ! 10/28/1999 28521 136 28541 2232 3/16/19991 2694, 162 L 1118/1999 2859 1821 3/22/1999 2698 271 I 11/8/1999 28591 188 3/31/1999 2705 541-- 1 11/15/1999 2862' 122 . ....... ... 4/1/1999 2706 208 1 11/18/1999 28641 225 4/1/1999 2706 22311/22/19991 2866: 113 4/2/1999 2706 262 -... 11/23/1999 28671 40 4/2/1999: 2706: 267 11/29/1999 2868 137 4/8/1999, 2710 196 12/3/1999; 2871 88 4114/19991 2714 188 12/8/19991 2873 263 4/22/19991 2719 159 I 12/17/19991 -� 2878 58 4/22/19991 2719 169 12/17/19991 2878 65 4/29/19991 27231 146; 12/21/1999 2879 308' 4/30/19991 27241 2351 1. 12!21/19991 2880: 15 5/17/1999! 27371 1851 1 12/28/19991 2882; 324 5/20/1999 27391 2841 12/28/19991 28831 30 5/20/1999, 27401 20 I 12/30/19991 28841 53 5/26/1999 2743 281 1 1/6/20001 _2888 _140 6/28/1999 2766 176 i I_ 1/7/2000 2889 176 6/30/1999 2770 3181 1/19/2000 28931239 _ 7/8/1999 2779 119 ----- I _ 1 1/19/2000 2893 250 7/15/19991 2784 22 1/25/2000 2895 226 7/20/19997- 2787 121 1/25/20001 2895 236 7/21/1999' 2789 32 1/26/2000 2896, 108 7/22/1999' 2789 161: 1 1/26/2000• 2896! 114 7/30/1999 2796 235: 1/26/2000 28961 124 8/2/1999 27971 110 1/26/2000 2896 129 8/3/19992799; 3141__ _ 1/28/2000 2897; 46 8/4/1999. 28-(f11-1. 6' 2/3/2000 2899 276 8/6/19991 2802 217 2/3/20001. 2900 . 74 4-- 8/10/1999 28041 130 2/4/2000 j 2901 __- 11 - 8/16/1999 28071 198, 2/4/20001 2901 ` .'- f 23 , 8/16/1999' 2808; 141: [ 2/4/2000! 2901 Y;:."C -,28 8/17/1999 2808 1701 I _ 2/15/20001 2905 _,.-;, X19 8/17/1999 2_809� 17 + 2/16/20001 2905 r‘.326 8/20/199912812 149 - _ 3/1/2000 2g11�a+y ��77 - 8/19/1999.— 2811; 108 3/1/2000" 8/27/1999 -•_- 2816 2fi9 I 3/8/2000 2911 i•-:.71-_`, ..-:791 y _._._.__.. + � 2915 :� � : r,149 Lr� 9/1/1999 2819 11_01 3/13/2000'. 2917.. 1 9/1/19991 2819, 1141 3/16/2000. 29191 ( .)43 9/2/1999' 2820', 791 3/16/2000 2919! 42 Date Filed Book# Page# Date Filed i Book# Pape# 3/22/2000 L 2921 71 i 12/18/2000 30241 407 3/28/2000 2923. 1151 12/19/2000 3025 1 3/28%2000 2923 242 _ 12/27/2000: 3026. _514 3/31/2000. 2926 50 j 1/16/20011 3029i 836 4/3/2000' 2926 190 ; 1/18/2001 3030] 452 _ 4/4/2000 2927 241' 2/26/2001 3038 i 983 4/4/2000 _ 2927 248 _ 2/26/2001; 3038; 990 4/4/2000 2927 _ 254 2/26/2001 3038' 1045 4/4/2000 2928; 187 2/27/2001' 30391 215 4/6/20001, 2929! 132' 3/1/2001 3039 828 4/7/2000 2930 274 3/1/2001 3039- 832 4/10/2000 2931 136 3/9/2001 3042 314 4/17/2000 2934 175: 3/12/2001 3042 444 4/20/20001 2938 381 I 3/30/2001 3047 772 __ 4/21/2000 2938' 1521 1 4/2/2001 _ 3048: 35 4/21/20001 2938; 199 4/2/2001; 3048; 48 4/27/20001 2942; 60 4/6/2001 i _430501 57 4/28/20001 2942! 266 4/6/2001 L 30501 61 5/4120001 2947; 40 _ J 4/11/20011 3051 442 5/5/2000 2947' 132 4/12/2001 3052 272 5/5/20001 2947 274 4/16/2001 3052 674 5/17/2000 2953 209; j 4/16/2001 3052 759 5/26/20001 2958 128, 4/16/2001 3052 768 6/1/20001 2961 27; 1 ! 4/19/2001 3054 308 6/6/2000' 2965i 48 - ! 4/19/20011 30541 320 6/16/2000, 2971 165 I 4/26/2001' 3056 95 6/16/2000. 29711 170 1 5/1/20011 _3057 664 6/28/20001 - 29791 266 - I 5/1/20011 3057 678 6/30/20001 29811 221 I 5/1/2001' 3057 1326 7/3/20001 29831 353 1 5/8/2001 3060 37 7/5/2000; 2984; 435i 5/10/2001 3061, 338 7/10/2000; 29851 6101 5/14/2001i 30611 1040 7/17/20001 29881 8' 5/17/2001 3063; 142 29901 18 5/17/2001 1 30631 7/25/2000 i 178 7/25/20001 29901 222 5/22/20011 3065 624 _ 7/25/20001 29901 476 5/23/2001 3066 _1_2 8/1/2000 2992 300 5/23/2001 __... 3066_--- 35 8/1/20001 2992 306 5/30/2001 3068 603 8/10/2000 2995 601 _ '• 5/30/2001 3068 619 8/11/2000, 2996; 116 6/1/2001 3069 5391 8/16/2000: 2996. 8211 6/1/2001 3069545 8/16/2000 2996: 8261 6/6/2001, 3072; 790 9/8/20001 3003; 971 6/7/2001 3073: 384 9/12/2000 _ 3003' 436 6/7/2001 3073 398 9/18/2000 3005 1; 6/12/2001 _ 3075 644 9/22/20001 3006 258 _ 1 I 6/15/2001 3076 608 9/26/20001 3006. 4571 ! I 6/15/2001; 30761 730 10/18/2000' 3012 324 1 _ 6/28/2001 3083, 224 10/24/2000 3013 650 ; 6/28/20011 3083i x.-,412 11/7/2000 3017; 64: 1 6/29/2001: 30844- r' 89 1 11/17/2000. 3019 175 j 6/29/2001; 3084;.. ...__ - 225 - 11/20/20001 3019, 324', 7/3/2001; 308fi�• ^==389 11/21/20001 3019! 792 7/3/20011 3086 ..- 429 11/28/2000{ 30201 589 I. 7/5/2001 3087 ;v 108 11/28/2000; 3020 595 7/5/2001, 30871 125 • 12/4/20001 3022 182' ! 7/5/20011 3087; 477 12/6/20001 3022 682! 7/9/20011 3089 r,;. 81 _ - 12/8/20001 3023 307: 7/9/2001 f 3089 217 12/18/20001 3024 374 1 7/13/20011 3092' • 9 Date Filed Book 4 Page 4 Date Filed . Book 4 Page 4 1 i i , 1 1 7/16/2001 3093 182' 1 I 12/14/2001 i 3191 271 7/18/2001 3095 535: 12/17/2001 3192, 1 7119/2001 3096[ 1: 12/17/2001 3192 10 7/24/2001 3098 789! . . . , 12/20/2001 3195! 421 7/27/20011 3101 404 . , • 12/20/2001 3195 491 _.. 8/2/20011 3105 75: I 12/20/2001 3195! 498 8/2/2001' 3105 82! , 12/21/2001'--- -C13 192 8/2/2001 3105! 991 ' 12/26/20011 3197 637 8/3/2001 3106 338 1/2/2002' 3201; 330 8/6/2001. 3107 430 r 1/2/20021 3201; 695 ..... _____ 8/6/2001. 3107 513 1 1/3/2002! 3202! 4 8/6/2001: 3107 5461 1/3/2002' 32021 260 ... ...___ _. 8/8/2001 3109 353 1 1/4/2002 3203 235 _.... ....._____. 8/8/2001 3109 433: --- 1/7/2002 3204 262 8/15/2001 3114 108. 1/11/2002 3208 151 8221/2001: 3118, 289: 1/15/2002 3210 277 8/28/2001 3123 3741 1115/2002' 3210! 477 8/30/2001 3125 159! 1/18/2002 3213, 157 9/1/2001 3127 8! ' 1/18/2002' 3213' 165 9/7/2001. 3130 554j 1/22/2002 3214. 50 .._.,._,. ..._.. .... 9/10/2001 31311 71— 1128,20021 32181 120 9/17/2001 31361 254 1/28/2002 3218 124 9/21/2001. 3140' 31 1/28/2002 3218 296 9/21/2001 31401 42 1/29/2002b 3219 385 9/21/20011 31401 499: —1 1/30/20021 32201 265 9/28/2001 3145[ 302 2/1/20021 3222' 35 9/28/2001 3145 518; 2/4/2002 3223 341 10/1/2001 3146 63 H 2/4/2002 3223 360 10/4/2001 3149 301 217/2002, 3226. 75 10/9/2001 3151 408, 2/13/2002 3230; 33 10/9/2001 3151 475 2/19/2002: 3233! 148 _ 10/9/2001 3151, 487 2/20/2002. 3234, 96 10/9/2001 3151; 509 2/20/2002 3234! 325 10/9/2001 3151 6301 2/21/2002 3235; 2 1 10/9/2001; 3151; 638! 2/21/2002 32351 257 10/11/20011 3153' 410! 2/25/2002 3237! 14 10/11/2001 31531 416: 2/25/20021 3237 22 10/18/2001 3158 4111 2/25/2002 3237 193 10/18/2001 3158 530 I 2/25/2002' 32371 201 10/26/2001 31631 363 2/27/2002 32391 393 10/2672001 3.15.31 370: 2/27/20021 32391 433 11/1/2001 3167, 3371 2/27/2002: 3239 446 11/1/2001 3161 369 2/27/2002' 3239 452 11/6/2001; 31701 220 3/1/2002' 3241' 119 11/8/2001: 3171 1321 3/6/2002 32441 444 11/8/2001 3171 2861 3/7/2002 3245 83 11/8/2001 3171 3181 1 3/12/2002! 3248 126 11/8/2001 3171 325 3/12/2002' 3248! 130 11/16/2001 3174 628 3/15/20021 32511 361 _ ....._ 11/16/2001 3174 636' 1 3/18/2002' 3252' 155 11/19/2001 3175 82 3/21/2002, 3255 291 11/2112001' 31771 281. 3/25/2002 3257! ,. a4 1 4 11/27/2001 3179 624. 3/26/2002 3258, •.. , 11/28/2001 3180 238, 3/27/2002 3259 -::- —• .440 11/28/20011 3180 537 I 3/29/20021 3261 r ---: -370 11/29/2001 3181 529: 4/2/20021 3263 ----;C7' 1 t44 12/5/2001. 3185 321 4/2/2002 3263 ::(/— -234 7-7 12/11/2001. 3188. 562 1 4/2/2002 3253' 52., -3:10 ...- 12/11/2001 3188 6081 I 4/2/2002 3263 •,'''.—' 1r7 - -' ...... ...-_- ci Date Filed Book# Page# _ ` Date Filed Book# Page# — t — 4/2/2002' _ _ _ _ . I ! 3263. 325! ! 7/12/20021 3334 180 4/3/2002' 3264 70; 7/12/2002, 3334' 189 4/4/2002 3265, 167' 7/15/2002' 3335 391 4/4/2002• 3265 4571 7/17/2002' 3337. 194 4/4/20021 3265 462' 7/22/20021 3340' 48 4/16/2002' 32731 46 i 7/22/20021 3340 80 4/16/2002 32731 53 7/22/2002! _ 3340 95 4/16/2002 32731 67 7/22/2002; 3340 254 _ 4/2312002' _3278+ 137 j 7/24/2002; 3342 160 4/23/2002'' 32781 156 7/24/2002' 3342 373 5/2/2002 3285i 250 7/25/2002 3343' 398 5/3/2002 3286: 132' ' 7/25/2002 3343 451 5/6/2002 3287, 259 7/26/2002�_- 3344 566 5/8/20021 3289 162 7/30/20021 33461 418 5/8/2002; 3289 190 7/30/2002' 3346 424 5/9/2002' 3290 334 8/5/2002, 3350 16 5/9/2002; 3290 _ 341 --- 815/2002' 3350 ---- 485 5/10/2002 3291; 3 1 8/5/2002 3350 —494 5/14/2002 3293 212, I 8/7/2002 3352 339 5/14/2002. 3293' 248; 8/7/2002 3352, 432 5/16/20021 3295 68': _ 8/14/2002 _33571 20 5/21/2002' 3298 184 8/14/2002 33571 33 5/24/2002 3301 45 _ _ 8/20/2002! 33611 439 _ 5/24/2002 3301 184 8/20/2002: 3361 446 5/28/2002 3302 412 8/2O/2OO2t 33611 452 5/28/2002 3302 442 8/22/2002' 3363. 136 5/28/2002 3302! 479 1 8/23/2002' 33641 300 5/31/20021 3305' 3001 I I 8/29/2002 33681 1 6/5/2002' 3308 2 ' 8/29/2002 3368! 196 6/5/20021 3308 216; ! 8/29/2002 _ 3368: 217 6/5/20021 3308 222! I I 8/30/2002 3369; 222 6/5/2002! 3308' 3611 ; I 8/3O/2002 33691 _ 231 6/5/2002: 3308 367 1 9/4/2002 3371 659 6/5/2002 3308 380 j ) 9/4/2002: 3371890 6/11/2002 3312, 288` 9/4/2002! 33711 898 6/11/2002° 3312' 319! I 9/4/2002 3371L 920 6/11/2002 3312 386 I 9/6/2002 3373. 598 6/12/2002 3313 _ 72 � 1 I 9/12/2002 3377 i - 44 6/12/2002 3313 —1T17-1- 9/13/2002 3378: 32 _ 6/17/2002 3316 252 I 9118/2002, 3381 133 6/18/2002 3317 510 9/18/2002' 3381 _ 385 6/20/2002 3319 2 9/23/2002 3384; 255 6/27/2002 3324' 236 9123/20021 3384 259 6/28/2002 3325 368; 9/23/2002 3384 397 6/28/2002': 3325 406! j I 9/23/2002' 33841 442 6/28/20021 3325 _ 471 _ 1 9/24/20021 3385' 21 6/28/2002! 3325, _ 478 1 1 9/24/20021 3385 494 6/28/2002' 3325, 618 9/25/2002! 3386 6 7/2/2002, 3327 285 ' 9/26/2002; 33871 — r,694 7/2/2002 33271 296 9/27/20021 33881: ' 408 7/2/2002 33271 30219/27/2002, 3388" - 415 7/2/2002 3327; 8601 9/30/2002 3389:•:-.-W' 78 ., x - 83 • - 7!3!2002' 3328 107 3/3012002 3389 j�� 715/2002!_ 3329, - 289 9/30/20021 3389`"; 90 ; : 7/5/2002 3329 299 9/30/2002 3389 -557 :. _ 7/5/2002 3329, 320' —T _ 10/2/2002 33911 - C.2126 - 7/5/2002 33291 523; 10/2/2002 33911 ' 230 7!9/2002 3331 184' ' 10/4/2002' 3393! 380 711212002' 3334: 171, IL I 10/4/2002' 33931 425 =-3.7.:: i z f 1.:• Date Filed _ Book 4 Page 4 Date Filed I Book II 1 Page# I- i I I { 1 10/712002; 3394 274 1/10/2003 3457 499 10/8/2002! 3395, 377 1/15/2003, 3460: 320 10/8/2002: 3395 3811 - •---1-•• 1 1/15/20031 3460 324 . 10/8/2002 3395 395. 1/22/20031 3464 32 10/9/2002 3396 ._ 419' ' 1/22/2003 3464' 44 10/11/2002 3398• 281 1/22/2003: 3464; 96 10/11/20021 3398k 504 1/22/2003; 3464 100 10/15/2002 3400 644 1/2212003 3464 120 10/15/2002 3400.1_ 662 1/22/2003 3464 220 - . 10/15/2002 3400L 669 1/22/2003 3464 230 10/15/2002! 34001 726 1 1/24/2003T 3466 377 10/15/2002 34001 795 i 1/31/2003! 3471, 487 10/15/2002, 3400 818 1/31/2003, 3471. 499 10/22/2002 3405 357 1/31/2003; 3471 544 10/28/2002, 3409' 35 1/3112003j 3471 583 10/28/2002 3409 347: 1/31/2003 3471 597 10/28/2002' 3409' 927; 1 2/3/2003 3472 364 10/31/2002. 3412 2891 2/3/2003 3472458 11/4/2002 3414; 1451 213/2003, 3472h— 466 .... 11/4/2002 3414 r 6791 2/3/2003; 3472 504 11/4/2002 r 3414 687 2/7/2003! 3476 525 11/4/20021 3414 791. 2/10/2003 3477; 473 1-1&i002 I, 3415; 683' 4 2/11/2003' 3478; 342 11/812002• 3418 667j 2/13/2003 34801 108 11/13/2002. 3420, 624 2/13/2003 3480; 120 11/13/20021 3420. 647 2/13/20031 3480 146 11/13/2002, 3420 657, 2/18/20031 3482 29 11/13/20021 3420 663 2/21/20031 3485 413 1113/202, 3420 672 2/21/20031 3485 440 11/13/2002 3420 798' 2/25/2003; 3487, 479 11/13/2002; 3420; 807 1 2/26/20031 3488. 81 11/14/2002' 34211 209 2/28/20031 34901 258 11/20/2002; 3425 i 64 2/28/20031 3490! 266 11/2012002' 34251 97! 2/28/2003; 3490• 283 11/20/2002' 34251 114; 2/28/2003 34901 - 290 11/20/20021 34251 627; 2/28/20037- 34901 639 11/22/20021-----1Z71 215; 3/4/2003; 34921 419 11/22/20021 3427 222 1 3/7/2003, 3495i 462 11/27/20021 3430 k 206 i 3/14/2003 35001 91 12/3/2002 3432[ 395 3/17/2003• 3501; 260 12/3/2002 3432' 411 3/17/2003; 308 12/6/20021 3435 18217 3/17/20031 3355:11 i 359 12/6/20021 34351. 190 3/17/20031 3501 369 12/6/20021 34351 215. 3/17/2003 3501 379 , 12/6/2002. 3435; 222 i 3/18/2003, 3502 486 .._ -—-12/16/2002 3441, 352 3/18/20031 3502i 491 12/16/2002 3441 427 3/27/2003 3509' 582 12/16/2002. 3441 435. 3/27/2003; 3509 _ 596 12/16/20023441 500; 3/28/2003 3510 !.;_E'.585 .. 12118/20021 34431 329 3/28/2003 3510P __ ..:1595 . ---4 12/23/20021 3446 i 714 3/28/20031 3510 _ , :738 • . 12/23/2002 3446 769; 4/2/2003 351w.. '. ; -306 ---• ___ 12/23/2002 3446 804 4/2/2003' 35134_7,-7, r\:316 r _ t 12/30/2002. 3449. 506, 4/2/20031_ 3513.<;--- 325 rri 12/31/2002 3450 89. 4/2/2003i 3511-!:_: 7..-:-.352 12/31/2002. 34501 122. 4/3/20031 3514........1 _ - )254 7] __ .. 1/2/20031 3451 190' 4/9/20031 3518,; . ;1007 1/9/20031 3456 785 i 4/9/20031 3518; 1_1016 __ . 1/10/2003, 3457 485 , 4/9/2003' 3518 1038 ..• _______.____________ _____ . _. ________ _ .__. ._....______.__..________ ....... . .. ._ _ ___..__... ..,_._,_ „,,, ____ ,„ ._,_ ___ ?age 10 of 10) Date Filed 1 Book# 1 Page# i Date Filed Book# 1 Page# 4/9/20031 3518 1048; ( i 6/20/2003 3567: 132 4/9/20031 3518 i 1069 • 6/20/2003 35671, 140 4/14/2003 3521 255 • 6/26/200335731 730 4/14/2003 3521 263 4/14/20031 35211 357 4/14/2003 3521 409. 4/15/2003 - 3522 727 4/15/2003 3522 797 4/15/2003 3522 801 4/16/2003 3523' 466 4/18/2003 3525 132 1 I 1 4/23/2003 3528: 638 I I ' 4/23/2003 3528; 646 1 I 472312003, 3528', 672 4/24/2003 3529 742' 5/2/2003 3535 6511 5/2/20031 3535 6801 I 5/5/20031 3536' 916 5/9/2003!. 3540 3151 5/9/2003 3540 358 5/13/2003! 3541 945 5/13/2003' 3541 993 5/13/2003 3542 11 ..__ -...__ __.._....._- 5/13/2003 3542 32 5/13/20031 3542 1201 5/13/2003 3542! 1601 5/13/2003 35421 168 5/16/2003i 35441 _ 1751 5/22/2003 3547 440 ! 1-- 5/22/2003, -5/22/2003, 3547, 491 5/22/2003' 3547 504 - 5/22/20031 3547 5121 _ 5/22/2003* 3547 520 _ 5/22/2003 3547 528 5/22/2003 3547. 536 i 5/22/20031 3547 544, 5/22/2003; 3547 5631 1 __ 5/22/2003, 3547 5681 5/23/2003' 3548 4331 5/27/2003 3548' 970 5/27/2003 3549 15 _ 5/27/2003 3549 20' I 5/28/2003; 3549 916 5/28/2003; 35491 925 5/30/2003; 35514 630 ! - _ 5/30/2003! 3551, 718 _ _ 1 6/9/20031 35571 652 6/9/20031 3557' 647 6/10/2003, 3558; 555, — N 6/10/2003; 35581 564 _ _, c._ i i t _ 6/10/2003' 3558: 572; I _ 1 _..,- ..- -'7' . 6!10/2003• 3558! 58014 . ,C--)- ; — , 6/10/2003: 3558' 6821 t _., +-t(7, rs'' ---.._ 6/10/20031 3558 752i< r" _6/10/2003; 35581 761' 1 _ t:77,--"!'i 7-- 3 6/10/2003' 3559 46; I -:r� c 6/12/2003; 35601 625; 1- I ,? - _ 6/12/2003 35601 636; 6/20/2003• 3567 107'; I I (Page of 4) Affidavit of Articles of Amendment to Articles of Incorporation Pursuant to the articles of amendment to the articles of incorporation of West Des Moines State Bank,dated September 10,2003, by West Des Moines State Bank, a successor in interest to Hawkeye State Bank,an Iowa banking corporation, the name of West Des Moines State Bank has changed to West Bank, and all assignments that had been granted, assigned and transferred to West Des Moines State Bank, are now held by West Bank. IN WITNESS WHEREOF, the undersigned have executed this affidavit on M 0.y I I ,2004. West Bank West Bank EXHIBIT (f.k.a. West Des Moines State Bank) (f.k.a. West Des Moines State Bank) D 9 41\r&_>.*St§,4 QAQII Keith A. Kurth, Vice President Russ Breazea e, Vi e President 1011 IMI II VIII 1,11111111111111111111111 11Ili Doc ID: 017897170004 Tvoe: COR ^' Recorded: 05/11/2004 at 03;56:11 PM STATE OF) I(�i( a Fee Ant: $26.00 Pace 1 of 4 Johnson County Iowa Kimberly A. Fainter Count✓ Recorder COUNTY OF) ..] BK3732 e3664.667 On this 1114^ day of A , 2004,before me, the undersigned, a Notary Public in and for said County and State, personally appeared Keith A. Kurth and Russ W. Breazeale to me personally known, who being by me duly sworn, did say that they are the officers of said corporation; that said articles of amendment to the articles of incorporation were signed and voluntarily executed on behalf West Des Moines State Bank, now known as West Bank,by authority of its Board of Directors; that Keith A. Kurth and Russ W. Breazeale as such officers acknowledge the execution of said instrument to be the voluntary act and deed of said corporation by it and its officers voluntarily executed. .ty MARGARET A KIEWtE /J . ifteZ) �,i Commission Number 712@24 UU [�C��-� MY m!( ion Pires �( Notary Pu l7 — rn c: ) (Page 2 of gp44 ���+ q �p µms, � �� F paw i. f; -':;i4 Vl. : _•--!. iGl7G" S P,V*.'�`;L :: :;Caa ra Zaigt "''��r` milk"'°S'M'h1`41kT�'`4 I illr .1111 7, 2 '� `' 41,.. Na. W00364795 -A4 �. Date: 11/20/2003 517f l , t 1 ;1; . 5240DB-000095872 it WEST BANK f h IV,i ACKNOWLEDGEMENT OF DOCUMENT FILED ' m 141 4 The Secretary of State acknowledges receipt of the following document:l Articles of Amendment fii ' The document was filed on November 19 , 2003 , at 02 :37 PM, to be 'ui effective as of November 19, 2003 , at 02 : 37 PM. I The amount of $50 .00 was received in full payment of the filing fee. A ik It ;l g- I 4: I a I r ;;�'r :.- :� ;y �'` .pi -3 : i ?_, • Y -''rJ� �..`e�i::••fi _ 't- ' ry ` ' "`•8 moi. `•• jr _-1......-:.,e: st• L r _ �.i , ,' •t . 7.-,,,....„...-`rte'- ;:.St,_ 44_ I k -- CHESTER J. Ct L\TR SECRET3RY OF STATE :, i4A,H(Lo -,::f. \t.-"e ;77 .7.... .. QJ '' era :Y;;. •.::,- Page 3 of 4) APPROVED THOMAS S.C'CNSTAL-, • s INT—&4oEN1 • 'off • NOV I8 711103 • ARTICLES OF AMENDMENT L; TO THE ARTICLES OF INCORPORATION OF qs -70, o f' WEST DES MOINES STATE BANK KIK Pursuant to the provisions of Section 524.1501, Code of Iowa, the undersigned state bank adopts the following Articles of Amendment to its Articles of Incorporation. d tn I. N. Lt? r The name of the state bank is West Des Moines State Bank. The location and post office address of its principal place of business is 1601 22nd, West Des Moines. County of Polk, Iowa 50265. The effective date of its Articles of Incorporation was the 22"1 day of May, 1984. • II. Article VII of the Articles of Incorporation was amended in its entirety by the unanimous vote of the sole shareholder to read as follows: ARTICLE VII The name of the corporation shall be West Bank. The corporations principal place of business shall be in the City of West Des Moines, County of Polk, Iowa. III. The foregoing amendment was adopted by the consent of the sole shareholder on September 10. 2003. Waiver of Notice of the Meeting was signed by the sole shareholder. IV. (_J The number of shares of the state bank outstanding at the tiiilEiof'such adption was 150,000; and the number of shares entitled to vote thereon was 134-"t0( • V. "ern ': C.) The number of shares voted for such amendment was 150,006; and ttig number of shares voted against such amendment was 0. I / (Page 4 of 4) VI. Sig:ied and verified by the undersigned officers of the West Des Moines State Bank, West Des Moines. Iowa. "V". /f. David R. Milligan CEO and Chi man of the Board Dated k 0 , 2003. I Brad L. WI er..ttom President STATE OF IOWA ) ) ss. COUNTY OF POLK ) On this kt-Aclay of 2003, before me, the undersigned, a Notary Public in and for said county and state, personally appeared David R. Milligan and Brad L. Winterbottom, to me personally known, who being by me duly sworn did say that they are the CEO and Chairman of the Board and President respectively, of said corporation; that the seal affixed thereto is the seal of said corporation; that said instrument was signed and sealed on behalf of said corporation by authority of its Board of Directors; and that the said David R. Milligan and Brad L. Winterbottom, as such officers, acknowledge the execution of said instrument to be the voluntary act and deed of said corporation. by it and by them voluntarily executed. ,,:«, MARY J.JORDAN '� C - r.' .br1sz20s Notary Publ n d r the.State of Iowa= My C.xT)rfIS3=Expires IL a r'- — Cyd r1 B : „ CScnnoebclen'J73770k 13IMOO C•a FILED I✓ 5 � U c-p IOWA i" k-crk L� S l SECRETARY OF STATE 1 (0 f 94 3+- / ) L)3 ;:".7V 1 v � � (9 37 Pn 1364795 • IN THE UNITED STATES BANKRUPTC\ COURT FOR SOUTHERN DISTRICT OF IOWA EXHIBIT In re: Mary A. Conklin Bankruptcy No: 05-05970 5 DEBTOR REAFFIRMATION AGREEMENT The undersigned Debtor having filed a Chapter 7 Bankruptcy in the United States Bankruptcy Court, and the undersigned Debtor being indebted to West Bank (formerly known as West Des Moines State Bank) ("Bank") in the principal sum of$61,738.35 plus interest of$173.43 as of the 25th of August, 2005, plus interest at the Annual Percentage Rate of 5.5% per annum accruing thereafter, as evidenced by that certain instrumental and security agreement, a copy of which is attached hereto and incorporated by reference, and the undersigned Debtor being desirous of reassuming and reaffirming said indebtedness, do, for and in consideration of continued possession of the collateral for this obligation, and/or to continue a positive banking relationship with Bank reassume, reaffirm, and agree to pay Bank in accordance with the terms of the above described instrument and security agreement until such obligation is paid in full. The undersigned Debtor does hereby waive any defense to said indebtedness mentioned herein by reason of the above captioned bankruptcy action, and agrees that all terms of the original debt and security agreement, including but not limited to the Bank's security interest in the collateral, shall be valid and enforceable. The undersigned Debtor further agrees that during the period of time between the date of the Debtor's execution hereof ankhe date of the Rescission Period (as provided in Bankruptcy Code Section 524) expires, the Debtor shall keep all payments due under the original instrument and security agreement current and shall comply with such payment requirements as Bank shall require as to the payment of past due payments.* All payments due hereunder shall constitute Periodic Payments (herein called "Periodic Payments") in the nature of adequate protection pursuant to Bankruptcy Code Section 361 for the purpose of compensating Bank for the Debtor's use of the collateral pending termination of the Rescission Period. The Debtor further agrees that in the event he should fail to make the Periodic Payments when due, time being of the essence, or should the Debtor fail to maintain insurance or pay taxes due upon the collateral prior to the termination of rescission, then this agreement shall be null and void, and Bank may pursue its remedies with respect to the collateral. The Debtor further agrees that in the event this Reaffirmation Agreement should become null and void because of the default hereunder on the part of the Debtor, or should this Reaffirmation Agreement not be approved by the Bankruptcy Court or should the Debtor rescind this Reaffirmation Agreement, Debtor shall continue to be liable to Bank for any unpaid Periodic Payments due prior to the termination of this Reaffirmation Agreement. The Debtor acknowledges that he has been represented by an attorney during the -course of the negotiation. The Debtor further agrees to cause his attorney, at no cost to Bank, to arrange for any required hearings or orders necessary to effectuate this Reaffirmation Agreement pursuant to h&. Bankruptcy Code. Debtor further agrees that the Order Authorizing Reaffirmation shall provide in theeltt o€-default by the Debtor of this reaffirmed debt, Bank shall not be subject to the stay or injunction pc'tfy'is'ions of Bankruptcy Code Sections 362 and 524. -73 Debtor hereby acknowledges that he would otherwise be entitled to discharge tfieindebtedness referred to herein in favor of the Bank under the provisions of the Revised Bankruptcy Act,:but daes hereby waive discharge of said debt in consideration for the execution of this agreement by Bank. -' Debtor acknowledges that he has been advised of the legal consequences of this agreement by counsel, and that he has also been advised that his discharge in bankruptcy shall neither in any way prevent replevin proceedings from being commences under the security agreement referred to nerein, nor prevent the entry of a deficiency judgement against Debtor arising from any deficiency that might arise out of the replevin proceedings. THE DEBTOR FURTHER ACKNOWLEDGES THAT HIS ATTORNEY HAS ADVISED HIM OF THE NATURE AND CONSEQUENCES OF THIS RELATIONSHIP AND OF THE FACT THAT HE IS UNDER NO OBLIGATION TO ENTER INTO THIS REAFFIRMATION AGREEMENT. DEBTOR FURTHER AGREES THAT THIS AGREEMENT REPRESENTS A FULLY INFORMED AND VOLUNTARY AGREEMENT. NOTICE TO DEBTOR NEITHER THE BANKRUPTCY CODES, LAWS AND TITLES, NOR NON-BANKRUPTCY CODES, LAWS AND TITLES, NOR ANY AGREEMENTS OTHER THAN THOSE IN ACCORDANCE WITH SECTION 524(C) OF THE BANKRUPTCY CODE REQUIRE THE DEBTOR TO ENTER INTO THIS AGREEMENT. NOTICE OF RIGHT OF RESCISSION PURSUANT TO 11 U.S.C. & 524 (C)(2), THE PARTIES HEREBY ACKNOWLEDGE THAT THE DEBTOR MAY RESCIND THIS AGREEMENT AT ANY TIME PRIOR TO THE ENTRY OF AN ORDER OF DISCHARGE OR WITHIN SIXTY (60) DAYS AFTER THIS AGREEMENT IS FILED WITH THE COURT, WHICHEVER OCCURS LATER, BY GIVING WRITTEN NOTICE OF RESCISSION TO THE BANK AND THAT IF SUCH NOTICE IS NOT GIVEN THEN THE DEBTOR WILL REMAIN BOUND HERETO. *Repayment terms of past due payments: Due at the time of filing of this reaffirmation agreement. Thereafter Payments continue per the terms of the promissory note. Wherever any words are used herein in the masculine gender they shall be construed as though they were also used in the feminine gender in all cases where they would so apply, and wherever any words are used herein in the singular form they shall be construed as though they were also used in the plural form in all cases where they would so apply. Executed this 30 4'b day of Li 9,ctnt , 2005. IN WITNESS WHEREOF, the parties hereunto subscribed their names the day above written. •_ a . .tea. J Mary A. Cofklin Accepted and agreed to: WEST BANK By: �-�`'�'/ s c: Kri • A. Gray 7c= "`-1 DECLARATION BY ATTORNEY FOR DEBTOR = ^� The undersigned hereby, under penalty of perjury, states that, in accordance with 11 & l (CPI • I am the attorney who represents the debtor during the course of negotiating this.agreenjer►t, ._ • I fully advised the debtor of the legal effect and consequences of an agreement of the find specified in this subsection any default under such an agreement, • That this agreement represents a fully informed and voluntary agreement by the debtor, and • such an agreement does not impose an undue hardship on theme:rdship on - debtor or a dependent of the okbtor. J Dated: ` 30 '� Debtor's Attorne . crt �L i ADJUSTABLE RATE NOTE 3'1 hOiO? ")(- NOTICE TO BORROWER: THIS NOTE CONTAINS A PROVISION ALLOWING FOR CHANGES IN THE INTEREST RATE. INCREASES IN THE INTEREST RATE WILL RESULT IN HIGHER PAYMENTS. DECREASES IN THE INTEREST ROTE WILL RESULT IN LOWER PAYMENTS. 12.06.1999 IOWA CITY IOWA [Date] [City] [State] 1930 CALIFORNIA AVE,IOWA CITY(IA 52240 [Property Address] 1. BORROWER'S PROMISE TO PAY In return for a loan that I have received, I promise to pay U.S. $ 69,937.95 (this amount is called "principal"), plus interest, to the order of the Lender. The Lender is HAWKEYE STATE BANK,ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF IOWA I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder." 2. INTEREST INTEREST BEGINS ACCRUING ON DECEMBER 10,1999 Interest will be charged on unpaid principal until the full amount of principal has been paid. I will pay interest at a yearly rate of 7.500 %. The interest rate I will pay will change in accordance with Section 4 of this Note. The interest rate required by this Section 2 and Section 4 of this Note is the rate I will pay both before and after any default described in Section 7(C) of this Note. Interest will be calculated on a ACTUALI365 basis. 3. PAYMENTS (A) Scheduled Payments I will pay principal and interest by making payments when scheduled:(mark one) 0 I will make my scheduled payments on the first day of each month beginning on ® I will make scheduled payments as follows: 359 MONTHLY PAYMENTS OF$488.79 BEGINNING 01.05.2000 AND 1 PAYMENT OF$486.20 ON 12.05.2029. THIS ISA VARIABLE RATE LOAN AND THE PAYMENT AMOUNTS MAY CHANGE AFTER THE 36TH PAYMENT AND EVERY 36TH PAYMENT THEREAFTER. 0 In addition to the payments described above, I will pay a "balloon payment" of$ on The Note Holder will deliver or mail to me notice prior to maturity that the balloon payment is due. This notice will state the balloon payment amount and the date that it is due. (B) Maturity Date and Place of Payments I will make these payments as scheduled until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. My scheduled payments will be applied to interest before principal. If, on 12.05.2029 • I still owe amounts under this Note, I will pay those amounts in full on that date, which is called the_"maturity date." I will make my scheduled payments at 229 S. DUBUQUE STREET,IOWA CITY,IA 52240 ^mss F-�..j........,.. or'at a'different place if required by the Note Holder. (C) Amount of My Initial Scheduled Payments t" Each of my initial scheduled payments will be in the amount of U.S. $ 488.79 7. - , This amount may change. • • c (D) Scheduled Payment Changes - Changes in my scheduled payments will reflect changes in the unpaid principal of my loan and in the interest rate that I must pay. The Note Holder will determine my new interest rate and the changed amount of my scheduled payment in accordance with Section 4 of this Note. MULTISTATE ADJUSTABLE RATE NOTE - Form ADJ-NOTE 5/1/91 Ipegel of 4) IC BANKERS SYSTEMS. INC., ST. CLOUD, MN 56302 11.800-397-2341) C. LN;ERES T RATE AND SCI-TE- 1..13 PAYMENT CHANGES (A) Change Dates Each date on which my interest rate could change is called a "Change Date." (Mark one) 0 The interest rate I will pay may change on the first day of and on that day every month thereafter. ® The interest rate I will pay may change 12.05.2002 and on every 36TH MONTH thereafter, (B) The Index Beginning with the first Change Date, my interest rate will be based on an Index. The "Index" is: WEEKLY AVERAGE YIELD ON U.S.TREASURY SECURITIES ADJUSTED TO A CONSTANT MATURITY OF THREE YEARS,ROUNDED UP TO THE NEAREST 0.125 The most recent Index figure available as of the date ® 45 days 0 before each Change Date is called the "Current Index." If the Index is no longer available, the Note Holder will choose a new index which is based upon comparable information. The Note Holder will give me notice of this choice. (C) Calculation of Changes Before each Change Date, the Note Holder will calculate my new interest rate by ADDING TWO&THREE FOURTHS percentage points( 2.750 %) to the Current Index. The result of this calculation: ❑ will not be rounded off. ❑ will be rounded off by the Note Holder to the nearest %, ® will be rounded off by the Note Holder up to the nearest ... 0.125 %. ❑ will be rounded off by the Note Holder down to the nearest ... %. Subject to the limitations stated in Section 4(D) below, this amount will be my new interest rate until the next Change Date. The Note Holder will then determine the amount of the scheduled payment that would be sufficient to repay the unpaid - principal that I am expected to owe at the Change Date in full on the maturity date at my new interest rate in substantially equal payments. The result of this calculation will be the new amount of my scheduled payment. (D) Limits on Interest Rate Changes ® My interest rate will never be increased or decreased on any single change date by more than TWO percentage points from the rate of interest I have been paying for the preceding period. ® My interest rate will never be greater than 13.500 % or less than . • %. (E) Effective Date of Changes My new interest rate will become effective on each Change Date. I will pay the amount of my new scheduled payment beginning on the first scheduled payment date after the Change Date until the amount of my scheduled payment changes again. (F) Notice of Changes At least 25 days, but no more than 120 days, before the effective date of any payment change, the Note Holder will deliver or mail to me a notice of any changes in my interest rate and the amount of my scheduled payment. The notice will include information required by law to be given to me and also the title and telephone number of a person who will answer any question I may have regarding the notice. 5. BORROWER'S RIGHT TO PREPAY I have the right to make payments of principal at any time before they are due. A payment of principal only is known as a "prepayment." When I make a prepayment, I will tell the Note Holder in writing that I am doing so. I may make a full prepayment or partial prepayments without paying any prepayment charge. The Note Holder will use all of my prepayments to reduce the amount of principal that I owe under this Note. If I make a partial prepayment, there will be no changes in the due dates of my scheduled payments unless the Note Holder agrees in writing to those changes. My partial prepayment may reduce the amount of my scheduled payments after the first Change Date following my partial prepayment. However, any reduction due to my partial prepayment may be offset by an interest rate increase. 6. LOAN CHARGES If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted'so that the, interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits,:then;(i) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (ii) any sums already collected from me which exceeded permitted limits will be cce'funded to me. The Note Holder may choose to make this refund by reducing the principal I owe under this Note or by making a direct payment to me. If a refund reduces principal, the reduction will be treated as a partial prepayment. Form ADJ-NOTE 5/1/91 (page2 of 4) BANKERS SYSTEMS. INC., ST. CLOUD, MN 56302 11-800.397.23411 • • 7. BORROWER'S FAILURE Tt. eAY AS REQUIRED • (A) Late Charges for Overdue Payments If the Note Holder has not received the full amount of any scheduled payment by the end of 15 calendar days after the date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 5.000 % of my overdue payment of principal,,and interest. 0 I will pay this late charge promptly but only once on each late payment. (B) Set-Off I agree that the Note Holder may set off any amount due and payable under this Note against any right I have to receive money from the Note Holder. An amount due and payable under this Note is any portion of a scheduled payment not paid on or before its due date, even if the due date of the Note has not been accelerated. My right to receive money from the Note Holder includes any deposit account balance I have with the Note Holder (including savings, checking, and NOW accounts), any time deposit (including certificates of deposit), any money owed to me on an item presented to the Note Holder or in the Note Holder's possession for collection or exchange, and any repurchase agreement or other non-deposit obligation. If my right to receive money from the Note Holder is also owned by someone who has not agreed to pay this Note, the Note HoIder's right of set-off will apply to my interest in the obligation and to any other amounts I could withdraw on my sole request or endorsement. The Note Holder's right of set-off does not apply to an account or other obligation where my rights are only as a fiduciary. It also does not apply to any IRA account or other tax-deferred retirement account. The Note Holder will not be liable for the dishonor of any check when the dishonor occurs because the Note Holder set off this debt against any of my accounts. I agree to hold the Note Holder harmless from any claims arising as a result of the exercise of the right of set-off. (C) Default If I do not pay the full amount of each scheduled payment on the date it is due, I will be in default. (D) Notice of Default If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is delivered or mailed to me. (E) No Waiver By Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full or does not exercise the right of set-off as described above, the Note Holder will still have the right to do so if I am in default at a later time. (F) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys' fees. 8. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if I give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3(B) above or at a different address if I am given a notice of that different address. 9. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this-Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. 1 .J 10. WAIVERS I and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. Form ADJ-NOTE 5/1/91 (page3 of 4) BANKERS SYSTEMS, INC., ST. CLOUD, MN 56302 11.800-397-2341) 1. SECURED NOTE In addition to the protections givcn to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the "Security Instrument"), dated the same date as the Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note. Some of those conditions are described as follows: This note is secured by Mortgage dtd 11/11/93 in the am Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Propertyor any interest in i o f is sold or transferred(or if a beneficial interest in Borrower is sold or transferredand Borrower is not a natural person 5 0,00 without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument.However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lender exercises this option, Lender shall give Borrowernotice of acceleration.The notice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument.If Borrower fails to pay these sums prior to the expiration of this period,Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 12. BALLOON PAYMENT DISCLOSURE [Complete the balloon payment notice below if this Note provides for a balloon payment at Section 3(A) on page 1 of this Note.) THIS LOAN IS PAYABLE IN FULL I MUST REPAY THE ENTIRE PRINCIPAL BALANCE OF THE LOAN AND UNPAID INTEREST THEN DUE, WHICH MAY BE A LARGE PAYMENT. THE LENDER IS UNDER NO OBLIGATION TO REFINANCE THE LOAN AT THAT TIME. I WILL, THEREFORE, BE REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS THAT I MAY OWN, OR I WILL HAVE TO FIND A LENDER, WHICH MAY BE THE LENDER I HAVE THIS LOAN WITH, WILLING TO- LEND ME THE MONEY. IF I REFINANCE THIS LOAN AT MATURITY, I MAY HAVE TO PAY SOME OR ALL OF THE CLOSING COSTS NORMALLY ASSOCIATED WITH A NEW LOAN EVEN IF I OBTAIN REFINANCING FROM THE SAME LENDER. WITNESS THE HAND(S)AND SEAL(S) OF THE UNDERSIGNED. l..l..l.Q?.��.t� W ` ?'VIE:K�rY� (Seal) MARY A.CONKLIN 0 -Borrower (Seal) -Borrower [Sign Original Only] r ry y • ;r-ri i r . ., . • BANKERS SYSTEMS, INC., ST. CLOUD, MN 56302 (1-800-397-23411 Form ADJ-NOTE 5/1/91 (page 4 of 4) • FILED NO. 800 ' A^r= 58/ 99 Dr.0I7 AMIE I1 .;oHrac(i ccU= , RECORDER IOWA CIT„ IOWA 'A [Name, address and telephone number of prepared [Space Above This Line For Recording Data] MORTGAGE THIS MORTGAGE ("Security Instrument") is given on The mortgagor is MARY A.CONKLIN ("Borrower"). This Security Instrument is given to HAWKEYE STATE BANK , which is organized and existing under the laws of THE STATE OF IOWA , and whose address is 229 S.DUBUQUE STREET,IOWA CITY,IA 52240 ("Lender"). Borrower owes Lender the principal sum of SIXTY NINE THOUSAND NINE HUNDRED THIRTY SEVEN AND 95(100 Dollars (U.S. $69,937.95 ) This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provides for monthly payments, with the full debt, if not paid earlier, due and payable on 12.05.2029 This Security Instrument secures to Lender: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to protect the security of this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to Lender the following described property located in JOHNSON County, Iowa: LOT 53,IN PART I-A,MOUNT PROSPECT ADDITION TO IOWA CITY,IOWA,ACCORDING TO THE PLAT THEREOF RECORDED IN BOOK 9,PAGE 101,PLAT RECORDS OF JOHNSON COUNTY,IOWA. 6 tV C _ which has the address of 1930 CALIFORNIA AVE , IOWA CITY [Street] -.r iteltyl Iowa 52240 ("Property Address"); [Zip Codel Form 3016 9/90 IIIA III 1111111 IOWA- Single Family - Fannie Mae/Freddie Mac UNIFORM INSTRUMENT F U 1 A 0 Bankers Systems.Ins.,St.Cloud.MN(1-800.397.23411 Form MO.1-IA 6/16/95 (page 1 of 6) 00005c TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the "Property." BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1. Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall promptly pay when due the principal of and interest on the debt evidenced by the Note and any prepayment and late charges due under the Note. 2. Funds for Taxes and Insurance. Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Lender on the day monthly payments are due under the Note, until the Note is paid in full, a sum ("Funds") for: (a) yearly taxes and assessments which may attain priority over this Security Instrument as a lien on the Property; (b) yearly leasehold payments or ground rents on the Property, if any; (c) yearly hazard or property insurance premiums; (d) yearly flood insurance premiums, if any; (e) yearly mortgage insurance premiums, if any; and (f) any sums payable by Borrower to Lender, in accordance with the provisions of paragraph 8, in lieu of the payment of mortgage insurance premiums. These items are called "Escrow Items." Lender may, at any time, collect and hold Funds in an amount not to exceed the maximum amount a lender for a federally related mortgage loan may require for Borrower's escrow account under the federal Real Estate Settlement Procedures Act of 1974 as amended from time to time, 12 U.S.C. § 2601 et seq. ("RESPA"), unless another law that applies to the Funds sets a lesser amount. If so, Lender may, at any time, collect and hold Funds in an amount not to exceed the lesser amount. Lender may estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with applicable law. The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumentality, or entity (including Lender, if Lender is such an institution) or in any Federal Home Loan Bank. Lender shall apply the Funds to pay the Escrow Items. Lender may not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and applicable law permits Lender to make such a charge. However, Lender may require Borrower to pay a one-time charge for an independent real estate tax reporting service used by Lender in connection with this loan, unless applicable law provides otherwise. Unless an agreement is made or applicable law requires interest to be paid, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower and Lender may agree in writing, however, that interest shall be paid on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds, showing credits and debits to the Funds and the purpose for which each debit to the Funds was made. The Funds are pledged as additional security for all sums secured by this Security Instrument. If the Funds held by Lender exceed the amounts permitted to be held by applicable law, Lender shall account to Borrower for the excess Funds in accordance with the requirements of applicable law. If the amount of the Funds held by Lender at any time is not sufficient to pay the Escrow Items when due, Lender may so notify Borrower in writing, and, in such case Borrower shall pay to Lender the amount necessary to make up the deficiency. Borrower shall make up the deficiency in no more than twelve monthly payments, at Lender's sole discretion. Upon payment in full of all sums secured by this Security Instrument, Lender shall promptly refund to Borrower any Funds held by Lender. If, under paragraph 21, Lender shall acquire or sell the Property, Lender, prior to the acquisition or sale of the Property, shall apply any Funds held by Lender at the time of acquisition or sale as a credit against the sums secured by this Security Instrument. 3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under paragraphs 1 and 2 shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable under paragraph 2; third, to interest due; fourth, to principal due; and last, to any late charges due under the Note. 4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines and impositions attributable to the Property which may attain priority over this Security Instrument, and leasehold payments or ground rents, if any. Borrower shall pay these obligations in the manner provided in paragraph 2, or if not paid in that manner, Borrower shall pay them on time directly to the person owed payment. Borrower shall promptly furnish to Lender all notices of amounts to be paid under this paragraph. If Borrower makes these payments directly, Borrower shall promptly furnish to Lender receipts evidencing the payments. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender; (b) contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which may attain priority over this Security Instrument, Lender-may give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set fortabove within 10 days of the giving of notice. • Foam 3016 9/90 Sinkers Systems.Inc..St.Cloud.MN f1-800.397-23411 Form MO-1-1A 6/16/95 (page 2 Oj6)- --� 000053 5. Hazard or Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage" and any other hazards, including floods or flooding, for which Lender requires insurance. This insurance shall be maintained in the amounts and for the periods that Lender requires. The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's approval which shall not be unreasonably withheld. If Borrower fails to maintain coverage described above, Lender may, at Lender's option, obtain coverage to protect Lender's rights in the Property in accordance with paragraph 7. All insurance policies and renewals shall be acceptable to Lender and shall include a standard mortgage clause. Lender shall have the right to hold the policies and renewals. If Lender requires, Borrower shall promptly give to Lender all receipts of paid premiums and renewal notices. In the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged, if the restoration or repair is economically feasible and Lender's security is not lessened. If the restoration or repair is not economically feasible or Lender's security would be lessened, the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. If Borrower abandons the Property, or does not answer within 30 days a notice from Lender that the insurance carrier has offered to settle a claim, then Lender may collect the insurance proceeds. Lender may use the proceeds to repair or restore the Property or to pay sums secured by this Security Instrument, whether or not then due. The 30-day period will begin when the notice is given. Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of the monthly payments referred to in paragraphs 1 and 2 or change the amount of the payments. If under paragraph 21 the Property is acquired by Lender, Borrower's right to any insurance policies and proceeds resulting from damage to the Property prior to the acquisition shall pass to Lender to the extent of the sums secured by this Security Instrument immediately prior to the acquisition. 6. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application; Leaseholds. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within sixty days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond Borrower's control. Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate, or commit waste on the Property. Borrower shall be in default if any forfeiture action or proceeding, whether civil or criminal, is begun that in Lender's good faith judgment could result in a forfeiture of the Property or otherwise materially impair the lien created by this Security Instrument or Lender's security interest. Borrower may cure such a default and reinstate, as provided in paragraph 18, by causing the action or proceeding to be dismissed with a ruling that, in Lender's good faith determination, precludes forfeiture of the Borrower's interest in the Property or other material impairment of the lien created by this Security Instrument or Lender's security interest. Borrower shall also be in default if Borrower, during the loan application process, gave materially false or inaccurate information or statements to Lender (or failed to provide Lender with any material information) in connection with the loan evidenced by the Note, including, but not limited to, representations concerning Borrower's occupancy of the Property as a principal residence. If this Security Instrument is on a leasehold, Borrower shall comply with all the provisions of the lease. If Borrower acquires fee title to the Property, the leasehold and the fee title shall not merge unless Lender agrees to the merger in writing. 7. Protection of Lender's Rights in the Property. If Borrower fails to perform the covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or regulations), then Lender may do and pay for whatever is necessary to protect the value of the Property and Lender's rights in the Property. Lender's actions may include paying any sums secured by a lien which has priority over this Security Instrument, appearing in court, paying reasonable attorneys' fees and entering on the Property to make repairs. Although Lender may take action under this paragraph 7, Lender does not have to do so. Any amounts disbursed by Lender under this paragraph 7 shall become additional debt of Borrower secured by this Security Instrument. Unless Borrower and Lender agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable, with interest, upon notice from Lender to Borrower requesting payment. 8. Mortgage Insurance. If Lender required mortgage insurance as a condition of making the loan secured by this Security Instrument, Borrower shall pay the premiums required to maintain the mortgage insurance in effect. If, for any reason, the mortgage insurance coverage required by Lender lapses or ceases to be in effect, Borrower shall pay the premiums required to obtain coverage substantially equivalent to the mortgage insurance previously in effect, at a cost substantially equivalent to the cost to Borrower of the mortgage insurance previously in effect, from an alternate mortgage insurer approved by Lender. If substantially equivalent mortgage insurance coverage is not available, Borrower shall pay to Lender each month a sum equal to one-twelfth of the yearly mortgage insurance premium being paid by Borrower when the insurance coverage lapsed or ceased to be in effect. Lender will accept, use and retain these payments as a loss reserve in lieu of mortgage insurance. Loss reserve payments may no longer be required, at the option of Lender,- if mortgage 3016--6190 Bankers Systems,Inc.,St.Cloud.MN 11.800-397.2341) Form MD-1-IA 6/16/95000061 ©� (page 3 of 6tt (0t C.,3 "lA -r- • insurance coverage (in the amount and for the period that Lender requires) provided by an insurer approved by Lender again becomes available and is obtained. Borrower shall pay the premiums required to maintain mortgage insurance in effect, or to provide a loss reserve, until the requirement for mortgage insurance ends in accordance with any written agreement between Borrower and Lender or applicable law. 9. Inspection. Lender or its agent may make reasonable entries upon and inspections of the Property. Lender shall give Borrower notice at the time of or prior to an inspection specifying reasonable cause for the inspection. 10. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of any part of the Property, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. In the event of a partial taking of the Property in which the fair market value of the Property immediately before the taking is equal to or greater than the amount of the sums secured by this Security Instrument immediately before the taking, unless Borrower and Lender otherwise agree in writing, the sums secured by this Security Instrument shall be reduced by the amount of the proceeds multiplied by the following fraction: (a) the total amount of the sums secured immediately before the taking, divided by (b) the fair market value of the Property immediately before the taking. Any balance shall be paid to Borrower. In the event of a partial taking of the Property in which the fair market value of the Property immediately before the taking is less than the amount of the sums secured immediately before the taking, unless Borrower and Lender otherwise agree in writing or unless applicable law otherwise provides, the proceeds shall be applied to the sums secured by this Security Instrument whether or not the sums are then due. If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the condemnor offers to make an award or settle a claim for damages, Borrower fails to respond to Lender within 30 days after the date the notice is given, Lender is authorized to collect and apply the proceeds, at its option, either to restoration or repair of the Property or to the sums secured by this Security Instrument, whether or not then due. Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shall not extend or postpone the due date of the monthly payments referred to in paragraphs 1 and 2 or change the amount of such payments. 11. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall not operate to release the liability of the original Borrower or Borrower's successors in interest. Lender shall not be required to commence proceedings against any successor in interest or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made by the original Borrower or Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedy shall not be a waiver of or preclude the exercise of any right or remedy. 12. Successors and Assigns Bound; Joint and Several Liability; Co-signers. The covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of paragraph 17. Borrower's covenants and agreements shall be joint and several. Any Borrower who co-signs this Security Instrument but does not execute the Note: (a) is co-signing this Security Instrument only to mortgage, grant and convey that Borrower's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower may agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without that Borrower's consent. 13. Loan Charges. If the loan secured by this Security Instrument is subject to a law which sets maximum loan charges, and that law is finally interpreted so that the interest or other loan charges collected or to be collected in connection with the loan exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (b) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower. Lender may choose to make this refund by reducing the principal owed under the Note or by making a direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial prepayment without any prepayment charge under the Note. 14. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method. The notice shall be directed to the Property Address or any other address Borrower designates by notice to Lender. Any notice to Lender shall be given by fust class mail to Lender's address stated herein or any other address Lender designates by notice to Borrower. Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph. 15. Governing Law; Severability. This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the Property is located. In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision. To this end the provisions of this Security Instrument and the Note are declared to be severable. • Form 3016 9/90 Bankers Systems.Inc.,St.Cloud.MN(1.800.397-23411 Form MD-1-IA 6/16/95 ((page 4 of 6). _ 0000e0 • 16. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security Instrument. 17. Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 18. Borrower's Right to Reinstate. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earlier of: (a) 5 days (or such other period as applicable law may specify for reinstatement) before sale of the Property pursuant to any power of sale contained in this Security Instrument; or (b) entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower: (a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses incurred in enforcing this Security Instrument, including, but not limited to, reasonable attorneys' fees; and (d) takes such action as Lender may reasonably require to assure that the lien of this Security Instrument, Lender's rights in the Property and Borrower's obligation to pay the sums secured by this Security Instrument shall continue unchanged. Upon reinstatement by Borrower, this Security Instrument and the obligations secured hereby shall remain fully effective as if no acceleration had occurred. However, this right to reinstate shall not apply in the case of acceleration under paragraph 17. 19. Sale of Note; Change of Loan Servicer. The Note or a partial interest in the Note (together with this Security Instrument) may be sold one or more times without prior notice to Borrower. A sale may result in a change in the entity (known as the "Loan Servicer") that collects monthly payments due under the Note and this Security Instrument. There also may be one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written notice of the change in accordance with paragraph 14 above and applicable law. The notice will state the name andaddress of the new Loan Servicer and the address to which payments should be made. The notice will also contain any other information required by applicable law. 20. Hazardous Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. Borrower shall promptly give Lender written notice of any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. As used in this paragraph 20, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in this paragraph 20, "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environmental protection. NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 21. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under paragraph 17 unless applicable law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 21, including, but not limited to, reasonable attorneys' fees and costs of title evidence. 22. Release. Upon payment of all sums secured by this Security Instrument, Lender sha_ll release this Security Instrument to Borrower. • 00006' } Form 3016 9/90 Bankers Systeme,Inc..St.Cloud,MN(1-800-397-2341) Form MD-1-IA 6/16195 V r4 (page 5 of 6) - _ 23. Waivers. Borrower t ,wishes all right of dower and waives all rig,.. homestead and distributive share in and to the Property. Borrower waives any right of exemption as to the Property. 24. Redemption Period. If the Property is less than 10 acres in size and Lender waives in any foreclosure proceeding any right to a deficiency judgment against Borrower, the period of redemption from judicial sale shall be reduced to 6 months. If the court finds that the Property has been abandoned by Borrower and Lender waives any right to a deficiency judgment against Borrower, the period of redemption from judicial sale shall be reduced to 60 days. The provisions of this paragraph 24 shall be construed to conform to the provisions of Sections 628.26 and 628.27 of the Code of Iowa. 25. Riders to this Security Instrument. If one or more riders are executed by Borrower and recorded together with this Security Instrument, the covenants and agreements of each such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Security Instrument as if the rider(s) were a part of this Security Instrument. [Check applicable box(es)] O Adjustable Rate Rider ❑ Condominium Rider ❑ 1-4 Family Rider ❑ Graduated Payment Rider ❑ Planned Unit Development Rider ❑ Biweekly Payment Rider ❑ Balloon Rider ❑ Rate Improvement Rider ❑ Second Home Rider ❑ Other(s) [specify] ❑ Purchase Money Mortgage. This is a purchase money mortgage as defined by Iowa law. BY SIGNING BELow, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any rider(s) executed by Borrower and recorded with it. I o ) . . ....Q. 1' P.. (Seal) MARY A.CONKLIN -Borrower (Seal) -Borrower [Space Below This Line For Acknowledgment] STATE OF IOWA ss: County of On this day of , before me, a Notary Public in the State of Iowa, personally appeared MARY A.CONKLIN , to me known to be the person(s) named in and who executed the foregoing instrument, and acknowledged that helshelthey executed the same as hislherftheir voluntary act and deed. My Commission Expires: S—7— 0^o- ... Notary Wrblic in the State of Iowa 1 � 1 p. er3co oar t r • aO IU I - fl! 0©006 Y GJ Form 3016 9/90 Bankers Systems,Inc..St.Cloud,MN 11.800-397.23411 Form MD.1.IA 6'16/95 (page 6 of 6) RANDY TRCA LAW FIRM 1232 EAST BURLINGTON STREET P.O. BOX 3168, IOWA CITY, IOWA 52244 email: r.trca@mchsi.com (319) 354-8440 FAX (319) 354-8441 West Bank September 1, 2005 Attn: Kristin A. Grey West Bank Legal Department 1601 — 22"d Street West Des Monies, IA 50266 RE: Mary A. Conklin Bankruptcy No.: 05-05970-1mj Reaffirmation Agreement Dear Ms. Grey: Pursuant to above matter, enclosed copy of the signed Reaffirmation Agreement filed with the Bankruptcy Court today along with proof for such filing. Contact my office if you have any questions. Thank you. Sinc - , •y E. - . . Attorney t aw RE nm Enclosures c� Cc: Mary A. Conklin r-.: rn - 7 C7 r,i �..•r 3 -.! CM/ECF Iowa Southern Page 1 of 1 Miscellaneous: 05-05970_Imj7 Mary A. Conklin U.S. Bankruptcy Court Southern District of Iowa- Database Notice of Electronic Filing The following transaction was received from Trca, Randy E entered on 9/1/2005 at 5:36 PM CDT and filed on 9/1/2005 Case Name: Mary A. Conklin Case Number: 05-05970-Imj7 Document Number:6 Docket Text: Reaffirmation Agreement between Debtor(s) and West Bank Filed by Debtor Mary A. Conklin. (Trca, Randy) The following document(s) are associated with this transaction: Document description:Main Document Original filena me:C:\Documents and Settings\User\My Documents\Personal\3000's\3148\Reaffirmation Agreement with West Bank.PDF Electronic document Stamp: [STAMP bkecfStamp_ID=984761026 [Date=9/1/2005] [FileNumber=1247797-0] [3340f8cb984db70249813de4c95cc48eb7fed474fff6baae19956c6e769a1f0d98e3e 1469f1653edd6243a810c6147e7324d4e086206f7dcdd340bd3I16a2caa]] 05-05970-Imj7 Notice will be electronically mailed to: Robert G Schlegel robert.schlegel@dmislaw.com, ia24@ecfcbis.com Randy E Trca rtlawfirm@mchsi.com, United States Trustee USTPRegion12.DM.ECF@usdoj.gov 05-05970-lmj7 Notice will not be electronically mailed to: l ' N (7)-< - �... it C,+) https://ecf.iasb.uscourts.gov/cgi-bin/Dispatch.pl?125932165958133 9/1/2005 Format Dynamics :: CleanPrint :: http://www.press-citizen.com/article/20110720/NEWS0... Page 1 of 2 CJ ] � y7450.1 Mary C o n k I i n 67 in-law, Carol (Bill) Roberts of Wellman; her daughter-in-laws parents, Bernard (Jeanne) Schaefer of Raymond; and numerous nieces and nephews. 1 1 00 PM. ul. 19 201 1 ) Mary A. Conklin,, 67, of Iowa City died at Mary was preceded in death by her UIHC following a courageous battle with parents and one nephew Chuck Forman III cystic fibrosis. and her loving felines Samantha and Tinker. Funeral Services will be held at 11 am Online condolences may be sent to the Thursday at Lensing Funeral and Cremation family at www.lensingfuneral.com. Service, Iowa City with Father Tom Hennen officiating. Burial will be at Oak Hill Cemetery in Coralville. Visitation will be Wednesday from 4 to 7 pm at the funeral home. In lieu of flowers, memorials may be EXHIBIT directed to Friends of the Animal Center Foundation or the Cystic Fibrosis Foundation. Mary was born June 11, 1944 in Iowa City, the daughter of Leo and Anne Gryzinski Carlton. She was a 1962 graduate of Regina High School. Mary was employed for many years in the Johnson County Clerk of Courts office, where she served as the Clerk of Court Advertisement from 1980-84. She later was employed by TMJ! .�.; home health care agencies. She had moved 'i a ice: it Yours to Denver, Iowa a year and a half ago to be Browse thousands of deli ns for near her son and his wife. �z� �_ >< Mary loved kittens, especially calicoes. She � �y,4�.�. s ,��- o F•:•, was a devoted fan of Hawkeye basketball � � {4 - and the Chicago Cubs, and was a "coupon • ;, 41 41 ` nor; clipper". r 1 .� i ,01 T i Mary • survived •is by her so kklatthe -' '*`�, "�- �,� (Brenda) Conklin of Denver, IA; her sister, "' � � � :i Betty (Chuck) Forman of Coralville; sister- Print `�s�-ti, ( 4 ; Powered By 'Fc;rrrt ai.D.;n rtic ` C.) http://www.press-citizen.comlfdcp/?unique=1312303030157 8:1'2011 http://lensingfuneral.myfuneralwebsite.corn/show_printable_content.... OBITUARIES&CONDOLENCES •Name: Mary A. Conklin Dates: Birth date:June 11, 1944 Death date:July 18,2011 Obituary: Mary A. Conklin 67 of Iowa City died Monday, July 18, 2011 at UIHC following a courageous battle with cystic fibrosis. Funeral Services will be held at 11am Thursday at Lensing Funeral and Cremation Service, Iowa City with Father Tom Hennen officiating. Burial will be at Oak Hill Cemetery in Coralville. Visitation will be Wednesday from 4 to 7pm at the funeral home. In lieu of flowers, memorials may be directed to Friends of the Animal Center Foundation or the Cystic Fibrosis Foundation. Mary was born June 11, 1944 in Iowa City, the daughter of Leo and Anne Gryzinski Carlton. She was a 1962 graduate of Regina High School. Mary was employed for many years in the Johnson County Clerk of Courts office, where she served as the Clerk of Court from 1980-84. She later was employed by home health care agencies. She had moved to Denver, Iowa a year and a half ago to be near her son and his wife. Mary loved kittens, especially calicoes. She was a devoted fan of Hawkeye basketball and the Chicago Cubs, and was a "coupon clipper". Mary is survived by her son Matthew (Brenda) Conklin of Denver, IA; her sister, Betty(Chuck) Forman of Coralville; sister- in-law, Carol (Bill) Roberts of Wellman; her daughter- in-laws parents, Bernard (Jeanne) Schaefer of Raymond; and numerous nieces and nephews. Mary was preceded in death by her parents and one nephew Chuck Forman III and her loving felines Samantha and Tinker. Memorials: In lieu of flowers,memorials may be directed to Friends of the Animal Center Foundation or the Cystic Fibrosis Foundation. Visitation: Visitation will be Wednesday from 4 to 7pm at the ry funeral home.Service: Funeral Services will be held at 11am Thursday at C7 Lensing Funeral and Cremation Service, Iowa City sl - with Father Tom Hennen officiating.Cemetery: t7�� Burial will be at Oak Hill Cemetery in Coralville. ' In 1 of 1 6/5/2012 4:38 PM ga t Iiit ath &afaintiff Df eftk MARY A. CONKLIN I, Mary A. Conklin, of Johnson County, Iowa, make, publish, and declare this to be my Last Will and Testament, and revoke any and all Wills, Testaments, and Codicils by me at any time heretofore made. I. I first direct that the expenses of my last illness and funeral and all lawful debts which I may owe at the time of my death including estate and inheritance taxes and expenses of administration be paid out of my estate. II. I give, devise, and bequeath to my son, Matthew Conklin, if he survives me for a period of sixty (60) days, and assuming that he is at least 22 years of age, all the rest, residue, and remainder of my estate, real, personal, and mixed, and wherever situated. III. If, at the time of my death, my son, Matthew, still is under the age of 22 years, I then give, devise, and bequeath all of the assets of my Estate to the Trustee hereinafter named in Trust, to be held, managed, invested, reinvested, and distributed as follows: 1. The purpose of this trust is to provide for the support, education and welfare of my son and to provide for the distribu- tion of my property. This trust shall terminate when my son at- tains the age of 22. 2. The trustee shall, in its unrestricted discretion and regardless of the existence of other funds available for these purposes, pay or apply so much of the net income and so much of EXHIBIT F-4 this Will, the Trust established hereunder shall not extend be- yond the day immediately preceding the date of twenty-one (21) years after the death of the last survivor of my son and if any Trust established hereunder has not sooner terminated, the Trustee shall upon that day, regardless of any other provision of this Will, distribute all the assets then held to the person or persons per stirpes, then entitled either as a matter of right or at the discretion of the Trustee to receive the income therefrom. IV. I empower the personal representative of my estate, without order of court and without notice to anyone: to sell, convey, option, lease or mortgage any property, real or personal, publicly or privately, upon such terms and conditions as shall seem best to such personal representative; to settle, compromise or pay any claim, including taxes, asserted in favor of or against me or my estate; and to permit any of the beneficiaries hereunder to enjoy the use in kind, during the administration of my estate, of any tangible personal property without liability on the part of the personal representative for injury, consumption or loss of the property so used, and without liability on the part of the beneficiary for unintentional, non-negligent injury, consumption or loss of the property so used. V. If, at the time of my death, my son should still be in his minority, I requests that the Court determine who is the most fit person or persons to care for him until he reaches majority. I specifically request if he is able, my attorney Lawrence L. Lynch attend said hearing and be kept apprised by the Court concerning this custody matter. CDD 3 a,... N :<__rn -0 m _ VI. In the event that my son, Matthew Conklin, should predecease me, I give, devise, and bequeath all of the rest, residue, and remainder of my estate as follows: A. Ten percent (10%) of my assets to St. Patrick's Catholic Church, Iowa City, Iowa. B. The remaining ninety percent (90%) to be divided equally, share and share alike, among my surviving nieces and nephews. VII. I nominate and appoint Iowa State Bank & Trust Company, Iowa City, Iowa, to serve as Executor of my Last Will and Testament without bond. IN WITNESS WHEREOF, I have hereunto signed this, my Last Will and Testament, this 3o day of �'��,� , 1985. 0 . C J 2i- _ Mary A. C klin The foregoing instrument consisting of four (4) typewritten pages with paragraphs numbered I to VII inclusive, was signed and declared by Mary A. Conklin as her Last Will and Testament in the presence of us who, at her request, in her presence, and in the presence of each other, have hereunto signed our names as witnesses. (01:4;7'7 ----- of Iowa City, Iowa +64- of Iowa City, Iowa ry CD C`) -<r- - 4 co IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY WEST BANK, Plaintiff, No. vs. ESTATE OF MARY A. CONKLIN, AFFIDAVIT RE PUBLICATION MATTHEW W. CONKLIN, CITY OF IOWA CITY, ALL PARTIES IN POSSESSION OF 1930 CALIFORNIA AVENUE, IOWA CITY, IOWA, and ALL UNKNOWN PERSONS WITH AN INTEREST IN THE ESTATE OF MARY A.CONKLIN, Defendants. STATE OF IOWA ) EXHIBIT ss: COUNTY OF JOHNSON ) In Re: Lot 53, in Part 1-A, Mount Prospect Addition to Iowa City, Iowa, according to the Plat thereof recorded in Book 9, Page 101, Plat Records of Johnson County,Iowa. Locally known as 1930 California Ave, Iowa City, Iowa 52240 I,Anna Moyers Stone, being first duly sworn on oath, depose and state: 1. That I am the attorney for the Plaintiff,West Bank. 2. That is action is brought to foreclose a mortgage on the above-described real property (hereinafter, the "Real Estate"), and there are possibly unknown defendants who have some right, title, interest, lease, lien, or claim against the Real Estate. 3. That despite diligent efforts, the identity and whereabouts of the unknown defendants cannot be ascertained and, therefore, personal service of the Original Notice cannot be made within the State of Iowa or any other state upon said unknown defendants. 4. That the undersigned does not believe that there are any such parties or persons: in possession of the Real Estate or who may have an interest in the Estate of.11ry A.=Conklin, but that nonetheless service on such parties is appropriate. `, ry <g —a ji.' 5. That, pursuant to Iowa Rule of Civil Procedure 1.310(3), service by publication may be had on these unknown Defendants, and that service by publication in the Iowa City Press- Citizen, a newspaper of general circulation in Johnson County, Iowa, is suitable and that the notice shall be published once each week for three consecutive weeks pursuant to Iowa Rule of Civil Procedure 1.313. PHELAN, TUCKER, MULLEN, WALKER,TUCKER&GELMAN, L.L.P. By Anna Moyers Stone AT0008876 321 East Market Street PO Box 2150 Iowa City, Iowa 52244-2150 Phone: 319-354-1104 Fax: 319-354-6962 Email: stone@ptmlaw.com Subscribed and sworn to before me by Anna Moyers Stone this 6 7l day of ,2012. °r(,1 0 dt:rfhi JP-4,1 Notary Public in and for the State of Iowa O.�I4',;, KATHERINE A CHRISTENSEN : r_ Commission Number 106432 • My Commission Expires • pow September 22,2013 N C ..• PV c d —f C':+ tV tl FT;`ti'r; '7 ill C...) IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY WEST BANK, Plaintiff, vs. No. ESTATE OF MARY A. CONKLIN, MATTHEW W. CONKLIN, CITY OF IOWA AFFIDAVIT OF ATTORNEYS FEES CITY, ALL PARTIES IN POSSESSION OF 1930 CALIFORNIA AVENUE, IOWA CITY, IOWA, and ALL UNKNOWN PERSONS EXHIBIT WITH AN INTEREST IN THE ESTATE OF MARY A.CONKLIN, ci Defendants. STATE OF IOWA,JOHNSON COUNTY,ss: The undersigned, the attorney for the Plaintiff in the above-entitled matter, does solemnly swear(or affirm) that she is a regular practicing attorney-at-law, that there is no contract,agreement, or arrangement, either oral or written, express or implied, contemplating any division of compensation for services rendered in the above-entitled matter or participation of such compensation, directly or indirectly, by any other person(s), firm, or corporation with such attorney, except (if shown by these proceedings and particularly by"Designation of Attorneys") other legal counsel in a regular and bona fide law partnership with or associated with the undersigned in the above-entitled matter, or jointly serving with the undersigned, as attorney, in relation to these proceedings,and that said compensation is for services actually rendered in the above-entitled case. DA 1 E D this _p_ day of June,2012 11 • 1 ' r na Moyers Stone -AT000887 . <–;--_ — -111 Subscribed and sworn to before me byAnna Moyers Stone .� ye (o day o June��2.� 711 1.4(-12-- vLe (,I Vl/i c ivt Notary Public in an for the State of Iowa IA'"r KATNEACISTEN ' CommissHERIion NumHRber 1064ENS32 • My Commission Expires •4 September 22.2013 END OF CASE FILE CIVIL PROCESS WORKSHEET . JOHNSON COUNTY SHERIFFS OFFICE•PO BOX 2540,511 S CAPITOL ST, IOWA CITY, IA 52244-2540•(319)356-6030 PLAINTIFF: BANK OF AMERICA Docket No 12-03003 State IOWA vs. Court No EQCV074631 County JOHNSON DEFENDANT: STATE OF IOWA Ref No Received 06/13/2012 DEFENDANT: SIMMONS, HEATHER VALENTINE DEFENDANT: SPOUSE OF HEATHER V SIMMON: DEFENDANT: CITY OF IOWA CITY , Requestor(s) Phone ""; ;� -711 7 11 HOPKINS,BENJAMIN W (515)222-9400 --^9 "- MOW' 1350 NW 138 ST, CLIVE, IA 503258308 �` - -a 19 Name CITY OF IOWA CITY Zone I Party Type DEFENDANT Phone FaxQ Address CITY CLERK 410 E WASHINGTON ST IOWA CITY IA 52240- E-Mail Employer Comments MNI Information Race Sex Birth Date Age Hair Height Weight • SSN Eyes Skin Notes Documents Document Serve by Date OE PSR Description/Special Instructions ORIGINAL NOTICE AND ❑ ❑ PETITION Service Information yy Date V ` `ITh- Time 1 (p(< Type Party )VV Relationship Race Sex DOB Location L-44) c C.J«1Ck‹.: Miles 1 ., dc:) Fee GS-J J Officer j >---" l Attempts Log Date Time Server Notes Date Time Server Notes Notes: Printed:Wednesday,June 13,2012 Johnson County Sheriffs Office Page 1 of 1 47763 IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY BANK OF AMERICA, N.A 94-1687665 : . EQUITY NO. • ORIGINAL NOTICE , Plaintiff, : bD-WO-N(Dvs . HEATHER V. SIMMONS; .• CAPITAL ONE BANK (USA) , .• N.A. ; • . CAVALRY SPV I, LLC; .• CITY OF IOWA CITY, IOWA; .• CONVERGENCE RECEIVABLES, r-3' LC; — r MIDLAND FUNDING LLC; cam . . . a SPOUSE OF HEATHER V. �_ SIMMONS, IF ANY; y-;- : i= STATE OF IOWA; : '71 til Defendants. : - r TO THE ABOVE NAMED DEFENDANTS: c up You are notified there is a petition now on file in the office of the clerk of the above court. A copy of this filing is attached hereto. The Plaintiff ' s attorneys are Petosa, Petosa & Boecker, L.L.P. , by Benjamin W. Hopkins , whose address is 1350 NW 138th Street, Suite 100, Clive, Iowa 50325-8308 . The Plaintiff ' s attorney's phone number is (515) 222-9400, with a facsimile transmission number of (515) 222-9121. You must serve a motion or answer, within 20 days after service of this original notice upon you and within a reasonable time thereafter file a motion or answer, in the Iowa District Court of Johnson County, at the county courthouse in Iowa City, Iowa. If you do not, judgment by default may be rendered against you for the relief demanded in the petition. If assistance of auxiliary aids or services is required to participate in court due to a disability such as hearing impairment, v�/, ( call the Americans with Disabilities Coordinator at (319) 398-3920 .1 � �� \ V If you are in need of dual party telephone relay services, call Relay Iowa TTY at 1-800-735-2942 . Lec- t4)e"‘11--16() / %.04-AgAlt.., Clerof the Above Court John n County Courthouse Iowa City, Iowa 522442510 YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. (CC : Cwt (Cover Otii) CA 47763 IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY BANK OF AMERICA, N.A 94-1687665 • EQUITY NO. • PETITION Plaintiff , • 4c03t vs . • HEATHER V. SIMMONS; • CAPITAL ONE BANK (USA) , • N.A. ; •• CAVALRY SPV I , LLC; • CITY OF IOWA CITY, IOWA; • CONVERGENCE RECEIVABLES, • tT, a LC; .11 MIDLAND FUNDING LLC; • o zie SPOUSE OF HEATHER V. • �E2 moo SIMMONS, IF ANY; • w STATE OF IOWA• • z 1T + __4G Defendants . �-, .• *c NOTICE );*Ai-+ THE PLAINTIFF HAS ELECTED FORECLOSURE WITHOUT REDEMPTION. THIS MEANS THAT THE SALE OF THE MORTGAGED PROPERTY WILL OCCUR PROMPTLY AFTER ENTRY OF JUDGMENT UNLESS YOU FILE WITH THE COURT A WRITTEN DEMAND TO DELAY THE SALE. IF YOU FILE A WRITTEN DEMAND, THE SALE WILL BE DELAYED UNTIL SIX MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO-FAMILY DWELLING OR UNTIL TWO MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS RESIDENCE BUT NOT A ONE-FAMILY OR TWO-FAMILY DWELLING. YOU WILL HAVE NO RIGHT OF REDEMPTION AFTER THE SALE. THE PURCHASER AT THE SALE WILL BE ENTITLED TO IMMEDIATE POSSESSION OF THE MORTGAGED PROPERTY. YOU MAY PURCHASEAT THE SALE. c_ ..<r' 7 Fl _` u 3 ca 1 • Plaintiff, Bank of America, N.A, for its cause of action states : 1 . That the Plaintiff is a corporation doing business in the United States of America . 2 . That on or about April 17 , 2007, Heather V. Simmons, as a single person, made, executed and delivered a promissory note in writing for the sum of $111, 650 . 00 payable in installments . 3 . That on or about April 17, 2007 in order to secure the payment of the Note, Heather V. Simmons, as a single person, (the "Mortgagor (s) " ) made, executed and delivered to Mortgage Electronic Registration Systems, Inc . , a real estate mortgage (the "Mortgage" ) on the following described real estate '(the "Mortgaged Property" ) : Unit 938 Longfellow Place of Lot 12 , Longfellow. Manor .-, Condominiums, Iowa City, Iowa, according to the: Declaration thereof recorded in Book 4047, Page 4, . Records of the Recorder of Johnson County, Iowa the Mortgage was filed for record April 20, 2007, in Book 4149 Page 249 in the Recorder ' s Office of Johnson County, Iowa. A copy of the Mortgage is attached hereto and made a part hereof as Exhibit "A" . Said mortgage is a Purchase Money Mortgage . 4 . That the Mortgaged Property is and at all times relevant hereto was the homestead of the Mortgagor (s) . 5 . That the Plaintiff has the right to enforce the Note and Mortgage . 2 6 . That the Plaintiff is the sole and absolute owner of the Mortgage; that the Note and Mortgage provide that if default be made at any time in payment of any installment of principal or interest, at the election of the Plaintiff, all indebtedness, without notice of such election, shall become immediately due and payable; that the Plaintiff by reason of the failure of the Mortgagor (s) to pay said installments, declares the Note in default, that there is now due and owing the Plaintiff the sum of $104 , 458 . 86 with interest at 6 . 375% per annum from and including February 1, 2011 plus late fees, attorney fees, abstract expense, protective advances and costs . 7 . That the Plaintiff has given the Mortgagor (s) all required notices, including notice of right to cure said .... default and notice of acceleration required pursuant to Iowa Code Section 654 . 4B (1) "'`` 8 . That the time to cure the default under Iowa law has now expired. 9 . That said Note and Mortgage provide that if suit be commenced thereon, Mortgagor (s) will pay reasonable attorneys ' fees . An attorneys ' fee affidavit is attached hereto and made a part hereof as Exhibit "B" . 10 . That the Plaintiff now hereby in writing waives any right or claim to a deficiency judgment against the Mortgagor (s) . That the Mortgaged Property is the residence of the Mortgagor (s) and is a one-family or two-family dwelling. 3 The Plaintiff hereby elects to foreclose without redemption and the sale of the Mortgaged Property shall occur promptly after entry of judgment, unless the Mortgagor (s) , pursuant to the Notice set forth above, files a written demand to delay the sale, in which event the sale shall be delayed until six months after entry of judgment . 11 . That the following parties are named as Defendant (s) because they claim some right, title or interest in the Mortgaged Property, including, without limitation a right, title or interest as described below but any such right, title or interest is junior and inferior to the interest of Plaintiff : • City of Iowa City, Iowa, $36, 500 . 00 Mortgage, dated April 17, 2007, filed April 20, 2007, Book 4149 Page 257 • Capital One Bank (USA) , N.A. , $1, 183 . 56 Judgment, - dated June 7, 2010, filed June 7, 2010 , SCSC076775:, Plus costs & Interest • State of Iowa, $200 . 00 Judgment, dated December 9, 2010, filed December 9, 2010, STA0069711, Plus costs & Interest • State of Iowa, $685 . 00 Judgment, dated August 31, 2011, filed August 31, 2011, NTA0085531, Plus costs & Interest • Convergence Receivables, LC, $575 . 04 Judgment, dated September 28 , 2011, filed September 28, 2011, SCSC080313 , Plus costs & Interest • Cavalry SPV I, LLC, $3 , 351 . 22 Judgment, dated April 13 , 2012 , filed April 13 , 2012, SCSC081099, Plus costs & Interest • Spouse of Heather V. Simmons, if any, for any interest in the subject property. • Midland Funding LLC, $1, 022 . 38 Judgment, dated September 21, 2010, filed September 10, 2010, SCSC077771, Plus costs & Interest 4 12 . That the Mortgage provides that any time after the proper commencement of an action in foreclosure or during the period of redemption, the Court having jurisdiction of the case shall, at the request of the Plaintiff, appoint a receiver to take immediate possession of the Mortgaged Property and of the rents and profits accruing therefrom, to rent the same as he may deem best for the interest of all parties concerned and shall be liable to account to the Mortgagor (s) only for the net profits after application of rents, issues and profits upon the cost of the expense of receivership and foreclosure and the indebtedness, charges and expenses hereby secured and herein t.J mentioned. WHEREFORE THE PLAINTIFF PRAYS THE COURT: n ril 1 . That the Plaintiff have judgment in rem against the Mortgaged Property for the amount of unpaid principal and,., interest on the Note, as provided in the Note and Mortgage and for late fees, attorney fees, abstract expense, protective advances and costs . 2 . That a receiver be appointed immediately to take care of, manage, lease and collect the rents from the Mortgaged Property, and to apply the same in payment of costs and expenses of said receivership, repairs and expenses of said real estate, accrued and accruing taxes and special assessments, insurance premiums, and in partial payment of the judgment to be entered herein. 5 3 . That said judgment, together with interest, late fees, attorney fees, abstract expense, protective advances, costs and accruing costs be decreed a prior lien upon the Mortgaged Property from the date of the Mortgage, and that all rights, interests and equities of all Defendants to this suit bp.. declared junior to the right, title and interest of the- Plaintiff . 4 . That in the event Plaintiff is required to make protective advances, including without limitation, advarides for taxes or insurance on the Mortgaged Property, the Plaintiff be given an additional lien thereon for such amounts so advanced, which shall be included in the judgment to be entered herein. 5 . That the Mortgage be foreclosed and the Defendant (s) ' equity of redemption be barred and foreclosed save as guaranteed by law. That special execution issue for the sale the Mortgaged Property to satisfy said judgment, interest, late fees, attorney fees, abstract expense, protective advances and costs . 6 . That special execution issue to satisfy said judgment, interest and attorneys ' fees, and accruing costs herein, and the Mortgaged Property be sold according to law to satisfy the amount due under the Decree issued by this Court and the Defendants herein or anyone claiming by, through or under them, be forever barred and foreclosed of any interest in the 6 Mortgaged Property, except such rights of redemption as provided by law. 7 . That if the Mortgaged Property is sold and not redeemed, the Clerk of this Court shall issue to the Sheriff of said County, a writ of removal and possession, commanding him to put the grantee named in the Sheriff ' s deed for said premises sold, or his grantee, in possession thereof, and to remove any Defendants, or persons claiming by, through or under any of them, or any person in possession thereof out of such possession. 8 . That the Plaintiff has elected foreclosure without redemption and the sale of the Mortgaged Property shall occur promptly after entry of judgment or in the alternative, if a written demand for delay is filed, the sale shall occur six months after entry of judgment . 9 . That the Plaintiff be granted such further relief as. may be just and equitable. PETOSA 'ETOSA & BOECKER, L.L. P. c•) • BY I Be ,j .J �f ? 8t f. �s, AT0003573 r.Py 13 '.0 eet, Suite 100 Cli Iowa 50325-8308 T w. one : (515) 222-9400 o FGA .imile : (515) 222-9121 0,J J ATTORNEYS FOR PLAINTIFF 7 111111111111111111111111111 Doc ID: 020827160008 Tvoe: OEN Recorded: 04/20/2007 at 02:53:46 PM Fee Amt: $42.00 Paae 1 of 8 Johnson County Iowa Kim Painter County Recorder BK4149 PG249-256 (Space above reserved for Recorder of Deeds certification] Prepared By:Michelle A.Kaas Residential Mortgage Network,Inc.1210 Highway 6 West Suite 300 Iowa City,IA 52246 (319)354-7501 When Recorded Return To: Residential Mortgage Network,Inc.1210 Highway 6 West Suite 300 Iowa City,IA 52246 1. Title of Document: MORTGAGE 2. Grantor(s): Heather V.Simmons,unmarried 3. Grantee(s): Residential Mortgage Network,Inc. .3 N m C7)-‹ 4. Statutory Mailing Address(s): 1210 Highway 6 West Suite 300 Iowa City,IA 52246 --i ? 5. Legal Description: Page 2 6. Parcel Identification Number: 1014288001 7. Document or Instrument II: EXHIBIT V 16251.CV(10%05) 159658213 Pagc 1 of 5 GOTO(0005a6f1) • State of Iowa MORTGAGE L THIS MORTGAGE("Security Instrument")is given on April 17th , 2007 .The mortgagor is Heather V.Simmons,unmarried ("Borrower").This Security Instrument is given to Mortgage Electronic Registration Systems,Inc.("MERS")(solely as nominee for Lender,as hereinafter defined,and Lender's successors and assigns),as beneficiary. MERS is organized and existing under the laws of Delaware,and has an address and telephone number of P.O.Box 2026,Flint,Ml 48501-2026,tel.(800)679-MERS. Residential Mortgage Network,Inc. which is organized and existing under the laws of the United States of America ,and whose address is 1210 Highway 6 West Suite 300 Iowa City,IA 52246 ("Lender"). Borrower owes Lender the principal sum of One Hundred Eleven Thousand Six Hundred Fifty and 00/100 Dollars (U.S.$ 111,650.00 ).This debt is evidenced by Borrower's note dated the same date as this Security Instrument("Note"), which provides for monthly payments,with the full debt,if not paid earlier,due and payable on May 1,2037 This Security Instrument secures to Lender:(a)the repayment of the debt evidenced by the Note,with interest,and all renewals, extensions and modifications of the Note;(b)the payment of all other sums,with interest,advanced under paragraph 7 to protect the security of this Security Instrument;and(c) the performance of Borrower's covenants and agreements under this Security Instrument ent and the Note.For this purpose,Borrower does hereby mortgage,grant and convey to MERS(solely as nominee for Lender and Lender's successors and assigns)and to the successors and assigns of MERS the following described Property located in Johnson County,Iowa: Unit 938 Longfellow Place of Lot 12,Longfellow Manor Condominiums,Iowa City,Iowa,according to the Declaration thereof recorded in Book 4047,Page 4,Records of the Recorder of Johnson County,Iowa. N F. "man* THIS IS A PURCHASE MONEY MORTGAGE .01 which has the address of 938 LongfellowPlace Iowa City s I ._� g [Street' [City], -"rn IA 52240 ("Property Address"); 5 IStatel (Zip Code] TOGETHER WITH all the improvements now or hereafter erected on the property,and all easements,appurtenances,and fixtures now or hereafter a part of the property.All replacements and additions shall also be covered by this Security Instrument "-- All -All of the foregoing is referred to in this Security Instrument as the"Property". Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument;but,if necessary to comply with law or custom,MERS(as nominee for Lender and Lender's successors and assigns)has the right:to exercise any or all of those interests, including,but not limited to,the right to foreclose and sell the Property;and to take any action required of Lender including,but not limited to,releasing or canceling this Security Instrument. BORROWER COVENANTS that Borrower is lawfully seized of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered,except for encumbrances of record.Borrower warrants and will defend generally the title to the Property against all claims and demands,subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. Borrower and Lender covenant and agree as follows: UNIFORM COVENANTS. 1.Payment of Principal,Interest and Late Charge. Borrower shall pay when due the principal of,and interest on,the debt evidenced by the Note and late charges due under the Note. 2.Monthly Payment of Taxes,Insurance,and Other Charges. Borrower shall include in each monthly payment,together with the principal and interest as set forth in the Note and any late charges,a sum for(a)taxes and special assessments levied or to be levied against the Property,(b)leasehold payments or ground rents on the Property,and(c)premiums for insurance required under Paragraph 4. In any year in which the Lender must pay a mortgage insurance premium to the Secretary of Housing and Urban Development("Secretary"), or in any year in which such premium would have been required if Lender still held the Security Instrument,each monthly payment shall also include either:(i)a sum for the annual mortgage insurance premium to be paid by Lender to the Secretary,or(ii)a monthly charge instead of a mortgage insurance premium if this Security Instrument is held by the Secretary,in a reasonable amount to be determined by the Secretary.Except for the monthly charge by the Secretary, these items are called"Escrow Items"and the sums paid to Lender are called"Escrow Funds." 16257.0 V(10105) 159658233 Pagc 2 of 5 GOTO(0005c6n) Lender may,at any time,collect and hold amounts for Escrow Items in an aggregate amount not to exceed the maximum amount that may be required for Borrower's escrow account under the Real Estate Settlement Procedures Act of 1974, 12 U.S.0 § 2601 et seq. and implementing regulations,24 CFR Part 3500,as they may be amended from time to time("RESPA"), except that the cushion or reserve permitted by RESPA for unanticipated disbursements or disbursements before the Borrower's payments are available in the account may not be based on amounts due for the mortgage insurance premium. If the amounts held by Lender for Escrow Items exceed the amounts permitted to be held by RESPA,Lender shall account to Borrower for the excess funds as required by RESPA.If the amounts of funds held by Lender at any time are not sufficient to pay the Escrow Items when due, Lender may notify the Borrower and require Borrower to make up the shortage as permitted by RESPA. The Escrow Funds are pledged as additional security for all sums secured by this Security Instrument.If Borrower tenders to Lender the full payment of all such sums,Borrowers account shall be credited with the balance remaining for all installment items (a),(b),and(c)and any mortgage insurance premium installment that Lender has not become obligated to pay to the Secretary, and Lender shall promptly refund any excess funds to Borrower.Immediately prior to a foreclosure sale of the Property or its acquisition by Lender,Borrower's account shall he credited with any balance remaining for all installments for items(a),(b),and (c). 3.Application of Payments. All payments under Paragraphs 1 and 2 shall be applied by Lender as follows: First to the mortgage insurance premium to be paid by Lender to the Secretary or to the monthly charge by the Secretary instead of the monthly mortgage insurance premium; Second, to any taxes,special assessments,leasehold payments or ground rents,and fire,flood and other hazard insurance premiums,as required; Third, to interest due under the Note; Fourth, to amortization of the principal of the Note;and Fifth, to late charges due under the Note. 4.Fire,Flood and Other Hazard Insurance. Borrower shall insure all improvements on the Property,whether now in existence or subsequently erected,against any hazards,casualties,and contingencies,including fire,for which Lender requires insurance.This insurance shall be maintained in the amounts and for the periods that Lender requires.Borrower shall also insure all improvements on the Property,whether now in existence or subsequently erected,against loss by floods to the extent required by the Secretary.All insurance shall be carried with companies approved by Lender. The insurance policies and any renewals shall be held by Lender and shall include loss payable clauses in favor of,and in a form acceptable to,Lender. In the event of loss, Borrower shall give Lender immediate notice by mail.Lender may make proof of loss if not made promptly by Borrower. Each insurance company concerned is hereby authorized and directed to make payment for such loss directly to Lender,instead of to Borrower and to Lender jointly.All or any part of the insurance proceeds may be applied by Lender,at its option,either(a)to the reduction of the indebtedness under the Note and this Security Instrument,first to any delinquent amounts applied in the order in Paragraph 3,and then to prepayment of principal,or(b)to the restoration or repair of the damaged Property.Any application of the proceeds to the principal shall not extend or postpone the due date of the monthly , payments which are referred to in Paragraph 2,or change the amount of such payments.Any excess insurance proceeds over an N amount required to pay all outstanding indebtedness under the Note and this Security Instrument shall be paid to the entity legally - entitled thereto. • r [— In the event of foreclosure of this Security Instrument or other transfer of title to the Property that extinguishes the '• indebtedness,all right,title and interest of Borrower in and to insurance policies in force shall pass to the purchaser. t)�'® 5. Occupancy,Preservation,Maintenance and Protection of the Property;Borrower's Loan Application;Leaseholds. .- 0 Borrower shall occupy,establish,and use the Property as Borrower's principal residence within sixty days after the execution of —41-2. 9 this Security Instrument(or within sixty days of a later sale or transfer of the Property)and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy,unless Lender determines that requirement will - a+_ cause undue hardship for Borrower,or unless extenuating circumstances exist which are beyond Borrower's control.Borrower ,- shall notify Lender of any extenuating circumstances.Borrower shall not commit waste or destroy,damage or substantially change - the Property or allow the Property to deteriorate,reasonable wear and tear excepted.Lender may inspect the Property if the Property is vacant or abandoned or the loan is in default.Lender may take reasonable action to protect and preserve such vacant or abandoned Property.Borrower shall also be in default if Borrower,during the loan application process,gave materially false or inaccurate information or statements to Lender(or failed to provide Lender with any material information)in connection with the loan evidenced by the Note,including,but not limited to,representations concerning Borrower's occupancy of the Property as a principal residence. If this Security Instrument is on a leasehold,Borrower shall comply with the provisions of the lease.If Borrower acquires fee title to the Property,the leasehold and fee title shall not be merged unless Lender agrees to the merger in writing. 6. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in'connection with any condemnation or other taking of any part of the Property,or for conveyance in place of condemnation,are hereby assigned and shall be paid to Lender to the extent of the full amount of the indebtedness that remains unpaid under the Note and this Security Instrument.Lender shall apply such proceeds to the reduction of the indebtedness under the Note and this Security Instrument, first to any delinquent amounts applied in the order provided in Paragraph 3,and then to prepayment of principal.Any application of the proceeds to the principal shall not extend or postpone the due date of the monthly payments,which are referred to in Paragraph 2, or change the amount of such payments. Any excess proceeds over an amount required to pay all outstanding indebtedness under the Note and this Security Instrument shall be paid to the entity legally entitled thereto. 7.Charges to Borrower and Protection of Lender's Rights in the Property. Borrower shall pay all governmental or municipal charges, fines and impositions that are not included in Paragraph 2. Borrower shall pay these obligations on time directly to the entity which is owed the payment.If failure to pay would adversely affect Lender's interest in the Property,upon Lender's request Borrower shall promptly furnish to Lender receipts evidencing these payments. If Borrower fails to make these payments or the payments required by Paragraph 2,or fails to perform any other covenants and agreements contained in this Security Instrument,or there is a legal proceeding that may significantly affect Lender's rights in the Property(such as a proceeding in bankruptcy,for condemnation or to enforce laws or regulations),then Lender may do and pay whatever is necessary to protect the value of the Property and Lender's rights in the Property,including payment of taxes, hazard insurance and other items mentioned in Paragraph 2. Any amounts disbursed by Lender under this Paragraph shall become an additional debt of Borrower and be secured by this Security Instrument.These amounts shall bear interest from the date of disbursement,at the Note rate,and at the option of Lender, shall be immediately due and payable. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower:(a)agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender;(b)contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien;or(c)secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument.If Lender determines that any part of the Property is subject to a lien which may attain priority over this Security Instrument,Lender may give Borrower a notice identifying the lien.Borrower shall satisfy the lien or take one or more of the actions set forth above within 10 days of the giving of notice. 16257.CV(10/05) t 59658233 Page 3 of 5 GOTO(0005e6fl) 8.Fees. Lender may collect fees and charges authorized by the Secretary. 9.Grounds for Acceleration of Debt. (a)Default. Lender may,except as limited by regulations issued by the Secretary in the case of payment defaults,require immediate payment in full of all sums secured by this Security Instrument if: (i)Borrower defaults by failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date of the next monthly payment,or (ii)Borrower defaults by failing,for a period of thirty days,to perform any other obligations contained in this Security Instrument. • (b)Sale Without Credit Approval. Lender shall,if permitted by applicable law(including section 341(d)of the Gam-St Germain Depository Institutions Act of 1982, 12 U.S.C. 1701j-3(d))and with the prior approval of the Secretary,require immediate payment in full of all the sums secured by this Security Instrument if: (i)All or part of the Property,or a beneficial interest in a trust owning all or part of the Property,is sold or otherwise transferred(other than by devise or descent)and (ii)The Property is not occupied by the purchaser or grantee as his or her principal residence,or the purchaser or grantee does so occupy the Property,but his or her credit has not been approved in accordance with the requirements of the Secretary. (c)No Waiver. If circumstances occur that would permit Lender to require immediate payment in full,but Lender does not require such payments,Lender does not waive its rights with respect to subsequent events. (d)Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender's rights, in the case of payment defaults,to require immediate payment in full and foreclose if not paid.This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary. (e)Mortgage Not Insured. Borrower agrees that if this Security Instrument and the Note are not determined to be eligible for insurance under the National Housing Act within 60 days from the date hereof, Lender may, at its option require immediate payment in full of all sums secured by this Security Instrument. A written statement of any authorized agent of the Secretary dated subsequent to 60 days from the date hereof, declining to insure this Security Instrument and the Note,shall be deemed conclusive proof of such ineligibility.Notwithstanding the foregoing,this option may not be exercised by Lender when the unavailability of insurance is solely due to Lender's failure to remit a mortgage insurance premium to the Secretary. 10.Reinstatement. Borrower has a right to be reinstated if Lender has required immediate payment in full because of Borrower's failure to pay an amount due under the Note or this Security Instrument.This right applies even after foreclosure proceedings are instituted.To reinstate the Security Instrument,Borrower shall tender in a lump sum all amounts required to bring Borrower's account current including,to the extent they are obligations of Borrower under this Security Instrument,foreclosure costs and reasonable and customary attorneys'fees and expenses properly associated with the foreclosure proceeding. Upon reinstatement by Borrower,this Security Instrument and the obligations that it secures shall remain in effect as if Lender had not required immediate payment in full. However, Lender is not required to permit reinstatement if: (i) Lender has accepted reinstatement after the commencement of foreclosure proceedings within two years immediately preceding the commencement of a current foreclosure proceeding, (ii) reinstatement will preclude foreclosure on different grounds in the future, or (iii) .:j..) reinstatement will adversely affect the priority of the lien created by this Security Instrument. 11.Borrower Not Released;Forbearance By Lender Not a Waiver. Extension of the time of payment or modification amortization of the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall t t C� operate to release the liability of the original Borrower or Borrower's successor in interest. Lender shall not be required et?—"s — g-�" commence proceedings against any successor in interest or refuse to extend time for payment or otherwise modify amortization i n 1 the sums secured by this Security Instrument by reason of any demand made by the original Borrower or Borrower's successors 1p;,{C) � interest.Any forbearance by Lender in exercising any right or remedy shall not be a waiver of or preclude the exercise of any nglik t ... 7111 or remedy. - -73 12. Successors and Assigns Bound; Joint and Several Liability;Co-Signers. The covenants and agreements of this.'" Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of Paragraph 9(b) Borrower's covenants and agreements shall be joint and several. Any Borrower who co-signs this Security, 0) Instrument but does not execute the Note:(a)is co-signing this Security Instrument only to mortgage,grant and convey that k;.) Borrower's interest in the Property under the terms of this Security Instrument;(b)is not personally obligated to pay the sums secured by this Security Instrument;and(c)agrees that Lender and any other Borrower may agree to extend,modify,forbear or make any accommodations with regard to the term of this Security Instrument or the Note without that Borrower's consent. 13.Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method.The notice shall be directed to the Property Address or any other address Borrower designates by notice to Lender.Any notice to Lender shall be given by first class mail to Lender's address stated herein or any address Lender designates by notice to Borrower.Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph. 14.Governing Law;Severability. This Security Instrument shall be governed by Federal law and the law of the jurisdiction in which the Property is located.In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law,such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision.To this end the provisions of this Security Instrument and the Note are declared to be severable. 15.Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security Instrument. 16. Hazardous Substances. Borrower shall not cause or permit the presence,use,disposal, storage,or release of any Hazardous Substances on or in the Property.Borrower shall not do,nor allow anyone else to do,anything affecting the Property that is in violation of any Environmental Law.The preceding two sentences shall not apply to the presence,use,or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. Borrower shall promptly give Lender written notice of any investigation,claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns,or is notified by any governmental or regulatory authority,that any removal or other remediation of any Hazardous Substances affecting the Property is necessary,Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. As used in this paragraph 16, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,volatile solvents,materials containing asbestos or formaldehyde,and radioactive materials.As used in the paragraph 16,"Environmental Law"means federal laws and laws of the jurisdiction where the Property is located that relate to health,safety or environmental protection. 16257.0 V(10/05) 159658233 Pagc 4 of 5 GOTO(00050n) NON-UNIFORM COVENANTS.Borrower and Lender further covenant and agree as follows: 17. Assignment of Rents. Borrower unconditionally assigns and transfers to Lender all the rents and revenues of the Property.Borrower authorizes Lender or Lender's agents to collect the rents and revenues and hereby directs each tenant of the Property to pay the rents to Lender or Lender's agents. However,prior to Lender's notice to Borrower of Borrower's breach of any covenant or agreement in the Security Instrument, Borrower shall collect and receive all rents and revenues of the Property as trustee for the benefit of Lender and Borrower. This assignment of rents constitutes an absolute assignment and not an assignment for additional security only. If Lender gives notice of breach to Borrower:(a)all rents received by Borrower shall be held by Borrower as trustee for benefit of Lender only,to be applied to the sums secured by the Security Instrument;(h)Lender shall be entitled to collect and receive all of the rents of the Property;and(c)each tenant of the Property shall pay all rents due and unpaid to Lender or Lender's agent on Lender's written demand to the tenant. Borrower has not executed any prior assignment of the rents and has not and will not perform any act that would prevent Lender from exercising its rights under this Paragraph 17. Lender shall not be required to enter upon,take control of or maintain the Property before or after giving notice of breach to Borrower.However,Lender or a judicially appointed receiver may do so at any time there is a breach. Any application of rents shall not cure or waive any default or invalidate any other right or remedy of Lender. This assignment of rents of the Property shall terminate when the debt secured by the Secunty Instrument is paid in full. 18.Foreclosure Procedure.If Lender requires immediate payment in full under Paragraph 9,Lender may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 18,including,but not limited to,reasonable attorneys'fees and costs of title evidence. If the Lender's interest in this Security Instrument is held by the Secretary and the Secretary requires immediate payment in full under Paragraph 9,the Secretary may invoke the nonjudicial power of sale provided in the Single Family Mortgage Foreclosure Act of 1994("Act")(12 U.S.C.3751 et seq. )by requesting a foreclosure commissioner designated under the Act to commence foreclosure and to sell the Property as provided in the Act.Nothing in the preceding sentence shall deprive the Secretary of any rights otherwise available to a Lender under this Paragraph IS or applicable law. 19.Release. Upon payment of all sums secured by this Security Instrument,Lender shall release this Security Instrument without charge to Borrower. 20.Waivers. Borrower relinquishes all right of dower and waives all right of homestead and distributive share in and to the Property. Borrower waives any right of exemption as to the Property. 21.Redemption Period. If the Property is less than 10 acres in size and Lender waives in any foreclosure proceeding any right to a deficiency judgment against Borrower,the period of redemption from judicial sale shall be reduced to 6 months.If the court finds that the Property has been abandoned by Borrower and Lender waives any right to a deficiency judgment against Borrower,the period of redemption from judicial sale shall be reduced to 60 days.The provisions of this paragraph 21 shall be construed to conform to the provisions of Sections 628.26 and 628.27 of the Code of Iowa. Riders to this Security Instrument If one or more riders are executed by Borrower and recorded together with this Security Instrument,the covenants of each such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Security Instrument as if the rider(s)were a part of this Security Instrument. [Check applicable box(es)]. ®Condominium Rider ❑Growing Equity Rider DPlanned Unit Development Rider ~' op ❑Graduated Payment Rider ®Other[specify] Tax Exempt _ Financing Rider --- 1,J BY SIGNING BELOW,Borrower accepts and agrees to the terms contained in this Security Instrument and in any rider t ��.• executed by Borrower and recorded with it. ,— g . —I �2' se The undersigned borrower(s)acknowledge(s)receipt of a copy of this instrument. c"....< _ Witnesses: _.. rn (r-r7- r' T Booo Hea e . mmons 7 -- 71 (Seal) C,) Borrower , ) (Seal) Borrower (Seal) Borrows. (Seal) Borrower (Seal) non0 c, [Space Below TMs Line For.Ackno..kdgenxnil STATE OF Iowa COUNTY OF Johnson ) ss On this 17th day of April 20.07 ,before me,a Notary Public in and for said county and state,personally appeared: Heather V.Simmons,unmarried to me personally known to be the person(s)named in and who executed the foregoing instrument,and acknoweledged that they executed the same as t jr voluntary act and deed. IP'‘`,..., TARS G.ANDERSON My commission expires: 07/25/2 :�Comnassion N.:m er ` - ) My Comrrass,on E,Iilwsg' lie in and for said County and Stale row .iu'y 25.2007Lars .Anderson 16257 CV(10/05) 150658233 Page 5 of 5 GOTO(0005e6f1) o ry .11 ---f Prepared by and RETURN TO: Residential Mortgage Network,Inc.1210 Highway 6 West Suite 300 Iowa City,IA 52246 telephone(319)354-7501 Title of Document: Rider to Mortgage Grantor: Heather V.Simmons,unmarried (borrower(s)) Grantee: Residential Mortgage Network,Inc. (lender) RIDER TO MORTGAGE This Tax-Exempt Financing Rider to Mortgage,made the date noted below,is incorporated into and shall be deemed to amend and supplement the Mortgage of the same date given by the undersigned(the"Mortgagor") to secure the Mortgagor's Note to Residential Mortgage Network,Inc. (herein, the "Lender") and covering the property described in the Mortgage (the"Property")to which this Rider is attached. The provisions hereof shall prevail notwithstanding any contrary provisions in any note or other instrument which evidences the obligations secured by the Mortgage. As long as the Mortgage is held by the Iowa Finance Authority or backs a mortgage-backed security held by the Iowa Finance Authority,Countrywide Home Loans,Inc.(the"Servicer")or such of its successors or assigns as may by separate instrument assume responsibility for assuring compliance by the Mortgagor with the provisions of this Rider,may declare all sums secured by the Mortgage to be immediately due and payable if: (1) all or part of the property is sold or otherwise transferred(other than by devise, descent or operation of law)by the Mortgagor to a purchaser or other transferee: a. who cannot reasonably be expected to occupy the property as a principal residence within a reasonable time after the sale or transfer,all as provided in Section 143(c)and(i)(2)of the Internal Revenue Code of 1986,as amended(the"Code");or b. who has had a present ownership interest in a principal residence during any part of the three-year period ending on the date of the sale or transfer,all as provided in Section 143(d)and(i)(2)of the Code(except that the language "100percent" shall be substituted for "95 percent or more"where the latter appears in Section 143(d)(1)), unless the property is in a Targeted Area;or c. at an acquisition cost which is greater than 90 percent of the average area purchase price(greater than 110 percent for Targeted Area residences),all as provided in Section 143(e)and(i)(2)of the Code;or d. who has a gross family income not in excess of applicable median family income; all as provided in Section 143(f)and(I)(2)of the Code;or (2) the Mortgagor fails, or ceases, to occupy the property described in the Mortgage without the prior written consent of the Mortgagee or its successors or assigns; or (3) the Mortgagor omits or misrepresents a fact that is material with respect to the provisions of Section 143 of the Code in an application for Mortgage which secures the Note. 14157.CV(10/05) 159658233 Page I oft GOTO(0005e618) . 1 References are to the Code in effect on the date of the execution of the Mortgage and are deemed to include the applicable implementing regulations. By signing below, the Mortgagor(s)accepts and agrees to the terms of this Rider to Mortgage. Date: April 1 ,2007 Borrower Heather V.Simmons Co-Borrower Heather V.Simmons Typed Name Typed Name Co-Borrower Co-Borrower Typed Name Typed Name This instrument was acknowledged before me on April 17.2007 by Heather V.Simmons,unmarried as Mortgagor(s). • o41141' LARSC.ANDERSON NOTARY PUBLIC in and for said Stale - Commission Number 180422 • My Commission Expires Lars G.Anderson row July 25,2007 N C..— .11 -- Cr)'41 ar)'41 r rrl L"1 t4157.CV(10/05) 159658233 Page 2 oft GOTO(0005e6B) . PLANNED UNIT DEVELOPMENT RIDER THIS PLANNED UNIT DEVELOPMENT RIDER is made this 17th day of April 2007 _and is incorporated into and shall be deemed to amend and supplement the Mortgage,Deed of Trust or Security Deed("Security Instrument")of the same date given by the undersigned("Borrower")to secure Borrower's Note("Note")to Residential Mortgage Network,Inc.A United States Corporation _ ("Lender")of the same date and covering the property described in the Security Instrument and located at: 938 Longfellow Place Iowa City,IA 52240 [Properly Address) The Property is a part of a planned unit development("PUD")known as Longfellow Manor Condominiums [Name of Planned Una Development] PUD COVENANTS. In addition to the covenants and agreements made in the Security Instrument, Borrower and Lender further covenant and agree as follows: A. So long as the Owners Association(or equivalent entity holding title to common areas and facilities), acting as trustee for the homeowners, maintains, with a generally accepted insurance carrier, a "master"or"blanket"policy insuring the property located in the PUD,including all improvements now existing or hereafter erected on the mortgaged premises, and such policy is satisfactory to Lender and provides insurance coverage in the amounts, for the periods,and against the hazards Lender requires,including fire and other hazards included within the term"extended coverage",and loss by flood, to the extent required by the Secretary, then: (i) Lender waives the provision in Paragraph 2 of this Security Instrument for the monthly payment to Lender of one-twelfth of the yearly premium installments for hazard insurance on the Property,and (ii) Borrower's obligation under Paragraph 4 of this Security Instrument to maintain hazard insurance coverage on the Property is deemed satisfied to the extent that the required coverage is provided by the Owners Association policy. Borrower shall give Lender prompt notice of any lapse in required hazard insurance coverage and of any loss occurring from a hazard.In the event of a distribution of hazard insurance proceeds in lieu of restoration or repair following a loss to the Property or to common areas and facilities of the PUD,any proceeds payable to Borrower are hereby assigned and shall be paid to Lender for application to the sums secured by this Security Instrument,with any excess paid to the entity legally entitled thereto. tV B. Borrower promises to pay all dues and assessments imposed pursuant to the legal instruments r' creating and governing the PUD. 0 +� C. If Borrower does not pay PUD dues and assessments when due,then Lender may pay them.Any * 71 amounts disbursed by Lender trader this paragraph C shall become additional debt of Borrower secured by the Security Instrument.Unless Borrower and Lender agree to other terms of payment. �7 _ these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable, -r" with interest,upon notice from Lender to Borrower requesting payment. "4C7 BY SIGNING BELOW,Borrower accepts and agrees to the terms and provisions contained in this PUD f-1 "O r Rider. i - LwJ - e (SEAL) (SEAL) W Borrow,,H a her V.Simmons Borrower (SEAL) (SEAL) Borrower Borrower (SEAL) (SEAL) Borrower Borrower [Space Below This Linc is For Acknowledgement] STATE OF Iowa as: COUNTY OFJohnson On this 17th day of April , 2007 before mc,a Notary Public in the State of lows personally appeared: Heather V.Simmons,unmarried to me personally known to be the person(s) named in and who executed th foregoing instrument, and acknowledged that she executed the same as her yolunta and.,err /' My Commission expires:03/12/2008 (� •1 jVi�I .ora .Public in and for County and Stare JESSICA L.GREYING Jes its L.Greying L Commission Number 183848J 2008 CV(3,06) 159658233 My COrnfOaabn Exp f;OT(No005rana) March 12,2008 AFFIDAVIT STATE OF IOWA SS COUNTY OF POLK I , Benjamin W. Hopkins, being first duly sworn on oath depose and state that I am one of the attorneys for the Plaintiff in this cause; that I am a regular practicing attorney engaged in this case; that there has been no agreement, express or implied, between myself and my client , or between myself and any other person except attorneys associated with me in this case, for any sharing or division of the attorney fees to be taxed herein. I certify under penalty and perjury and pursuant to the laws of the State of Iowa that the preceding is true and correct . Dated this 4th day of June , 2012 . l •pk. AT0003573 Exhibit "B d C") rri iD ca uD END OF CASE FILE • CIVIL PROCESS WORKSHEET JOHNSON COUNTY SHERIFFS OFFICE• PO BOX 2540, 511 S CAPITOL ST, IOWA CITY, IA 52244-2540•(319) 356-6030 PLAINTIFF: BACULIS,DAVID A AND KAREN K Docket No 12-03551 State IOWA vs. Court No CVCV074720 County JOHNSON DEFENDANT: CITY OF IOWA CITY Ref No Received 07/13/2012 Requestor(s) Phone OLSON,DOUGLAS V (319)351-8993 1100 5 ST STE 107, CORALVILLE, IA 52241 Name CITY OF IOWA CITY Zone Party Type DEFENDANT Phone (319)356-5030 Fax Address 410 E WASHINGTON ST IOWA CITY 34588 52240- E-Mail Employer Comments C/O MARIAN KARR, CITY CLERK Documents Document Serve by Date OE PSR Description/Special Instructions DEMAND FOR JURY ❑ ❑ ORIGINAL NOTICE AND ❑ ❑ PETITION Service Information Date ) Time ' �j Type C QI/T Party (Thr j/`1Ct>n �c_ i'i Relationship C� �' 'e-1r' Race lA/ Sex DOB Location 0 C_ 1-4A611103 fan n Miles \ Fee Officer Attempts Log Date Time Server Notes Date Time Server Notes Notes: O ^' j -_g r— � «–< — ► -,n rriPrinted: Friday,July 13,2012 Johnson County Sheriffs Office Page 1 of 1 TN IOWA STATE BAR ASSOCIATION FOR THE LEGAL EFFECT OF THE USE OF OilcialFomtAo.J01 Douglas V.Olson THIS FORM.CONSULT YOUR LAWYER aG�1'E, r �,�,�r THE IOWA DISTRICT COURT JOHNSON COUNTY David A.Baculis and Karen K.Baculis Plaintiff(s), LAW EQUITY 0 No.C-V C-1lO '7'I 7.2-6DATE PETITION FILED: VS. The City of Iowa City,Iowa and Johnson County,Iowa ORIGINAL NOTICE Defendant(s). TO THE ABOVE-NAMED DEFENDANT(S): You are notified that a petition has been filed in the office of the clerk of this court naming you as the defendant(s)in this action. A copy of the petition (and any documents filed with it)is attached to this notice. The name(s)and address(es)of the attorney(s)for the plaintiff(s) (is)(are) Douglas V.Olson,P.O.Box 5312, 1100 Fifth Street,Suite 107,Coralville,Iowa 52241-0312 • The attorney's(el) phone numbers)(is) (are)319-351-8993 facsimile number(s) 319-351-0860 You must serve a motion or answer within 20 days after service of this original notice upon you, and within a reasonable time thereafter,file your motion or answer with the Clerk of Court for Johnson County,at the county courthouse in Iowa City Iowa. If you do not,judgment by default may be rendered against you for the relief demanded In the petition. If you need assistance to participate in court due to a disability, call the disability coordinator at 2/9-318-39Z4' 'lc/1'1761 Persons who are hearing or speech impaired may call Relay Iowa TTY (1-800-735-2942). Disability coordinators cannot provide legal advice. �.eI11 Y%f'• +j�L (SEAL) ` afg1 Cie Lw CLE. OF COURT Johns n County COUrthous9 II Iowa City Iowa 32240-" IMPORTANT:YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS • ono Iowa State Bar Association 2003 301 ORIGINAL NOTICE FOR PERSONAL SERVICE 10WADOCSe Revised May 2012 C ( t:ovrc Ort )) CSA r nJeP- IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY DAVID A.BACULIS, SR.AND ) KAREN K.BACULIS, ) NO. C_1/ CV 0 '1 y 7)O ) Plaintiffs, ) ) vs. ) PETITION APPEALING ) CONDEMNATION AWARD AND 4 THE CITY OF IOWA CITY,IOWA, ) DEMAND FOR JURY TRIAL aim AND JOHNSON COUNTY,IOWA -) - • . en-it z — bq. Defendants. ) a Plaintiffs state: —+n c 1. Plaintiffs David A. Baculis and Karen K. Baculis own real estate 1oc min D x1 a, Johnson County, Iowa as indicated in the report attached hereto as Exhibit"A." 2. Defendant City of Iowa City, Iowa is an entity vested with the power of eminent domain. 3. Defendant Johnson County, Iowa has been named herein by virtue of its lien for real estate taxes on the real estate condemned as described below. 4. On June 14, 2012, Defendant City of City of Iowa, Iowa, convened a Compensation Commission to assess damages by virtue its "taking" of the real estate owned by Plaintiffs. The Compensation Commission awarded Plaintiffs the total sum of One Hundred Two Thousand Seven Hundred Forty Dollars($102,740)for the taking. 5. Plaintiffs appealed the award of the Compensation Commission as provided by law. 6. By reason of the taking by Defendant City of Iowa City, Iowa, Plaintiffs have C. . sustained damages as follows: a. Loss of the real estate condemned; .`. -- : N co b. Loss in the remaining value; 7. The taking by Defendant City of Iowa City, Iowa, as described has damaged Plaintiffs in the amount of at least One Hundred Fifty Thousand Dollars ($150,000), which represents the difference in value market value of the property before and immediately after the taking. 8. Section 6B.33, Code of Iowa, provides for the recovery of reasonable attorney fees in the event judgment is entered against Defendant, the City of Iowa City, Iowa, in an amount in excess of the award of the Award of the Compensation Commission mentioned above. Attached as Exhibit"B"is an Affidavit Re: Attorneys Fees. WHEREFORE, Plaintiffs ask that the Court enter judgment against the City in the amount of at least One Hundred Fifty Thousand Dollars ($150,000), together with interest and the costs of this action including reasonable attorney fees. DEMAND FOR JURY TRIAL Plaintiffs David A. Baculis and Karen K. Baculis hereby demand a trial by jury of all issues herein. Doug :s V. O Mi. BA#AT0006002] P.•. tox 5312 1 10 Fifth Street, Suite 107 Coralville,Iowa 52241-0312 Telephone: 319-351-8993 Fax No: 319-351-0860 ATTORNEY FOR PLAINTIFFS N Onmilm C'a N 2 c� , Ce; HLE 2012 JUL 13 PH 2: 33 CITY CLE`` '( 10 CITY. 10'� o fAI U i--� 3 � 0 N .v... CIS Oat cle) co 5 a o C. 0 • � �, C7Q oW o � � �03 • EXH1B1,7 "A" ` I Notice of Appraisement of Damages and Times for Appeal In the Matter of the Condemnation of Certain Rights in Land ) By the City of Iowa City, Iowa for use in the West Side Levy ) Project ) David A Baculis Sr and Karen K Baculis, owners ) 1 To: City of Iowa City, David A Baculis Sr and Karen K Baculis Land and Consequential Total Condemnee's • Improvements Damages Award Attorney Fees and Costs David and Karen $48,600 $54,140 $102,740 Baculis You and each of you are hereby notified that the duly appointed and qualified commissioners assessed and appraised the damages sustained by reason of the condemnation as set out above, and that pursuant to the Code of Iowa, you may within thirty (30) days from the date of mailing the Notice, appeal to the District Court as by law provided. Dated thisl4th of June, 2012 ( /.11,444/./.. edift jej Sheriff of Joh son Co , a —4C) rrl .7? c ) - - I Exhibit"B" IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY DAVID A. BACULIS, SR. AND ) KAREN K.BACULIS, ) NO. (2VCV 0 179 '7-zO ) Plaintiffs, ) ) vs. ) AFFIDAVIT RE:ATTORNEYS FEES ) THE CITY OF IOWA CITY,IOWA, ) AND JOHNSON COUNTY,IOWA, ) ) Defendants. ) I, Douglas V. Olson, being first duly sworn on this 11th day of July, 2012, upon my oath depose and state that I am the attorney who filed the Petition Appealing Condemnation Award to which this Affidavit is attached and there has been no agreement between me, this law firm and the Plaintiffs,express or implied,nor between me and this law firm or any other person for any division or share of the fee to be taxed as a result of the events alleged in the above-captioned matter, any such fees when taxed to be in favor of Olson Law Firm as compensation for services actually performed in this action. )e--- - DOUGLr V. S Subscribed and sworn to before me by Dou las V. Olson on this 11th day of July,2012. c, Y CliJUDITHK ERVIA( LLCULt4` -L 1. i, i '� cornm�ssion Number 720134 Not Public in and or the State of Iowa ommission , c.. C-rr...,nrn _© X� N o , c f ori, w c-_t m -D rr on N '�,ti.:i *CCD >v a' --I G .rC"i WMoos • V `+y g EU ( ) END OF CASE FILE 47600 IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY BANK OF AMERICA, N.A. 94-1687665: EQUITY NO. EQCV07462.3 • NOTICE OF INTENT • TO FILE WRITTEN • APPLICATION •• FOR DEFAULT Plaintiff, : vs. JEREMIAH FINLEY; • CAVALRY PORTFOLIO SERVICES • LLC; • CITY OF IOWA CITY, IOWA; • Defendants . : o O iv n Jeremiah Finley: c")-- -7-1C, ")--1C, op^ rmm r-- Cavalry Portfolio Services LLC: L n M City of Iowa City, Iowa: cn DATE OF NOTICE: August 2, 2012 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A DEFAULT JUDGMENT WILL BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD SEEK LEGAL ADVICE AT ONCE. THIS COMMUNICATION IS FROM A DEBT COLLECTOR AND IS AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. PETOSA, P SA & BOECKER, L.L.P. By Benjamin . Hopkins AT 03573 1350 NW 138th Street, Suite 100 Clive, Iowa 50325-8308 Telephone: (515) 222-9400 Facsimile: (515) 222-9121 ATTORNEYS FOR PLAINTIFF END OF CASE FILE IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY BANK OF AMERICA,N.A., SUCCESSOR / BY MERGER TO BAC HOME LOANS CASE NO.EGQ) 0-7C1i SERVICING,LP FKA COUNTRYWIDE HOME LOANS SERVICING LP, ORIGINAL NOTICE Plaintiff, vs. KIMBERLY F. CONAWAY, SPOUSE OF KIMBERLY F. CONAWAY, CITY OF IOWA CITY,AND PARTIES IN POSSESSION, • , Defendants. - TO THE ABOVE-NAMED DEFENDANT(S): You are notified that a Petition has been filed in the office of the Clerk of this Court, naming you as a Defendant in this action. A copy of the Petition(and any documents filed with it) are attached to this notice. The attorney for the Plaintiff is Brian G. Sayer of the law firm of Dunakey&Klatt, P.C.,whose address is 531 Commercial St., Suite 250,P.O. Box 2363, Waterloo, Iowa 50704. That attorney's phone number is (319)232-3304; facsimile number(319) 232-3639. You must serve a motion or answer within 20 days after service of this Original Notice upon you and, within a reasonable time thereafter, file your motion or answer with the Clerk of Court for Johnson County, at the Johnson County Courthouse, in Iowa City, Iowa. If you do not, judgment by default may be rendered against you for the relief demanded in the Petition. If you need assistance to participate in court due to a disability,call the disability coordinator at 319-398-3920 x1100. Persons who are hearing or speech impaired may call Relay Iowa TTY (1-800-735-2942). Disability coordinators cannot provide legal advice. .,o Lx.AiA llERKL Y Aci tia-m42.46-teieettrxc C14 of Court Johnson County Courthouse Iowa City, Iowa IMPORTANT: YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. -74/1-d/X-ee) M(Dffiei IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY BANK OF AMERICA,N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS CASE NO. SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING LP, ORIGINAL NOTICE Plaintiff, vs. rJ KIMBERLY F. CONAWAY, SPOUSE OF KIMBERLY F. CONAWAY, CITY OF IOWA CITY,AND PARTIES IN POSSESSION, _ Defendants. TO THE ABOVE-NAMED DEFENDANT(S): You are notified that a Petition has been filed in the office of the Clerk of this Court, naming you as a Defendant in this action. A copy of the Petition (and any documents filed with it)are attached to this notice. The attorney for the Plaintiff is Brian G. Sayer of the law firm of Dunakey&Klatt, P.C., whose address is 531 Commercial St., Suite 250, P.O. Box 2363, Waterloo,Iowa 50704. That attorney's phone number is(319)232-3304; facsimile number(319) 232-3639. You must serve a motion or answer within 20 days after service of this Original Notice upon you and,within a reasonable time thereafter, file your motion or answer with the Clerk of Court for Johnson County, at the Johnson County Courthouse, in Iowa City, Iowa. If you do not, judgment by default may be rendered against you for the relief demanded in the Petition. If you need assistance to participate in court due to a disability, call the disability coordinator at 319-398-3920 x1100. Persons who are hearing or speech impaired may call Relay Iowa TTY(1-800-735-2942). Disability coordinators cannot provide legal advice.(- F DEn1A BERKL / I' Cler f Court Johnson County Courthouse Iowa City, Iowa IMPORTANT: YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY BANK OF AMERICA,N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS E UITY NO. SERVICING, LP FKA COUNTRYWIDE EoQN -0-7q0 7 HOME LOANS SERVICING LP, L r- v o« Plaintiff, FORECLOSURE PE1 1' o- c vs. o u' KIMBERLY F. CONAWAY, SPOUSE OF c r- KIMBERLY F. CONAWAY, CITY OF IOWA r(--4ca CITY, AND PARTIES IN POSSESSION, Defendants. NOTICE THE PLAINTIFF HAS ELECTED FORECLOSURE WITHOUT REDEMPTION. THIS MEANS THAT THE SALE OF THE MORTGAGED PROPERTY WILL OCCUR PROMPTLY AFTER ENTRY OF JUDGMENT UNLESS YOU FILE WITH THE COURT A WRI Fl"hN DEMAND TO DELAY THE SALE. IF YOU FILE A WRITTEN DEMAND, THE SALE WILL BE DELAYED UNTIL SIX MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO- FAMILY DWELLING OR UNTIL TWO MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS YOUR RESIDENCE, BUT NOT A ONE-FAMILY OR TWO-FAMILY DWELLING. YOU WILL HAVE NO RIGHT OF REDEMPTION AFTER THE SALE. THE PURCHASER AT THE SALE WILL BE ENTITLED TO IMMEDIATE POSSESSION OF THE MORTGAGED PROPERTY. YOU MAY PURCHASE AT THE SALE. COMES NOW the Plaintiff, and respectfully states to the Court the following as its cause of action against the Defendants: l. The Plaintiff elects to foreclose without redemption pursuant to Iowa Code Section 654.20. The mortgaged property which is the subject of this action is not used for agricultural purposes. The mortgaged property is a one-family or two- • family dwelling. - • . 2. The Plaintiff is a company duly authorized to transact business in the United - _t States of America. • 3. The Defendants, Kimberly F. Conaway and Spouse of Kimberly.F. Conaway, are a married couple and are residents of Johnson County, Iowa. 4. The Defendant, City of Iowa City, is joined as a party to this action because it may claim some right,title or interest in the property which is the subject of this action including, but not limited to, by virtue of a Mortgage recorded in Book 4053 Page 22 in the Johnson County Recorder's Office. Any right or interest the Defendant may have in and to the property which is the subject of this action is junior and subordinate to the right and interest of the Plaintiff in and to the property. 5. The Defendants, Parties in Possession, are made parties to this cause of action because they may claim some right, title or interest in the property which is the subject of this action. Any right or interest the Defendants may have in and to the property which is the subject of this action is junior and subordinate to the right and interest of the Plaintiff in and to the property. 6. On or about 06/30/2006, the Defendant(s), Kimberly F. Conaway, executed and delivered to Iowa State Bank and Trust Company one certain Promissory Note in the principal sum of$80,250.00. A copy of the Note is attached hereto as Exhibit "A"and incorporated herein by this reference. 7. To secure payment of the Note,the Defendant(s), Kimberly F. Conaway, executed and delivered to Iowa State Bank and Trust Company one certain Mortgage dated 6/30/2006,which Mortgage was filed on 07/13/2006, in Book 4053 Page 21 in the records for Johnson County and which was assigned to Countrywide Home Loans, Inc and recorded in Book 4284 Page 473 and which was assigned to BAC Home Loans Servicing,L.P. flca Countrywide Home Loans Servicing, L.P. and recorded in Book 4595 Page 958, upon the following described real estate,to-wit: Lot 87, Whispering Meadows Subdivision, Part Two to Iowa City,Iowa, —ill according to the plat thereof recorded in Book 34, Page 99, Plat Records of --- Johnson w —Johnson County, Iowa. - rt 8. A copy of the Mortgage together with the Recorder's Certificate thereon is, attached hereto as Exhibit "B"and by this reference incorporated herein. kcopy of the Assignments of Mortgage together with the Recorder's Certificate thereon are attached hereto as Exhibit "C"and by this reference incorporated herein. 9. The Mortgage and Note provide that in the case of default,the holder may declare the entire principal, and the interest accrued thereon,due and payable and the Mortgage may be foreclosed. 10. The Defendant(s), Kimberly F. Conaway, has failed to pay the principal and interest thereon as provided by the terms of the Note. 11. By reason of the failure to pay the principal and interest, the Plaintiff has elected and does hereby elect, in accordance with the terms and conditions of the Note and Mortgage,to declare the whole of the Note due and payable forthwith and to exercise its right to enforce payment of the entire Note as provided by the Note and to foreclose the Mortgage given to secure the same. 12. The unpaid balance due on the Note after allowing all credits due to the Defendants is the principal balance of$73,650.15,plus interest to 08/07/2012 in the amount of$1,963.40. Interest accrues on the said sum at the rate of$12.53 per day. 13. In order to commence this foreclosure proceeding the Plaintiff has expended the following costs: report of title costs$250.00, credit balance of$(451.28), other fees of$30.00, to all which sums the Plaintiff is entitled to judgment against the property with interest at the rate of 6.125%per annum, plus costs and accruing costs including, but not limited to, any and all advances made by the Plaintiff for taxes, insurance,property preservation and other costs between the time of the Foreclosure Decree and the time of Sheriff's Sale, including reasonable attorney's fees. 14. The Plaintiff is the owner and holder of the Note or holder in due course of a bearer paper Note, and owns or holds the Mortgage, due demand has been made for payment, and payment has been refused. 15. Under the terms of the Mortgage a receiver may be appointed. 16. The Plaintiff, or its predecessor in interest or servicing agent, gave a Notice of Right to Cure and more than 30 days have elapsed since the notice was given. A copy of said Notice is attached hereto as Exhibit"D"and incorporated herein by this reference. • • 17. The Plaintiff hereby waives its right to a deficiency judgment. ) • 18. Under the terms of said Note and Mortgage, the Defendant(s), Kimberly F. Conaway,has agreed to pay reasonable attorney's fees and all costs in connecti'ory with the proceeding to enforce or foreclose the Mortgage. Attached hereto as Exhibit "E", and incorporated herein by this reference, is an Affidavit of • Attorney's Fees as required by Iowa Code §625.22 (2005). 19. Pursuant to Iowa Code § 654.4B(1)a Demand for Payment was sent to the Defendant(s), Kimberly F. Conaway. A copy of said Demand is attached hereto as Exhibit"F" and incorporated herein by this reference. 20. Pursuant to Iowa Code § 654.4B(2) a Mortgage Mediation Notice was sent to the Defendant(s), Kimberly F. Conaway. A copy of said Notice is attached hereto as Exhibit"G"and incorporated herein by this reference. WHEREFORE, the Plaintiff,prays for judgment in rem against the real estate described above for the principal balance of$73,650.15,plus interest to 08/07/2012 in the amount of $1,963.40, plus continuing interest, which accrues on the said sum at the rate of 6.125% per annum and in the amount of$12.53 per day; for the costs of this action including report of title $250.00, credit balance $(451.28), other fees $30.00,plus reasonable attorney's fees and additional sums for continuing the abstract of title or other purposes authorized by said Note and Mortgage and by Iowa law; that said sums be declared a lien upon the premises above described from 6/30/2006, the date of the Plaintiff's mortgage,prior and superior to any right, title, lien or interest of the Defendants or any of them therein; that the Plaintiff's Mortgage be foreclosed; that any right, title, lien or interest of the Defendants or any of them in said property be declared junior and inferior to the lien of Plaintiff's Mortgage; that a special execution issue for the sale of the mortgaged premises or so much thereof as may be necessary to satisfy the judgment including interest, costs and accruing costs including, but not limited to, any and all advances made by the Plaintiff for taxes, insurance,property preservation and other costs between the time of the Foreclosure Decree and the time of Sheriff's sale, and that from and after said sale under special execution,the right,title, lien or interest of the Defendants in and to the mortgaged premises be forever cut off,barred and foreclosed, and the purchaser at said sale take free and clear of any right,title, lien or interest of the Defendants or any of them. The Plaintiff further prays for a Writ of Possession to be issued under the seal of this Court, directed to the Sheriff of Johnson County, Iowa, commanding him to put the purchaser at said sale under special execution, or a successor in interest, in possession of the premises; and that a receiver be appointed, upon motion of the Plaintiff, to take charge of the mortgaged premises during the period of foreclosure for the purpose of preserving the mortgaged premises for the benefit of all concerned. The Plaintiff further prays for such other and further relief as the Court may deem just and equitable under the circumstances. Respectfully submitted, DUNAKEY &KLATT, P.C. i Brian G. Sayer AT0006893 C. Anthony Crnic AT0009864 Daniel P. Rohrs AT0011046 531 Commercial St., Ste. 250 P.O. Box 2363 Waterloo, IA 50701 • 319-232-3304 319-232-3639 (fax) generalupdates@dandkpc.com Attorneys for the Plaintiff CRPRDNRBS46a 5/21/2012 1:01 :41 PM PAGE 74/281 888-294-5658 400 EXHIBIT NOTE June 30,211116 Iowa City , Iowa [Date) (Ory] (State) 2667 Indigo Court Iowa City,IA 52240 [Property Address) 1. BORROWER'S PROMISE TO PAY In return for a loan that I have received,I promise to pay U.S.$80,250.00 (this amount is called'Principal"),plus interest,to the order of the Lender. The Lender is beim Slide laimils and Trust Gompanv . I will make all payments under this Note in the form of cash.check or money order. I understand that the Lender may transfer this Note.The Lender or anyone who takes this Note by transfix and who is entitled to receive payments under this Note is called the"Note Holder." 2. INTEREST Interest will be charged on unpaid principal until the full amount of Principal has been paid.1 will pay interest at a yeartyrate of 6.1k5_%. • The interest rate required by this Section 2 is the rate I will pay both before and after any default described in Section 6(B)of this Note. 3. PAYMENTS (A) Time and Place of Payments I will pay principal and interest by making a payment every month. I will make my monthly payment on the let day of each month beginning on August 1st , 2006 .I will make these payments every month until I have paid all of the principal and interest and any other charges described below that[may owe under this Note. Each monthly payment will be applied as of its scheduled due date and will be applied to interest before Principal. If,on July 15t 2036 Istill owe amounts under this Note.Iwill pay those amounts infull on that date,which is called the"Maturity Date." I will make my monthly payments at 325 South Clinton St PO Box 1700 Iowa City,IA 52244 or at a different place if required by the Note Holder. (B) Amount of Monthly Payments My monthly payment will be in the amount of U.S.$487.61 4. BORROWER'S RIGHT TO PREPAY I have the right to make payments of Principal at any time before they are due. A payment of Prins ipal only is known as a "Prepayment"When f make a Prepayment,I will tell the Note Holder in writing that I undoing so.I may not designate a payment as a Prepayment if I have not made all the monthly payments due under the Note. 1 may make a full Prepayment or partial Prepayments without paying a Prepayment charge. The Note Holder will use my Prepayments to reduce the amuuntofPrancipal that!owe under this Note.However,the Note Holier may apply myPrepaymertttothe accrued and unpaid interest on the Prepayment amount,before applying my Prepayment to reduce the Prmerpaf omotmtooffthe Note.If I make a partial Prepayment,there will be no changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing to those changes. 5. LOAN CHARGES If a law,which applies to this loan and which sets maximum loan charges,is finally interpreted so that the interest or other loan charges collected cx to be collected in connection with this loan exceed the permitted limits,then: (a)any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit;and(b)any sums already collected from me which exceeded permitted limits will be refunded to me.The Note!folder may acetic to make this refund by reducing the Principalowe under this Note or by making a direct payment to me. If a refund reduces Principal,the reduction will he treated as a partial Prepayment. 6. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charge for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date itis due,I will puy a late charge to the Note Holder.The anlountof the charge will be 5.000%of my nverdne payment of principal and interest_ I will pay this late charge promptly but only once on each late payment. (B) Default Ill do not pay the full amount of each monthly payment on the date it is due,I will be in default. , (C) Notice of Default If am in default,the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain . date,the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and all the interest that I . • owe on that amount.That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means. (D) No Waiver By Note Holder Even if at a time when I am in default,the Note Holder does not require me to pay Immediately in full as described above,the Note Holder will still have the right to do so if I am in default ata later time. (E) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately in full as described above,the Note Holder will have the right to be paid back by me for all of its casts and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses • include,for example,reasonable attorneys'fees. 7. GIVING OF NOTICES Unless applicable law requires a different rent method,any notice that must be given tome under this Note will be given bydelivering it or by mailing it by first class mail to me at the Property Address above or ata different address if I give the Note Holder a notice of my different address. Ani notice that must be given to the Note Holder under this Note will be given by delivering it or by nailing it by first class mail to the Note Holder at the address stated in Section 3(A)above or at a different address If I am given a notice of that different address. 8. OBLIGATIONS OF PERSONS UNDER TMS NOTE If room than one person signs this Note,each person is fully and personally obligated to keep all of the promises made in this Note,including the promise to pay the full amount owed_ Any person who is a guarantor,surety or endorser of this Note is also obligated to do these things. My person who takes over these obligations,including the obligations of a guarantor.surety crendorser made this Note,is also obligated to keep all of the promises in this Note.The Note Holder may enforce its rights under this Note Mu477STATSr t 11 r (ypY(�� '51R1MFSrr loan 3260 1/51(page 1,12 prgnes) 9801.CV(4N-5) t � u [(((�f1 ����l�1���111�1����i Crt:ative 7Lirddfas,Inc II Nu 'lr Ilpll d illf� r I I t I I !� 610 119294212N Go1c(oo10M6) — 001 801 CRPRDNRBS46a 5/21/2012 1:01 :41 PM PAGE 75/ 81 888-294-5658 against each person individually or against all of us together.This means that any one of us may be required to pay all of the amounts owed under this Note. 9. WAIVERS 1 and any other person who has obligations under this Note wuivc the rights of Presentment and Notice of Dishonor. 'Presentment"means the right to require the Note Holder to demand payment of amounts due. "Notice of Dishonor'means the right to reqtpumire the Note Holder to give notice to other persons that amounts due have not been paid. 10. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note,a Mortgage,Deed of Trost,or Security Deed(the"Security Instrument"),dated the same date as this Note, protects the Note Holder from possible losses which might result if 1 do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may he required to make immediate payment in full of all amounts I owe under this Note. Some of dame conditions are described as follows: If all or any part of the Propertyor any Interest in the Property is sold or transferred(or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred()without Lender's prior written consent,Lender may require immediate payment in full of all sums secured by this Security Instrument. However.this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. If Lender exercises this option.Lender shall give Borrower notice of acceleration. The notice shall provide a period of not fess than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all num secured by this Security instrument.If Borrower fails to pay these sums prior to the expiration of this period,Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. WITNESS THE HAND(S)AND SEALS)OF THE UNDERSIGNED. #, _r n°'"'"'r (Seal) Rimb •F.Conaway Bortau v (Seal) Bur owo (Seal) gorrower (Seal) WITHOUT RECOURSE [Sign Original Only] PAY TO THE ORDER OF Countrywide Bank,N.A. Ioera State Rank and Trust Company i .1'egg3 fit,e e,Vice-Pr idett DRIPAV 'nut'suao1 stuoH exte.(auno.� N•N mtue6 epra<RrtrtoD nsrnetaklum m astnoo l»atltlpA • • – '301-siu;ifirl num.; iiinuno3 - . 4a rapre sin cq Aid 40.10P10 ma Aecl siULTIsr.1TEFATn RATE NOTE—Slagle r nss1l—.Fanaia Mar/Freddie Mac UNIFORM RtSrtUHSIYI' Form 3200 r akcc 2 9547 CV(443) 4:73373-X1 Creative Thl)anking,Inc. GOTO1001f34.46t EXHIBIT (1,2 J T33 11111111111111111111111111111 Doc Rscorded: 07//13/20080atT0t:6`t18 P11 Pas Amt: *12.00 Paas 1 of 1 Johnson County Iowa Kim Painter County Mocordar 8K4O53 Fol Prepared by: Susan Dulek, Return Address: Asst.City Attorney;4 to E.Washington St.,Iowa City,IA 52240 City Attorney's Office;410 East Washington Street,Iowa City,IA 52240 Taxpayer Information: Kimberly F.Conaway;2667 Indigo Court,Iowa City,IA$2240 Grantor(s)_ City of Iowa City Grantee(s): Kimberly F.Conaway WARRANTY DEED For the consideration of one(1.00) Dollar and other valuable consideration, City of Iowa City, Iowa, a municipal corporation (Grantor)does hereby convey to Kimberly F. Conaway, a single person (Grantee), all its right, title, interest, estate, claim and demand in the following described real estate in Johnson County,Iowa: Lot 87,Whispering Meadows Subdivision,Part Two to Iowa City,Iowa,according to the plat thereof recorded in Book S4, Page 99, Plat Records of Johnson County, Iowa. This conveyance is exempt from Declaration of Value and Transfer tax per Iowa Code §428A.2(6). Words and phrases herein, including acknowledgment hereof,shall be construed as in the singular or plural number,and as masculine or feminine gender,according to the context. Dated: l -o?g—06' C IOWA CITY,IOWA,a Municipal Corporation rporation By: cri jay,A..,....... Ross Wilburn,Mayor By: 2 . 1,. - f 1� J STATE OF IOWA Marian .Karr,City Clerk� JOHNSON COUNTY )8s: CORPORATE SEAL On this day of •si t.� „ ,2006,before me,the undersigned,a Notary Public in and for said County and State,personally appeared Ross Wilburn and Marian K.Karr,to me personalty known,who being by me drily sworn, did say that they are the Mayor and City Clerk, respectively,of said municipal corporation executing the within and foregoing instrument; that the seal affixed thereto is the seal of said municipal corporation;that said instrument was signed and scaled on behalf of said municipal corporation by authority of City Council of said municipal corporation;and that the said Rose Wilburn and Marian K.Karr acknowledged theexecution of said instrument to be the voluntary act and deed and said municipal corporation,by it and by them voluntarily executed. rf 9�v.• KF.LLt�K.TUTTIt / C (,-e 'i" /t.. Ire_. by �.Commission Number 221819 Notary Public in and for the State of Iowa my coo/ assy�an Expires .rtn I r Q1..'. 0.7 33 Doc 101 o70/r5//oonol atT01•84:18 PM Fee Amt; 312.00 Peon I of 10 Johnson County lows Ma Painter county Recorder BK4O53 P°11-20 ISpace above reserved for Recorder of Deeds certification) Prepared By:Catherine M Franz Lowy Slate Bank and Trust Company 325 South Clinton St PO Box 1700 Iowa City,IA 52244(319)350-5960 When Recorded Return To: Iowa State Bank and Trust Company 325 South Clinton Si PO Box 1700 Iowa City,IA 52244 I. Title of Document:MORTGAGE 2. Gruntor(s):Kimberly F.Conaway,a single person 3. Grantee(s):!owe State Bank and Trust Company • 4. Statutory Mailing Address(s):325 South Clinton St PO Box 1700 Iowa City,IA 52244 5. Legal Description: Poi( 3 6. Pared Identification Number:1024357016 7. Document of Instrument ft: • Nye1 d9 9742.CV,505) 44?t*92.003 Cteallyt Thinking,Inc. txnottotn"n PURCHASE MONEY MORTGAGE MORTGAGE . . . DEFINITIONS Words used in multiple sections of this document are defined heluw and ogler words ass defined in Sections 3.11.13,18.20 and 21. Certain rules regarding the usage of words used in this document are also providers in Section 16. (A) "Security instrument"means this document.which is dated June 30th all Riders to this document. 2006 ,together with (B) "Borrower"is Kimberly F.Conaway,ll sinelr person - Borrower is the mortgagor under this Security Instrument (C)"Lender"is Jasva StatO Bank and Trust colmpanv is a S�vrlsorntjpn organized and existing under the laws erase State of Iowa Lender Lender's address is 3.2.5 South Clinton St PO Roe t7 • Lender is the mortgagee under this Security lnstrument. Sv.lA S1.�eq (D) "Note"means the promissory note signed by Borrower and dated June states that Borrower owes Lender Melo Thr7usanT d wo Ilundredl)(�Sfly and 00/10pU(h 2006 . The Note —��Dollars(U.S.$80,250.00 )plus interest.Borrower has promised to pay this debt in regular Periodic Payments and In pay the debt in full not later than July 1.2016 (b)'"Properly"limns the property that is described below under the heading'Transfer of Rights in he Property." prepay (F) "Loan"means the debt evidenced by the Note,plus interest,any Note.and all sums due under this Security lnslrutncet,plus interest. mcnt charges and late charges doe under the (G) "Riders"me;uns an Ricers to this Security Instrument thin are executed by Borrower.The following Riders are to be executed by Borrower(check box as applicable]: ❑ Adjustable Rate Rider 0 Condominium Rider 0 Balloon Rider El Second Home Rider ❑ Planned Unit Development Rider ® Other(s)(specify)fran.ExempL_ ❑ 1-4 Family Rider ❑ Biweekly Payment Rider EJrtsarinp Rider (11) "Applicable Law"means all controlling applicable federal,state and local statutes,regulations,ordinances and administrative rules and orders(that have the effect of law)es well as all applicable final,non•appeaIabk judicial opinions. (I)"Conununity Association Dues,Fees,and Assessnaenla"means all dues,fees,assessments and other charges that are imposed on Borrower or the Property by a condominium association.homeowners association or similar organization. (J)"Electronic Funds Transfer"means any transfer offends,other than a transaction originated bycheck,draft.orsimilar paper instrument,which is initiated through an electronic luminal,telephonic instrument,computer.or magnetic tape sorts so order,instruct,or authorize a financial institution to debit or credit an account.Such term includes,but is not limited to. point-of-sale transfers,automated teller machine transactions transfers initiated bytekphone,wire transfers,and automated clearinghouse transfers. • (K) "Escrow Items"means those items that are described in Section 1. (L) "Miscellaneous Proceeds"means any compensation,settlement,award of damages.oproceeds paid byany third party (other than insurance proceeds paid under the coverages described in Section 5)fur:(i)damage to,or destruction of.the Properly:(ii)condemnation or other taking of all(Sr any part of the Property;(iii)conveyance in lieu of condemnation;or (iv)misrepresentations of.or omissions as to,the value and/or condition of the Property. (M) "Mortgage Insurance"means insurance protecting Lender against the nonpayment of,or default oro,the Loan. (N) "Periodic Payment"means the regularly scluxluled amount duc F.r(i)principal and interest under the Note.plus(ii) any amounts under Section 3 of this Security Instrument, (0)"RESPA"means the Real Estate Settlement Procedures Act(12 U.S.C.§2601 et seq.)and its implementing regulation, Regulation X(24 C.P.R.Part 3300),as they might be amended from time to time,or any additional or successor legislation or regulation that governs the same subject matter.As used in this Security Instrunment."RESPA"refers to all requirements and restrictions that arc imposed in regard to a"federally related mortgage loan"even if the Loan dnes not qualify as a "federally related mortgage loan"under RESPA. (P)"Successor lit interest of Borrower"means any party that has taken title to the Property,whether or tux that party has assumed Borrower's obligations under the Note and/or this Security• bustnmtert. TRANSFER OF RIGHTS IN THE PROPERTY This Security Instrument secures to Lender:(i)the repayment of the loan,and all renewals,extensions and modifications of the Note;and(ii)the performanoc of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose,Borrower irrevocably mortgages,grants and conveys to Lender,with power ors*,the following described property located in the County of Johnson (Type of Recording Jurisdiction] (Name of Recording Jurisdiction] IOWA-Smote Family-Fannie Stae/Fm alt Mac IrNJEORM INSTRUMENT 9745CV(NDS) 4t71u9t,ee11 Fenn:n.14 JAI Iru,gr 2 n Creative Thinkinging,,Inc.fpr. Wu:a xn rjes7) Lot 87,Whispering Meadows Subdivision,Part Two to lows City,lows,according to the plat thereof recorded In Book 34,Page 99,Plot Records,of dohneon County,lawn- . - which currently has the address ol 2667 Indlgu Court Iowa City ,Iowa 52240 ("Property Address"): (City) (Zip Code] TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements. appurtenance.",and fixtures now or hereafter a parlor the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the"Property." BORROWER COVENANTS that Borrower is lasvfultyseised of the estate hereby conveyed and has the right to grant and convey the Property and that the Property is unencumbered,except for encumbrances of record. Borrower warrants and will deleted generally the title to the Property against all claims and demands.subject to any encumbrances of record. THIS SECURITY INSTRUMENTcombines uniform covenants for national use end nun-unlf'ormcovenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1.Payment or Principal,interest,Escrow items Prepayment Charges,and Late Charges.Borrower shall pay when due the principal of,and interest on,the debt evidenced by the Note and any prepayment charges and late charges due under the Note. Borrower shall also pay funds for Escrow hens pursuant to Section 7.Payments due under the Note and this Security Instrument shall be made in U.S.currency.however,if any cluck or other instrument received by Lender as payment under the Note or this Security Instrument is returned to Lender unpaid,Lender may uire that any or all subsequent payments due under the Note and this Security Instrument Ire made in one or more of the following forms.as selected by Lender:(a)cash;(b)money order;(c)certified check,hank check,treasurer's check oreashler s check,provided any such check is drawn upon an institution whose deposits are insured bya federal agency,instrumentality,or entity;or(d) Electronic Funds Transfer. Payments are deemed received by Lender when received at the location designated in the Note or at such other location as may be designated by Lender in accordance with the notice provisions in Section 15. Lender may return any payment or partial payment if the payment or partial pu)incnts aro insufficient to bring the Loan current.Lender may accept any payment or partial payment insufficient to bring the loan current,without waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial payments in the future,but Lender is not obligated to apply such payments at the time such payments are accepted.If each Periodic Payment is applied as of its scheduled due date,then Lender need not pay interest on unapplied funds.Lender may hold such unapplied funds until Borrower makes payment tobring the Loan current. If Borrower does nut do so within a reasonable period of time,Lender shall either apply such funds or return them to Borrower.ham applied earlier,such funds will be applied to the outstanding principal balance under the Note immediately prior to foreclosure. No offset or claim which Borrower might have now or in the future against Lender shall relieve Borrower from making payments due under the Note anti this Security Instrument or performing the covenants and agreements secured by this Security Instrument. 2.Application of Payments or Proceeds.Except as otherwise described in this Section 2.all payments accepted and applied by Lender shall be applied in the following rmler of priority:(a)interest due under du Note;(b)principal due under the Note;(c)amounts due under Section 3.Such payments shall be applied mead Periodic Payment in the order in which it became due.Any remaining amounts shall he applied first to late charges,second W any other amounts due under this Security Instrument,and then to reduce the principal balance of the Note. If Lender receives a payment from Borrower for a delinquent Periodic Payment which includes a sufficient amount to pay any late charge due,the payment may be aplied to the delinquent payment and the late charge. Li'more than one Periodic Payment is outstanding,Lender may apply any payment received from Borrower to the repayment of the Periodic Payments if.and to the extent that,each payment can Inc paid in fall.To the extent that any excess exists after the payment is applied to the full payment of one or more Periodic Payments,such excess may he applied to any late charges due.Voluntary prepayments shall he applied first to any prepayment charges and then as described in the Note. Any application of payments,insurance proceeds,or Miscellaneous Proceeds to principal doe under the Note shall not extend or postpone the due date,or change the amount,of the Periodic Payments. 3.Funds for Escrow items.Borrower shall pay so Lender on the day Periodic Payments arc due under the Note. until the Note is paid in full,a sum(the"Funds")to provide for payment of amounts due for:(a)taxes and assessments and other items which can strain priority over this Security Instrument as a lien or encumbrance on the Property,(h)leasehold payments or ground rents on the Property,if any;(c)premiums for any and all insurance required by Lender under Section 5; and(d)Mortgage Insurance premiums,dirty.or any sums payable by Borrower to Lender in lieu of the payment of Mortgage Insurance premiums in accordance with that provisions of Section 10.These items are called"Escrow hems."At origination or at any time during the term of the Loan,Lender may require that Community Assnciatinn Dues.Pees,and Assessments,if any,he escrowed by Borrower,and such dues,fees and assessments shall be an Escrow:tem, Borrower shall promptly furnish to Lender all notices of amounts to be paid under this Scelion. Borrower shrill pay Lender the Funds for Escrow Items IOWA--Siiek Farnay--Parole MhalFrtddk Mae UNIFORM INSTRtiM):Nl Fmrnseta 051 Irage.t of.pnge,r) 9742.Cv t7'sSi 4473191-tot Creative TNtnktiij,Inc. GO70tanr3447) unless Lender waives Borrower's obligation to pay the Funds 10r any or all Escrow Metres.Lender may waive Borrower's obligation to pay to Lender Funds for any or an Miaow items at any time.Any such waiver may only be in writing In the event of such waiver,Borrower shall pey directly,when and where payable,the amounts due for any Escrow Items for which payment of Funds has been waived by Lender and,if Lender requires,shall furnish to Lender receipts evidencing such payment within such time period as Lender may require.Borrower's obligation to make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreunent contained in this Security Instrument,as the ptrasc "covenant and agreement"is used In Section 9.If Borrower is obligamd to pay Escrow nems directly pursuant to a waiver. and Borrower fats to pay the amount due for an Escrow Mem,Lender may exercise int rights under Section 9 and pay such amount and Borrower shall then be obligated under Section 9 to repay to Lender anysueh amount.Lender may revoke the waiver as to any or all Escrow Items at any time by a notice given to accordance with Section 15 end,upon such revocation. Borrower shall pay to Lender all Funds,and in such*monists,that are then required under this Section 3. Lender may.at any time,collect and hold Funds in an amount(a)sufficient to permit Lender to apply the Funds at the time specified under RESPA.and(b)not to exceed the maximum amount it lender can require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with Applicable Law. The Funds shell be held in an institution whose deposits are insured by a federal agency,Instrumentality,or entity (including Lender,if Lender is an institution whose deposits are so insured)or in any Federal time Leen Bank.Lender shall apply the Funds to paythe Escrow items no later than the time specified under RESPA.Lender shall ntxchargc Borrower fur holding and applyng the Funds,annually analyzing the escrow account,or verifying the Escrow items.unl©s Lender pays Borrower interest on the Funds and Applicable Law permits Lender to make such a charge. Unless an agreement is made in writing or Applicable Law requires[merest to be paid on the Funds.Lender shall not he required to pay Borrower any interest or earnings on the Funds.Borrower and Lender con agree in writing.however,that interest stall be paid on the Funds. Lender shall give to Borrower,without charge,an annual=counting g of the Funds as required by RESPA. If there is a surplus of Funds held in escrow.as defined under RIiSPA.Lender shall account to Borrower for the excess funds in acccudince with RESPA. If there is a shortage of Funds held in escrow,as defined under RESPA,Letter shall notify Borrower us required by RESPA,and Rot rower shall pay to Lender the amount necessary to melee up the shortage in accordance with RESPA,but in no more than 12 tnrmhly payrrents. If there is u deficiency of Funds held in escrow.as defined under RESPA.Lender shall notify Borrower as required by RESPA,and Borrower shall pay to Lender the amount necessary to make up the deficiency in accordance with RESPA,but in no inure than 12 monthly payments. Upon payment in full of all sums secured by this Sccurity Instrument,Lender shall promptly refund to Borrower any Funds held by Lender. 4. Charges;Liens.Borrower shall pay all taxes,assessments,charges,Fines,and impositions attributable to the Property which can attain priority over this Security instrument,leasehold payments or ground tents on the Property,if any, and Community Association Dues.Fees,and Assessments.if:my.To the extent that these items are Escrow Items,Borrower shall pay them in the manner provided in Section 3. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower:(a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender,but only so long as Borrower is performing such agreement;(b)contests the lien in good faith by.or defends against enforcement of the lien in, Icgal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those proceedings arc pending.but only until such proc edin are concluded:or`c)secures from the holder of the lien an agreenientsatisfactoryto Lender subordinating the lien to this Security Instrument.If Lender determines that any part of the Property is subject to a lien which can attain priority over this Security Mnstruntent.Lender may give Borrower a notice identifying the lien.Within L 0 days of the date on which that notice Is given,Borrower shall satisfy the lien or take one or more of the actions set forth above in this Section 4. Lender may require Borrower to pay a one-time charge for a real estate tax verification and or reporting service used by Lender In connection with this Loan. S.Property insurance.Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire,hazards included within the term"extended coverage,"and any other hazards including,but not limited to,earthquakes and floods,for which Lender requires insurance..This insurance shall he maintained in the amounts (including deductible levels)and for the periods that Lender requires. What Lender requires pursuant to the preceding sentences can change during the term of the Loan. The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender s right so disapprove Borrower's choice,which right shall not be exercised unreasonably. Lender may require Borrower to pay.in connection with this Loan,either: (a)a one-time charge for flood zone determination,certification and tracking services;or(b)a one.titne charge for flood tri edetermiration and certification services and subsequent charges each time rcmappings or similar changes occur which reasonably might affect suds determination or certification. Borrower shall also he reser ssible for the payment of any fees imposed by the Federal Emergency Management Agency in connection with the review olany flood zone Bete rminaaon resulting from an objection by Borrower. if Borrower fails to maintain any of the coverages described above,Lender may obtain insurance coverage,at Lender's option and Borrowers expense. Lender is under no obligation to purchase any particular type or amount of coverage.Therefore,such coverage shall cover Lender.but might or might not protect Borrower,Borrower's equity in the Property,or the contents of the Property,against any risk,hazard or liability and might provide greater or lesser coverage than was previously in effect.Borrower acknowledges that the cost of the insurance coverage so obtained mightsignificansly exceed the cost of insurance that Borrower could have obtained.Any amounts disbursed by Lender under tint Section S shall become additional debt of Borrower secured by this Securitylnautnmenl.These amounts shall bear interest at the Note rate from the date of disbursement and shall he payable,with such interest,upon notice from Lender to Borrower requesting paymeni. All insurance policies required by Lender and renewals of such policies shall he subject to tender's right to disapprove such policies,shall include a standard mortgage clause,and shall name Lend:as mortgagee and/or as an additional loss payee.Lender shalt have the right to hold the policies and renewal certificates.If Lender requires,Borrower shall promptly give to Lender all receipts of paid premiums end renewal notices.If Borrower obtains any form of insurance coverage,not otherwise required by Lender,for damage to,or destruction of.the Property,such policy shalt Include a standard mortgage clause and shall name Lender as mortgagee and/or as art additional loss payee. in the event of loss,Borrower shall give prompt notice to the insurance carrier and Lender.Lender may make proof of loss if not mace promptly by Borrower.Unless Lender and Borrower otherwise agree in writing,any insurance proceeds. whether or not the underlying insurance was required by Lender,shall he applied to restoration or repair of the Property.if the restoration or repair is economically feasible and Lender's security is not lessened.Dating such repair and restoration period.Lender shall have the right to hold such insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to lender's satisfaction,provided that such inspection shall be undertaken promptly. Lender our disburse proceeds for the r airs and restoration in a single payment or in a series of progress payments as the work is completed.Unless an agreement is made in writing or Applicable Law requires interest to he paid on such insurance proceeds,Lender shall not be required to pay Borrower any interest or earnings on such proceeds.Feu for public adjusters,or other third parties,retained by Borrower shall not be paid out of the insurance proceedssand shall he the sole obligation of Borrower. If the restoration or repair is not economically fusible or Lender's security would be lessened,the insurance proceeds shall be applied to the sums secured by this Security Instrument.whether or not then due, with the excess,i F any,paid to Borrower.Suds insurance proceeds shall he applied in the order provided for in Section 2. IOWA-Sinai,:Family-6)666r afar/Freddte Mu UNIFORM INSTR1.1M/:11T rum 3016 1N1(past l..JapogrvJ _ , vu+cv(srv't 4473190 OM Creative Tblnlsing.Inc. OOrotuotr34t7) • .1 if Borrower abandons the Propetty,tender may file,negotiate and settle any available insurance claim and related matters.if Borrower dines not respond within 39days to a notice Mom Lender that the insurance carrier has offered to settle a claim,then Lender may negotiate and settle the claim. The 30-day period will begin when the notice is given. In either event.or if iender acquires the Property udder Section 22 or otherwise,Burrower hereby assigns to Lender(a)Borrower's rights to any insurance proceeds in an amount not to exceed the amounts unpaid under the Note or this Security Instrument. and(b)any other of Borrower's rights(other than the right to any refund of unearned premiums paid by Borrower)under all insurance policies covering the Property,insofar as sach rights are applicable to the coverage of the Property.Lender may use the item once proceeds tither to repair or restore the Property or to pay amounts unpaid under the Note or this Security Instrument,whether or nut then due. 6.Occupancy. Borrower shall occupy,establish,and use the Property as Borrower's principal residence within 60 days after the execution(Willis Security Instrument end shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy.unless Lender otherwise agrees in writing.which consent shall not be unreasonably withheld,nr unless extenuating circumstances exist which are beyond Borrower s control. 7. Preservation,Maintenance and Protection of the Property;Inspections. Borrower shall not destroy, damage or Impair the Property,allow the Property to deteriorate or commit waste on the Property.Whether or not Borrower is residing in the Pnoperty,Borrower shall maintain the Property in order to prevent the Property from deteriorating or decreasing in value due to its condition. Unless it is determined pursuant to Section 5 that repair or restoration is not oconornically feastble.Borrower shall promptlypromptly repair the Property if damaged to avoid further deterioration Or damage.If insurance or condemnation proceeds are paid in connection with damage to,or the taking of.the l'rnpcny,Borrower shall he responsible for repairing or restoring the Properly only if Lender has released proceeds for such purposes. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work is completed. If the insurance or condemnation proceeds are not sufficient to repair or restore the Property,Borrower is no! relieved of Borrower's obligation for the completion of such repair or restoration. Lender or its agent may make reasonable entries upon end inspections of the Property. If it has reasonable cause, Lender may inspect flus interior of the improvements on the Property. Lender shall give Borrower notice at the time of or prior to such an interior inspection specifying such reasonable rause. 8.Borrower's Loan Application. Borrower shall be in default if,during the loan application process,Borrower or any persons or entities acting at the direction of Borrower or with Borrower's knowledge or consent gave materially false. misleading,or inaccurate information or statements to Lender(or failed to provide Lender with material information)in connection with the Loan. Material representations include,but ore not limited to,representations concerning Borrower's occupancy of dm Property as Borrower's principal residence. 9 Protection of Lender's Inlerei;l In the Property and Rights Under this Security Instrument. If (a)Borrower faits to perform the covenants and agreements contained in this Security instrument,(h)there is a legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security Instrument(such as a proceeding in bankruptcy,probate,for eondenuration or forfeiture.for enforcement of a lien which may attain priority over this Security instrument or to enforce laws or regulations),or(c)Borrower has abandoned trete Property,then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument,including protecting and/or assessing the value of the Property,and securing and/or repairing the Property.Lender's actions can include,but are not limited to:(a)paying any sums secured by a lien which has priorltyover this Security Instrument:(h)appearing in court:and(c)paying reasonable attorneys'lees to protect its interest in the Property and/or rights under this Securtylnatrurnett,including its secured position in a bankruptcy proceeding.Securing the Property includes,but is not limited to,entering the Property to make repairs,change locks,replace or board up doors and windows,drain water front pipes,eliminate building or other code violations or dangerous conditions,and have utilities turned on or off.Although Lender may take action under this Section 9,Lender does not have to do so and is not wader any duty or obligation to do so. It is agreed that Lender incurs no liability for not taking any or all actions authorized under this Section 9- Any amounts disbursed hyLender under this Section 9 shall become additional debt of Borrower secured by this Security Instrument.These amounts shall bear interest at the Note rate from the date of disbursement and shall he payable, with such interest,upon notice from Lender to Borrower requesting payment. if this Security Ins trunsent is on a leasehold,Borrower shall coarsely with all the provisionsoflete lease.If Borrower acquires fee title to the Property,the leasehold and the fee title shall not merge unless Lender agrees to the merger in writing. • JO.Mortgage insurance, If Lender required Mortgage Insurance as a condition of making the Loan,Borrower shall pay the premiums required to maintain the Mortgage Insurance in effect.If,for any reason,the Mortgage Insurance coverage required by Leerier teases to be available from the mortgage insurer that previously provided such insurance and Borrower was required to make separately designated payments toward the premiums for Mortgage Insurance,Borrower shall pay the premiums required to obtain coverage substantially cquivulent to the Mortgage lnsunance previously in effect,at a cost substantially equivalent to the cast to Borrower of the Mortgage Insurance previously in effect,from an alternate mortgage insurer selected by Lender. If substantially equivalent Mortgage insurance coverage is not available,Borrower shall continue to pay to Lender the amount of the separately designated payments that were due when the insurance coverage ceased to be in effect.Lender will accept,use and retain these payments as a non-refundable loss reserve in lieu ofMoOgage insurance. Such loss reserve shall be non-refundable,notwithstanding the fact that the Loan is ultimately paid in full,and Lender shall not be required to pay Borrower any interest or earnings on such loss reserve.Lender can no kmger require loss reserve payments if Mortgage Insurance coverage(in the amount and for the period that Lender requires)provided by an insurer selected by Lender again becomes available,is obtained,and Lender requires separately designated payments toward the premiums for Mortgage Insurance. If Lender required Mortgage Insurance as a condition of making the Loan and Borrower was required to make separately designated payment%toward the premiums for Mortgage Insurance,Borrower shall pay the premiums required ro maintain Mortgage insurance in effect,or to provide n non-refundable loss reserve,until Lender's requirement for Morigagelneuratneenxdss m aectrrdance with any written agreement between Borrower and Lender providing for such termination or until termination is required by Applicable Law. Nothing in dais Section 10 affects Borrower's obligation to pay interest at the rite provided in the Note. Mortgage Insurance reimburses Lender(or any entity that purchases the Note)for certain losses it may incur if Borrower docs not repay the Loan as agreed. Borrower is not a party to the Mortgage Insurance. Mortgage insurers evaluate their total risk on all such insurance in force from time to time,and may enter into agreements with other parties that share or modify their risk,or reduce losses.These agreements are on terms and conditions that are satisfactory to the mortgage insurer and the other party(or parties)to these agreements. These agreements may require the mortgage insurer to make payments using any source of Funds that the mortgage insurer may have available (which may include funds obtained from Mortgage Insurance premiums). As a result of theses agreements,Lender,any purchaser the Note,another insurer,any reinsurer,any other entity, or any affiliate of any of the foregoing,may receive(directly or indirectly)amounts that derive from(or might be characterized as)a portion of Borrower's payments for Mortgage Insurance,in exchange for sharing or modifying the mortgage insurer's risk,or reducing losses. If such agreement provides that an arffillate of Lender takes a share of the insurers risk in exchange for a share of the premiums paid to the insurer,the arrangement is often termed"captive reinsurance:" Further: (a) Any such agreements will not affect the amounts that Borrower has agreed to pay fur Mortgage Insurance,or any other tents of the Loan. Such agreements will not Increase the amount Borrower will owe for Mortgage Insurance,and they will tool entitle Borrower to any refund. . IOWA-Single)'amity-.Mende Maeffrrldln Mar UNIFORM 1NSTRtTIs r form Sati ilei'pa ge.1 uf9pergrs) • 5742.cv(7As) 4a7:01711.roa Crrauve Thinking,Inc. ooror00i(10.7) (b)Any such agreements still not affect the rights Borrower has—if any—with respect to the Mortgage insurance under the Jlomeowners Protection Act of 3998 or any other law.These rights may include the right to receive certain disclosures,to request and obtain cancellation of the Mortgage Insuruncc,to have the Mortgage Insurance terminated automatically,and/or to receive a refund of any Mortgage Insurance premiums that were unearned at the time of such cancellation or termination. I1.Assignment of Miscellaneous Proceeds;Forfeiture.MI Miscellaneous Proceeds are hereby assigned to and shall be paid to Lender. Ifabe Property is damaged,such Miscellaneous Proceeds shall be applied to restoration or repair ofthePropcnx,if the restoration or repmr is economically feasible and Lender's security is not lessened.During such repair and restoration IIteritxl,Lender shall have the right to hold such Miscellaneous Proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's satisfaction,provided that such inspection shall be undertaken promptly.Lender may pay for the repairs and restoration in a single disbursement or in a series of progress payments as the work is completed. Unless an agreement is made in writing or Applicable Law requires interest to be paid on such Miscellaneous Proceeds.Lender shall not be required to pay Borrower any interest or earnings on such Miscellaneous Proceeds,lithe restoration or repair is not economically feasible or Lender's security would he lessened,the Miscellaneous Proceeds shall be applied to the sums secured h this Security instrwncnt,whether or not then due,with the excess. if any, paid to Borrower. Such Miscellaneous Proceeds shall he applied in the onier provided for hr Section 2. lit the event of a total taking,destruction,or loss in value of the Property,the Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument,whether or nun thea due.with the excess,if any.paid to Borrower. la the event of a partial taking destruction,or loss in value of the Property in which the fair market value of the Property immediately before the partial taking,drstruction,or loss in value is equal to or greater than the amount of the sums secured by this Security Instrument immediately before the partial taking.destruction,or ,1 sac in value.unless Borrower and Lender otherwise agree in writing,the sums secured by this Security instrument shall be reduced by the amount of the Miscellaneous Proceeds multiplied by the following fraction:(a)the total amount of the sums secured immediately before die partial taking,destruction,or loss in value divided by(h)the fair market value of the Property immediately before the partial tukmg,destruction,or loss in value. Any balance shall be paid to Borrower. In the event of a partial laking,destruction,or loss in value of the Property in which the fair market value of the Property immediately before the partial making,destruction,or lass in value is less than the amount of the sums secured immediately before the partial taking,destruction,or lass in value,unless Borrower and Lender otherwise agree in writing, the Miscellaneous Proceeds shall he applied to the sums secured by this Security Instrument whether or not the sono are then due. If the Property is abandoned by Borrower,or if,after notice by Lender to Borrower that the Opposing Party(as definut in the next sentence)offers to make an award to settle a claim fur damages,Borrower fails to respond to lender within 30 days attar the date the notice is given,Lender is authorized to collect and apply the Miscellaneous Proceeds eidler to restoration or repair of the Property or to the suns secured by this Security instrument,whether or not then due. "Opposing Party"means the third party That owes Borrower Miscellaneous Proceeds or the party against whom Borrower has a right of action in regard to Miscellaneous Proceeds. Burrower shall be in default if any anion rr proceeding,whether civil or criminal,is begun than,in Lender's judgment,could result in forfeiture of the Property or other material impairment of Lender's interest in the Property or rights under this Security Instrument.Borrower can cure such a default and.If acceleration has occurred,reinstate as provided in Section 19.by causing the action or proceeding to be dismissed with a ruling that,in Lender's forfeiture of tate Property or other material impairment of Lender's interest in the Property or rights under this Securtyinstrument.The proceeds of any award or claim for damages that arc attributable to the impairment of Lender's interest in the Property are hereby assigned and shall be paid to Lender. All Miscellaneous Proceeds that are not applied to restoration or repair of the Property shall be applied in the order provided for in Section 2. 12. Borrower Not Rekasel;Forheat-ance By Lender Not a Waiver. Extension of the time for payment or modification of amortization of the suns secured by this Security Instrument gamed byL etch to Borrower or any Successor in Interest of Borrower shall not operate to release the liability of Borrower or any Successors in Interest of Borrower. • lender shall not be required to commence proceedings against any Sucvcssor in Interest of Borrower of to refuse to extend time for payment or other wise modify amortization of the sums secured bythis Security Instrument by reason ofanydemand made by the original Borrower or anySueccssers in Interest of Borrowor.Any forbearance hyLender inexercising any rlglx or remedy including,without limitation.Lender's acceptance of payments from third persons,entities or Successors to interest of Borrower or in amounts less than the amount then due.shell not be a waiver of or preclude the exercise of any right or remedy. 13.Joint and Several Liability;Co-signers;Successors and Assigns Bound. Borrower covenants and agrees that Borrower's obligations and liability shall be joint and several. However,any Borrower who co-signs this Security Instrument but does not execute the Note(a"eo-signer"):(a)is co-signing this Security Instrument only to mortgage.grant and convey the co-signer's interest in the Property under the terms of this Security Instrument;(b)u not personalty obligated to pay the sums secured by this Security Instrument;and(c)agrees that Lender and any other Borrower can agree to extend. tmxlil� forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without the co- signer s consent. Subject to the provisions of Section 18,any Successor in Interest of Borrower whoaseunes Borrower's obligations under this Security instrument in writing,and is approved by Lender,shall obtain all of Borrowees rights and benefits under this Security Instrument. Bontwer shall not be released from Borrower's obligations and liability under this Security Instrument unless Lender agrees to such release in writing.The covenants and agreements of this Security Instrument shall hind(except as provided in Section 20)and benefit the successors and assigns of Lender. 14. Loan Charges. Lender may charge Borrower fees for services performed in connection with Borrower's default,for the purpose of protecting Lender's interest in the Prererty and rights under this Security Instrument,including. but not limited to,attorneysfees,property inspection and valuation fees.in regard to any other fees,the absence of express authority in this Security Instrument to charge a specific fee to Borrower shall not be construed as a prohibition on the charging of such fee.Lender may not charge fees that arc expressly prohibited by this Securitylnstrument or by Applicable Law. If the Loan is subject to a law which seas maximum khan charges.and that law is finally interpreted so that the interest or other loran charges collected or to be collected in connection with the Loan exceed the permitted limits.then:(a) any such loan charge shall be reduced by the amount necessary to reduce the charge lo the permitted limit;and(b)any sums aireadycollected from Burrower which exceeded permitted limits will be refunded to Borrower.Lender rnaychoose to make this refund by reducing the principal owed under the Note or by making a direct payment to Borrower.If a refund reduces principal,the reduction will be treated as a partial prepayment without any prepayment charge(whether or ncla prepayment charge is provided for under the Note).Borrower's acceptance of any such refund undo by direct payment to Borrower will casuwte a waiver of any right of action Borrower might have arising out of such overcharge. J 5. Notices. All notices given by Borrower or Lender in connection with this Security Instrument must be in writing,Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower - when resiled by ftrstclass mail or when actually delivered to Borrower's notice address if sent by other means.Notice many one Borrower shall constitute notice to all Borrowers unless Applicable Law expressly requires otherwise, The notice • address shall he the Property Address unless Borrower has designated a substitute notice address by notice to Lender. IOWA-•S,ntic t%amit y.•Faro tt Mac/Freddtn Mat UNIFORM ntSruntMgNT Form 3016 Ira/tprxt 6 of t pagan v,n.t'v rvo) 34130x001 Creative Thinking.enc. corotgott314n (1t Vflfae)Olo!) 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Environmental take nil al�C Cleanup. NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument(but not prior to acceleration under Section 1S unless Applicable Law provides otherwise). The notice shall specify:(a)the default;(b)the action required to cure the default;(e)a date,not less than 30 days from the date the notice is given date pto Borrower,by which he default must be result in acceleration f the sone sectured by this Security Instrument,foreclosurt fallure cure the default on or before e by Judicial roproceeding and sale oin the notice f the Properly. Tire notice shall further-inform Borrower of the right to reinstate after acceleration and the right to assert In the foreclosure proceeding the non-existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured on or before the date specified in the notice,Lender at Its option may require immediate payment in full of ail sums secured by this Security Instrument Mil trout furtherdmmnd and may foreclose this Security Instrument by Judicial proceeding.Lender shall be entitled to collect ail expenses Incurred in pursuing the remedies provided in this Section 22,including,but not limited to,reasonable attorneys'fees and costs of title evidence. 23. Rekuse. Upon payment of all aunts secured by this Security Instrument,lender shall release this Security Instrument. Lender may charge Borrower a fee for releasing this Security Instrurnest.but only if the fee is paid to a third party for services rendered and the charging of the fee is permitted under Applicable 1 aw_ 24,Waivers.Borrower relinquishes all right of dower and waives all right of homestead and distributive share in and to the Property. Borrower waives any right of exemption as to the Property. 25,HOMESTEADEXEMPTIONWAIVER.IUNDER,STANDMAT HOMESTEAD PROPERTY ISIN MANY CASES PROTECTED FROM THE CLAIMS OF CREDITORS AND EXEMPT FROM JUDICIAL SALE;AND THAT BY SIGNING THIS MORTGAGE,I VOLUNTARILY GIVE UP MY RiGHT TO THIS PROTECTION FOR THIS MORTGAGED PROPERTY WITH RESPECT TO CLAIMS BASED UPON TiHIS MORTGAGE. A 04if.10. •• June30,2006 Kimberly F.C..away 4 i Dare) ifatel 26. Redemption Period.litho Property is less than 10 acres in size and Lender waives in any foreclosure pro- ceeding arty right to a deficiency judgment against Borrower,the period of redemption from judicial sale shall be redurccd to 6 months. lithe court finds that the Property has been abandoned by Borrower and Lender waives any right to a deficiency judgment against Borrower,the period of redemption from judicial sale shall be reduced to 60 days. The provisions of this Section 26 shall be construed to conform to the provisions of Sections 625.26 and 628.27 of the Cale of Iowa. IMPORTANT; READ BEFORE SIGNING, THE TERMS OF THiS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE.NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED,YOU MAY CHANGE THE TERMS OFTJIIS AGREEMENTONLY BY ANOTHER WRITTEN AGREEMENT. BY SIGNING BELOW.Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any Rider executed by Borrower and recorded with it. Witnesses: CSkfd� (Seal) Borrower Kim fly F.Conaway �d`` (Seal) Borrower (Seal) Borrower (Seal) Borrower 1011/A-,Singh FanityFu,ude MarvFteddie Mae UNIFORM INSTRUMENT Form R16 IAl(pens 8 019pai(rrl • 9747.CV 47A31 an)5913.0111 Creatine Thinking,Inc. (Space Below This Line For Acknowledgment] STATE OF Iowa COUNTY OF Johnson )as. On this 30th_day of June 2006 before me,the undersigned,a Notary Public in and fur said exlrrnty and state,personally appeared:Kimberly E Conaway.a sivx]sperson to int personally known to be the persons)named in and who executed the foregoing instrument,and acknowledged that executed the same as her vninntary act and deed. My commission expires:01/30/2008 1 a PEGGYJDOERGE I Notartat Sul-law Commission f 71• 1 Z � Notary�l'1 ,,.d County d Lata ( My Comrnisaion E�Ima 1 f C+f u-( I Peggy J.Doer•ge (Space Below This Eine Resened For Lender and Recorder - t IOWA-Slate Family-Fannie MaM'reddie Mae UNIFORM INSTRUMENT Enna 3916 I101(page 9 49 Ma) 074;.CV 11Rg) 447349/1.04BErosive Thinking,Inc. 0070(001 nun 0-13-t Oct I0: 020E95030007 TVD,: OEN Rseordad: 07/13/2008 at 01:64:156 PM Pea Amt: $37.00 Pats 1 of 7 Johnson County Iowa KIM Palnt►r County R►oorder ax4053 P022-28 Prepared by: Susan Dulek,Asst.City Attorney,4i0 E.Washington St.,Iowa City,IA 522/10(319-356-5030) Return Address: City Attorney's Office,410 E.Washington Street,Iowa City,IA 52240 Moitgagor(s): Kimberly F.Conaway Mortgagee: City of Iowa City SECOND MORTGAGE THIS MORTGAGE is made between Kimberly F.Conaway,a single person("Mortgagor"),and the City of Iowa City,Iowa,a municipal corporation("Mortgagee"). 1. Grant of Mortgage and Security Interest. Mortgagor hereby sells, conveys and mortgages unto Mortgagee,and grants a security interest to Mortgagee in the following described property: a.Land and Buildings. Ali of Mortgagor's right,title and interest in and to the following described real estate situated in Iowa City,Johnson County,Iowa(the"Land"): Lot 87,Whispering Meadows Subdivision,Part Two to Iowa City,Iowa,according to the plat thereof recorded in Book 34,Page 99,Plat Reocrds of Johnson County, Iowa, also known as 2667 Indigo Court,Iowa City,Iowa,subject to a mortgage of even date herewith granted by Mortgagor in favor of Iowa State Bank & Trust Company; and all buildings, structures and improvements now standing or at any time hereafter constructed or placed upon the Land (the "Buildings"), including all hereditaments, casements, appurtenances, riparian rights, mineral rights,water rights,rights in and to the lands lying in streets,alleys and roads adjoining the land,estates and other rights and interests now or hereafter belonging to or in any way pertaining to the Land. b.Personal Property. All fixtures and other personal property integrally belonging to,or hereafter becoming an integral pari of the Land or Buildings, whether attached or detached, including but not limited to, light fixtures,shades,rods, blinds,venetian blinds,awnings,storm windows,screens,linoleum,water softeners,automatic heating and air conditioning equipment and all proceeds,products,increase,issue,accessions,attachments,accessories,parts,additions,repairs, replacements and substitutes of,to,and for the foregoing(the"Personal Property")_ c. Revenues and Income. All rents, issues, profits, leases, condemnation awards and insurance proceeds now or hereafter arising from the ownership,occupancy or use of the Land, Buildings and Personal Property,or any part thereof(the"Revenues and Income"). TO HAVE AND TO I[OLD the Land, Buildings, Personal Property and Revenues and Income(collectively called the"Mortgaged Property"),together with all privileges,hereditaments thereunto now or hereafter belonging,or in any way appertaining and the products and proceeds thereof,unto Mortgagee,its successors and assigns. 2. Obligations. This Mortgage secures the following(hereinafter collectively referred to as the "Obligations"): a.The payment of the loan made by Mortgagee to Mortgagor,evidenced by a promissory note of even date herewith,in the principal amount of 526,750.00,plus interest as provided in said promissory note,with a due date as determined under the Resale and Occupancy Agreement of even date herewith, any renewals, extensions, modifications or refinancing thereof and any 2 promissory notes issued in substitution therefore;and b.All other obligations,including those in the Resale Agreement of even date herewith,of Mortgagor to Mortgagee,now existing or hereafter arising,whether direct or indirect,contingent or absolute and whether as maker or surety,including,but not limited to,future advances and amounts advanced and expenses incurred by Mortgagee pursuant to this Mortgage. c. Resale and Occupancy Agreement of even date herewith. 3. Representations and Warranties of Mortgagors. Mortgagor represents, warrants and covenants to Mortgagee that(i)Mortgagor holds clear title to the Mortgaged Property and title in fee simple in the Land;(ii)Mortgagor has the right,power and authority to execute this Mortgage and to mortgage, and grant a security interest in the Mortgaged Property; (iii) the Mortgaged Property is free and clear of all liens and encumbrances, except for real estate taxes not yet delinquent and except as otherwise stated in subparagraph I a.herein;(iv)Mortgagor will warrant and defend title to the Mortgaged Property and the lien and priority of this Mortgage against all claims and demands of all persons,whether now existing or hereafter arising;and(v)all buildings and improvements now or hereafter located on the Land are,or will be,located entirely within the boundaries of the Land. 4.Payment and Performance of the Obligations. Mortgagor will pay all amounts payable under the Obligations in accordance with the terms of the Obligations when and as due and will timely perform all other obligations of Mortgagor under the Obligations. The provisions of the Obligations are hereby incorporated by reference into this Mortgage as if fully set forth herein. 5.Taxes. Mortgagor shall pay each installment of all taxes and special assessments of every kind,now or hereafter levied against the Mortgaged Property before the same become delinquent, without notice or demand,and shall deliver to Mortgagee proof of such payment within fifteen(15) days after the date in which such lax or assessment becomes delinquent. 6. Liens, Mortgagor shall not create, incur or suffer to exist any lien, encumbrance,security interest or charge on the Mortgaged Property or any part thereof which might or could be held equal or prior to the lien of this Mortgage, other than the mortgage to Iowa State Bank & Trust Company in the amount of$80,250.00 of even date herewith and the lien of current real estate taxes and installments of special assessments with respect to which no penalty is yet payable. Mortgagor shall pay, when due, the claims of all persons supplying labor or materials to or in connection with the Mortgaged Property. 7.Compliance with Laws. Mortgagor shall comply with all present and future statutes,laws, rules,orders,regulations and ordinances affecting the Mortgaged Property,any part thereof or the use thereof. 8.Permitted Contests. Mortgagor shall not be required to(i)pay any tax,assessment or other charge referred to in Paragraph 5 hereof,(ii)discharge or remove any lien,encumbrance or charge referred to in Paragraph 6 hereof,or(iii)comply with any statute,law,rule,regulation or ordinance referred to in Paragraph 7 hereof,so long as Mortgagor shall contest,in good faith,the existence, amount or the validity thereof,the amount of damages caused thereby or the extent of Mortgagor's liability therefore, by appropriate proceedings which shall operate during the pendency thereof to prevent (A) the collection of, or other realization upon the tax, assessment, charge or lien, encumbrances or charge so contested.(B)the sale,forfeiture or loss of the Mortgaged Property or any part thereof,and(C)any interference with the use of occupancy of the Mortgaged Property or any part thereof.Mortgagor shall give prompt written notice to Mortgagee of the commencement of any contest referred to in this Paragraph 8. 9.Care of Property. Mortgagor shall take good care of the Mortgaged Property;shall keep the Buildings and Personal Property now or later placed upon the Mortgaged Property in good and reasonable repair and shall not injure, destroy or remove either the Buildings or the Personal Property during the term of this Mortgage. Mortgagor shall not make any material alteration to the Mortgaged Property without the prior written consent of Mortgagee. 3 10.Insurance. a.Risks to be Insured. Mortgagor,at her sole cost and expense,shall maintain insurance on the Buildings and other improvements now existing or hereafter erected on the Land and on the Personal Property included in the Mortgaged Property against loss by fire,extended coverage perils and such other hazards as Mortgagee may from time to time require, such insurance to have a "Replacement Cost"endorsement attached thereto,with the amount of the insurance at least equal to the balance of the Obligations. At Mortgagor's option, such policy may have a coinsurance clause of not less than 90%of replacement cost provided the policy contains an appropriate form of cost escalation endorsement. Mortgagor will,at her sole cost and expense,from time to time,and at any time at the request of Mortgagee,provide Mortgagee with evidence satisfactory to Mortgagee of the replacement cost of Mortgaged Property. Mortgagor will maintain such other insurance as Mortgagee may reasonably require. b. Policy Provisions, All insurance policies and renewals thereof maintained by Mortgagor pursuant to this Mortgage shall be written by an insurance carrier satisfactory to Mortgagee,contain a mortgagee clause in favor of and in form acceptable to Mortgagee,contain an agreement of the insurer that it will not amend,modify or cancel the policy except after thirty(30) days prior written notice to Mortgagee,and be reasonably satisfactory to Mortgagee in all other respects. c.Delivery of Policy or Certificate. If requested by Mortgagee,Mortgagor will deliver to Mortgagee original policies satisfactory to Mortgagee evidencing the insurance which is required under this Mortgage,and Mortgagor shall promptly furnish to Mortgagee all renewal notices and, upon request of Mortgagee, evidence of payment thereof. At least ten (10) days prior to the expiration date of a required policy,Mortgagor shall deliver to Mortgagee a renewal policy in form satisfactory to Mortgagee. d. Assignment of Polley. If the Mortgaged Property is sold at a foreclosure sale or if Mortgagee shall acquire title to the Mortgaged Property,Mortgagee shall have all of the right,title and interest of Mortgagor in and toany insurance policies required hereunder,and the unearned premiums thereon,and in and to the proceeds thereof resulting from any damage to the Mortgaged Property prior to such sale or acquisition. e.Notice of Damage or Destruction;Adjusting Loss. Lithe Mortgaged Property or any part thereof shall be damaged or destroyed by fire or other casualty,Mortgagor will,within five(5) calendar days after the occurrence of such damage or destruction,give written notice thereof to the insurance carrier and to Mortgagee and will not adjust any damage or loss which is estimated by Mortgagor in good faith to exceed$25,000 unless Mortgagee shall have joined in or concurred with such adjustment; but if there has been no adjustment of any such damage or loss within four(4) months from the date of occurrence thereof and if an Event of Default shall exist at the end of such four(4)month period or at any time thereafter,Mortgagee may alone make proof of loss,adjust and compromise any claim under the policies,and appear in and prosecute any action arising from such policies. In connection therewith, Mortgagor does hereby irrevocably authorize, empower and appoint Mortgagee as attorney-in-fact for Mortgagor (which appointment is coupled with an interest)to do any and all of the foregoing in the name and on behalf of Mortgagor. f.Application of Insurance Proceeds. All sums paid under any insurance policy required by this Mortgage shall be paid to Mortgagee,which shall,at its option,apply the same(after first deducting therefrom Mortgagee's expenses incurred in collecting the same including but not limited to reasonable attorneys' fees) to the reduction of the Obligations or to the payment of the restoration,repair,replacement or rebuilding of Mortgaged Property that is damaged or destroyed in such manner as Mortgagee shall determine and secondly to the reduction of the Obligations.Any application of insurance proceeds to principal of the Obligations shall not extend or postpone the due date of the installments payable under the Obligations or change the amount of such installments. 4 g. Reimbursement of Mortgagee's Expenses. Mortgagor shall promptly reimburse Mortgagee upon demand for all of Mortgagee's expenses incurred in connection with the collection of the insurance proceeds, including but not limited to reasonable attorneys' fees, and all such expenses shall he additional amounts secured by this Mortgage. 11. Inspection. Mortgagee,and its agents,shall have the right at all reasonable times,to enter upon the Mortgaged Property for the purpose of inspecting the Mortgaged Property or any part thereof. Mortgagee shall,however, have no duty to make such inspection. Any inspection of the Mortgaged Property by Mortgagee shall be entirely for its benefit and Mortgagor shall in no way rely or claim reliance thereon. 12. Protection of Mortgagee's Security. Subject to the rights of Mortgagor under Paragraph R hereof,if Mortgagor fails to perform any of the covenants and agreements contained in this Mortgage or if any action or proceeding is commenced which affects the Mortgaged Property or the interest of the Mortgagee therein,or the title thereto,then Mortgagee,at Mortgagee's option, may perform such covenants and aements, defend against or investigate such action or proceeding, and take such other action as Mortgagee deems necessary to protect Mortgagee's interest. Any amounts or expenses disbursed or incurred by Mortgagee in good faith pursuant to this Paragraph 12 with interest thereon at the rate of 0%per annum,shall become an Obligation of Mortgagor secured by this Mortgage. Such amounts advanced or disbursed by Mortgagee hereunder shall be immediately due and payable by Mortgagor unless Mortgagor and Mortgagee agree in writing to other terms of repayment. Mortgagee shall,at its option,be subrogated to the lien of any mortgage or other lien discharged in whole or in part by the Obligations or by Mortgagee under the provisions hereof, and any such subrogation rights shall be additional and cumulative security for this mortgage. Nothing contained in this paragraph shall require Mortgagee to incur any expense or do any act hereunder,and Mortgagee shall not be liable to Mortgagor for any damage or claims arising out of action taken by Mortgagee pursuant to this paragraph. 13. Condemnation. Mortgagor shall give Mortgagee prompt notice of any action,actual or threatened, in condemnation or eminent domain and hereby assign, transfer and set over to Mortgagee the entire proceeds of any award or claim for damages for all or any part of the Mortgaged Property taken or damaged under the power of eminent domain or condemnation. Mortgagee is hereby authorized to intervene in any such action in the name of Mortgagor, to compromise and settle any such action or claim,and to collect and receive from the condemning authorities and give proper receipts and acquittances for such proceeds.Any expenses incurred by Mortgagee in intervening in such action or compromising and settling such action or claim, or collecting such proceeds shall be reimbursed to Mortgagee first out of the proceeds.The remaining proceeds or any part thereof shall be applied to reduction of that portion of the Obligations then most remotely to be paid,where due or not,or the restoration or repair for the Mortgaged Property, the choice of application to be solely at the discretion of Mortgagee. 14. Fixture Filing. From date of its recording,this Mortgage shall be effective as a financing statement filed as a fixture filing with respect to the Personal Property and for this purpose the name and address of the debtor is the name and address of Mortgagor as set forth in Paragraph 20 herein and the name and address of the secured party is the name and address of the Mortgagee as set forth in Paragraph 20 herein. 15. Events of Default. Each of the following occurrences shall constitute an event of default hereunder("Event of De fault"): a. Mortgagor shall default in the due observance or performance of or breach her agreement contained in Paragraph 4 hereof or shall default in that due observance or performance of or breach any other covenant,condition or agreement on their part to be observed or performed pursuant to the terms of this Mortgage. b. Mortgagor shall make an assignment for the benefit of their creditors,or a petition shall be filed by or against Mortgagor under the United States Bankruptcy Code or Mortgagor shall seek or consent to or acquiesce in the appointment of any trustee,receiver or liquidator of a material part of their properties or of the Mortgaged Property or shall not, within thirty (30) days after the appointment of a trustee, receiver or liquidator of any material part of its properties or of the 5 Mortgaged Property,have such appointment vacated. c. A judgment, writ or warrant of attachment or execution, or similar process shall be entered and become a hen on or be issued or levied against the Mortgaged Property or any part thereof which is not released,vacated or fully bonded within thirty(30)days after its entry,issue or levy. d.An event of default,however defined,shall occur under any other mortgage,acsigrrmcnt or other security document constituting a lien on the Mortgaged Property or any part thereof. e.Breach of the Resale and Occupancy Agreement by Mortgagor,including but not limited to,the failure of Mortgagor to occupy the buildings as owner-occupied residential dwelling,or the sale or transfer of the land and buildings to a buyer who is not an income-qualified,low to moderate income person as determined by the City. 16. Acceleration;Foreclosure. Upon the occurrence of any Event of Default and at any time thereafter while such Event of Default exists,Mortgagee may,at its option,exercise one or more of the following rights and remedies(and any other rights and remedies available to it): a. Mortgagee may declare immediately due and payable all Obligations secured by this Mortgage,and the same shall thereupon be immediately due and payable,without further notice of demand. b. Mortgagee shall have and may exercise with respect to the Personal Property, all the rights and remedies accorded upon default to a secured party under the Iowa Uniform Commercial Code. if notice to Mortgagor of intended disposition of such property is required by law in a particular instance,such notice shall be deemed commercially reasonable if given to Mortgagor at least ten(10)days prior to the date of intended disposition. c.Mortgagee may(and is hereby authorized and empowered to)foreclose this Mortgage in accordance with the law of the State of Iowa,and at any time after the commencement of an action in foreclosure,or during the period of redemption,the court having jurisdiction of the case shall at the request of Mortgagee appoint a receiver to take immediate possession of the Mortgaged Property and of the Revenues and Income accruing therefrom,and to rent or cultivate the same as he may deem best for the interest of all parties concerned, and such receiver shall he liable to account to Mortgagor only for the net profits,after application of rents,issues and profits upon the costs and expenses of the receivership and foreclosure and upon the Obligations. 17,Redemption. It is agreed that if this Mortgage covers less than len(10)acres of land,and in the event of the foreclosure of this Mortgage and sale of the property by sheriff's sale in such foreclosure proceedings,the time of one year for redemption from said sale provided by the statutes of the State of Iowa shall be reduced to six(6)months provided the Mortgagee,in such action files an election to waive any deficiency judgment against Mortgagor which may arise out of the foreclosure proceedings;all to be consistent with the provisions of Chapter 628 of the Iowa Code,If the redemption period is so reduced, for the first three (3) months after sale such right of redemption shall be exclusive to the Mortgagor,and the time periods in Sections 628.5,628.15 and 628.16 of the Iowa Code shall be reduced to four(4)months. It is further agreed that the period of redemption after a foreclosure of this Mortgage shall be reduced to sixty(60)days if all of the three following contingencies develop:(1)The real estate is less than ten(10)acres in size;(2)the Court finds affirmatively that the said real estate has been abandoned by the owners and those persons personally liable under this Mortgage at the time of such foreclosure; and (3) Mortgagee in such action files an election to waive any deficiency judgment against Mortgagor or their successor in interest in such action.If the redemption period is so reduced,Mortgagor or their successors in interest or the owner shall have the exclusive right to redeem for the first thirty (30) days after such sale, and the time provided for redemption by creditors as provided in Sections 628.5,628.15 and 628.16 of the Iowa Code shall be reduced to forty(40)days. Entry of appearance by pleading or docket entry by or on behalf of Mortgagor shall be presumption that the property is not abandoned.Any such redemption period shall be consistent 6 with all of the provisions of Chapter 628 of the Iowa Code.This paragraph shall not be construed to limit or otherwise affect any other redemption provisions contained in Chapter 628 of the Iowa Code. 18. Attorneys' Fees. Mortgagor shall pay on demand all costs and expenses incurred by Mortgagee in enforcing or protecting its rights and remedies hereunder,including,but not limited to,reasonable attorneys'fees and legal expenses. 19. Forbearance not a Waiver,Rights and Remedies Cumulative. No delay by Mortgagee in exercising any right or remedy provided herein or otherwise afforded by law or equity shall be deemed a waiver of or preclude the exercise of such right or remedy and no waiver by Mortgagee of any particular provisions of this Mortgage shall be deemed effective unless in writing signed by Mortgagee. All such rights and remedies provided for herein or which Mortgagee or the holder of the Obligations may have otherwise,at law or in equity,shall be distinct,separate and cumulative and may be exercised concurrently,independently or successively in any order whatsoever,and as often as the occasion therefore arises. 20.Notices. All notices required to be given hereunder shall be in writing and deemed given when personally delivered or deposited in the United States mail,postage prepaid,sent certified or registered,addressed as follows: a. If to Mortgagor,to: Kimberly F.Conaway 2667 Indigo Court Iowa City,Iowa 52240 b. If to Mortgagee,to: City Attorney City of Iowa City 410 East Washington Street Iowa City,Iowa 52240 or to such other address or person as hereafter designated in writing by the applicable party in the manner provided in this paragraph for the giving of notices. 21. Severability. In the event any portion of this Mortgage shall,for any reason,be held to be invalid,illegal or unenforceable in whole or in part,the remaining provisions shall not be affected thereby and shall continue to be valid and enforceable and if,for any reason,a court finds that any provision of this Mortgage is invalid,illegal,or unenforceable as written,but that by limiting such provision it would become valid,legal and enforceable then such provision shall be deemed to be written,construed and enforced as so limited. 22. Further Assurances. At any time and from time to time until payment in full of the Obligations, Mortgagor will, at the request of Mortgagee, promptly execute and deliver to Mortgagee such additional instruments as may be reasonably required to further evidence the lien of this Mortgage and to further protect the security interest of Mortgagee with respect to the Mortgaged Property, including, but not limited to, additional security agreements, financing statements and continuation statements. Any expenses incurred by Mortgagee in connection with the recordation of any such instruments shall become additional obligations of Mortgagor secured by this Mortgage.Such amounts shall be immediately due and payable by Mortgagor to Mortgagee. 23. Successors and Assigns bound; Number; Gender, Agents; Captions. The rights, covenants and agreements contained herein shall be binding upon and inure to the benefit of the respective legal representatives,successors and assigns of the parties.Words and phrases contained herein,including acknowledgement hereof,shall be construed as in the singular or plural number, and as masculine,feminine or neuter gender according to the contexts.The captions and headings of the paragraphs of this Mortgage are for convenience only and are not to be used to interpret or define the provisions hereof. 7 24.Governing Law. This Mortgage shalt be governed by and construed in accordance with the laws of the State of Iowa. 25. Release of Rights of Dower, Homestead and Distributive Share. Each of the undersigned hereby relinquishes all rights of dower,homestead and distributive share in and to the Mortgaged Property and waives all rights of exemption as to any of the Mortgaged Property. 26. Acknowledgement of Receipt of Copies of Deb( Instrument. Mortgagor hereby acknowledges the receipt of a copy of this Mortgage together with a copy of each promissory note secured hereby. 27.Additional Provisions. Mortgagor agrees to pay$50.00 per month on the second mortgage beginning August 1, 2006, At the end of the first year, and at one year intervals thereafter, Mortgagor will be re-evaluated by the Iowa City Housing Authority to determine her ability to make increased mortgage payments. Mortgagor agrees to submit any information reasonably requested by the Iowa City Housing Authority as part of said re-evaluations. In the event the Iowa City Housing Authority determines that Mortgagor qualifies to make an increased mortgage payment,the City of Iowa City will require this additional amount to be paid and credited towards the second mortgage and Mortgagor agrees to make such payments. Dated: tJ >k 3 10100(0 Ke • a1� Kimberly Fx o naway,Mortgagoy I UNDERSTAND THAT HOMESTEAD PROPERTY IS IN MANY CASES PROTECTED FROM THE CLAIMS OF CREDITORS AND EXEMPT FROM JUDICIAL SALE;AND THAT BY SIGNING THIS MORTGAGE, I VOLUNTARILY GIVE UP MY RIGHT TO THIS PROTECTION FOR THIS MORTGAGED PROPERTY WITH RESPECT TO CLAIMS BASED UPON THIS MORTGAGE. STATE OF IOWA Dated: 4 130/U 6 � Kimberly F.f�naway STATE OF IOWA )ss: COUNTY OF JOHNSON On this 30'4" day of -It nz ,2006,before mc,the undersigned,a Notary Public, personally appeared Kimberly F. Conaway, a single person, to mc known to be the identical person named in and who executed the foregoing instrument,and acknowledged that she executed the same as her voluntary act and deed. • PEJ aNotarIsi Seel.Je " wro�tae-t Notary r1y � bl3c Nvr the oof Iowa t • 013 OEN Recorded: 07/13/2000 atID: 0200958300077vo.:0S:6t 69 PM Pee Amt: $37,00 Nos 1 of 7 Johnson County Iowa Kim Painter County Recorder 8x4053 P022-28 Prepared by: Susan Dulek,Asst.City Attorney,410 E.Washington St.,Iowa City,IA 52240(319-356-5030) Return Address: City Attorney's Office,410 E.Washington Street,Iowa City,IA 52240 Mortgagor(s): Kimberly F.Conaway Mortgagee: City(allows City SECOND MORTGAGE THIS MORTGAGE is made between Kimberly F.Conaway,a single person("Mortgagor"),and the City of Iowa City,Iowa,a municipal corporation("Mortgagee"). 1. Grant of' Mortgage and Security Interest, Mortgagor hereby sells, conveys and mortgages unto Mortgagee,and grants a security interest to Mortgagee in the following described property: a. Land and Buildings. All of Mortgagor's right,title and interest in and to the following described real estate situated in Iowa City,Johnson County,Iowa(the"Land"): Lot 87, Whispering Meadows Subdivision,Part Two to Iowa City,Iowa,according to the plat thereof recorded in Book 34,Page 99,Plat Reocrds of Johnson County, Iowa, also known as 2667 Indigo Court,Iowa City,Iowa,subject to a mortgage of even date herewith granted by Mortgagor in favor of Iowa State Bank & Trust Company; and all buildings, structures and improvements now standing or at any time hereafter constructed or placed upon the Land (the "Buildings"), including all hereditaments, casements, appurtenances, riparian rights, mineral rights,water rights,rights in and to the lands lying in streets,alleys and roads adjoining the land,estates and other rights and interests now or hereafter belonging to or in any way pertaining to the Land. b.Personal Property, All fixtures and other personal property integrally belonging to,or hereafter becoming an integral part of the Land or Buildings, whether attached or detached, including but not limited to, light fixtures,shades,rods, blinds,venetian blinds, awnings, storm windows,screens,linoleum,water softeners,automatic heating and air conditioning equipment and all proceeds,products,increase,issue,accessions,attachments,accessories,parts,additions,repairs, replacements and substitutes of,to,and for the foregoing(the"Personal Property"). c. Revenues and Income. All rents, issues, profits, leases, condemnation awards and insurance proceeds now or hereafter arising from the ownership,occupancy or use of the Land, Buildings and Personal Property,or any part thereof(the"Revenues and Income"). TO HAVE AND TO HOLD the Land, Buildings, Personal Property and Revenues and Income(collectively called the"Mortgaged Property"),together with all privileges,hereditaments thereunto now or hereafter belonging,or in any way appertaining and the products and proceeds thereof,unto Mortgagee,its successors and assigns. 2. Obligations. This Mortgage secures the following(hereinafter collectively referred to as the "Obligations"): a.The payment of the loan made by Mortgagee to Mortgagor,evidenced by a promissory note of even date herewith,in the principal amount of$26,750.00,plus interest as provided in said promissory note,with a due date as determined under the Resale and Occupancy Agreement of even date herewith, any renewals, extensions, modifications or refinancing thereof and any 2 promissory notes issued in substitution therefore;and b.All other obligations,including those in the Resale Agreement of even date herewith,of Mortgagor to Mortgagee,now existing or hereafter arising,whether direct or indirect,contingent or absolute and whether as maker or surety,including,but not limited to,future advances and amounts advanced and expenses incurred by Mortgagee pursuant to this Mortgage. c. Resale and Occupancy Agreement of even date herewith. 3. Representations and Warranties of Mortgagors. Mortgagor represents, warrants and covenants to Mortgagee that(i)Mortgagor holds clear title to the Mortgaged Property and title in fee simple in the Land;(ii)Mortgagor has the right,power and authority to execute this Mortgage and to mortgage, and grant a security interest in the Mortgaged Property; (iii) the Mortgaged Property is free and clear of all liens and encumbrances, except for real estate taxes not yet delinquent and except as otherwise stated in subparagraph I a.herein;(iv)Mortgagor will warrant and defend title to the Mortgaged Property and the lien and priority of this Mortgage against all claims and demands of all persons,whether now existing or hereafter arising;and(v)all buildings and improvements now or hereafter located on the Land are,or will be,located entirely within the boundaries of the Land. 4.Payment and Performance of the Obligations. Mortgagor will pay all amounts payable under the Obligations in accordance with the terms of the Obligations when and as due and will timely perform all other obligations of Mortgagor under the Obligations. The provisions of the Obligations are hereby incorporated by reference into this Mortgage as if fully set forth herein. 5.Taxes. Mortgagor shall pay each installment of all taxes and special assessments of every kind,now or hereafter levied against the Mortgaged Property before the same become delinquent, without notice or demand,and shall deliver to Mortgagee proof of such payment within fifteen(15) days after the date in which such tax or assessment becomes delinquent. 6. Liens. Mortgagor shall not create, incur or suffer to exist any lien,encumbrance,security interest or charge on the Mortgaged Property or any part thereof which might or could be held equal or prior to the lien of this Mortgage, other than the mortgage to Iowa State Bank & Trust Company in the amount of$80,250.00 of even date herewith and the hen of current real estate taxes and installments of special assessments with respect to which no penalty is yet payable. Mortgagor shall pay, when due, the claims of all persons supplying labor or materials to or in connection with the Mortgaged Property. 7.Compliance with Laws. Mortgagor shall comply with all present and future statutes,laws, rules,orders,regulations and ordinances affecting the Mortgaged Property,any part thereof or the use thereof. 8.Permitted Contests. Mortgagor shall not be required to(i)pay any tax,assessment or other charge referred to in Paragraph 5 hereof,(ii)discharge or remove any lien,encumbrance or charge referred to in Paragraph 6 hereof,or(iii)comply with any statute,law,rule,regulation or ordinance referred to in Paragraph 7 hereof,so long as Mortgagor shall contest,in good faith,the existence, amount or the validity thereof,the amount of damages caused thereby or the extent of Mortgagor's liability therefore,by appropriate proceedings which shall operate during the pendency thereof to prevent (A) the collection of, or other realization upon the tax, assessment, charge or lien, encumbrances or charge so contested,(B)the sale,forfeiture or loss of the Mortgaged Property or any part thereof,and(C)any interference with the use of occupancy of the Mortgaged Property or any part thereof.Mortgagor shall give prompt written notice to Mortgagee of the commencement of any contest referred to in this Paragraph 8. 9.Care of Property. Mortgagor shall take good care of the Mortgaged Property;shall keep the Buildings and Personal Property now or later placed upon the Mortgaged Property in good and reasonable repair and shall not injure, destroy or remove either the Buildings or the Personal Property during the term of this Mortgage. Mortgagor shall not make any material alteration to the Mortgaged Property without the prior written consent of Mortgagee. 3 10.insurance. a.Risks to be Insured. Mortgagor,at her sole cost and expense,shall maintain insurance on the Buildings and other improvements now existing or hereafter erected on the Land and on the Personal Property included in the Mortgaged Property against loss by fire,extended coverage perils and such other hazards as Mortgagee may from time to time require, such insurance to have a "Replacement Cost"endorsement attached thereto,with the amount of the insurance at least equal to the balance of the Obligations. At Mortgagor's option, such policy may have a coinsurance clause of not less than 90%of replacement cost provided the policy contains an appropriate form of cost.escalation endorsement Mortgagor will,at her sole cost and expense,from time to time,and at any time at the request of Mortgagee,provide Mortgagee with evidence satisfactory to Mortgagee of the replacement cost of Mortgaged Property. Mortgagor will maintain such other insurance as Mortgagee may reasonably require. b. Policy Provisions. All insurance policies and renewals thereof maintained by Mortgagor pursuant to this Mortgage shall be written by an insurance carrier satisfactory to Mortgagee,contain a mortgagee clause in favor of and in form acceptable to Mortgagee,contain an agreement of the insurer that it will not amend,modify or cancel the policy except after thirty(30) days prior written notice to Mortgagee,and be reasonably satisfactory to Mortgagee in all other respects. c.Delivery of Policy or Certificate. If requested by Mortgagee,Mortgagor will deliver to Mortgagee original policies satisfactory to Mortgagee evidencing the insurance which is required under this Mortgage,and Mortgagor shall promptly furnish to Mortgagee all renewal notices and, upon request of Mortgagee, evidence of payment thereof. At least len (10) days prior to the expiration date of a required policy,Mortgagor shall deliver to Mortgagee a renewal policy in form satisfactory to Mortgagee, d. Assignment of Policy. If the Mortgaged Property is sold at a foreclosure sale or if Mortgagee shall acquire title to the Mortgaged Property,Mortgagee shall have all of the right,title and interest of Mortgagor in and toany insurance policies required hereunder,and the unearned premiums thereon,and in and to the proceeds thereof resulting from any damage to the Mortgaged Property prior to such sale or acquisition. e.Notice of Damage or Destruction;Adjusting Loss, lithe Mortgaged Property or any part thereof shall be damaged or destroyed by fire or other casualty,Mortgagor will,within five(5) calendar days after the occurrence of such damage or destruction,give written notice thereof to the insurance carrier and to Mortgagee and will not adjust any damage or loss which is estimated by Mortgagor in good faith to exceed$25,000 unless Mortgagee shall have joined in or concurred with such adjustment; but if there has been no adjustment of any such damage or loss within four(4) months front the date of occurrence thereof and if an Event of Default shall exist at the end of such four(4)month period or at any time thereafter,Mortgagee may alone make proof of loss,adjust and compromise any claim under the policies,and appear in and prosecute any action arising from such policies. In connection therewith, Mortgagor does hereby irrevocably authorize, empower and appoint Mortgagee as attorney-in-fact for Mortgagor (which appointment is coupled with an interest)to do any and all of the foregoing in the name and on behalf of Mortgagor. f.Application of insurance Proceeds. All sums paid under any insurance policy required by this Mortgage shall be paid to Mortgagee,which shall,at its option,apply the same(after first deducting therefrom Mortgagee's expenses incurred in collecting the same including but not limited to reasonable attorneys' fees) to the reduction of the Obligations or to the payment of the restoration,repair,replacement or rebuilding of Mortgaged Property that is damaged or destroyed in such manner as Mortgagee shall determine and secondly to the reduction of the Obligations.Any application of insurance proceeds to principal of the Obligations shall not extend or postpone the due date of the installments payable under the Obligations or change the amount of such installments. 4 g. Reimbursement of Mortgagee's Expenses. Mortgagor shall promptly reimburse Mortgagee upon demand for all of Mortgagee's expenses incurred in connection with the collection of the insurance proceeds, including but not limited to reasonable attorneys' fees, and all such expenses shall he additional amounts secured by this Mortgage. 11.Inspection. Mortgagee,and its agents,shall have the right at all reasonable times,to enter upon the Mortgaged Property for the purpose of inspecting the Mortgaged Property or any part thereof. Mortgagee shall, however,have no duty to make such inspection. Any inspection of the Mortgaged Property by Mortgagee shall be entirely for its benefit and Mortgagor shall in no way rely or claim reliance thereon. 12. Protection of Mortgagee's Security. Subject to the rights of Mortgagor under Paragraph 8 hereof,if Mortgagor fails to perform any of the covenants and agreements contained in this Mortgage or if any action or proceeding is commenced which affects the Mortgaged Property or the interest of the Mortgagee therein,or the title thereto,then Mortgagee,at Mortgagee's option, may perform such covenants and agreements, defend against or investigate such action or proceeding, and take such other action as Mortgagee deems necessary to protect Mortgagee's interest. Any amounts or expenses disbursed or incurred by Mortgagee in good faith pursuant to this Paragraph 12 with interest thereon at the rate of 0%per annum,shall become an Obligation of Mortgagor secured by this Mortgage. Such amounts advanced or disbursed by Mortgagee hereunder shall be immediately due and payable by Mortgagor unless Mortgagor and Mortgagee agree in writing to other terms of repayment. Mortgagee shall,at its option,be subrogated to the lien of any mortgage or other lien discharged in whole or in part by the Obligations or by Mortgagee under the provisions hereof,and any such subrogation rights shall be additional and cumulative security for this mortgage, Nothing contained in this paragraph shall require Mortgagee to incur any expense or do any act hereunder,and Mortgagee shall not be liable to Mortgagor for any damage or claims arising out of action taken by Mortgagee pursuant to this paragraph. 13.Condemnation. Mortgagor shall give Mortgagee prompt notice of any action, actual or threatened, in condemnation or eminent domain and hereby assign, transfer and set over to Mortgagee the entire proceeds of any award or claim for damages for all or any part of the Mortgaged Property taken or damaged under the power of eminent domain or condemnation, Mortgagee is hereby authorized to intervene in any such action in the name of Mortgagor, to compromise and settle any such action or claim,and to collect and receive from the condemning authorities and give proper receipts and acquittances for such proceeds.Any expenses incurred by Mortgagee in intervening in such action or compromising and settling such action or claim, or collecting such proceeds shall be reimbursed to Mortgagee first out of the proceeds.The remaining proceeds or any part thereof shall be applied to reduction of that portion of the Obligations then most remotely to be paid,where due or not,or the restoration or repair for the Mortgaged Property, the choice of application to be solely at the discretion of Mortgagee. 14.Fixture Filing. From date of its recording,this Mortgage shall be effective as a financing statement filed us a fixture filing with respect to the Personal Property and for this purpose the name and address of the debtor is the name and address of Mortgagor as set forth in Paragraph 20 herein and the name and address of the secured party is the name and address of the Mortgagee as set forth in Paragraph 20 herein. 15.Events of Default. Each of the following occurrences shall constitute an event of default hereunder("Event of Default"): a. Mortgagor shall default in the due observance or performance of or breach her agreement contained in Paragraph 4 hereof or shall default in that due observance or performance of or breach any other covenant,condition or agreement on their part to be observed or performed pursuant to the terms of this Mortgage. b. Mortgagor shall make an assignment for the benefit of their creditors,or a petition shall be filed by or against Mortgagor under the United States Bankruptcy Code or Mortgagor shall seek or consent to or acquiesce in the appointment of any trustee,receiver or liquidator of a material part of their properties or of the Mortgaged Property or shall not, within thirty (30) days after the Ca.—.,, $° appointment of a trustee, receiver or liquidator of any material part of its properties or of the - , 6 CJ 5 Mortgaged Property,have such appointment vacated. c. A judgment, writ or warrant of attachment or execution, or similar process shall be entered and become a lien on or be issued or levied against the Mortgaged Property,or any part thereof which is not released,vacated or fully bonded within thirty(30)days after its entry,issue or levy. d.An event of default,however defined,shall occur under any other mortgage,assignment or other security document constituting a lien on the Mortgaged Property or any pan thereof. e.Breach of the Resale and Occupancy Agreement by Mortgagor,including but not limited to,the failure of Mortgagor to occupy the buildings as owner-occupied residential dwelling,or the sale or transfer of the land and buildings to a buyer who is not an income-qualified,low to moderate income person as determined by the City. 16.Acceleration;Foreclosure. Upon the occurrence of any Event of Default and at any time thereafter while such Event of Default exists,Mortgagee may,at its option,exercise one or more of the following rights and remedies(and any other rights and remedies available to it): a. Mortgagee may declare immediately due and payable all Obligations secured by this Mortgage,and the same shall thereupon be immediately due and payable,without further notice of demand. b. Mortgagee shall have and may exercise with respect to the Personal Property,all the rights and remedies accorded upon default to a secured party under the Iowa Uniform Commercial Code, If notice to Mortgagor of intended disposition of such property is required by law in a particular instance,such notice shall be deemed commercially reasonable if given to Mortgagor at least ten(10)days prior to the date of intended disposition. c.Mortgagee may(and is hereby authorized and empowered to)foreclose this Mortgage in accordance with the law of the Stale of Iowa,and at any time after the commencement of an action in foreclosure,or during the period of redemption,the court having jurisdiction of the case shall at the request of Mortgagee appoint a receiver to take immediate possession of the Mortgaged Property and of the Revenues and Income accruing therefrom,and to rent or cultivate the same as he may deem best for the interest of all parties concerned, and such receiver shall be liable to account to Mortgagor only for the net profits,after application of rents,issues and profits upon the costs and expenses of the receivership and foreclosure and upon the Obligations. 17.Redemption. ft is agreed that if this Mortgage covers less than ten(10)acres of land,and in the event of the foreclosure of this Mortgage and safe of the property by sheriffs sale in such foreclosure proceedings,the time of one year for redemption from said sale provided by the statutes of the State of Iowa shall be reduced to six(6)months provided the Mortgagee,in such action files an election to waive any deficiency judgment against Mortgagor which may arise out of the foreclosure proceedings;all to be consistent with the provisions of Chapter 628 of the Iowa Code.If the redemption period is so reduced, for the first three (3) months after sale such right of redemption shall be exclusive to the Mortgagor,and the time periods in Sections 628.5,628.15 and 628.16 of the Iowa Code shall be reduced to four(4)months. It is further agreed that the period of redemption after a foreclosure of this Mortgage shall • be reduced to sixty(60)days if all of the three following contingencies develop:(I)The real estate is less than ten(1 0)acres in size;(2)the Court finds affirmatively that the said real estate has been _ r i abandoned by the owners and those persons personally liable under this Mortgage at the time of C') =" t""• such foreclosure; and (3) Mortgagee in such action files an election to waive any deficiency R - judgment against Mortgagor or their successor in interest in such action.If the redemption period is — so reduced,Mortgagor or their successors in interest or the owner shall have the exclusive right to - W redeem for the first thirty (30) days after such sale, and the time provided for redemption by creditors as provided in Sections 628.5, 628.15 and 628.16 of the Iowa Code shall be reduced to L.t�11 �`1 forty(40)days.Entry of appearance by pleading or docket entry by or on behalf of Mortgagor shall C) _v be presumption that the m `-_' p perty is not abandoned.Any such redemption period shall be consistent :� W 6 with all of the provisions of Chapter 628 of the Iowa Code.This paragraph shall not be construed to limit or otherwise affect any other redemption provisions contained in Chapter 628 of the Iowa Code. 18. Attorneys' Fees. Mortgagor shall pay on demand all costs and expenses incurred by Mortgagee in enforcing or protecting its rights and remedies hereunder,including,but not limited to,reasonable attorneys'fees and legal expenses. 19. Forbearance not a Waiver,Rights and Remedies Cumulative. No delay by Mortgagee in exercising any right or remedy provided herein or otherwise afforded by law or equity shall be deemed a waiver of or preclude the exercise of such right or remedy and no waiver by Mortgagee of any particular provisions of this Mortgage shall be deemed effective unless in writing signed by Mortgagee. All such rights and remedies provided for herein or which Mortgagee or the holder of the Obligations may have otherwise,at law or in equity,shall be distinct,separate and cumulative and may be exercised concurrently,independently or successively in any order whatsoever,and as often as the occasion therefore arises. 20.Notices. All notices required to be given hereunder shall be in writing and deemed given when personally delivered or deposited in the United States mail,postage prepaid,sent certified or registered,addressed as follows: a. If to Mortgagor,to: Kimberly F.Conaway 2667 Indigo Court Iowa City,Iowa 52240 b. If to Mortgagee,to: City Attorney City of Iowa City 410 East Washington Street Iowa City,Iowa 52240 or to such other address or person as hereafter designated in writing by the applicable party in the manner provided in this paragraph for the giving of notices. 21. Severability. In the event any portion of this Mortgage shall,for any reason,be held to be invalid,illegal or unenforceable in whole or in part,the remaining provisions shalt not be affected thereby and shall continue to be valid and enforceable and if,for any reason,a court finds that any provision of this Mortgage is invalid,illegal,or unenforceable as written,but that by limiting such provision it would become valid,legal and enforceable then such provision shall be deemed to be written,construed and enforced as so limited. 22. Further Assurances. At any time and from time to time until payment in full of the Obligations, Mortgagor will, at the request of Mortgagee, promptly execute and deliver to Mortgagee such additional instruments as may be reasonably required to further evidence the lien of this Mortgage and to further protect the security Interest of Mortgagee with respect to the Mortgaged Property, including, but not limited to, additional security agreements, financing statements and continuation statements. Any expenses incurred by Mortgagee in connection with the recordation of any such instruments shall become additional obligations of Mortgagor secured by this Mortgage.Such amounts shall be immediately due and payable by Mortgagor to Mortgagee. r-•s _ 23. Successors and Assigns bound; Number; Gender, Agents; Captions. The rights, 7-"" ,; s covenants and agreements contained herein shall be binding upon and inure to the benefit of the '~--- - • respective legal representatives,successors and assigns of the parties.Words and phrases contained herein,including acknowledgement hereof,shall be construed as in the singular or plural number, t7 W and as masculine,feminine or neuter gender according to the contexts.The captions and headings r.• t ; of the paragraphs of this Mortgage are for convenience only and are not to be used to interpret or : t-i --r. define the provisions hereof. C7:773- .<4 i• W W ___t 7 24,Governing Law. This Mortgage shall be governed by and construed in accordance with the laws of the State of Iowa. 25. Release of Rights of Dower, Homestead and Distributive Share. Each of the undersigned hereby relinquishes all rights of dower,homestead and distributive share in and to the Mortgaged Property and waives all rights of exemption as to any of the Mortgaged Property. 26. Acknowledgement of Receipt of Copies of Debt Instrument. Mortgagor hereby acknowledges the receipt of a copy of this Mortgage together with a copy of each promissory note secured hereby. 27.Additional Provisions. Mortgagor agrees to pay$50.00 per month on the second mortgage beginning August 1, 2006. At the end of the first year, and at one year intervals thereafter, Mortgagor will be re-evaluated by the Iowa City 1-lousing Authority to determine her ability to make increased mortgage payments. Mortgagor agrees to submit any information reasonably requested by the Iowa City Housing Authority as part of said re-evaluations. In the event the Iowa City Housing Authority determines that Mortgagor qualifies to make an increased mortgage payment,the City of Iowa City will require this additional amount to be paid and credited towards the second mortgage and Mortgagor agrees to make such payments. Dated: L(,tyt~ AC0(0 1T�fM .t e'aika Kimberly F. naway,Mort I UNDERSTAND THAT HOMESTEAD PROPERTY IS IN MANY CASES PROTECTED FROM THE CLAIMS OF CREDITORS AND EXEMPT FROM JUDICIAL SALE;AND THAT BY SIGNING THIS MORTGAGE, I VOLUNTARILY GIVE UP MY RIGHT TO THIS PROTECTION FOR THIS MORTGAGED PROPERTY WITH RESPECT TO CLAIMS BASED UPON THIS MORTGAGE. STATE OF IOWA Dated: (e 50/0 6 _� � Kimberly F.tnaway STATE OF IOWA )ss: COUNTY OF JOHNSON ) On this .0'1'"' day of _u nz ,2006,before me,the undersigned,a Notary Public, personally appeared Kimberly F. Conaway, a single person, to me known to be the identical person named in and who executed the foregoing instrument,and acknowledged that she executed the sante as her voluntary act and decd. ) E'EGGYJDOERGE .i. . • II rain.. NotartarSa�t-lows .,.,. MY Carvn omm•km•714812 Notary ' a'c l and for the=i•to of Iowa C)—`= G s*Ion Expires d AI�1 si • EXHIBIT 11900,1 1111111111111111111111111111111:Doe ID: 021128200002 Type: GEN .Recorded: 04/10/2008 at 10:38:26 All 'Fee Amt: $12.00 Fade 1 of 2 Johnson County Iowa Kim Painter County Recorder 4284 Po473-474 THIS INSTRUMENT PREPARED BY Benjamin W. Hopkins / AT0003573 1350 NW 136th Street, Suite 100, Clive, IA 50325-8308 (515) 222-9400 RETURN TO: Petosa Law Firm, 1350 NW 138" Street, Suite 100, Clive, IA 50325 Petosa 28278 ASSIGNMENT THIS ASSIGNMENT is made as of this / day of 20,01/ , by Countrywide Bank, N.A. ("Assignor") , to Countrywide Home Loans, Inc. ("Assignee") . FOR VALUE RECEIVED, Assignor does hereby grant, bargain, sell, assign, transfer and set over to Assignee, a certain Mortgage executed by Kimberly F. Conaway, given to secure payment of the sum of $80,250. 00 plus interest, dated June 30, 2006 and filed July 13, 2006 in Book 4053, Page 11-20, in the Recorder's Office of Johnson County, Iowa and covering the following legally described premises: Lot 87, Whispering Meadows Subdivision, Part Two to Iowa City, Iowa, according to the plat thereof recorded in Book 34, Page 99, Plat Records of Johnson County, Iowa together with the promissory note and indebtedness therein mentioned. TO HAVE AND TO HOLD the same unto Assignee and its successors, legal representatives and assigns forever. IN WITNESS WHEREOF, Assignor duly executed this Assignment as of the date first above written. CU Ci 7:710" c)-<)-/ C.-- tri rl 1 COUNTRYW ' BANK, N,A. • • By; Name: .*► : +►OAwr,y ,w6E-PAESIDENT Its: By: / Name: MARK BISHOP,151-VICE PR..IbENT Its: Our file N 28278 STATE OF TEXAS COUNTY OF COLLIN ) SS On this _ day of , 20 d$, before me, the undersigned, a NotaryPub i�and for the said State, personally appeared iCrM0MLY0AWSON,ISTKEPFIESIDENTand MARKDISHOP,1ST VICE PRESSIDENT to me personally known, who being by me duly sworn, did say that they are the 1STVICEPRESIDENT and 1ST VICEPRESIDEIST respectively, of the corporation executing the within and foregoing instrument, that (no seal has been procured by the) • ' - • •- •= corporation; that said instrument was signed eal d4 on behalf of the corporation by authority of itg Bold of Directors; and that KIMBERLY D�YV30N """lar, and as officers acknowledged the execution of the foregoing instrument to be the voluntary act and deed of the corporation, by it and by them voluntarily executed. .40 Not.iub c in and for the a e TEXAS iT �► $001110 Joe SUTLER `r Ivry Commission Expires ` / February 26. 2012 r r-i C-) N , Y"'"i •_3 o.,.a rriJ r! 8K: 4595 PG: 958 Recorded: 6/1/2010 at 8:25:12.7 AM Fee Amount: $14.00 Revenue Tax: Kim Painter RECORDER Johnson County, Iowa THIS INSTRUMENT PREPARED BY Benjamin W. Hopkins / AT0003573 1350 NW 138th Street, Suite 100, Clive, IA 50325-8308 (515) 222-9400 RETURN TO: Petosa Law Firm, 1350 NW 138th Street, Suite 100, Clive, IA 50325 Petoaa #37004 ASSIGNMENT THIS ASSIGNMENT is made as of this 24th day of May, 2010, FROM: Countrywide Home Loans, Inc. ("Assignor") , TO: BAC Home Loans Servicing, L.P. fka Countrywide Home Loans Servicing, L.P. ("Assignee") . FOR VALUE RECEIVED, Assignor does hereby grant, bargain, sell, assign, transfer and set over to Assignee, a certain Mortgage executed by Kimberly F. Conaway, given to secure payment of the sum of $80,250.00 plus interest, dated June 30, 2006 and filed July 13, 2006 in Book 4053 Page 11-20, in the Recorder's Office of Johnson County, Iowa. TO HAVE AND TO HOLD the same unto Assignee and its successors, legal representatives and assigns forever. IN WITNESS WHEREOF, Assignor duly executed this Assignment as of the date first above written. CD L N i ? . rs� ti • COUNTRYWIDE He.- LOAN'•, I By: Name: Mary Kist-Vice ,•- 1 Its: 40114rarm , 1 41 Name: —ler : : .Vic Prealdnnt Its: TEXAS Our file # 37004 STATE OF Dallas ) SS COUNTY OF ) On this 24. day of , 200 , before me, the undersigned, a Notary Public i and for the said State, personally appeared MaryKiet and Serena Harman to me personally known, who being by me duly sworn, did say that they are the Vice Preaident and AaWTArrTvtcEP ro IT , respectively, of the corporation executing the within and foregoing instrument, that (no seal has been procured by the) (th.c seal affixed thereto is the seal of the) corporation; that said instrument was signed `ena ..ea ed-) on behalf of the corporation by authority of its Board of Directors; and that Mary Kiat and Serena Harman as officers acknowledged the execution of the foregoing instrument to be the voluntary act and deed of the corporation, by it and by them voluntarily executed. y liroreUIS ft.:ry •• Lli• in and for the State of TEXAS , *• KELLY KAY LOWAs ' o t + Notary public STATE OF TEXAS -- M Comm.Exp.0&t4-73 7 ' L,) Bank of America EXHIBIT Send Payments to: Home Loans P.O.Box 650070 /1 P.O.Box 650070 Dallas.7X 75265-0070 Dates,TX 75265-0070 April 11,2012 Date of Mailing this Notice Kimberly F Conaway 2667 Indigo Court Iowa City,IA 52240-6810 Account No.:119294212 1-800-669-0102 Telephone Number of Creditor Loan Counseling Center Creditor Contact NOTICE OF RIGHT TO CURE DEFAULT Dear Kimberly F Conaway: Legal Description of mortgaged property: Lot TractBlock Book Pages The home loan note described above is now in default because the required installment payments on the loan have not been made. You have the right to cure this default. To cure this default, on or before May 11, 2012. Bank of America, N.A.must receive the following payments: Monthly Charges: 03/01/2012 $1,382.60 Deferral or delinquency charges: ($900.62) TOTAL REQUIRED TO CURE THE DEFAULT AS OF THE DATE OF THIS LETTER: $481.98 Please note that additional regular monthly payments,late charges,fees and charges may become due on or before May 11,2012 and these amounts must be received by Bank of America,N.A.by May 11,2012 to cure the default. If this default is cured,this obligation can continue as though it were not late.The default will not be considered cured unless Bank of America, N.A. receives "good funds'in the amount of$481.98 on or before May 11, 2012. If any check(or other payment)is returned to us for insufficient funds or for any other reason,'good funds"will not have been received and the default will not have been cured. No extension of time to cure will be granted due to a returned payment.Bank of America, N.A. reserves the right to accept or reject a partial payment of the total amount due without waiving any of its rights herein or otherwise. For example,if less than the full amount that is due is sent to us,we can keep the payment and apply it to the debt but still proceed to foreclosure since the default would not have been cured. If this default and breach of the terms of your home loan is not cured by the date set forth above,the sums secured by your property will be accelerated,and we will immediately proceed with initiating a foreclosure action or procedure. You may,If required by law or your loan documents,have the right to cure the default after the acceleration of the mortgage payments and prior to the foreclosure sale of your property if all amounts past due are paid within the time permitted by law. Further,you may have the right to bring a court action to assert the non-existence of a default or any other defense you may have to acceleration and foreclosure. If a foreclosure action or procedure is necessary,we may seek judgment for all attorney fees,abstracting expenses and all other costs associated therewith,in addition to a decree of foreclosure.Further,if Bank of America,N.A.forecloses on your property,Bank of America,N.A.may pursue a deficiency judgment against you to collect the balance of your loan,if permitted by law.If a default on your home loan occurs again within the next year, Bank of America. N.A. may accelerate the balance of your home loan and immediately commence foreclosure on your property without sending another notice like this one. Your loan is in default. Pursuant to your loan documents,Bank of America.N.A.may,enter upon and conduct an inspection of your property. The purposes of such an inspection are to(I)observe the physical condition of your property,(ii)verify that the property is occupied and/or(iii)determine the identity of the occupant. If you do not cure the default prior to the inspection,other actions to protect the mortgagee's interest in the property(including, but not limited to, winterization,securing the property, and valuation services)may be taken. The costs of the above-described inspections and property preservation efforts will be charged to your account as provided in your security instrument. This communication is from Bank of America,NA.,the servicer of your home loan. Pease wbte yse aces/B number on al OteBcs and crrespendena. We may charge pa a lee(of up Ie 310.00)for any payment returned or rejected by yxew fnareial sslrulae,subject lo applicable law. &Cm 11361 17 11 Payment Instructions: !Account Number:119294212.4 • Make yu.area payable to Bank GI Kimberly F Conaway Balance Due to charges listed above;$481.98 as c0 April 11,2012. Arrsria N.A 2667 Indigo Court Please up--laemaiiefonnaIoe on re nimbuses M tiscaem. r.... • Dont sero cases • Please iru.9ae awn with ysrow p M BLOW FMrspX l. For el ful month payment pmol. nafnaf interest is cacriatedan a msthybasis. I I I I l i I I I I 11 I Acaaifegly.inlheosi 5,al W€coes. Irdrnr,IlI.lh l. Irlllrrr!Hata l Illr II I li rrhl r _ including February, is aicalated as Bank of America,N.A. 30/360 of ares al etere9,irespei/Ne of Cy:edr - . - the actual nurnbe id days:new month. PO BOX 650070 TNa' For WA mantis,'Merest b aladated Dallas,TX 75265-0070 - . . i' it tie sof a 355 day year_ 1-800-669-0102 119294212400000048198000048198 t:5869900 581: 1 19 294 2 1 211' If you are unable to cure the default on or before May 11,2012.Bank of America,N.A.wants you to be aware of various options that may be available to you through Bank of America,N.A.to prevent a foreclosure sale of your property. For example: • Repayment Plan:It is possible that you may be eligible for some form of payment assistance through Bank of America, N.A.. Our basic plan requires that Bank of America, N.A. receive,up front,at least'/,of the amount necessary to bring the account current,and that the balance of the overdue amount be paid,along with the regular monthly payment,over a defined period of time.Other repayment plans also are available. • Loan Modification:Or,it is possible that the regular monthly payments can be lowered through a modification of the loan by reducing the interest rate and then adding the delinquent payments to the current loan balance. This foreclosure alternative,however,is limited to certain loan types. • Sale of Your Property:Or,if you are willing to sell your home in order to avoid foreclosure,it is possible that the sale of your home can be approved through Bank of America,N.A.even if your home is worth less than what is owed on it. • Deed-in-Lieu:Or,if your property is free from other liens or encumbrances,and if the default is due to a serious financial hardship which is beyond your control,you may be eligible to deed your property directly to the Noteholder and avoid the foreclosure sale. If you are interested in discussing any of these foreclosure alternatives with Bank of America,N.A.,you must contact us immediately. If you request assistance, Bank of America, N.A. will need to evaluate whether that assistance will be extended to you. In the meantime,Bank of America. N.A.will pursue all of its rights and remedies under the loan documents and as permitted by law,unless it agrees otherwise in writing.Failure to bring your loan current or to enter into a written agreement by May 11,2012 as outlined above will result in the acceleration of your debt. If your loan is currently being evaluated for a loan modification,forbearance or other loan assistance solution,this notice will not cancel or delay that evaluation process. However, it is important that you promptly respond to all requests made in connection with your evaluation for a loan assistance solution,including all requests for you to contact us and any documentation required.If you do not comply with these requests in a timely manner,it may cause your loan to enter the foreclosure process as indicated in this notice. If your loan is not eligible for a loan assistance program, please note this letter will continue to serve as notice of our right to initiate foreclosure. Time is of the essence. If you have any questions concerning this notice, please contact Loan Counseling Center immediately at 1$00-669-0102. Sincerely, Bank of America,N.A. r--y C� r --11SI r. C,.•') W 4'J This correnunication is from Bank of America,NA,the servicer of your home loan. E-mail we:Providing your e-mail address below will allow us to send you information on your amount. How we AccuntNumber119294212post your payments: All pprado Kimberly F Conaway E-mal address: the nof principal and interest nal be . t d> the longest cm—aiding installment due, bless otherwise expressly prohibited or limited by law. If you submit an amount in addition to your scheduled monthly amount we will apply your payments as follows: (ij to outstanding monthly payments cf principal and interest-(o)escrow deficiencies,(ii)late charges and other amounts you owe in coratecton win your loan and fa to reduce the outstanding principal balance of your loan, Please specify if you want an additional amount applied to future payments, rather than principal reduction. Postdated checks: Postdated checks will be processed on the date received unless a loan counselor agrees to tans the date written on the irk as a condition of a repayment plan. • Options are Available to Help You Avoid Foreclosure Call the number on the enclosed notice to learn more. When you call,please have your income and expense information available so we can discuss which option(s)could work for you. Options to consider if your goal is to stay in your home ::C�23' :d:4 �q�'a /�y "y": :.:.�:.a:.,?....... .:..:.::::. .:..<.:-:�.:::...::.:...:..:.....�..,._. ....: .J)1• ..:: k'`k�:l^':> ',til..., ro`a'� L'�: tr ........ ...... ..:.....:............. ............. ......L:<... .r,......n .4.... a ,.... .a .., u� w-- .,L��:..Y'�'::> �i..<L.ditia%�<o�>%` r::Ad+ : : f L>: ...rw,a.,,...;a.i. . `ate'-:; ::<Y+�f%^t:s .... .::L:':,-,....v ...n,:.t-:�a�s,>.n..e,.ar:a>rl:..a.,,::a.:S/ tr.�..:ltr..y::4rw�l�tir`-y� Ya?o-oxe o':Gir= �+*r'.;�"jv./ >(c).,,. .tr ♦ ,4 ....:i:.�•"d.:Ar:�C.,'L:..,<.>�Lr,:A...ar:ba6�arta:<ani.05()i;:Lrie<Al::aldi.{<a.�>�.iJ�;Gv�:J�:�,:•���:.': Home A federal government program that allows you to repay the loan on newly agreed upon terms,which Affordable may include lowering the interest rate,placing past due amounts at the end of the loan,and/or Modification extending the term of the loan.You may be eligible for this program if you meet the following Program requirements: (HAMP) • The home is your primary residence and you currently live in it. • The amount you owe on the first mortgage is equal to or less than$729,750 for a single-family home,$934.200 for a 2 unit property,$1,129,250 for a 3 unit property or$1,403,400 for a 4 unit property • You have experienced a hardship that has impacted your income. For example,a significant increase in your mortgage payment OR reduction in your income OR other hardship. • Your mortgage was obtained before Jan.1,2009. • Your payment on your first mortgage(including principal,interest,taxes,insurance and homeowner's association dues,if applicable)is more than 31%of your current gross income.To calculate this,divide your first mortgage payment by your gross income(income before taxes). Loan If you can bring your loan payments up to date,we wilt accept the funds needed to bring the loan up Reinstatement to date until the day of your foreclosure sale. Repayment A temporary agreement which allows for the repayment of the unpaid,past due amount along with Plan regular mortgage payments.This may include principal,interest,fees,and/or costs assessed to your loan. Temporary An agreement whereby we agree not to proceed with foreclosure and/or collection of payments for a Forbearance period of time,to allow you to re-establish your ability to make the required payments. Agreement Loan Repay the loan on newly agreed upon terms,which may include lowering the interest rate,placing Modification amounts past due at the end of the loan,and/or extending the term of the loan. (non-HAMP) Partial Claim If you have a Federal Housing Administration(FHA)loan and your payments are past due but you (FHA loans are now able to make your regular monthly mortgage payment,this program is designed to bring your Only) loan up to date by creating a second mortgage/lien on your property for the amount that is past due. Options to consider if you cannot or do not wish to stay in your home .. roxa.L:.`:,;;;::'h%o•.:::o<':i6: .tr`,e.y til...., ...._-::..::J>..a-:,.,..�::._.<%.:>::4::., tr `.ar!d?a:^;t I yl3 ._::: .:.:..�>.:;>;..n.4:..:.,.....: ra'r<...o.y:�.;;tr>L..a.4c�nama- fi4r Px ra a <:,>...... . ......d?7<:.:::.,..;>:<,.:..:..: ..... :. :.::.:::.:::�:.t.::<::::,r:.a..<.::<r:<-rte;:::<>:. � �f <ti >>i;..> a tb:o>: lfr L-' ;: ............: :. .... ...... .._._.....v.,y.... ,.,....a_,.<a..a.,,:,:... e.. ., .. .. ,..: .. .a.:<o..a.,. x�;e, Home Designed to help borrowers who are eligible for the Home Affordable Modification Program(HAMP) • Affordable but were unsuccessful in securing a permanent modification through the program.HAFA provides the Foreclosure option of a short sale and,if unsuccessful,a deed in lieu of foreclosure.A short sale is a transaction Alternatives in which you sell your property for less than the total amount owed on the loan(subject to agreement Program by your servicer/lender/investor),resulting in the release of our lien on your home and avoidance of " (HAFA) foreclosure.A deed in lieu of foreclosure is a transaction in which you agree to voluntarily transfer ownership of your property to us in order to avoid foreclosure. Short Sale/ Offered to borrowers who are not eligible for HAMP or other home retention alternatives.With a short Preforeclosure sale,you sell your property for less than the total amount owed on the loan(subject to agreement by Sale your servicer/lender/investor),resulting in the release of our lien on your home and avoidance of (non-HAFA) foreclosure. Deed in Lieu of Offered to borrowers not eligible for HAMP or other home retention alternatives, and who were not Foreclosure able to sell the properly through a short sale.With a deed in lieu of foreclosure,you agree to (non-HAFA) voluntarily transfer ownership of your property to us in order to avoid foreclosure. We are here to help you. Please call us today. 2261E92469 Hay Opciones Disponibles Para Ayudarle a Evitar Ia Ejecucion Hipotecaria Liame al numero que aparece en Ia notification adjunta para obtener más information Cuando(lame,tenga Ia information de sus ingresos y gastos disponibles para que podamos discutir cual opcidn(es)pueden funcionar para usted. Opciones a considerar si su objetivo es permanecer en su casa progra na. aY a� e y"S. OC f ;➢ 4..5 VO 0..** � " 6,N'aYjQ'4N} Y NM . }. t d Y.: Home Affordable Un programa del gobierno federal que le permite pagar el prestamo bajo los nuevos lerminos Modification acordados,que pueden incluir la reduccien de Ia lase de interes,agregando la cantidad adeudada Program(HAMP) al final del prestamo,y/o extender el plazo del prestamo.Usted puede ser elegible para este programa si cumple con los siguientes requisitos: • La casa es su residencia principal y actualmenle vive en ella. • La cantidad adeudada en la primera hipoleca debe ser igual o menos que S729,750 dotares para una vivienda unifamiliar,$934,200(Wares para una propiedad de 2 unidades,$1,129,250 ddlares para una propiedad de 3 unidades o$1,403,400 para una propiedad de 4 unidades • Ha experimented°una dificultad que ha afeclado sus ingresos. Por ejemplo,un aumenlo significativo en su pago hipotecario 0 reduction de sus ingresos U otras dificultades. • Obtuvo su hipoteca antes del 01 de enero 2009. • Su pago de la primera hipoteca(incluyendo principal,interes,impuestos,seguro y cuotas de asociacien de propietarios,si se aplica)debe ser más del 31%de sus ingresos brutos actuates. Para calcular eslo,divide su pago hipotecario por sus ingresos brutos(ingresos antes de impuestos). Restablecimiento Si usted puede traer sus pagos del prestamo hipotecario al dia,se le aceptaran los fondos del Prestamo necesarios para que el prestamo este al dia haste la fecha de la yenta judicial. Plan de Pago Un acuerdo temporal que permite el pago de Ia cantidad adeudada,cantidad del pago atrasado • junto con los pagos regulares de la hipoteca.Esto puede incluir principal,interes,honorarios y/o costos aplicados a su prestamo. Acuerdo Un acuerdo por el cual nos comprometemos a no proceder con la ejecuciOn hipolecaria y/o Temporal de coleccion de pagos por un periodo de liempo,para permitirle que restablezca su habilidad de Tolerancia hacer los pagos requeridos. Modificacion de Pager el prestamo bajo los nuevos terminos acordados,que puede incluir Ia reduction de la Lasa Prestamo de interes,agregando la cantidad adeudada at final del prestamo,y/o extender el plazo del (no por medio prestamo. de HAMP) Reclamo Parcial Si usted liene un prestamo de la Administracien Federal de Vivienda(FHA)y sus pagos esten (solamente vencidos,pero ahora puede hacer sus pagos regulares mensuales de la hipoleca,este programa prostamos de la este diseaado para que su prestamo este al dia medianle la creation de una segunda hipoleca/ FHA) gravamen sobre su propiedad por la cantidad adeudada. Opciones a considerar si no puede o no desea quedarse en su casa �/ �_`� 0g4'C G °v'� J A_ ,N V, t K 0's{,a�h',s)Qk`,Nii),!�'•No;%'a�u ErNt°'�l M � V'(�a h2i` :;:aw•v b �.w*r h N+` % egiV V, ( �' 9 .a:"._'� 'n o Co��'m�<,rra'.n?:�''FJ.�.a.G.�+�.� .d.�'_..oa.::�.J�;:z=:�b;)�A�y'.ri.:..�'v2�,'�.<'-.�..'7`.`%,:,%a��,�9�:t)�n i>�ti��:�s 'a'v Home Diserlado para ayudar a los prestatarios que son elegibles para el Programa de Home Affordable Affordable Modification(HAMP),pero no luvieron exit°en obtener una modification permanenle a(raves del Foreclosure programa.HAFA ofrece la posibilidad de una venta corta y,si no liene exit°,una enlrega de Alternatives escrilura para evitar juicio hipotecario. Una yenta coria es una transaccton en la que usted vende su Program propiedad por menos de la cantidad adeudada en el prestamo(sujeto a previo acuerdo de su (HAFA) administrador/prestamista/inversionisla),resultando en la liberation de nuestro derecho de retention sobre su propiedad y evitar la ejecucidn hipolecaria. Una entrega de escritura para evitar juicio hipotecario es una transaccien en la que usted este de acuerdo de transferir voluntariamente las escrituras de su propiedad a nosotros con el fin de evitar la ejecucidn hipotecaria. Vents Corte/ Se ofrece a los preslatarios que no son elegibles para HAMP u otras alternatives de retention de Vents antes de hogar. Con una venla corta,usted vende su propiedad por menos de la canlided total adeudada en Ejecucion el prestamo(sujeto a un acuerdo por su administrador/prestamista/inversionista),resultando en la Hipotecaria(no liberation de nuestro derecho de retencidn sobre su propiedad y evitando la ejecucidn hipolecaria. por medio de HAFA) Entrega de Se ofrece a los prestalarios que no son elegibles para HAMP u otras alternatives de retention de Escritura Para hogar,y que no pudieron vender Is propiedad a traves de una venta corta. Con una entrega de Evitar Juicio escritura para eviler juicio hipotecario,usted este de acuerdo a transferir voluntariamente las Hipotecario escrituras de su propiedad a nosotros para evitar Ia ejecucion hipolecaria (no por medio • de HAFA) . Estamos aqui para ayudarle. Por favor Ilamenos hoy. LPSI22336 EXHIBIT IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY BANK OF AMERICA,N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS CASE NO. SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING LP, AFFIDAVIT FOR ATTORNEY FEES Plaintiff, vs. KIMBERLY F. CONAWAY, SPOUSE OF KIMBERLY F. CONAWAY, CITY OF IOWA CITY, AND PARTIES IN • POSSESSION, Defendants. J r T STATE OF IOWA ) COUNTY OF BLACK HAWK ) I,Daniel P.Rohrs,hereby state that I am a member of the firm of Dunakey&Klatt,P.C.,the attorneys for the Plaintiff in the above-entitled cause;that I am familiar with the terms of the Note and Mortgage sued upon herein as attorney for the Plaintiff;that I have read the foregoing Petition and am familiar with the contents thereof, and the allegations contained therein are true as I verily believe. I further depose and state that I am a regular practicing attorney in the Courts of the State of Iowa; that the attorney's fees prayed for herein are for services rendered and to be rendered by me as attorney for the Plaintiff in this action; that there has been no agreement, express or implied, between me and any other person or persons except other practicing attorneys engaged with me in this action, for a division or sharing of the attorney's fees prayed for herei!. i eddlle Daniel P. Rohrs Acknowledged before me this 7th day of August, 2012. �.L,; Notary Public in and for e St; e of Iowa •. KIM MURPHY • •.• COMMISSION COMMISSION DSPIRES� ow� EXHIBIT DUNAKEY & KLATT, P.C. ATTORNEYS AT LAW DAVID D.DUNAKEY • CURTIS J.KLATT • DAVID P.ODEKIRK - CHARLES P.AUGUSTINE BRIAN G.SAYER • MICHAEL O.TREINEN • TERESA A.RASTEDE • C.MORGAN LASLEY CRYSTAL W.RINK • C.ANTHONY CRNIC • DANIEL P.ROHRS WATERLOO OFFICE INDEPENDENCE OFFICE 531 COMMERCIAL STREET,SUITE 250 221 FIRST STREET WEST P.O.BOX 2363 P.O.BOX 484 WATERLOO,IOWA 50704-2363 INDEPENDENCE,IOWA 50644-0484 TELEPHONE (319)232-3304 FACSIMILE (319)232-3639 FACSIMILEC (319)334-2590 E (319)334-5975 July 24, 2012 Kimberly F Conaway 2667 Indigo Court Iowa City, IA 52240 DEMAND FOR PAYMENT Loan no. 119294212 Property address 2667 Indigo Court Iowa City, IA 52240 Current creditor/servicer name Bank of America Current creditor/servicer address 7105 Corporate DriveMINNOW PTX B-35 -`�•---' w Plano, TX 75024 -' -o Deed of trust/mortgage dated June 30, 2006 7:; 71, Dear MORTGAGOR: Bank of America, on behalf of the owner and holder of your mortgage loan, and in accordance with the referenced Deed of Trust/Mortgage and applicable state laws, provides you with formal notice that your balance has been accelerated. Below is a summary of your accelerated balance: Principal $73,650.15 Interest $1,963.40 Other charges $30.00 Credit balance $-451.28 ACCELERATED BALANCE $75,192.27 You must pay the accelerated balance within 14 days of the date of this letter or your property that is collateral for the Note may then be scheduled for foreclosure in accordance with the terms of the Deed of Trust/Mortgage and applicable state laws. If you have not cured the default by August 7, 2012 additional amounts may become due and payable under your Note and Deed of Trust/Mortgage. The undersigned is a debt collector attempting to collect a debt, and any information will be used for that purpose. However, if you have had your debt discharged in bankruptcy and you did not reaffirm your loan in your bankruptcy case, Bank of America will only exercise its right as against the property and is not attempting to assess or collect the debt from you personally. You are further advised that unless you notify the undersigned in writing within 30 days of your receipt of this notice that you dispute the validity of the amount owed to Bank of America or any portion thereof, the debt will be assumed to be valid. Please note these Fair Debt Collection Practices Act provisions: (a) If the consumer notifies the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; (b) If the consumer requests, upon the consumer's written request, within the 30-day period, the name and address of the original creditor, the debt collector will provide the consumer with the name and address of the original creditor if different from the current creditor; and, (c) The debt collector shall cease collection of the debt or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor if different from the current creditor. This matter is very important. Please give it your immediate attention. Sincerely, Default Administration Department EXHIBIT Mortgage Mediation Notice You are receiving this notice because (1) your lender believes that your mortgage is seriously delinquent, or (2) a foreclosure petition was recently filed against you. The purpose of this notice is to inform you that help is available through Iowa Mortgage Help, a State of Iowa-sponsored program. • he �s ava� abie Iowa Mortgage Help is a group of organizations partnering with the Iowa Attorney General's Office and the Iowa Finance Authority to offer all Iowans access to free, confidential mortgage counseling with local organizations located right here in Iowa. Iowa Mortgage Help is here to assist you in working through your situation. Please call 1-877-622-4866 as soon as possible. The earlier you call, the more options that are available to you. When you call, you will be referred to a trained, professional counselor who will listen to your situation and offer free, confidential advice through each step of the process. In some cases, we are able to work with lenders and borrowers to restructure mortgage terms. While we are not able to help everyone, we are able to help the majority of homeowners who call Iowa Mortgage Help. The fact that a foreclosure petition may be or has been filed against you does not necessarily mean that you will lose your house. It is NOT too late. There is still time for help. Do Not Delay. This may be your best chance for saving your home from foreclosure. Call 1-877-622-4866 today or go to lowaMortgageHelp.com. This free call could save your home. \` Iowa Mortgage Help 1-877-622-4866 www.lowaMortgageHelp.com This notice is being provided as required by Iowa Code section 654.4B(2). END OF CASE FILE qSA Otte pros r/mA "BCC/ SSS S SHUTTLEWORTH GERSOLL , P . LCCs Pi/e � YPL•z- r�,,ce ATTORNEYS AT LAW ESTABLISHED 1854 0 V.C.SHvrn.EWORTH 1900-1965 RICHARD C.GARBERSON DOUGLAS R.ORISCH •EGER CAROLINE M.NASH T.M.INGERSOLL 1902-1972 ALLAN L.HARMS DANA L.OxLEY JAMES C.NEMMERS WILLIAM S.HOCHSTETLER STEVEN J.PACE BRETr D.PAPENDICK CONSTANCE M.ALT TRICIA HOFFMAN-SIMANEK BRETE D.PAPENDICK JASON R.SYISMA BRIAN D.BERGSTROM ROBERT D.HOUGHTON THOMAS P.PEPPER MARLANA K.TITUS•' JOHN M.BIciEL MARK P.A.HUDSON NANCY J.PENNER COUNSEL JACE T.BISGARD WESLEY B.HUISINGA WILLIAM P.PROWELL SARAH W.ANDERSON KEVIN J.CASTER DONALD L.JOHNSON JENNIFER E.RINDEN KELLY A.CWIERTNY DREW A.COMINGS-PETERSON SAME.JONES MARTY L.STOLL CAROLINE M.NASH* WILLIAM J.DALY LINDA M.KIRSCH GARY J.STREIT WILLIAM D.SINDLINGER THERESA C.DAVIS TIMOTHY J.KL MA JAsoN R.SYISMA MARIANA ANA K.TITUS" LAURIE L.DAWLEY DIANE KUTzKo MARK L.ZAIGER OP COUNSEL JOHN H.EHRHART MICHAEL O.MCDERMOTT REGISTERED PATENT LAWYERS THOMAS M.COLLINS DEAN R.EINCK DENNIS J.McMENIMEN ALLAN L.HARMS WILLIAM R.SHVTILEWORTH RICHARD S.FRY JAMES C.NEMMERS TIMOTHY J.KLIMA •ADMITTED IN DC,MD AND VA ONLY ••ADMMED.IN DC AND MD ONLY August 31,2012 u _ ASAP Process Service "" y Attn: Rex Cook P.O.Box 607 Lisbon,IA 52252 Re: Liberty Bank vs. Casey J. Boyd, Nicole A. Boyd, the City of Iowa City, and James Kelley Johnson County District Case No.EQCV 074871 Dear Sir or Madam: Please find enclosed Original Notices along with Petitions at Law attached for service. We would appreciate it if you could please serve the following individuals with these documents: gJ`)12 Xr James Kelly Nicole Boyd k /009 2250 West Lake Road, Apt. 303 40 Green Mountain Drive North Liberty,IA 52317 Iowa City,IA 52245 Casey Boyd City of Iowa City 441107" J<j1I " 1528 First Avenue,Unit C Mayor or the City Clerk /4��ilZi��it� Coralville, IA 52241 410 E Washington Street ) Iowa City,IA 52240 �1 Once these individuals have been served, please attach your notarized Return of Service to the enclosed additional Original Notices and Petitions at Law. Please forward your invoice for the fees for serving these individuals and we will make prompt payment. Should you have any questions, please feel free to contact me. Sincerely, CL ktet4,te ed A M.KIRSCH Olt 0,040/0.10 lmk(a,shuttleworthlaw.com LMK:jse/Encls. MAILING ADDRESS: P.O. Box 2107 CEDAR RAPIDS, IOWA 52406-2107 STREET ADDRESS: 115 THIRD STREET SE CEDAR RAPIDS, IOWA 52401 TELEPHONE 319.365.9461 FACSIMILE 319.365.8725 WWW.SHUTTLEWORTHLAW.COM • IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY LIBERTY BANK, F.S.B., ) ) Plaintiff, ) ) vs. ) 1, I ) NO. EQCV ` g Casey J. Boyd, Nicole A. Boyd, City of Iowa ) City and James Kelly ) Defendants ) ATTORNEY FEES AFFIDAVIT ) ) ) STATE OF IOWA, COUNTY OF LINN, ss: The undersigned,an attorney of record for the Plaintiff, does solemnly swear that there is no contract, agreement or arrangement, either oral or written, express or implied, contemplating any division or compensation for services rendered in the above-entitled proceedings or participation of such compensation, directly or indirectly, by any other person, firm or corporation with such attorney except other legal counsel in a regular and bona fide law partnership with or associated with the undersigned in the above-entitled matter, or jointly serving with her, as attorney, in relation to this proceeding. G ' i Mit A M.KIRS H AT0004297 SHUTTLEWORTH & INGERSOLL, P.L.C. 115 Third Street S.E., Suite 500, P.O. Bax 2107 Cedar Rapids, IA 52406 orrn PHONE: (319) 365-9461 z c.0 e FAX: (319) 365-8725 ow_no 0 w es ATTORNEYS FOR LIBERTY BANI€ 'iS.l =-7.7 at g Acts' -ice Subscribed and sworn to before me this Ay" day of August, 2012. Cr p >.x3, O --t a . • Vis_' a • �� .'_A 0 . mita `o . ublic ii for the State of Iowa ACME 8.ESE/ ARTH f4tteCemraission Number 749074 My Commission Expires .cpm 5•[kerrber 25, 2013 - _ E IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY LIBERTY BANK, F.S.B. ) Plaintiff, ) vs. ) NO. EQCV (5141?7 Casey J. Boyd,Nicole A. Boyd, City of Iowa City ) ORIGINAL NOTICE and James Kelly ) ) Defendants. ) _` • TO THE ABOVE-NAMED DEFENDANT: t.._. - You are notified that a Petition to Foreclose Mortgage has been filed in the ofllce of the clerk of this court naming you as the defendant in this action. A copy of the Petition to Foreclose Mortgage, (and any documents filed with it) is attached to this notice. The attorney for the Plaintiff is Linda M. Kirsch,of Shuttleworth & Ingersoll, P.L.C., whose address is P.O. Box 2107, Cedar Rapids, Iowa, 52406. That attorney's phone number is 319-365-9461; facsimile number 319-365-8725. You must serve a motion or answer within 20 days after service of this original notice upon you and, within a reasonable time thereafter, file your motion or answer with the Clerk of Court for Johnson County, at the county courthouse in Iowa city, Iowa. If you do not,judgment by default may be rendered against you for the relief demanded in the Petition at Law. If you require assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district ADA coordinator at (319) X9,8-11tyou are hearing impaired, call Relay Iowa TTY at 1-800-735-2942.) �� }} vv�� LODEMA BERKLEY ,� . ( �i CL OF THE ABOV COURT [SEAL] Johnson County Courthouse P.O. Box 2510 Iowa City, IA 52244-2510 IMPORTANT YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. Iffr IN THE IOWA DISTRICT COURT FOR JOHNSON COU/siTYri LIBERTY BANK, F.S.B., ) ) Plaintiff, ) NO. EQCV' 074871 ) vs. ) PETITION TO FORECLOSE ) MORTGAGE) Casey J. Boyd,Nicole A. Boyd, the City of Iowa ) irn N City and James Kelly ) vi c —11 ) Zo Defendants. ) o v) o - r- rn NOTICE = � w A� THE PLAINTIFF HAS ELECTED FORECLOSURE WITHOUT REDEMPTION. THIS MEANS THAT THE SALE OF THE MORTGAGED PROPERTY WILL OCCUR PROMPTLY AFTER ENTRY OF JUDGMENT UNLESS YOU FILE WITH THE COURT A WRITTEN DEMAND TO DELAY THE SALE. IF YOU FILE A WRITTEN DEMAND, THE SALE WILL BE DELAYED UNTIL TWELVE MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS AN ONE-FAMILY OR TWO-FAMILY DWELLING OR UNTIL TWO MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS YOUR RESIDENCE BUT NOT A ONE-FAMILY OR TWO-FAMILY DWELLING. YOU WILL HAVE NO RIGHT OF REDEMPTION AFTER THE SALE. THE PURCHASER AT THE SALE WILL BE ENTITLED TO IMMEDIATE POSSESSION OF THE MORTGAGED PROPERTY. YOU MAY PURCHASE AT THE SALE. IF YOU DO NOT FILE A WRITTEN DEMAND TO DELAY THE SALE AND IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO-FAMILY DWELLING, THEN A DEFICIENCY JUDGMENT WILL NOT BE ENTERED AGAINST YOU. IF YOU DO FILE A WRITTEN DEMAND TO DELAY THE SALE, THEN A DEFICIENCY JUDGMENT MAY BE ENTERED AGAINST YOU IF THE PROCEEDS FROM THE SALE OF THE MORTGAGED PROPERTY ARE INSUFFICIENT TO SATISFY THE AMOUNT OF THE MORTGAGE DEBT AND COSTS. IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS NOT A ONE- FAMILY OR TWO-FAMILY DWELLING, THEN A DEFICIENCY JUDGMENT MAY BE ENTERED AGAINST YOU WHETHER OR NOT YOU FILE A WRITTEN DEMAND TO DELAY THE SALE. The Plaintiff, Liberty Bank, F.S.B. by its attorney, Linda M. Kirsch of Shuttleworth & Ingersoll, P.L.C., states the following cause of action against Defendants: 1. Plaintiff is a federal savings bank with offices in Cedar Rapids, Linn County Iowa 2. Defendants Casey J Boyd and Nicole A. Boyd are individual residents of Johnson County, Iowa Casey J Boyd is the record owners of the property hereinafter described.] 3. Defendant the City of Iowa City is an Iowa municipality. f ' "' 4. Defendant James Kelly is an individual resident of North Liberty, Johnson County, Iowa . _ 5. On November 3, 2011, Defendant Casey J. Boyd executed a Promissory Noterto Liberty Bank, F.S.B. The Note is in the original principal sum of$164,217.16, and bore interest at the rate of 7.0%per annum, as provided in the Note (hereinafter Note 1). A Copy of Note 1, is attached to this Petition and marked Exhibit "A" and is referred to herein as the Note. 6. On October 18, 2011, Defendant Casey J. Boyd executed a Promissory Note to Liberty Bank, F.S.B. The Note is in the original principal sum of$54,648.06, and bore interest at the rate of 7.250%per annum, as provided in the Note (hereinafter Note 2). A Copy of Note 2, is attached to this Petition and marked Exhibit "B" and is referred to herein as the Note. 7. To secure Note 1 and Note 2, Defendants Casey J, Boyd and Nicole A. Boyd, on November 3, 2006, executed and delivered a Mortgage to Liberty Bank, F.S.B. This Mortgage was recorded on November 29, 2006 in Book 4106 at Pages 182 to 192 of the records of the Johnson County Iowa Recorder. This Mortgage, as recorded grants to Plaintiff a mortgage on the following real property in Johnson County, Iowa: Unit 1E, of Browning Warehouse Condominiums, according to the Declaration of Submission of Property to Horizontal Property Regime pursuant to Chapter 499B of the Code of Iowa, recorded August 15, 2006 in book 4070, Page 1 records of the Recorder of Johnson County, Iowa together with said unit's undivided interest in the common elements. Said Browning Warehouse Condominiums are located on Lot 8, I-380 Industrial Park to North Liberty, Johnson County, Iowa according to the plat thereof recorded in Book 41, Page 200, Plat Records of Johnson County, Iowa. A copy of the Mortgage as recorded is attached to this Petition and marked Exhibit "C". The property subject to the Mortgage is referred to as the "Property" and has the following address: 390 Herky St. #1, North Liberty, Iowa. On January 22, 2010, Defendants Casey J. Boyd and Nicole A. Boyd executed and delivered a Modification of the above referenced mortgage to Liberty Bank, F.S.B., which modification increased the amount secured by the Mortgage to $235,000.00. The Modification was recorded on February 3, 2010 in Book 4554 at page 486 to 488 of the records of the Johnson 2 County, Iowa recorder. A copy of this Modification is attached to this petition and marked Exhibit D. The Mortgage as Modified by this Modification is referred to herein as Mortgage 1 8. To secure Note 2, Defendants Casey J, Boyd and Nicole A. Boyd, on October 18, 2011, executed and delivered a Mortgage to Liberty Bank, F.S.B. This Mortgage was recorded on October 28, 2011 in Book 4822 at Pages 713 to 724 of the records of the Johnson County Iowa Recorder. This Mortgage, as recorded grants to Plaintiff a mortgage on the following real property in Linn County, Iowa: Unit 1E, of Browning Warehouse Condominiums, according to the Declaration of Submission of Property to Horizontal Property Regime pursuant to Chapter 499B of the Code of Iowa, recorded August 15, 2006 in book 4070, Page 1 records of the Recorder of Johnson County, Iowa together with said unit's undivided interest in the common elements. Said Browning Warehouse Condominiums are located on Lot 8, I-380 Industrial Park to North Liberty, Johnson County, Iowa according to the plat thereof recorded in Book 41, Page 200, Plat Records of Johnson County, Iowa. A copy of the Mortgage as recorded is attached to this Petition and marked Exhibit "E". The property subject to the Mortgage is referred to as the "Property" and has the following address: 390 Herky St. #1,North Liberty, Iowa. This Mortgage is referred to as Mortgage 2. 9. Note 1 and Note 2 provided for regular monthly payments of principal and interest. Payment has not been made by the Defendant or by anyone on his behalf since May of 2012. The Note and the Mortgage provide that upon the occurrence of an event of default the Bank may declare the indebtedness immediately due and payable and the Bank hereby exercises its option to declare the indebtedness immediately due and payable. The Bank gave notice of default and an opportunity to pay by means of a letter dated July 16, 2012. A copy of this letter is attached to the Petition as Exhibit"F". 10. The indebtedness due and payable under Note 1 and secured by the Mortgage 1 consists of: a. an unpaid principal balance on the Note of$160,039.02; b. interest as provided in the Note through July 20, 2012 in the amount of $2,053.83; c. interest as provided in the Note on the unpaid balance of the Note from • July 21, 2012 to the date of judgment in this action, with this interest accruing at$80.02 per day; d. Late charges in the amount of$146.88; and , 1 l,? e. Appraisal fees in the amount of$1,000.00; i • 3 L1 11. The indebtedness due and payable under Note 2 and secured by the Mortgage 1 and Mortgage 2 consists of: a. an unpaid principal balance on the Note of$55,226.83; b. interest as provided in the Note through July 20, 2012 in the amount of $734.05; c. interest as provided in the Note on the unpaid balance of the Note from July 21, 2012 to the date of judgment in this action, with this interest accruing at$27.61 per day; d. Late charges in the amount of$27.05; " ' e. Appraisal fees in the amount of$1,800.00; and t • f. Lien search fees in the amount of$175.00 12. The Notes and the Mortgages provide that in the event Lender instittites any proceeding to enforce the terms of the Notes or the Mortgages the Lender shall be entitled to collect all expenses incurred, including, but not limited to, reasonable attorneys' fees. Plaintiffs attorneys attach their Affidavit for such fees. Plaintiff asks for such attorney fees as may be approved by this Court. 13. Plaintiff is credibly informed and believes that Defendants, Nicole A. Boyd, City of Iowa City and James Kelly claim to have some lien, claim, right, title or interest in the above-described real estate. Plaintiff believes and therefore alleges that any and all such interests are junior and inferior to Plaintiff's mortgage and that the mortgage held by Plaintiff creates a lien, claim and interest in the above-described property that is superior to the asserted claims and interests of the said Defendants, Nicole A. Boyd, City of Iowa City and James Kelly or anyone claiming by,through, or under said Defendants. 14. The lien or interest of Defendant Nicole A. Boyd arises due to a judgment entered in Case No CDDM-015007 against Casey J. Boyd on October 11, 2011 for child support of $3000.00 per month plus tuition assistance and medical expenses and alimony of $2000 per month plus property settlement. Said lien or interest is junior and inferior to Plaintiffs interest in the property under its Mortgage. 15. The lien or interest of Defendant City of Iowa City. arises due to a judgment entered in Case No CISC-073729 against Casey J Boyd on March 26, 2009 for$250.00 and court costs Said lien or interest is junior and inferior to Plaintiffs interest in the property under its Mortgage. 16. 15. The lien or interest of Defendant James Kelly arises due to a judgment entered in Case No SCSC078254 against Casey J Boyd on November 3, 2010 for $400.00 plus 4 interest and court costs. Said lien or interest is junior and inferior to Plaintiffs interest in the property under its Mortgage. 17 The Property is not used for agricultural purposes, and is not used by Defendant for residential purposes. 18. Plaintiff hereby requests foreclosure without redemption in accordance with Chapter 654 of the Code of Iowa. WHEREFORE,Plaintiff prays: a. for judgment in personam against Defendant Casey J. Boyd pursuant to the Notes; b. for judgment in rem as to the above-described real property against all the Defendants; and c. for judgment in rem against the above-described real properties, with these judgments being in the amount of$220,853.73 plus late charges and interest accruing at the rate of$107.63 per day as provided in the Notes and the Mortgages on the unpaid balance of$215,265.85 from July 21, 2012 to the date of judgment herein, all taxes and abstracting fees paid by the Plaintiff relating to the Property and the costs of this action, including reasonable attorneys' fees for Plaintiffs attorneys. Plaintiff further prays for judgment and decree: d. establishing Plaintiffs Mortgages as the first and superior lien upon the Property; e. foreclosing Plaintiffs Mortgages for the full amount of the aforesaid judgment, interest and costs; f. establishing that Plaintiffs first and superior lien, dates from the date of execution of said Mortgages; and g. foreclosing Plaintiffs Mortgages against the Defendants. Plaintiff further prays: • h. that the judgment decree forever bar and stop each and-ever};;Defendant from having or asserting any right, title, lien or interest in said real estate, and from any right of redemption in accordance with Chapter 654 of the Code of Iowa; 5 that, unless a demand for delay of sale is filed by the Defendants, a Special Execution issue from this Court promptly upon entry of judgment directing the sale of the Property or so much thereof as may be necessary to satisfy said judgment, interest and costs; and j. that, in accordance with the judgment of this Court and Chapter 654 of the Code of Iowa, a Sheriff's Deed should issue immediately to the purchaser at sale conveying the absolute title to the Property against all Defendants, and all persons claiming by, through, or under them, with a Writ of Possession then issuing forthwith to put the Grantee or Grantees of said Sheriffs Deed or Deeds in immediate possession of said real estate. Plaintiff also prays for such other and further relief as the Court may find it entitled to and as may be just and equitable. A M. KIRS #AT0004297 SHUTTLEWORTH& INGERSOLL, P.L.C. 500 Firstar Bank Bldg., P.O. Box 2107 Cedar Rapids, IA 52406 PHONE: (319) 365-9461 FAX: (319) 365-8564 ATTORNEYS FOR PLAINTIFF LIBERTY BANK, F.S.B. • i J -, Gl . : ! C.3 6 PROMISSORY NOTE _ Principal Loan Date Maturity Loan No Call/Coll Account Officer Ir iq s 5164217.16 11-03-2011 11-03-2013 41501103 24 0000104263-01 5367 , References in the boxes above are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing has been omitted due to text length limitations. Borrower: Casey J.Boyd Lender: LIBERTY BANK,F.S.B. 40 Green Mountain Dr Coralville Iowa City,IA 52245-3810 119 2nd Street Suite 100 Coralville,IA 52241 Principal Amount: $164,217-16 Date of Note: October 18, 2011 PROMISE TO PAY. Casey J.Boyd)-Borrower")promises to pay to LIBERTY BANK,F.S.B.('Lender"),or order,in lawful money of the United States of America, the principal amount of One Hundred Sixty-four Thousand Two Hundred Seventeen & 16/100 Dollars (5164,217.161. together with interest on the unpaid principal balance from November 3.2011,until paid in full. PAYMENT. Borrower will pay this loan in accordance with the following payment schedule, which calculates interest on the unpaid principal balances as described in the"INTEREST CALCULATION METHOD"paragraph using the interest rates described in this paragraph: 23 monthly consecutive principal and interest payments of 51,468.97 each,beginning December 3, 2011,with interest calculated on the unpaid principal balances using an interest rate of 7.000%per annum based on a year of 360 days;and one principal and interest payment of$152,922.73 on November 3, W13, with interest calculated on the unpaid principal balances using an interest rate of 7.000%per annum based on a year of 360 days. This estimated final payment is based on the assumption that all payments will be made exactly as scheduled; the actual final payment will be for all principal and accrued interest not yet paid,together with any other unpaid amounts under this Note. Unless otherwise agreed or required by applicable law,payments will be applied first to any accrued unpaid interest;then to principal;then to any late charges; and then to any unpaid collection costs. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. INTEREST CALCULATION METHOD. Interest on this Note is computed on a 365/360 basis;that is,by applying the ratio of the interest rate over a year of 360 days. multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. All interest payable under this Note is computed using this method. PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the loan and will not ba subje:t to refund upon early payment (whether voluntary or as a result of default), except as otherwise required by law. Except for the foregoing,Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not,unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments under the payment schedule. Rather, early payments will reduce the principal balance due and may result in Borrower's making fewer payments. Borrower agrees not to send Lender payments marked "paid in full', "without recourse", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full'of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: LIBERTY BANK,F.S.B.;Coralville; 119 2nd Street;Suite 100;Coralville,IA 52241. LATE CHARGE, If a payment is 10 days or more late, Borrower will be charged 5.000% of the unpaid portion of the regularly scheduled payment. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this Note shall be increased to 18.000%per annum based on a year of 360 days. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. DEFAULT. Each of the following shall constitute an event of default("Event of Default")under this Note: Payment Default. Borrower fails to make any payment when due under this Note. Other Defaults- Borrower fails to comply with or to perform any other term,obligation,covenant or condition contained in this Note or in any of the related documents or to comply with or to perform any term,obligation,covenant or condition contained in any other agreement between Lender and Borrower. Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement,purchase or sales agreement,or any other agreement,in favor of any other creditor or person that may materially affect any of Borrower-s property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the related documents. False Statements. Any warranty,representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this • • Note or the related documents is false or misleading in any material respect,either now or et the time made or furnished or becomes false , • or misleading at any time thereafter. -Death or Insolvency. The death of Borrower or the dissolution or termination of Borrower's existence as a going business,the insolvency. • of Borrower,the appointment of a receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of: - • creditor workout,or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. - • Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help,. repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This includes a garnishment of any of Borrower's accounts,including deposit accounts,with Lender. However,this Event of Default shall not apply if there Is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor,endorser,surety,or accommodation party of any of the indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of,or liability under,any guaranty of the indebtedness evidenced by this Note. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is impaired. Insecurity. Lender in good faith believes itself insecure. LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due,and then Borrower will pay that amount. ATTORNEYS' FEES;EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes,subject to any limits under applicable law,Lender's attorneys'fees and Lender's legal expenses,whether or not there is a lawsuit,including without limitation all attorneys'fees and legal expenses for bankruptcy proceedings(including efforts to modify or vacate any automatic stay or injunction),and appeals. If not prohibited by applicable law,Borrower also will pay any court costs,in addition to all other sums provided by law. JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action,proceeding,or counterclaim brought by either Lender or Borrower against the other. GOVERNING LAW. This Note will be governed by federal law applicable to Lender and,to the extent not preempted by federal law,the laws of the State of Iowa without regard to its conflicts of law provisions. This Note has been accepted by Lender in the State of Iowa, EXHIBIT CHOICE OF VENUE. If there is a lawsuit,Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Johnson County, State of Iowa. DISHONORED ITEM FEE, Borrower will pay a fee to Lender of $30.00 if Borrower makes a payment on Borrower's loan and the check or , preauthorized charge with which Borrower pays is later dishonored. RIGHT OF SETOFF. To the extent permitted by applicable law,Lender reserves a right of setoff in all Borrower's accounts with Lender(whether checking,savings,or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However,this does not include any IRA or Keogh accounts,or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender,to the extent permitted by applicable law,to charge or setoff all sums owing on the debt against any and all such accounts,and,at Lender's option,to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff rights PROMISSORY NOTE Loan No:41501103 (Continued) Page 2 provided in this paragraph. COLLATERAL. Borrower acknowledges this Note is secured by A Mortgage dated 11/3/2006 and Recorded with the Johnson County Recorder on 11/26/2006 on Real Property located at 390 Herky Street,Unit#1,North Liberty,IA 52317;A Modification of Mortgage dated 1/22/2010 and recorded with the Johnson County Recorder on 2103/2010 on Real Property located at 390 Herky Street,Unit#1,North Liberty,IA 52317; PRIOR NOTE. Renewal of Promissory Note dated 11-3-2006 in the original amount of$188,000.00 to Casey J.Boyd. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors end assigns,and shall inure to the benefit of Lender and its successors and assigns. NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Borrower may notify Lender if Lender reports any inaccurate information about Borrower's accountls) to a consumer reporting agency. Borrower's written notice describing the specific inaccuracylies)should be sent to Lender at the following address:Liberty Services LLC Atm:Risk Management Services 6400 Westown Parkway West Des Moines,IA 50266. GENERAL PROVISIONS. If any part of this Note cannot be enforced,this fact will not effect the rest of the Note. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs,guarantees or endorses this Note•to the extent allowed by law,waive presentment,demand for payment,end notice of dishonor. Upon any change in the terms of this Note,and unless otherwise expressly stated in writing,no party who signs this Note,whether as maker,guarantor,accommodation maker or endorser,shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time)this loan or release any party or guarantor or collateral;or impair,fail to realize upon or perfect Lender's security interest in the collateral;and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification Is made. The obligations under this Note are joint and several. PRIOR TO SIGNING THIS NOTE.BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT. BOARD LENDER: LIBERTY BAN't X � :0 Scott Moseley VP arket President '4W•.o..........vvnaw.�,,.a........d>.�.�....m.an.. na*...__. .IA ..�w..nne�Am...� PROMISSORY NOTE Principal Loan Date Maturity Loan No Cell I Coll Account Officer I it $56,648.06 10-18-2011 10-18-2013 1054473 24 0000104263-01 5367 References in the boxes above are for Lender's use only and do not limit tho applicability of this document to any particular loan or item. Any item above containing has been omitted due to text length limitations. Borrower: Casey J.Boyd Lender: LIBERTY BANK.F.S.B. 40 Green Mountain Dr Coralvillo Iowa City.IA 52245-3810 119 2nd Street Suite 10D Coralvillo,IA 52241 Principal Amount: 556,648.06 Date of Note: October 18, 2011 PROMISE TO PAY. Casey J.Boyd("Borrower )promises to pay to LIBERTY BANK,F.S.B.('Lender'),or order,in lawful money of the United States of America.the principal amount of Fifty-six Thousand Six Hundred Forty-eight&06/100 Dollars($56.648.06).together with interest on tho unpaid principal balance from October 18, 2011,calculated as described in the'INTEREST CALCULATION METHOD"paragraph using an interest rate of 7.250%per annum based on a year of 360 days,until paid in full. The interest rate may change under the terms and conditions of the'INTEREST AFTER DEFAULT'section. PAYMENT. Borrower will pay this loan In 23 regular payments of$541.08 each and one irregular last payment estimated at$52,200.44. Borrower's first payment is due November 18, 2011. and all subsequent payments are due on the same day of each month after that. Borrower's final payment will be due on October 18.2013,end will be for all principal and all accrued interest not yet paid. Payments include principal and interest. Unless otherwise agreed or required by applicable law,payments will be applied first to any accrued unpaid interest;then to principal:then to any late charges;and then to any unpaid collection costs. Borrower will pay Lender at Lender's address shown above or et such other place as Lender may designate In writing. INTEREST CALCULATION METHOD. Interest on this Note is computed on a 365/360 basis:that is,by applying the ratio of the interest rate over a year of 360 days. multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. All interest payable under this Note is computed using this method. PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges are earned fully as of the date of the loan and will not be subject to refund upon early payment (whether voluntary or as a result of default). except as otherwise required by law. Except for the foregoing,Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not,unless agreed to by Lender In writing, relieve Borrower of Borrower's obligation to continua to make payments under the payment schedule. Rather, early payments will reduce the principal balance due and may result In Borrower's making fewer payments. Borrower agrees not to send Lender payments marked 'paid in full', 'without recourse", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, end Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes 'payment in full'of the amount owed or that Is tendered with other conditions or limitations or es full satisfaction of a disputed amount must be mailed or delivered to: LIBERTY BANK.F.S.B.;Coralvillo;119 2nd Street;Suite 100;Corelville,IA 52241. LATE CHARGE. If a payment Is 10 days or more late, Borrower will be charged 5.000% of the unpaid portion of the regularly scheduled payment. INTEREST AFTER DEFAULT. Upon default, Including failure to pay upon final maturity, the Interest rate on this Note shell be increased to 18.000%per annum based on a year of 360 days. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. DEFAULT. Each o1 the following shall constitute an event of default('Event of Default")under this Note: Payment Default. Borrower fails to make any payment when due under this Note. Other Defaults. Borrower fails to comply with or to perform any other term,obligation,covenant or condition contained In this Note or In any of the related documents or to comply with or to perform any term,obligation,covenant or condition contained in any other agreement between Lander and Borrower. Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit,security agreement, purchase or sales agreement,or any other agreement,in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the related documents. False Statements. Any warranty,representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related documents is false or misleading in any material respect,either now or at the time made or furnished or becomes false or misleading at any time thereafter. Death or Insolvency. The death of Borrower or the dissolution or termination of Borrower's existence as a going business,the insolvency of Borrower, the appointment of a receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout,or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method. by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This Includes a garnishment of any of Borrower's accounts,Including deposit accounts,with Lender. However,this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in Its sole discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor,endorser,surety,or accommodation party of any of the indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of,or liability under,any guaranty of the indebtedness evidenced by this Note. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is impaired. Insecurity. Lender in good faith believes itself insecure. LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal balance under this Note and all accrued unpaid interest immediately due,and then Borrower will pay that amount. ATTORNEYS'FEES;EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This Includes,subject to any limits under applicable law,Lender's attorneys'fees and Lender's legal expenses,whether or not there is a lawsuit,including without limitation all attorneys'fees and legal expenses for bankruptcy proceedings(including efforts to modify or vacate any automatic stay or injunction),and appeals. II not prohibited by applicable law,Borrower also will pay any court costs,in addition to all other sums provided by law. JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action.proceeding.or counterclaim brought by either Lender or Borrower against the other. GOVERNING LAW. This Note will be governed by federal law applicable to Lender and,to the extent not preempted by federal law,the laws of the State of Iowa without regard to its conflicts of law provisions. This Note has been accepted by Lender In the State of Iowa. CHOICE OF VENUE. If there Is a lawsuit,Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Johnson County, ' CyupT State of Iowa. EXH Y 1 DISHONORED ITEM FEE. Borrower will pay a fee to Lender of 030.00 if Borrower makes a payment on Borrower's loan and the check or b preauthorized charge with which Borrower pays is later dishonored. RIGHT OF SETOFF. To the extent permitted by applicable law,Lender reserves a right of setoff in all Borrower's accounts with Lender(whether a checking,savings.or some other account). This includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open in the future. However,this does not include any IRA or Keogh accounts,or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender,to the extent permitted by applicable law,to charge or setoff all sums owing on the indebtedness against any end all such accounts,and,et Lender's option,to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff rights provided in this paragraph. COLLATERAL. Borrower acknowledges this Note is secured by A Mortgage dated 11/3/2006 and Recorded with the Johnson County Recorder PROMISSORY NOTE Loan No: 1054473 (Continued) Page 2 on 11/26/2006 on Real Property located at 390 Herky Street,Unit#1,North Liberty,IA 52317;A Modification of Mortgage dated 1/22/201C and recorded with the Johnson County Recorder on 210312010 on Real Property located at 390 Herky Street,Unit#1,North Liberty,IA 52317; A Mortgage dated 10/18/2011 on Real Property located at 390 Herky Street,Unit#1,North Liberty,IA 52317. PRIOR NOTE. Consolidate Liberty Bank Loan Numbers 1049366 and 1050764 funds used for working capital. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns,and shall inure to the benefit of Lender and its successors and assigns. NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Borrower may notify Lender if Lender reports any inaccurate information about Borrower's account(s) to a consumer reporting agency. Borrower's written notice describing the specific inaccuracy(ies)should be sent to Lender at the following address:Liberty Services LLC Attn:Risk Management Services 6400 Westown Parkway West Des Moines,IA 50266. GENERAL PROVISIONS. If any part of this Note cannot be enforced,this fact will not affect the rest of the Note. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs,guarantees or endorses this Note,to the extent allowed by law,waive presentment,demand for payment,and notice of dishonor. Upon any change in the terms of this Note,and unless otherwise expressly stated in writing,no party who signs this Note, whether as maker,guarantor,accommodation maker or endorser,shall be released from liability. All such parties agree that Lender may renew or extend(repeatedly and for any length of time) this loan or release any party or guarantor or collateral;or impair,fail to realize upon or perfect Lender's security interest in the collateral;and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. PRIOR TO SIGNING THIS NOTE,BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE NOTE. BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT. BORROW 11PM X ilei/./ asey . d LENDER: LIBERTY ' • 1 - ''I1, X �. '•rott ose ey, ',Market President Wbl nq I. .W..1W.10 OU C.I.I.W 1111.1011. 0111•00 rvftll..OK.WU020 K n]1A M 1 ' l� j2% j c ` " '•-" ' I 1111111111111111111111110111111111111111111111111111111111111 Doc ID: 020721110011 7voe: GEN Recorded: 11/29/2006 at 12:59:30 PM • Fee Amt: $57.00 Paae 1 of 11 Johnson County Iowa • Kim Painter County Recorder 8K4106 PG 1 82-1 92 '').5.c-'Re ,1,, P\e4 FOR RECORDER'S USE ONLY Prepared By: Fran Calvert,Commercial Loan Associate, LIBERTY BANK, F.S.B., 119 2nd Street, Coralv ille, IA 52241, (319) 688-6200 RECORDATION REQUESTED BY: LIBERTY BANK, F.S.B.; Coralville; 119 2nd Street; Suite 100; Coralville, IA 52241 WHEN RECORDED MAIL TO: LIBERTY BANK, F.S.B.;Coralville; 119 2nd Street;Suite 100; Coralville, IA 52241 MORTGAGE THIS IS A PURCHASE MONEY MORTGAGE NOTICE: This Mortgage secures credit in the amount of $188,000.00. Loans and advances up to this amount, together with interest, are senior to indebtedness to other creditors under subsequently recorded or filed mortgages and liens. The names of all Grantors (sometimes "Grantor") can be found on page 1 of this Mortgage. The names of all Grantees (sometimes "Lender") can be found on page 1 of this Mortgage. The property address can be found on page 1 of this Mortgage. The legal description can be found on page 1 of this Mortgage. THIS MORTGAGE dated November 3, 2006, is made and executed between Casey J. Boyd, whose address is 40 Green Mountain Dr, Iowa City, IA 52245-3810 and Nicole A. Boyd, whose address is 40 Green Mountain Dr, Iowa City, IA 52245-3810; Husband and Wife (referred to below as "Grantor") and LIBERTY BANK, F.S.B., whose address is 119 2nd Street, Suite 100, Coralville, IA 52241 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys to Lender and grants to Lender a security interest in all of Grantor's right, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, improvements and fixtures; rents and profits; all easements, rights of way, and appurtenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geothermal and similar matters, (the "Real Property") located in Johnson County, State of Iowa: Unit 1E, of Browning Warehouse Condominiums, according to the Declaration of Submission of Property to Horizontal Property Regime pursuant to Chapter 4996 of the Code of Iowa, recorded August 15, 2006, in Book 4070, Page 1, Records of the Recorder of Johnson County, Iowa, together with said unit's undivided interest in the common elements. Said Browning Warehouse Condominiums are located on Lot 8, 1-380 Industrial Park to North Liberty, Johnson County, Iowa, according to the plat thereof recorded in Book 41, Page 200, Plat Records of Johnson County, Iowa. The Real Property or its address is commonly known as 390 Herky St. #1, North Liberty, IA 52317. Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to all present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a EXHIBIT Uniform Commercial Code security interest in the Personal Property and Rents. The lien on the rents granted in this Mortgage shall be effective from the date of the Mortgage and not just in the event of default. C FUTURE ADVANCES. In addition to the Note, this Mortgage secures all future advances made by • MORTGAGE Loan No: 41501103 (Continued) Page 2 Lender to Grantor whether or not the advances are made pursuant to a commitment. Specifically, without limitation, this Mortgage secures, in addition to the amounts specified in the Note, all future amounts Lender in its discretion may loan to Borrower, together with all interest thereon; however, in no event shall such future advances (excluding interest) exceed in the aggregate $235,000.00. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS: GRANTOR'S WAIVERS. Grantor waives all rights or defenses arising by reason of any "one action" or "anti-deficiency" law, or any other law which may prevent Lender from bringing any action against Grantor, including a claim for deficiency to the extent Lender is otherwise entitled to a claim for deficiency, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale. GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) this Mortgage is executed at Borrower's request and not at the request of Lender; (b) Grantor has the full power, right, and authority to enter into this Mortgage and to hypothecate the Property; (c) the provisions of this Mortgage do not conflict with, or result in a default under any agreement or other instrument binding upon Grantor and do not result in a violation of any law, regulation, court decree or order applicable to Grantor; (d) Grantor has established adequate means of obtaining from Borrower on a continuing basis information about Borrower's financial condition;and (e) Lender has made no representation to Grantor about Borrower(including without limitation the creditworthiness of Borrower). PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Borrower shall pay to Lender all Indebtedness secured by this Mortgage as it becomes due, and Borrower and Grantor shall strictly perform all Borrower's and Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grantor's possession and use of the Property shall be governed by the following provisions: None of the collateral for the Indebtedness constitutes, and none of the funds represented by the Indebtedness will be used to purchase: (1) Agricultural products or property used for an agricultural purpose as defined in Iowa Code Section 535.13; (2) Agricultural land as defined in Iowa Code Section 9H1 (2) or 175.2(1);or (3) Property used for an agricultural purpose as defined in Iowa Code Section 570.A.1 (2). Grantor represents and warrants that: (1) There are not now and will not be any wells situated on the Property; (2) There are not now and will not be any solid waste disposal sites on ^' the Property; (3) There are not now and there will not be any hazardous wastes on the Property; (4) There are not now and there will not be any underground storage tanks on the Property. , .J .. Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in (`)''< r- possession and control of the Property; (2) use, operate or manage the Property; and (3) collect - CIti C'3 the Rents from the Property. : Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform r� � t,�,.�J t� all repairs, replacements, and maintenance necessary to preserve its value. Compliance With Environmental Laws. Grantor represents and warrants to Lender that: (1) During �'' I 4'J the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under,about or from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Mortgage. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify, defend, and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly • r .1 MORTGAGE Loan No:41501103 (Continued) Page 3 sustain or suffer resulting from a breach of this section of the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnify and defend, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected by Lender's acquisition of any interest in the Property,whether by foreclosure or otherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage. Compliance with Governmental Requirements. Grantor shall promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to • the use or occupancy of the Property, including without limitation, the Americans With Disabilities Act. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond, reasonably satisfactory to Lender,to protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do all other acts, in addition to those acts set forth above in this section, which from the character . Fti l and use of the Property are reasonably necessary to protect and preserve the Property. DUE ON SALE- CONSENT BY LENDER. Lender may, at Lender's option, declare immediately due and payable all sums secured by this Mortgage upon the sale or transfer, without Lender's prior written ,.)_;+ consent, of all or any part of the Real Property, or any interest in the Real Property. A "sale or r� transfer" means the conveyance of Real Property or any right, title or interest in the Real Property; r-a-°1 whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, a " t installment sale contract, land contract, contract for deed, leasehold interest with a term greater than e three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or - to any land trust holding title to the Real Property, or by any other method of conveyance of an interest in the Real Property. However, this option shall not be exercised by Lender if such exercise is ;L� prohibited by federal law or by Iowa law. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Mortgage: Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special'taxes, assessments, water charges and sewer service charges levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free of any liens having priority over or equal to the interest of Lender under this Mortgage, except for those liens specifically agreed to in writing by Lender, and except for the lien of taxes and assessments not due as further specified in the Right to Contest paragraph. Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15)days after the lien arises or, if a lien is filed, within fifteen (15) days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to deliver to Lender at any time a written statement of the taxes and assessments against the Property. • MORTGAGE Loan No: 41501103 (Continued) Page 4 Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Mortgage: Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with Lender being named as additional insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including but not limited to hazard, business interruption and boiler insurance as Lender may require. Policies shall be written by such insurance companies and in such form as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificates of coverage from each insurer containing a stipulation that coverage will not be cancelled or diminished without a minimum of thirty (30) days' prior written notice to Lender and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance, if available, for the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the National Flood Insurance Program,or as otherwise required by Lender, and to maintain such insurance for the term of the loan. Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Lender may make proof of loss if Grantor fails to do so within fifteen (15) days of the casualty. Whether or not Lender's security is impaired, Lender may, at Lender's election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the Property. If Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or C? replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, �^ upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the col reasonable cost of repair or restoration if Grantor is not in default under this Mortgage. Any y:°g ••-J 4� proceeds which have not been disbursed within 180 days after their receipt and which Lender has not committed to the repair or restoration of the Property shall be used first to pay any amount C.-)_� Lt� owing to Lender under this Mortgage, then to pay accrued interest, and the remainder, if any, shall ,r- be r....be applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment r 3 " r4 in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may -: appear. - LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect ' ' C.) Lender's interest in the Property or if Grantor fails to comply with any provision of this Mortgage or any r`v Related Documents, including but not limited to Grantor's failure to discharge or pay when due any amounts Grantor is required to discharge or pay under this Mortgage or any Related Documents, Lender on Grantor's behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity. The Mortgage also will secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon Default. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Mortgage: Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Property in fee simple, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in any title insurance policy, title report, or final title opinion issued in favor of, and accepted,by, Lender in connection with this Mortgage, (b) Grantor has the full right, power, and authority to execute and deliver this Mortgage to Lender, and (c) the liens granted , 1 MORTGAGE Loan No:41501103 (Continued) Page 5 hereby are not the type of lien referred to in Chapter 575 of the Iowa Code Supplement, as now enacted or hereafter modified, amended or replaced. Grantor, for itself and all persons claiming by, through or under Grantor, agrees that it claims no lien or right to a lien of the type contemplated by Chapter 575 or any other chapter of the Code of Iowa and further waives all notices and rights pursuant to said law with respect to the liens hereby granted, and represents and warrants that it is the sole party entitled to do so and agrees to indemnify,defend, and hold harmless Lender from any loss, damage, and costs, including reasonable attorneys' fees, threatened or suffered by Lender arising either directly or indirectly as a result of any claim of the applicability of said law to the liens hereby granted. Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantor's title or the interest of Lender under this Mortgage, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered,to Lender such instruments as Lender may request from time to time to permit such participation. Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. Survival of Representations and Warranties. All representations, warranties, and agreements made by Grantor in this Mortgage shall survive the execution and delivery of this Mortgage, shall be continuing in nature, and shall remain in full force and effect until such time as Borrower's Indebtedness shall be paid in full. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by Lender from time to time to permit such participation. Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or any portion of the net proceeds of the award be applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Lender in connection ry with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following =;7) c7 provisions relating to governmental taxes,fees and charges are a part of this Mortgage: t 6 .J rim Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents CD—t( I . in addition to this Mortgage and take whatever other action is requested by Lender to perfect andr-z continue Lender's lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this Mortgage, including without limitation all taxes, fees, documentary stamps, and other charges for ' --- recording or registering this Mortgage. Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon '• this type of Mortgage or upon all or any part of the Indebtedness secured by this Mortgage; (2) a specific tax on Borrower which Borrower is authorized or required to deduct from payments on the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the holder of the Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interest made by Borrower. Subsequent Taxes. If any tax to which this section applies is enacted subsequent to the date of this Mortgage, this event shall have the same effect as an Event of Default, and Lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before it becomes delinquent, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time. MORTGAGE Loan No: 41501103 (Continued) Page 6 Security Interest. Upon request by Lender, Grantor shall take whatever action is requested by Lender to perfect and continue Lender's security interest in the Rents and Personal Property. In addition to recording this Mortgage in the real property records, Lender may, at any time and without further authorization from Grantor, file executed counterparts, copies or reproductions of this Mortgage as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by applicable law. Fixture Filing. From the date of its recording, this Mortgage shall be effective as a financing statement filed as a fixture filing with respect to the Personal Property and for this purpose, the name and address of the debtor is the name and address of Grantor as set forth on the first page of this Mortgage and the name and address of the secured party is the name and address of Lender as set forth on the first page of this Mortgage. Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) from which information concerning the security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Mortgage. FURTHER ASSURANCES;ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney-in-fact are a part of this Mortgage: Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made,executed or delivered,to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Borrower's and Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) the liens and security interests created by this Mortgage as first and prior liens on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in this paragraph. ria c:_s Attorney-in-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, -.-- Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, art �... Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-fact for the purpose of making, _: i 'I executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, ca-z: in Lender's sole opinion,to accomplish the matters referred to in the preceding paragraph. I " Cr% FULL PERFORMANCE. If Borrower and Grantor pay all the Indebtedness, including without limitation all future advances, when due, and Grantor otherwise performs all the obligations imposed upon Grantor r; f ` under this Mortgage, Lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage C ") — and suitable statements of termination of any financing statement on file evidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay, if permitted by applicable law, any r reasonable termination fee as determined by Lender from time to time. r') EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constitute an Event of Default under this Mortgage: Payment Default. Borrower fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Mortgage to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Other Defaults. Borrower or Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Mortgage or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower or Grantor. Default in Favor of Third Parties. Should Borrower or any Grantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's or any Grantor's property or Borrower's ability to repay the Indebtedness or Borrower's or Grantor's ability to perform their respective obligations under this Mortgage or any related document. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or Grantor or on Borrower's or Grantor's behalf under this Mortgage or the Related Documents is false or misleading in any material respect, either now or at the time made or MORTGAGE Loan No: 41501103 (Continued) Page 7 furnished or becomes false or misleading at any time thereafter. Defective Collateralization. This Mortgage or any of the Related Documents ceases to be in full force and effect(including failure of any collateral document to create a valid and perfected security interest or lien)at any time and for any reason. Death or Insolvency. The death of Borrower or Grantor, the insolvency of Borrower or Grantor,the appointment of a receiver for any part of Borrower's or Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower or Grantor. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or Grantor or by any governmental agency against any property securing the Indebtedness. This includes a garnishment of any of Borrower's or Grantor's accounts, including • deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower or Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower or Grantor gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the - creditor or forfeiture proceeding, in an amount determined by Lender,in its sole discretion, as being an adequate reserve or bond for the dispute. Breach of Other Agreement. Any breach by Borrower or Grantor under the terms of any other agreement between Borrower or Grantor and Lender that is not remedied'within any grace period provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Borrower or Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of the Indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. In the event of a death, Lender, at its option, may, but shall not be required to, permit the guarantor's estate to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Default. Adverse Change. A material adverse change occurs in Grantor's financial condition, or 'Lender believes the prospect of payment or performance of the Indebtedness is impaired. Insecurity. Lender in good faith believes itself insecure. r,1 AsanT RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time �- thereafter, Lender, at Lender's option, may exercise any one or more of the following rights and -•t remedies, in addition to any other rights or remedies provided by law: C,'. -". I Accelerate Indebtedness. Lender shall have the right at its option to declare the entire Indebtedness immediately due and payable,including any prepayment penalty which Grantor would be required to „ ; pay without notice,except as may be expressly required by applicable law. — .`+1 UCC Remedies. With respect to all or any part of the Personal Property, Lender shall have all the -' : - rights and remedies of a secured party under the Uniform Commercial Code. > Collect Rents. Lender shall have the right, without notice to Borrower or Grantor, to take possession of the Property and collect the Rents,including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the Property. Nonjudicial Foreclosure. Lender may exercise the right to non-judicial foreclosure pursuant to Iowa Code Section 654.18 and Chapter 655A as now enacted or hereafter modified, amended or MORTGAGE Loan No: 41501103 (Continued) Page 8 replaced. Deficiency Judgment. If permitted by applicable law, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided in this section. Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property is sold as provided above or Lender otherwise becomes entitled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of the Property and shall, at Lender's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property immediately upon the demand of Lender. This paragraph is subject to any rights of Grantor, under Iowa law, to remain in possession of the Property during a redemption period. Other Remedies. Lender shall have all other rights and remedies provided in this Mortgage or the Note or available at law or in equity. Sale of the Property. To the extent permitted by applicable law, Borrower and Grantor hereby waive any and all right to have the Property marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of the Property. Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least ten (10) days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction with any sale of the Real Property. Shortened Redemption. Grantor hereby agrees that, in the event of foreclosure of this Mortgage, Lender may, at Lender's sole option, elect to reduce the period of redemption pursuant to Iowa Code Sections 628.26, 628.27, or 628.28, or any other Iowa Code Section, to such time as may be then applicable and provided by law. Election of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Mortgage, after Grantor's failure to perform, shall not affect Lender's right to declare a default and exercise its remedies. Nothing under this Mortgage or otherwise shall be , construed so as to limit or restrict the rights and remedies available to Lender following an Event of Default, or in any way to limit or restrict the rights and ability of Lender to proceed directly against Grantor and/or Borrower and/or against any other co-maker, guarantor, surety or endorser and/or to - proceed against any other collateral directly or indirectly securing the Indebtedness. Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Mortgage, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to : the extent not prohibited by law, all reasonable expenses Lender incurs that in Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, • however subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other sums provided by law. NOTICES. Any notice required to be given under this Mortgage, including without limitation any notice of default and any notice of sale shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sent to Lender's address, as shown near the beginning of this Mortgage. Any party may change its address for notices under this Mortgage by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. MORTGAGE Loan No: 41501103 (Continued) Page 9 MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments. This Mortgage, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Mortgage. No alteration of or amendment to this Mortgage shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Annual Reports. If the Property is used for purposes other than Grantor's residence, Grantor shall furnish to Lender, upon request, a certified statement of net operating income received from the Property during Grantor's previous fiscal year in such form and detail as Lender shall require. "Net operating income" shall mean all cash receipts from the Property less all cash expenditures made in connection with the operation of the Property. Caption Headings. Caption headings in this Mortgage are for convenience purposes only and are not to be used to interpret or define the provisions of this Mortgage. Governing Law. This Mortgage will be governed by federal law applicable to Lender and, to the extent not preempted by federal law,the laws of the State of Iowa without regard to its conflicts of law provisions. This Mortgage has been accepted by Lender in the State of Iowa. Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit to the jurisdiction of the courts of Johnson County, State of Iowa. Joint and Several Liability. All obligations of Borrower and Grantor under this Mortgage shall be joint and several, and all references to Grantor shall mean each and every Grantor, and all • references to Borrower shall mean each and every Borrower. This means that each Grantor signing below is responsible for all obligations in this Mortgage. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Mortgage unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Mortgage shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Mortgage. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of Lender's rights or of any of Grantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Mortgage, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion —R of Lender. • } meseW.' Severability. If a court of competent jurisdiction finds any provision of this Mortgage to be illegal, t;"< ► invalid, or unenforceable as to any person or circumstance, that finding shall not make the _ 1 � offending provision illegal, invalid, or unenforceable as to any other person or circumstance. If _,(1" 3 feasible, the offending provision shall be considered modified so that it becomes legal, valid and -71 73 _.: .- enforceable. If the offending provision cannot be so modified, it shall be considered deleted from ') �+ this Mortgage. Unless otherwise required by law, the illegality, invalidity,or unenforceability of any provision of this Mortgage shall not affect the legality, validity or enforceability of any other Ct-) provision of this Mortgage. Merger. There shall be no merger of the interest or estate created by this Mortgage with any other interest or estate in the Property at any time held by or for the benefit of Lender in any capacity, without the written consent of Lender. Successors and Assigns. Subject to any limitations stated in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Mortgage and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness. Time is of the Essence. Time is of the essence in the performance of this Mortgage. Waive Jury. All parties to this Mortgage hereby waive the right to any jury trial in any action, proceeding,or counterclaim brought by any party against any other party. Release of Rights of Dower, Homestead and Distributive Share. Each of the undersigned hereby relinquishes all rights of dower, homestead and distributive share in and to the Property and waives all rights of exemption as to any of the Property. If a Grantor is not an owner of the Property, that Grantor executes this Mortgage for the sole purpose of relinquishing and waiving such rights. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Mortgage. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall MORTGAGE Loan No: 41501103 (Continued) Page 10 include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Mortgage shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means Casey J. Boyd and includes all co-signers and co-makers signing the Note and all their successors and assigns. Default. The word "Default" means the Default set forth in this Mortgage in the section titled "Default". Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Default" mean any of the events of default set forth in this Mortgage in the events of default section of this Mortgage. Grantor. The word "Grantor" means Casey J. Boyd and Nicole A. Boyd. Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to Lender, including without limitation a guaranty of all or part of the Note. Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, • stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Improvements. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other r-a construction on the Real Property. Indebtedness. The word "Indebtedness" means all principal, interest and late fees, and other {_: r r.t> - amounts, costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced by Lender to discharge Grantor's C)—7. I obligations or expenses incurred by Lender to enforce Grantor's obligations under this Mortgage, together with interest on such amounts as provided in this Mortgage. Specifically, without r. limitation, Indebtedness includes the future advances set forth in the Future Advances provision of this Mortgage,together with all interest thereon. Lender. The word "Lender" means LIBERTY BANK, F.S.B., its successors and assigns. r.� Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender. Note. The word "Note" means the promissory note dated November 3, 2006, in the original principal amount of $188,000.00 from Borrower to Lender, together with ail renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Property. The word "Property" means collectively the Real Property and the Personal Property. Real Property. The words "Real Property" mean the real property, interests and rights, as further described in this Mortgage. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. , 1 MORTGAGE Loan No:41501103 (Continued) Page 11 Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH GRANTOR AGREES TO ITS TERMS. GRANTOR ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS MORTGAGE AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT. GRANTOR: /— r. X 47/7:111I, - /L/I/ ase..Bo . V x 1/1/L alit/ it- a,,,.,(. Nicole A. Boyd INDIVIDUAL ACKNOWLEDGMENT STATE OF _T-0 WA I I SS COUNTY OF J`ONNSON ) On this 3-RD day of NOUti148tJ2. , A.D., 20 04. , before me, a Notary Public in and for said County and State, personally appeared Casey J. Boyd and Nicole A. Boyd, ^.3 Husband and Wife, to me known to be the persons named in and who executed the foregoing —. �J instrument and acknowledged that they executed the same as th voluntaryeed. ,, Notary Public in the State of .1Ou14 )- 1r.''" ,T*'^r FRAN CALVERT _.;.3 c..., Cfl z° Commisslon Number 178628 /`(�,v CAS vt My Com issicn Expires foab joq _.-. a 77 - (-) r ...ai110LA.VA B.32.10 ma .....Asa.e., ...0,»>.20.I All Ala. M.,�.A. .�, K T,..,R., 1111111111111111$1111111M1111111111111111111111111111111 Doc ID: 021740630003 Tvoe: GEN Kind: MORTGAGE MODIFICATION Recorded: 02/03/2010 at 12:55:05 PM Fee Amt: 319.00 Pace 1 of 3 Johnson County Iowa Kim Painter County Recorder BK4554PG486-488 (11LLS FOR RECORDER'S USE ONLY Prepared By: Summer Anderson, Commercial Banking Associate, LUSERTY BANK, F.S.B., 119 2nd Street, Coralville, IA 52241, (319) 688-6200 ADDRESS TAX STATEMENT: Casey J Boyd and Nicole A. Boyd, 40 Green Mountain Dr, Iowa City, IA 52245-3810 RECORDATION REQUESTED BY: LIBERTY BANK,F.S.B.; Coralville; 119 2nd Street; Suite 100; Coralville, IA 52241 WHEN RECORDED MAIL TO: LIBERTY BANK,F.S.B.; Coralville; 119 2nd Street;Suite 100; Coralville, IA 52241 r a MODIFICATION OF MORTGAGE =' - The names of all Grantors (sometimes "Grantor") can be found on page 1 of this Modification. The C")"� 1 names of all Grantees(sometimes "Lender") can be found on page 1 of this Modification. The property address can be found on page 1 of this Modification. The legal description can be found on page 1 of 91 this Modification. The related document or instrument number can be found on page 1 of this Modification. THIS MODIFICATION OF MORTGAGE dated January 22, 2010,is made and executed between Casey J Boyd and Nicole A. Boyd, Husband and Wife; whose address is 40 Green Mountain Dr, Iowa City, IA 52245-3810 (referred to below as "Grantor") and LIBERTY BANK, F.S.B., whose address is 119 2nd Street, Suite 100,Coralville, IA 52241 (referred to below as "Lender"). MORTGAGE. Lender and Grantor have entered into a Mortgage dated November 3, 2006 (the "Mortgage") which has been recorded in Johnson County, State of Iowa, as follows: Mortgage to Casey J Boyd and Nicole A Boyd dated 11/03106, recorded on 11/29/06, Book 4106 Page 182-192 in Johnson County, Iowa. REAL PROPERTY DESCRIPTION. The Mortgage covers the following described real property located in Johnson County, State of Iowa: See the exhibit or other description document which is attached to this Modification and made a part of this Modification as if fully set forth herein. (Page 3) The Real Property or its address is commonly known as 390 Herky Street, #1, North Liberty, IA 52317. MODIFICATION. Lender and Grantor hereby modify the Mortgage as follows: Increase mortgage amount from $188,000.00 to $235,000.00. CONTINUING VALIDITY. Except as expressly modified above, the terms of the original Mortgage shall remain unchanged and in full force and effect and are legally valid, binding, and enforceable in accordance with their respective terms. Consent by Lender to this Modification does not waive Lender's right to require strict performance of the Mortgage as changed above nor obligate Lender to make any future modifications. Nothing in this Modification shall constitute a satisfaction of the promissory note or other credit agreement secured by the Mortgage (the "Note"). It is the intention of Lender to retain as liable all parties to the Mortgage and all parties, makers and endorsers to the Note, including accommodation parties, unless a party is expressly released by Lender in writing. Any maker or endorser, including accommodation makers, shall not be released by virtue of this Modification. If EXHIBIT any person who signed the original Mortgage does not sign this Modification, then all persons signing below acknowledge that this Modification is given conditionally, based on the representation to Lender that the non-signing person consents to the changes and provisions of this Modification or otherwise 5 D will not be released by it. This waiver applies not only to any initial extension or modification, but also I MODIFICATION OF MORTGAGE (Continued) Page 2 to all such subsequent actions. GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MODIFICATION OF MORTGAGE AND GRANTOR AGREES TO ITS TERMS. THIS MODIFICATION OF MORTGAGE IS DATED JANUARY 22, 2010. GRANTOR ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS MODIFICATION OF MORTGAGE AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT. GRANT X / ,.0� V Case • Boyd / X " `.e 0(71/ Nicole A. Boyd LENDER: LIBERTY BANK, F.S.B. Jeff Jarrett,VP, Commercial Banking INDIVIDUAL ACKNOWLEDGMENT STATE OF _ue ) ) SSr-.a COUNTY OF ,/ Sc,. .— ) P, , HT1 On this Z/ day of ✓L;j(i("veyy A.D., 20 %G before me, a Notary `l�,:I Public in and for said County and State, p6rsonally appeared Casey J Boyd and Nicole A. Boyd, % Husband and Wife, to me known to be the persons named in and who executed the foregoing '•~' instrument and acknowledged that they executed the same as_t ieeir voluntary act and deed. y<-;-j Ill ``(! la ;7'''s ' I _ ___ Notary Pub' the State of la,elt,t J'FFFRE'i'JARREIT a t_`'; (CommissionNumter1940i31• �' ; • -^:a Sommssion Exp'res ow .. ._./-/(-lof-- u • MODIFICATION OF MORTGAGE (Continued) Page 3 LENDER ACKNOWLEDGMENT STATE OF SS COUNTY OF On this day of , A.D., 20 , before me, the undersigned Notary Public in said County and State, personally appeared Jeff Jarrett and known to me to be the VP, Commercial Banking, authorized agent for LIBERTY BANK, F.S.B. that executed the within and foregoing instrument and acknowledged said instrument to be the free and voluntary act and deed of LIBERTY BANK, F.S.B., duly authorized by LIBERTY BANK, F.S.B. through its board of directors or otherwise, for the uses and purposes therein mentioned, and on oath stated that he or she is authorized to execute this said instrument and in fact executed this said instrument on behalf of LIBERTY BANK,F.S.B.. By Residing at Notary Public in and for the State of My commission expires LASER PRO Lending, Ver. 5.48.10.001 Copr. Harland Financial Solutions, Inc. 1997, 2010. All Rights Reserved. - IA M:\LASERPRO\CFI\LPL\G201.FC TR-22944 PR-1 • Unit 1E, of Browning Warehouse Condominiums, according to the Declaration of Submission of Property to Horizontal Property Regime pursuant to Chapter 499B of the Code of Iowa, recorded August 15, 2006. in Book 4070, Page 1, Records of the Recorder of Johnson County, Iowa, together with said unit's undivided interest in the common elements. Said Browning Warehouse Condominiums are located on Lot 8, I-380 Industrial Park to North Liberty, Johnson County, Iowa, according to the plat thereof recorded in Book 41. Page 200, Plat Records of Johnson County, Iowa. Thu Real Property or its address is commonly known as 390 Herky St. #1, North Liberty, IA 52317. 111111111111111111111111111111111111111111111111111 III III Doc ID: 022338240012 Type: GEN Kind: MORTGAGE Recorded: 10/28/2011 at 10:36:49 Art Fee Amt: $62.00 Paae 1 of 12 Johnson County Iowa Kim Painter County Recorder BK4822 PG713-724 EXHIBIT .34/oo a E FOR RECORDER'S USE ONLY Prepared By: Morgan Stogdill, Commercial Loan Associate, LIBERTY BANK, F.S.B., 119 2nd Street, Suite '100, Coralville, IA 52241, (319)688-6200 ADDRESS TAX STATEMENT: Casey J. Boyd and Nicole A. Boyd,40 Green Mountain Dr, Iowa City, IA 52245-3810 RECORDATION REQUESTED BY: LIBERTY BANK, F.S.B.; Coralville; 119 2nd Street; Suite 100; Coralville, IA 52241 WHEN RECORDED MAIL TO: Liberty Services LLC, Attn: Loan Operations, 6400 Westown Pkwy, West Des Moines, IA 50266 MORTGAGE NOTICE: This Mortgage secures credit in the amount of $57,000.00. Loans and advances up to this amount, together with interest, are senior to indebtedness to other creditors under subsequently recorded or filed mortgages and liens. The names of all Grantors (sometimes "Grantor") can be found on page 1 of this Mortgage. The names of all Grantees (sometimes "Lender") can be found on page 1 of this Mortgage. The property address can be found on page 1 of this Mortgage. The legal description can be found on page 1 of this Mortgage. The parcel identification number can be found on page 1 of this Mortgage. THIS MORTGAGE dated October 18, 2011, is made and executed between Casey J. Boyd, whose address is 40 Green Mountain Dr, Iowa City, IA 52245-3810 and Nicole A. Boyd,whose address is 40 Green Mountain Dr, Iowa City, IA 52245-3810; Husband and Wife (referred to below as "Grantor") and LIBERTY BANK, F.S.B., whose address is 119 2nd Street, Suite 100, Coralville, IA 52241 (referred to below as "Lender"). GRANT OF MORTGAGE. For valuable consideration, Grantor mortgages and conveys to Lender and grants to Lender a security interest in all of Grantor's right, title, and interest in and to the following described real property, together with all existing or subsequently erected or affixed buildings, • improvements and fixtures; rents and profits; all easements, rights of way, and appurtenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditch or irrigation rights); and all other rights, royalties, and profits relating to the real property, including without limitation all minerals, oil, gas, geotherma: and similar matters, (the "Real Property")located in Johnson County, State of Iowa: Unit 1E of Browning Warehouse Condominiums, according to the Declaration of Submission of Property to Horizontal Property Regime pursuant to Chapter 4998 of the Code of Iowa, recorded August 15, 2006• in Book 4070, Page 1, Records of the Recorder of Johnson County, Iowa, together with said unit's undivided interest in the common elements.Said Browning Warehouse Condominiums are located on Lot 8, !-380 Industrial Park to North Liberty, Johnson County, Iowa, according to the plat thereof recorded in Book 41, Page 200, Plat Records of Johnson County, Iowa The Real Property or its address is commonly known as 390 Herky Street, Unit 41, North Liberty, IA 52317. The Real Property parcel identification number is 0610306001. Grantor presently assigns to Lender all of Grantor's right, title, and interest in and to all present and future leases of the Property and all Rents from the Property. In addition, Grantor grants to Lender a Uniform Commercial Code security interest in the Personal Property and Rents. The lien on the rents granted in this Mortgage shall be effective from the date of the Mortgage and not just in the event of default. MORTGAGE (Continued) Page 2 FUTURE ADVANCES. In addition to the Note, this Mortgage secures all future advances made by Lender to Borrower whether or not the advances are made pursuant to a commitment. Specifically, without limitation, this Mortgage secures, in addition to the amounts specified in the Note, all future amounts Lender in its discretion may loan to Borrower, together with all interest thereon; however, in no event shall such future advances (excluding interest) exceed in the aggregate S57,000.00. THIS MORTGAGE, INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY, IS GIVEN TO SECURE (A) PAYMENT OF THE INDEBTEDNESS AND (B) PERFORMANCE OF ANY AND ALL OBLIGATIONS UNDER THE NOTE, THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOLLOWING TERMS. GRANTOR'S WAIVERS. Grantor waives all rights or defenses arising by reason of any "one action" or "anti-deficiency" law, or any other law which may prevent Lender from bringing any action against Grantor, including a claim for deficiency to the extent Lender is otherwise entitled to a claim for deficiency, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale. GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (a) this Mortgage is executed at Borrower's request and not at the request of Lender; (b) Grantor has the full power, right, and authority to enter into this Mortgage and to hypothecate the Property; (c) the provisions of this Mortgage do not conflict with, or result in a default under any agreement or other instrument binding upon Grantor and do not result in a violation of any law, regulation, court decree or order applicable to Grantor; (d) Grantor has established adequate means of obtaining from Borrower on a continuing basis information about Borrower's financial condition; and (e) Lender has made no representation to Grantor about Borrower(including without limitation the creditworthiness of Borrower). PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Borrower shall pay to Lender all Indebtedness secured by this Mortgage as it becomes due, and Borrower and Grantor shall strictly perform all Borrower's and Grantor's obligations under this Mortgage. POSSESSION AND MAINTENANCE OF THE PROPERTY. Borrower and Grantor agree that Borrower's and Grantor's possession and use of the Property shall be governed by the following provisions: None of the collateral for the Indebtedness constitutes, and none of the funds represented by the Indebtedness will be used to purchase: (1) Agricultural products or property used for an agricultural purpose as defined in Iowa Code Section 535.13; (2) Agricultural land as defined in Iowa Code Section 9H1 (2) or 175.2 (1); or (3) Property used for an agricultural purpose as defined in Iowa Code Section 570.A.1 (2). Grantor represents and warrants that: (1) There are not now and will not be any wells situated on the Property; (2) There are not now and will not be any solid waste disposal sites on the Property; (3) There are not now and there will not be any hazardous wastes on the Property; (4) There are not now and there will not be any underground storage tanks on the Property. • Possession and Use. Until the occurrence of an Event of Default, Grantor may (1) remain in • possession and control of the Property; (2) use, operate or manage the Property; and (3) collect the Rents from the Property. • Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and maintenance necessary to preserve its value. Compliance With Environmental Laws. Grantor represents and warrants to Lender that: (1) During the period of Grantor's ownership of the Property, there has been no use, generation, manufacture, • storage, treatment, disposal, release or threatened release of any Hazardous Substance by any person on, under, about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has been, except as previously disclosed to and acknowledged by Lender in writing, (a) any breach or violation of any Environmental Laws, (b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under, about or from the Property by any prior owners or occupants of the Property, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters; and (3) Except as previously disclosed to and acknowledged by Lender in writing, (a) neither Grantor nor any tenant, contractor, agent or other authorized user of the Property shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance with all applicable federal, state, and local laws, regulations and ordinances, including without limitation all Environmental Laws. Grantor authorizes Lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem appropriate to determine compliance of the Property with this section of the Mortgage. Any inspections or tests made by Lender shall be for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other person. The representations and warranties contained herein are based on Grantor's due diligence in investigating the Property for Hazardous Substances. Grantor hereby (1) releases and waives any future claims against Lender for indemnity or contribution in the event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees to indemnify, defend, and hold harmless Lender against any and all MORTGAGE (Continued) Page 3 claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Mortgage or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release occurring prior to Grantor's ownership or interest in the Property, whether or not the same was or should have been known to Grantor. The provisions of this section of the Mortgage, including the obligation to indemnify and defend, shall survive the payment of the Indebtedness and the satisfaction and reconveyance of the lien of this Mortgage and shall not be affected by Lender's acquisition of any interest in the Property, whether by foreclosure or otherwise. Nuisance, Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to the Property or any portion of the Property. Without limiting the generality of the foregoing, Grantor will not remove, or grant to any other party the right to remove, any timber, minerals (including oil and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior written consent. Removal of Improvements. Grantor shall not demolish or remove any Improvements from the Real Property without Lender's prior written consent. As a condition to the removal of any Improvements, Lender may require Grantor to make arrangements satisfactory to Lender to replace such Improvements with Improvements of at least equal value. Lender's Right to Enter. Lender and Lender's agents and representatives may enter upon the Real Property at all reasonable times to attend to Lender's interests and to inspect the Real Property for purposes of Grantor's compliance with the terms and conditions of this Mortgage. Compliance with Governmental Requirements. Grantor shall ,promptly comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the use or occupancy of the Property, including without limitation, the Americans With Disabilities Act. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, in Lender's sole opinion, Lender's interests in the Property are not jeopardized. Lender may require Grantor to post adequate security or a surety bond,reasonably satisfactory to Lender,to protect Lender's interest. Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do all other acts, in addition to those acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the Property. DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, declare immediately due and payable all sums secured by this Mortgage upon the sale or transfer, without Lender's prior written consent, of all or any part of the Real Property, or any interest in the Real Property. A "sale or transfer" means the conveyance of Real Property or any right, title or interest in the Real Property; whether legal, beneficial or equitable; whether voluntary or involuntary; whether by outright sale, deed, installment sale contract, land contract, contract for deed, leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in or to any land trust holding title to the Real Property,or by any other method of conveyance of an interest in the Real Property. However, this option shall not be exercised by Lender if such exercise is prohibited by federal law or by Iowa law. TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Mortgage: Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against or on account of the Property, and shall pay when due all claims for work done on or for services rendered or material furnished to the Property. Grantor shall maintain the Property free of any liens having priority over or equal to the interest of Lender under this Mortgage, except for the Existing Indebtedness referred to in this Mortgage or those liens specifically agreed to in writing by Lender, and except for the lien of taxes and assessments not due as further specified in the Right to Contest paragraph. Right to Contest. Grantor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment, Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15)days after Grantor has notice of the filing, secure the discharge of the lien, or if requested by Lender, deposit with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender in an amount sufficient to discharge the lien plus any costs and attorneys' fees, or other charges that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy any adverse judgment before enforcement against the Property. Grantor shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall authorize the appropriate governmental official to MORTGAGE (Continued) Page 4 deliver to Lender at any time a written statement of the taxes and assessments against the Property. Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is commenced, any services are furnished, or any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the work, services, or materials. Grantor will upon request of Lender furnish to Lender advance assurances satisfactory to Lender that Grantor can and will pay the cost of such improvements. PROPERTY DAMAGE INSURANCE. The following provisions relating to insuring the Property are a part of this Mortgage! Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on a replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Grantor shall also procure and maintain comprehensive general liability insurance in such coverage amounts as Lender may request with Lender being named as additional insureds in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including but not limited to hazard, business interruption and boiler insurance as Lender may require. Policies shall be written by such insurance companies and in such form as may be reasonably acceptable to Lender. Grantor shall deliver to Lender certificates of coverage from each insurer containing a stipulation that coverage will not be cancelled or diminished without a minimum of thirty (30) days' prior written notice to Lender and not containing any disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Grantor agrees to obtain and maintain Federal Flood Insurance, if available, for the full unpaid principal balance of the loan and any prior liens on the property securing the loan, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain such insurance for the term of the loan. Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Lender may make proof of loss if Grantor fails to do so within fifteen (15) days of the casualty. Whether or not Lender's security is impaired, Lender may, at Lender's election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the • Indebtedness, payment of any lien affecting the Property, or the restoration and repair of the • Property. If Lender elects to apply the proceeds to restoration and repair, Grantor shall repair or •• replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of such expenditure, pay or reimburse Grantor from the proceeds for the • reasonable cost of repair or restoration if Grantor is not in default under this Mortgage. Any • proceeds which have not been disbursed within 180 days after their receipt and which Lender has • not committed to the repair or restoration of the Property shall be used first to pay any amount owing to Lender under this Mortgage, then to pay accrued interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds after payment in full of the Indebtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear. Compliance with Existing Indebtedness. During the period in which any Existing Indebtedness described below is in effect, compliance with the insurance provisions contained in the instrument evidencing such Existing Indebtedness shall constitute compliance with the insurance provisions under this Mortgage, to the extent compliance with the terms of this Mortgage would constitute a duplication of insurance requirement. If any proceeds from the insurance become payable on loss, the provisions in this Mortgage for division of proceeds shall apply only to that portion of the proceeds not payable to the holder of the Existing Indebtedness. LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender's interest in the Property or if Grantor fails to comply with any provision of this Mortgage or any Related Documents, including but not limited to Grantor's failure to comply with any obligation to maintain Existing Indebtedness in good standing as required below, or to discharge or pay when due any amounts Grantor is required to discharge or pay under this Mortgage or any Related Documents, Lender on Grantor's behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Property and paying all costs for insuring, maintaining and preserving the Property. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be payable on demand; (8) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; MORTGAGE (Continued) Page 5 or (C) be treated as a balloon payment which will be due and payable at the Note's maturity. The Mortgage also will secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon Default. WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Mortgage: Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Property in fee simple, free and clear of all liens and encumbrances other than those set forth in the Real Property description or in the Existing Indebtedness section below or in any title insurance policy, title report, or final title opinion issued in favor of, and accepted by, Lender in connection with this Mortgage, (b) Grantor has the full right, power, and authority to execute and deliver this Mortgage to Lender, and (c) the liens granted hereby are not the type of lien referred to in Chapter 575 of the Iowa Code Supplement, as now enacted or hereafter modified, amended or replaced. Grantor, for itself and all persons claiming by, through or under Grantor, agrees that it claims no lien or right to a lien of the type contemplated by Chapter 575 or any other chapter of the Code of Iowa and further waives all notices and rights pursuant to said law with respect to the liens hereby granted, and represents and warrants that it is the sole party entitled to do so and agrees to indemnify, defend, and hold harmless Lender from any loss, damage, and costs, including reasonable attorneys' fees, threatened or suffered by Lender arising either directly or indirectly as a result of any claim of the applicability of said law to the liens hereby granted. Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against the lawful claims of all persons. In the event any action or proceeding is commenced that questions Grantor's title or the interest of Lender under this Mortgage, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of Lender's own choice, and Grantor will deliver, or cause to be delivered,to Lender such instruments as Lender may request from time to time to permit such participation. Compliance With Laws. Grantor warrants that the Property and Grantor's use of the Property complies with all existing applicable laws, ordinances, and regulations of governmental authorities. Survival of Representations and Warranties. All representations, warranties, and agreements made by Grantor in this Mortgage shall survive the execution and delivery of this Mortgage, shall be C•7 _ continuing in nature, and shall remain in full force and effect until such time as Borrower's Indebtedness shall be paid in full. Lr - ('. EXISTING INDEBTEDNESS. The following provisions concerning Existing Indebtedness are a part of n e t w t-n ". this Mortgage: t:...)i_ Existing Lien. The lien of this Mortgage securing the Indebtedness may be secondary and inferior �_Ire. I �- to an existing lien. Grantor expressly covenants and agrees to pay, or see to the payment of, the Existing Indebtedness and to prevent any default on such indebtedness, any default under the E n t- ' instruments evidencing such indebtedness, or any default under any security documents for such i.... U) r•-.1indebtedness. r No Modification. Grantor shall not enter into any agreement with the holder of any mortgage, deed CV of trust, or other security agreement which has priority over this Mortgage by which that agreement is modified, amended, extended, or renewed without the prior written consent of Lender. Grantor shall neither request nor accept any future advances under any such security agreement without the prior written consent of Lender. CONDEMNATION. The following provisions relating to condemnation proceedings are a part of this Mortgage: Proceedings. If any proceeding in condemnation is filed, Grantor shall promptly notify Lender in writing, and Grantor shall promptly take such steps as may be necessary to defend the action and obtain the award. Grantor may be the nominal party in such proceeding, but Lender shall be entitled to participate in the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor will deliver or cause to be delivered to Lender such instruments and documentation as may be requested by Lender from time to time to permit such participation. Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or purchase in lieu of condemnation, Lender may at its election require that all or any portion of the net proceeds of the award be applied to the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all reasonable costs, expenses, and attorneys' fees incurred by Lender in connection with the condemnation. IMPOSITION OF TAXES, FEES AND CHARGES BY GOVERNMENTAL AUTHORITIES. The following provisions relating to governmental taxes, fees and charges are a part of this Mortgage: MORTGAGE (Continued) Page 6 Current Taxes, Fees and Charges. Upon request by Lender, Grantor shall execute such documents in addition to this Mortgage and take whatever other action is requested by Lender to perfect and continue Lender's lien on the Real Property. Grantor shall reimburse Lender for all taxes, as described below, together with all expenses incurred in recording, perfecting or continuing this Mortgage, including without limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgage. Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Mortgage or upon all or any part of the Indebtedness secured by this Mortgage; (2) a specific tax on Borrower which Borrower is authorized or required to deduct from payments on the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable against the Lender or the holder of the Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interest made by Borrower. Subsequent Taxes- If any tax to which this section applies is enacted subsequent to the date of this Mortgage, this event shall have the same effect as an Event of Default, and Lender may exercise any or all of its available remedies for an Event of Default as provided below unless Grantor either (1) pays the tax before it becomes delinquent, or (2) contests the tax as provided above in the Taxes and Liens section and deposits with Lender cash or a sufficient corporate surety bond or other security satisfactory to Lender. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a part of this Mortgage: Security Agreement- This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and Lender shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time. Security Interest. Upon request by Lender, Grantor shall take whatever action is requested by Lender to perfect and continue Lender's security interest in the Rents and Personal Property. In addition to recording this Mortgage in the real property records, Lender may, at any time and without further authorization from Grantor, file executed counterparts, copies or reproductions of this Mortgage as a financing statement. Grantor shall reimburse Lender for all expenses incurred in perfecting or continuing this security interest. Upon default, Grantor shall not remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property not affixed to the Property in a manner and at a place reasonably convenient to Grantor and Lender and make it available to Lender within three (3) days after receipt of written demand from Lender to the extent permitted by applicable law. Fixture Filing. From the date of its recording, this Mortgage shall be effective as a financing statement filed as a fixture filing with respect to the Personal Property and for this purpose, the name and address of the debtor is the name and address of Grantor as set forth on the first page of this Mortgage and the name and address of the secured party is the name and address of Lender as set forth on the first page of this Mortgage. Addresses. The mailing addresses of Grantor (debtor) and Lender (secured party) from which information concerning the security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Code) are as stated on the first page of this Mortgage. FURTHER ASSURANCES;ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney-in-fact are a part of this Mortgage: Further Assurances. At any time, and from time to time, upon request of Lender, Grantor will make, execute and deliver, or will cause to be made, executed or delivered, to Lender or to Lender's designee, and when requested by Lender, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Lender may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Lender, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (1) Borrower's and Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) the liens and security interests created by this Mortgage as first and prior liens on the Property, whether now owned or hereafter acquired by Grantor. Unless prohibited by law or Lender agrees to the contrary in writing, Grantor shall reimburse Lender for all costs and expenses incurred in connection with the matters referred to in this paragraph. Attorney-in-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, Lender may do so for and in the name of Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints Lender as Grantor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Lender's sole opinion, to accomplish the matters referred to in the preceding paragraph. FULL PERFORMANCE. If Borrower and Grantor pay all the Indebtedness,including without limitation all MORTGAGE (Continued) Page 7 future advances, when due, and Grantor otherwise performs all the obligations imposed upon Grantor under this Mortgage, Lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of termination of any financing statement on file evidencing Lender's security interest in the Rents and the Personal Property. Grantor will pay, if permitted by applicable law, any reasonable termination fee as determined by Lender from time to time. EVENTS OF DEFAULT. Each of the following, at Lender's option, shall constitute an Event of Default under this Mortgage: Payment Default. Borrower fails to make any payment when due under the Indebtedness. Default on Other Payments. Failure of Grantor within the time required by this Mortgage to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. Other Defaults. Borrower or Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Mortgage or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower or Grantor. Default in Favor of Third Parties. Should Borrower or any Grantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's or any Grantor's property or Borrower's ability to repay the Indebtedness or Borrower's or Grantor's ability to perform their respective obligations under this Mortgage or any of the Related Documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or Grantor or on Borrower's or Grantor's behalf under this Mortgage or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Defective Collateralization. This Mortgage or any of the Related Documents ceases to be in full force and effect(including failure of any collateral document to create a valid and perfected security interest or lien)at any time and for any reason. • Death or Insolvency. The death of Borrower or Grantor, the insolvency of Borrower or Grantor,the appointment of a receiver for any part of Borrower's or Grantor's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under • any bankruptcy or insolvency laws by or against Borrower or Grantor. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, • whether by judicial proceeding, self-help, repossession or any other method, by any creditor of - Borrower or Grantor or by any governmental agency against any property securing the Indebtedness. This includes a garnishment of any of Borrower's or Grantor's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower or Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower or Grantor gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Existing Indebtedness. The payment of any installment of principal or any interest on the Existing Indebtedness is not made within the time required by the promissory note evidencing such indebtedness, or a default occurs under the instrument securing such indebtedness and is not cured during any applicable grace period in such instrument, or any suit or other action is commenced to foreclose any existing lien on the Property. Breach of Other Agreement. Any breach by Borrower or Grantor under the terms of any other agreement between Borrower or Grantor and Lender that is not remedied within any grace period provided therein, including without limitation any agreement concerning any indebtedness or other obligation of Borrower or Grantor to Lender, whether existing now or later. Events Affecting Guarantor. Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of the Indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness. Adverse Change. A material adverse change occurs in Grantor's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. Insecurity. Lender in good faith believes itself insecure. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default and at any time thereafter, Lender, at Lender's option, may exercise any one or more of the following rights and remedies, in addition to any other rights or remedies provided by law: MORTGAGE. (Continued) Page 8 Accelerate Indebtedness. Lender shall have the right at its option, after giving all required notices of default and after passage of any grace period, to declare the entire Indebtedness immediately due and payable, including any prepayment penalty that Borrower would be required to pay without notice, except as may be expressly required by applicable law. UCC Remedies. With respect to all or any part of the Personal Property, Lender shall have all the rights and remedies of a secured party under the Uniform Commercial Code. Collect Rents. Lender shall have the right, without notice to Borrower or Grantor, to take possession of the Property and collect the Rents, including amounts past due and unpaid, and apply the net proceeds, over and above Lender's costs, against the Indebtedness. In furtherance of this right, Lender may require any tenant or other user of the Property to make payments of rent or use fees directly to Lender. If the Rents are collected by Lender, then Grantor irrevocably designates Lender as Grantor's attorney-in-fact to endorse instruments received in payment thereof in the name of Grantor and to negotiate the same and collect the proceeds. Payments by tenants or other users to Lender in response to Lender's demand shall satisfy the obligations for which the payments are made, whether or not any proper grounds for the demand existed. Lender may exercise its rights under this subparagraph either in person, by agent, or through a receiver. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Property, with the power to protect and preserve the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the apparent value of the Property exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Judicial Foreclosure. Lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the Property. Nonjudicial Foreclosure. Lender may exercise the right to non-judicial foreclosure pursuant to Iowa Code Section 654.18 and Chapter 655A as now enacted or hereafter modified, amended or replaced. Deficiency Judgment. If permitted by applicable law, Lender may obtain a judgment for any deficiency remaining in the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided in this section. Tenancy at Sufferance. If Grantor remains in possession of the Property after the Property is sold • as provided above or Lender otherwise becomes entitled to possession of the Property upon default • -- ' of Borrower or Grantor, Grantor shall become a tenant at sufferance of Lender or the purchaser of • the Property and shall, at Lender's option, either (1) pay a reasonable rental for the use of the Property, or (2) vacate the Property immediately upon the demand of Lender. This paragraph is subject to any rights of Grantor, under Iowa law, to remain in possession of the Property during a redemption period. Other Remedies. Lender shall have all other rights and remedies provided in this Mortgage or the Note or available at law or in equity. Sale of the Property. To the extent permitted by applicable law, Borrower and Grantor hereby waive any and all right to have the Property marshalled. In exercising its rights and remedies, Lender shall be free to sell all or any part of the Property together or separately, in one sale or by separate sales. Lender shall be entitled to bid at any public sale on all or any portion of the Property. Notice of Sale. Lender shall give Grantor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any private sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least ten (10) days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction with any sale of the Real Property. Shortened Redemption. Grantor hereby agrees that, in the event of foreclosure of this Mortgage, Lender may, at Lender's sole option, elect to reduce the period of redemption pursuant to Iowa Code Sections 628.26, 628.27, or 628.28, or any other Iowa Code Section, to such time as may be then applicable and provided by law. Election of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Mortgage, after Grantor's failure to perform, shall not affect Lender's right to declare a default and exercise its remedies. Nothing under this Mortgage or otherwise shall be construed so as to limit or restrict the rights and remedies available to Lender following an Event of Default, or in any way to limit or restrict the rights and ability of Lender to proceed directly against Grantor and/or Borrower and/or against any other co-maker, guarantor, surety or endorser and/or to proceed against any other collateral directly or indirectly securing the Indebtedness. MORTGAGE (Continued) Page 9 Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Mortgage, Lender shall be entitled to recover such sum as the court may adjudge reasonable as attorneys' fees at trial and upon any appeal. Whether or not any court action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in Lender's opinion are necessary at any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without limitation, however subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees and expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services, the cost of searching records, obtaining title reports (including foreclosure reports), surveyors' reports, and appraisal fees and title insurance, to the extent permitted by applicable law. Grantor also will pay any court costs, in addition to all other sums provided by law. NOTICES. Any notice required to be given under this Mortgage, including without limitation any notice of default and any notice of sale shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage. All copies of notices of foreclosure from the holder of any lien which has priority over this Mortgage shall be sent to Lender's address, as shown near the beginning of this Mortgage. Any party may change its address for notices under this Mortgage by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Grantor agrees to keep Lender informed at all times of Grantor's current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Mortgage: Amendments. This Mortgage, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Mortgage. No alteration of or amendment to this Mortgage shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Annual Reports. If the Property is used for purposes other than Grantor's residence, Grantor shall furnish to Lender, upon request, a certified statement of net operating income received from the Property during Grantor's previous fiscal year in such form and detail as Lender shall require. "Net • operating income" shall mean all cash receipts from the Property less all cash expenditures made in - connection with the operation of the Property. • _lam Caption Headings. Caption headings in this Mortgage are for convenience purposes only and are IP U)_ not to be used to interpret or define the provisions of this Mortgage. Governing Law. This Mortgage will be governed by federal law applicable to Lender and, to the • G' extent not preempted by federal law, the laws of the State of Iowa without regard to its conflicts of W -: i•a... law provisions. This Mortgage has been accepted by Lender in the State of Iowa. N Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's request to submit to the cr jurisdiction of the courts of Johnson County, State of Iowa. Joint and Several Liability. All obligations of Borrower and Grantor under this Mortgage shall be joint and several, and all references to Grantor shall mean each and every Grantor, and all references to Borrower shall mean each and every Borrower. This means that each Grantor signing below is responsible for all obligations in this Mortgage. No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Mortgage unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Mortgage shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Mortgage. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of Lender's rights or of any of Grantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Mortgage, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. Severability. If a court of competent jurisdiction finds any provision of this Mortgage to be illegal, invalid, or unenforceable as to any person or circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other person or circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from MORTGAGE (Continued) Page 10 this Mortgage. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Mortgage shall not affect the legality, validity or enforceability of any other provision of this Mortgage. Merger. There shall be no merger of the interest or estate created by this Mortgage with any other interest or estate in the Property at any time held by or for the benefit of Lender in any capacity, without the written consent of Lender. Successors and Assigns. Subject to any limitations stated in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Mortgage and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness. Time is of the Essence. Time is of the essence in the performance of this Mortgage. Waive Jury. All parties to this Mortgage hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by any party against any other party. Release of Rights of Dower, Homestead and Distributive Share. Each of the undersigned hereby relinquishes all rights of dower, homestead and distributive share in and to the Property and waives all rights of exemption as to any of the Property. If a Grantor is not an owner of the Property, that Grantor executes this Mortgage for the sole purpose of relinquishing and waiving such rights. DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Mortgage. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Mortgage shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means Casey J. Boyd and includes all co-signers and co-makers signing the Note and all their successors and assigns. Default. The word "Default" means the Default set forth in this Mortgage in the section titled "Default". Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and LJ Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous I )—(--) Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and ....�� Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto. Event of Default. The words "Event of Default" mean any of the events of default set forth in this Mortgage in the events of default section of this Mortgage. Existing Indebtedness. The words "Existing Indebtedness" mean the indebtedness described in the Existing Liens provision of this Mortgage. Grantor. The word "Grantor" means Casey J. Boyd and Nicole A. Boyd. Guaranty. The word "Guaranty" means the guaranty from guarantor, endorser, surety, or accommodation party to Lender, including without limitation a guaranty of all or part of the Note. Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos. Improvements. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements and other construction on the Real Property. Indebtedness. The word "Indebtedness" means all principal, interest and late fees, and other amounts, costs and expenses payable under the Note or Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or Related Documents and any amounts expended or advanced by Lender to discharge Grantor's obligations or expenses incurred by Lender to enforce Grantor's obligations under this Mortgage, MORTGAGE (Continued) Page 11 together with interest on such amounts as provided in this Mortgage. Specifically, without limitation, Indebtedness includes the future advances set forth in the Future Advances provision of this Mortgage, together with all interest thereon. Lender. The word "Lender" means LIBERTY BANK, F.S.B., its successors and assigns. Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender. Note. The word "Note" means the promissory note dated October 18, 2011, in the original principal amount of$56,648.06 from Borrower to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for, any of such property; and together with all proceeds (including without limitation all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Property. The word "Property" means collectively the Real Property and the Personal Property. Real Property. The words "Real Property" mean the real property, interests and rights, as further described in this Mortgage. Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from the Property. EACH GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH GRANTOR AGREES TO ITS TERMS. GRANTOR ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS MORTGAGE AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT. GRANTOR X f f���. asey,f. :oyd / • Nicole A. Boyd J • % MORTGAGE (Continued) Page 12 INDIVIDUAL ACKNOWLEDGMENT STATE OF l-a...i _ 1 SS COUNTY OF ).-445..)-1 ) On this 2 i day of 19c 40/ , A.D., 20 it , before me, a Notary Public in and for said County and State, personally appeared Casey J. Boyd and Nicole A. Boyd, Husband and Wife, to me known to be the persons named in and who executed the foregoing instrument and acknowledged that they executed the same .s their - .- .ry act and deed. N. ar • .Ici4fite teof JUNE A JUENGER o .Commission Number 7$3090 rwA— z L My C.mm'ssion Expires LASER PRO Lending, Ver. 5.58.20.001 Copr. Harland Financial Solutions, Inc. 1997, 2011. All Rights Reserved. - IA M:\L.ASERPRO\CFI\LPL\G03.FC TR-31399 PR-1 i • SHUTTLEWORTH iTGERSOLL , P . L . C . ATTORNEYS AT LAW ....ESTABLISHED 1854 V.C.SHUTTLEWORTH 1900-1965 RICHARD C.GARBERSON DOUGLAS R.OELSCHLAEGER CAROLINE M.NASH` T.M.INGERSOLL 1902-1972 ALLAN L.HARMS DANA L.OXLEY JAMES C.NEMMERS 9 WILLIAM S.Hot-Ns-ma-ER STEVEN J.PACE BRETT D.PAPENDICK CONSTANCE M.ALT TRICIA HOFPMAN-SIMANEIC BRETT D.PAPENDICK JASON R..SYTSMA BRIAN D.BERGSTROM ROBERT D.HOUGHTON THOMAS P.PEPPER MARIANA K.TITUS.. Jolty M.BICKEL MARK P.A.HUDSON NANCY J.PENNER COUNSEL JA.CET.BISGARD WESLEY B.HUISINGA WILLIAM P.PROWELL SARAH W.ANDERSON CYNTHIA M.BOYLE DONALD L.JOHNSON JENNIFER E.RINDEN CAROLINE M.NASH r KEVIN J.CASTER SAM E.JONES MARTY L.RowLET WILLIAM D.SINDLINGER DREW A.CUMINGS-PETERSON LINDA M.KIRSCH GARY J.STREIT MARLANA K.Taus THERESA C.DAVIS TIMOTHY J.KLIMA JASON R.S1rrsMA OF COLNSEL LAURIE L.DAWLEY DIANE KUTZICO MARK L.ZAIGER THOMAS M.COU.INS JoILI H.EHRIHART MICHAEL O.MCDERMOTT REGISTERED PATENT LAWYERS WILLIAM R.SHUITLEWORTH DEAN IL EINCK DENNIS J.MCMENIMEN ALLAN L.HARMS RICHARD S.FRY JAMES C.NEMMERS TIMOTHY J.KLIMA *ADMITTED IN DC,MD AND VA ONLY **ADMITTED IN DC AND MD ONLY July 16,2012 U Casey J. Boyd =='" ='-1 1528 First Ave, Unit C c.-).„( iv Coralville Iowa 52241 --lc--: o- _Fri 5 Re Real Estate Secured Loan #1054473 from Liberty Bank, FSB (`BALK") dated October 18, 2011 in the original principal amount of$56,648.06 and Real Estate Secured Loan #41501103 dated November 3,2011 in the original principal amount of$164,217.16 Dear Mr. Boyd: Notice is hereby given that all amounts due under the Real Estate Secured Loan described above are accelerated and are now due and payable in full in the following amounts: Loan No 1054473 Principal $55,226.83 Interest to Date 689.57 Late Charges 27.05 Lien Search 175.00 Annual Appraisal 1,800.00 TOTAL $57,918.45 Interest will continue to accrue on the balance of this loan at the rate of$27.61 per day. Loan No 41501103 Principal $160,039.02 Interest to Date 1,929.35 EXHIBIT Late Charges 146.88 A., Annual Appraisal 1,000.00 F TOTAL $163, 115.25 MAILING ADDRESS: P.O. BOX 2107 CEDAR RAPIDS, IOWA 52406-2107 STREET ADDRESS: 115 THIRD STREET SE CEDAR RAPIDS, IOWA 52401 TELEPHONE 319.365.9461 FACSIMILE 319.365.8725 WWW•SHUTTLEWORTHLAW.COM , • cEVUTTLEWORTH & INGERSOLL, P.L.C. Boyd, Casey July 16,2012 Page 2 Interest will continue to accrue on the balance of this loan at the rate of$80.01 per day. In addition you will be responsible for such other and further sums as may be hereinafter incurred by the BANK and as allowed by the Real Estate Secured Loan documents and Iowa law including but not limited to attorneys' fees and other costs which be hereinafter incurred by the Bank. Payment of the accelerated balance is due in full on or before July 31, 2012. If payment is not made by that date the BANK has instructed me to begin foreclosure proceedings. Sincerely OPP LLtGLG� Lind. . Kirsch, Counsel to Liberty Bank FSB Cc: Ben Guenther o z 4 1-73 • C) i rn 115 THIRD STREET SE, SUITE 500 P.O. BOX 2107 CEDAR RAPIDS, IOWA 52406-2107 TELEPHONE 319.365.9461 FACSIMILE 319.365.8443 WWW.SHUTTLEWORTHLAW.COM r . , . Li k/1(:L 12- - .' a ,rim . . SENDER:COMPLETE THIS SECTION COMPLETE THIS SECT'✓V ON DELIVERY • Complete items 1,2,and 3.Also complete A. Signat :/ / 11,17 item 4 if Restricted Delivery is desired. gent • Print your name and address on the reverse X / I 2-Addressee so that we can return the card to you. fir .Print Na V. Dat.of Delivery ■ Attach this card to the back of the mailpiece, v-r I or on the front if space permits. D. Is delivery..dress different•. item 1? In Y s 1. �I icle Addressed to: If YES,e -r delivery add -ss below: ❑ N �+ 15Ja 7 ' rs - gut_ I Liril 6 0L�Ll��111 Liz_ 1 I Service Type — Certified Mail ❑ Express Mail 0 Registered'I .p Return Receipt for Merchandise 0 Insured Mail 0 C.O.D. 4. Restricted Delivery?(Extra Fee) 0 Yes 2. Article Number (Transfer from service label) 7011 1570 0000 9167 5718 _ PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 U.S. Postal Service., .�,>P' ;(Yg CERTIFIED MAIL,., RECEIPT'!:. ;_ . ..`, o (/.1I u•. • , '• 1 I • •. 1 P, ' •)-- 6 N N For delivery information visit our website at www.usps.come r_�-t u-iP't-.A,y r K`-'• �Y'3 • � ).,.:aa �. ~4 Cif $....s, .1 A8� 59 '.4G'y b if io. ,,,,, .,}a 1:4:".P° i..;nu I �'� I Pj�. lti — 0^1 kpl t�T" Postage $ ,;.t e C, ,, •<•Tt r Certified Fee %�� "�� O r Postma o �e' C3 Return Receipt Fee ) dere (Endorsement Required) 1 1 CO r� { CO Restricted ntDelivery Fee Y�\/.. "'" r (Endorsement Required) �� f`- '-.,-. 111 Total Postage&Fees $ _ r9 �!r Sent To /•(/ ra En u�treet,Apt.No.; • QQ r 1 ►p I /�t• p- or PO Box No. jS J -. �n-_-4 -1--.LL..-1-.L�Lfli.L1------• City,State,ZIP+- 4 4 ' • mss, PS Form 3800,August 2006 ' See Reverse for Instructions END OF CASE FILE y t IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY 2012 3CT -3 P" DENNIS DEL° ,�`,r '' ) 44,V1 y'G : p No. Plaintiff, ) _ PETITION FOR =' V. ) WRIT OF CERTIORARI In -� IOWA CITY HOUSING AUTHORITY, ) c-,E7 CITY OF IOWA CITY, STEVEN RACKIS, ) — o : =- AND DOUGLAS BOOTHROY ) "-f : Defendants. ) Esc, r COMES NOW, Plaintiff, by and through his counsel, Kelly D. Steele, and for his Peitition for Writ of Certiorari, states to the Court as follows: 1. Plaintiff Dennis Delaney("Delaney")is a resident of Iowa City,Johnson County,Iowa. 2. Defendant Iowa City Housing Authority("ICHA") is a department of the Defendant City of Iowa City. 3. Defendant Steven Rackis ("Rackis") is the Housing Administrator of ICHA. Defendant Douglas Boothroy("Boothroy") is the Hearing Officer for ICHA. 4. Rackis and Boothroy are inferior officers exercising judicial functions within the meaning of Iowa Rule of Civil Procedure 1.1401. The City of Iowa City and ICHA are inferior tribunals or boards within the meaning of Iowa Rule of Civil Procedure 1.1401. 5. Delaney is a recipient of a Section 8 Rental Assistance and currently resides at 1411 Broadway Street in Iowa City, Iowa. 6. On July 13, 2012, Housing Program Assistant Carri Fox-Rummelhart, an employee of 1 ICHA, acting for and under the authority of Rackis, sent notice to Delaney advising him that his Section 8 Housing Assistance was to be terminated. The notice stated that this termination was due to Delaney being charged with Disorderly Conduct — Fighting or Violent Behavior, by the Iowa City Police Department on June 30, 2012. 7. Delaney timely appealed this decision. A hearing on Delaney's appeal was heard on August 16th, 2012 at which Boothroy presided. On August 23rd, 2012, Boothroy issued a decision upholding ICHA's decision to deny Delaney's Section 8 Rental Assistance. 8. Delaney has not been convicted of Disorderly Conduct and his trial on that matter is set for November 1St. At the August 16th, 2012 appeal hearing, Delaney testified that during the June 30th, 2012 incident, he was attacked from behind and chocked when he leaving a bar and that he clearly acted in self-defense. At the appeal hearing, Delaney stated that he feared for his life and that he was simply trying to protect himself. Furthermore, Delaney stated that he did not go out of his way to trying to pick a fight. Lastly, the police report indicates that Delaney was intoxicated, a claim that Delaney denies. Assuming arguendo that Delaney was intoxicated, being intoxicated is not a basis for terminated Section 8 Rental Assistance. 9. The Defendants have made an error of law by finding that Delaney had committed "violent criminal activity" when he testified, without contrary testimony, that was acting in self- defense to being attacked and chocked. The Iowa City Housing Authority produced only the criminal complaint charging Delaney with Disorderly Conduct and did not provide testimony from either the police or the other individual involved in the incident. 10. "Violent criminal activity" means any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be Pv ("• :cr-- () reasonably likely to cause, serious bodily injury or property damage. 24 C.F.R. 5.100. The Code of Iowa defines"Serious Injury" as a disabling mental illness or a bodily injury which creates a substantial risk of death, causes serious permanent disfigurement, or causes protracted loss or impairment of the function of any bodily member or organ. Iowa Code Section 703.18. 11. Disorderly Conduct, under Iowa Code Section 723.4(1), does not contain any element involving"the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage." 12. The Defendants have acted illegally in this matter because neither ICHA nor Boothroy considered the effects of denial of rental assistance on Delaney's two minor children, and because Boothroy's August 23, 2012 decision is not supported by a preponderance of evidence, it thus violates federal regulations and ICHA's rules. 13. Because of Delaney's disability and limited finances, the denial of rental assistance would cause him and his two minor children great harm. 14. The Defendants have made an error of law by finding that Delaney had committed violent criminal activity when Delaney testified, without contrary testimony, that he had not committed a violent criminal act,but was merely acting in self-defense. 15. The Defendants have acted illegally in this matter because, after consideration of relevant factors the evidence presented, the decision of the ICHA is not supported by substantial evidence of the record. 16. In fact, the evidence presented that Delaney committed Disorderly Conduct merely consisted of hearsay evidence: the police complaint. There were no witnesses that preset .d first- -- U ti hand testimony of this alleged charge. o ., r) tri .D c.0 c) 17. Boothroy failed to adequately address Delaney's claim of self-defense in his decision. 18. The alleged charge of Disorderly Conduct did not occur on or near the rental property, but occurred approximately one mile away from Delaney's residence. 19. No Respondent is under any legal disability, is not in the military and is not a prisoner, in a reformatory or a penitentiary. WHEREFORE, Delaney respectfully requests that the Court: A. Issue a Writ of Certiorari commanding Defendants to certify to this Court the record of relevant proceedings; B. Stay the termination of Delaney's Section 8 Rental Assistance while this matter is pending; C. Set this matter for hearing; D. Hold that the Defendants' decision to terminate Delaney's Section 8 Rental Assistance is illegal and unenforceable; E. Tax the costs of this action to Defendants; and F. Grant such other relief as may be just and equitable under the circumstances. DATED this 21 st day of September, 2012. /`- 411111M Kelly D. St ttorney at Law AT-0007590 PO Box 1901 Cedar Rapids, Iowa 52406-1901 (319) 310-1168 - phone (319) 363-5434—FAX thorsteele@hotmail.com VA:.13 iV OI ATTORNEY FOR PLAINTIFF i48 C- 1'3OZIOZ usrnm'---i I e IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY DENNIS DELANEY, ) , l 0-1d+C)a Plaintiff, ) ) v. ) WRIT OF CERTIORARI ) IOWA CITY HOUSING AUTHORITY, ) CITY OF IOWA CITY, STEVEN RACKIS, ) AND DOUGLAS BOOTHROY ) ) Defendants. ) TO: Defendants Iowa City Housing Authority, City of Iowa City, Steven Rackis,Douglas Boothroy: WHEREAS, in Plaintiff's Petition, it has been made to appear to the Iowa District Court for Johnson County that you are proceeding illegally in terminating Plaintiffs Section 8 Rental Assistance subsidy,you are therefore commanded to certify and return to this Court on or before the 21St day of October, 2012, the complete record of the proceedings complained of in the Petition as well as any other records pertaining to the facts of the case now before this Court,and to have then and there this writ. WITNESS,my hand the Seal of this Court at Iowa City, Johnson County, State of Iowa, this 21st day of September, 2012. LODEMA BERKLEY Lodema Berkley, Clerk of Court (45 Depu Clerk oresigT MI OLLil GER : Wd C- 100 ZIOZ `(� g *�..-.7 1 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY DENNIS DELANEY, ) No Q,V j n` J o1 9 r} Plaintiff, ) l�V C / .�(� ) ORDER RE: v. ) WRIT OF CERTIORARI ) IOWA CITY HOUSING AUTHORITY, ) CITY OF IOWA CITY, STEVEN RACKIS, ) , AND DOUGLAS BOOTHROY ) o r -z Defendants. ) Li)_:.., rn c' , NOW on this 2 / day of September, 2012, this matter comes before th "Coutt'on o: cry Plaintiffs Petition for Writ of Certiorari. The Court finds that the Writ of Certiorari slid ii issue. The Court, therefore, orders the Clerk to issue the Writ of Certiorari commanding Defendants to certify to this Court on or before the 21st day October, the complete record of the proceedings complained of in the Petition as well as any other records pertaining to the facts of the case now before this Court. 011016_,J ,() A/4 S GE, Sixth Judicial District of Iowa ti © o ti .tib . 1 $, w 1 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY DENNIS DELANEY, ) No. Q Y3V 01 u'C Plaintiff, ) PETITION FOR v. ) WRIT OF CERTIORARI (.` ` ) t... -3 — IOWA CITY HOUSING AUTHORITY, ) r'_ CITY OF IOWA CITY, STEVEN RACKIS, ) ` Wim. .. . AND DOUGLAS BOOTHROY ) =;f ) Defendants. b xi xi v� COMES NOW, Plaintiff, by and through his counsel, Kelly D. Steele, and for his Peitition for Writ of Certiorari, states to the Court as follows: L Plaintiff Dennis Delaney("Delaney")is a resident of Iowa City,Johnson County,Iowa. 2. Defendant Iowa City Housing Authority("ICHA")is a department of the Defendant City of Iowa City. 3. Defendant Steven Rackis ("Rackis") is the Housing Administrator of ICHA. Defendant Douglas Boothroy(`Boothroy")is the Hearing Officer for ICHA. 4. Rackis and Boothroy are inferior officers exercising judicial functions within the meaning of Iowa Rule of Civil Procedure 1.1401. The City of Iowa City and ICHA are inferior tribunals or boards within the meaning of Iowa Rule of Civil Procedure 1.1401. 5. Delaney is a recipient of a Section 8 Rental Assistance and currently resides at 1411 Broadway Street in Iowa City,Iowa. 6. On July 13, 2012, Housing Program Assistant Carri Fox-Rummelhart, an employee of - , 1 ICHA, acting for and under the authority of Rackis, sent notice to Delaney advising him that his Section 8 Housing Assistance was to be terminated. The notice stated that this termination was due to Delaney being charged with Disorderly Conduct — Fighting or Violent Behavior, by the Iowa City Police Department on June 30,2012. 7. Delaney timely appealed this decision. A hearing on Delaney's appeal was heard on August 16th, 2012 at which Boothroy presided. On August 231d, 2012, Boothroy issued a decision upholding ICHA's decision to deny Delaney's Section 8 Rental Assistance. 8. Delaney has not been convicted of Disorderly Conduct and his trial on that matter is set for November 1 S`. At the August 16th, 2012 appeal hearing, Delaney testified that during the June 30th, 2012 incident, he was attacked from behind and chocked when he leaving a bar and that he clearly acted in self-defense. At the appeal hearing, Delaney stated that he feared for his life and that he was simply trying to protect himself. Furthermore, Delaney stated that he did not go out of his way to trying to pick a fight. Lastly, the police report indicates that Delaney was intoxicated, a claim that Delaney denies. Assuming arguendo that Delaney was intoxicated, being intoxicated is not a basis for terminated Section 8 Rental Assistance. 9. The Defendants have made an error of law by finding that Delaney had committed "violent criminal activity" when he testified, without contrary testimony, that was acting in self- defense to being attacked and chocked. The Iowa City Housing Authority produced only the criminal complaint charging Delaney with Disorderly Conduct and did not provide testimony from either the police or the other individual involved in the incident. 10. "Violent criminal activity" means any criminal activity that has as one of its elements the use, attempted use, or threatened use of physical force substantial enough to cause, or be 2 reasonably likely to cause, serious bodily injury or property damage. 24 C.F.R. 5.100. The Code of Iowa defines"Serious Injury" as a disabling mental illness or a bodily injury which creates a substantial risk of death, causes serious permanent disfigurement, or causes protracted loss or impairment of the function of any bodily member or organ. Iowa Code Section 703.18. 11. Disorderly Conduct, under Iowa Code Section 723.4(1), does not contain any element involving"the use, attempted use, or threatened use of physical force substantial enough to cause, or be reasonably likely to cause, serious bodily injury or property damage." 12. The Defendants have acted illegally in this matter because neither ICHA nor Boothroy considered the effects of denial of rental assistance on Delaney's two minor children, and because Boothroy's August 23, 2012 decision is not supported by a preponderance of evidence, it thus violates federal regulations and ICHA's rules. 13. Because of Delaney's disability and limited finances, the denial of rental assistance would cause him and his two minor children great harm. 14. The Defendants have made an error of law by finding that Delaney had committed violent criminal activity when Delaney testified, without contrary testimony, that he had not committed a violent criminal act,but was merely acting in self-defense. 15. The Defendants have acted illegally in this matter because, after consideration of relevant factors the evidence presented, the decision of the ICHA is not supported by substantial evidence of the record. 16. In fact, the evidence presented that Delaney committed Disorderly Conduct merely consisted of hearsay evidence: the police complaint. There were no witnesses that presented first- hand testimony of this alleged charge. 3 17. Boothroy failed to adequately address Delaney's claim of self-defense in his decision. 18. The alleged charge of Disorderly Conduct did not occur on or near the rental property, but occurred approximately one mile away from Delaney's residence. 19. No Respondent is under any legal disability, is not in the military and is not a prisoner, in a reformatory or a penitentiary. WHEREFORE, Delaney respectfully requests that the Court: A. Issue a Writ of Certiorari commanding Defendants to certify to this Court the record of relevant proceedings; B. Stay the termination of Delaney's Section 8 Rental Assistance while this matter is pending; C. Set this matter for hearing; D. Hold that the Defendants' decision to terminate Delaney's Section 8 Rental Assistance is illegal and unenforceable; E. Tax the costs of this action to Defendants; and F. Grant such other relief as may be just and equitable under the circumstances. DATED this 21st day of September, 2012. Kelly D. St-af# ttomey at Law AT-0007590 PO Box 1901 Cedar Rapids, Iowa 52406-1901 (319) 310-1168 -phone (319) 363-5434—FAX thorsteele@hotmail.com ATTORNEY FOR PLAINTIFF 4 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY DENNIS DELANEY, ) No.C V 'V 0-1109) Plaintiff, ) ) v. ) WRIT OF CERTIORARI ) IOWA CITY HOUSING AUTHORITY, ) CITY OF IOWA CITY, STEVEN RACKIS, ) AND DOUGLAS BOOTHROY ) ) Defendants. ) TO: Defendants Iowa City Housing Authority, City of Iowa City, Steven Rackis,Douglas Boothroy: WHEREAS, in Plaintiffs Petition, it has been made to appear to the Iowa District Court for Johnson County that you are proceeding illegally in terminating Plaintiff's Section 8 Rental Assistance subsidy,you are therefore commanded to certify and return to this Court on or before the 21St day of October, 2012, the complete record of the proceedings complained of in the Petition as well as any other records pertaining to the facts of the case now before this Court, and to have then and there this writ. WITNESS,my hand the Seal of this Court at Iowa City, Johnson County, State of Iowa, this 21st day of September, 2012. LODEMA BERKLEY Lodema Berkley, Clerk of Court fan-IL Deputy Clerk o I esigne: MI OL GER 1 , IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY DENNIS DELANEY, ) No CA CV 011496 Plaintiff, ) ORDER RE: v. ) WRIT OF CERTIORARI ) IOWA CITY HOUSING AUTHORITY, ) CITY OF IOWA CITY, STEVEN RACK'S, ) AND DOUGLAS BOOTHROY ) e7Yom,. ) Cl! Defendants. ) `""' NOW on this 2 / day of September, 2012, this matter comes before tb "Coin'on ; cr Plaintiffs Petition for Writ of Certiorari. The Court finds that the Writ of Certiorari slided issue. The Court, therefore, orders the Clerk to issue the Writ of Certiorari commanding Defendants to certify to this Court on or before the 21st day October, the complete record of the proceedings complained of in the Petition as well as any other records pertaining to the facts of the case now before this Court. 4101PC(..--0 41 GE, Sixth Judicial District of Iowa GG . Cf7 1 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY DENNIS DELANEY, ) ) No. CVCV-074926 Plaintiff, ) ) ACCEPTANCE OF SERVICE v. ) ) IOWA CITY HOUSING AUTHORITY, ) CITY OF IOWA CITY, STEVEN RACKIS, ) AND DOUGLAS BOOTHROY ) ) Defendants. ) I, City of Iowa City, state that I am a Defendant,or the Defendant's Legal Representative, in the above-captioned case, and being of legal age, hereby acknowledge that on this date I received and accepted a true copy of the Petition for Writ of Certiorari, the Writ of Certiorari, and an Order in the above-captioned case and submit to the jurisdiction to the Iowa District Court in and for Johnson County,Iowa. Signature Print Name Title Address Subscribed and sworn to before me on this day of October, 2012. Kelly D.Steele 425 Second St.SE,Suite 365 NOTARY PUBLIC STATE OF IOWA Attorney at Law PO Box 1901 Prac:iciny Prirnmiiy rn Criminal Law Cedar Rapids,IA 52406-1901 - - c19-310.1168(Rhone) 319-363-5434(Fax)I 1 Al AII �� +s :horsteelenahotmailcom www kellysteele corn END OF CASE FILE CIVIL PROCESa ..3RKSHEET JOHNSON COUNTY SHERIFFS OFFICE•PO BOX 2540, 511 S CAPITOL ST, IOWA CITY, IA 52244-2540•(319)356-6030 PLAINTIFF: BANK OF AMERICA Docket No 12-05163 State IOWA vs. Court No EQCV075019 County JOHNSON DEFENDANT: BURNS, TUCKER M Ref No Received 10/18/2012 DEFENDANT: BURNES, KATHARINE J DEFENDANT: CITY OF IOWA CITY DEFENDANT: THE HOUSING FELLOWSHIP Requestor(s) Phone HOPKINS,BENJAMIN W (515)222-9400 1350 NW 138 ST, CLIVE, IA 503258308 1 Name CITY OF IOWA CITY Zone Party Type DEFENDANT Phone Fax I Address 'CITY CLERK 410 E WASHINGTON ST IOWA CITY IA 52240- E-Mail Employer Comments MNI Information Race Sex Birth Date Age Hair Height Weight SSN. Eyes Skin Notes Documents Document Serve by Date OE PSR Description/Special Instructions ORIGINAL NOTICE AND ❑ ❑ PETITION Service Information Date Time Type Party \ %iv"- Relationship Race Sex DOB Location �;.rr —fit 1 —a rn Miles Fee Officer Attempts Log Date Time Server Notes Date Time Server Notes Notes: Printed:Thursday,October 18,2012 Johnson County Sheriffs Office Page 1 of 1 48105 IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY BANK OF AMERICA, N.A. 94-1687665 : SUCCESSOR BY MERGERQUITnY NOc750\9\TO COUNTRYWIDE BANK, (\ \J ( 7 5 ` 1 FSB • ORIGINAL ' OTI E Plaintiff, : vs . • • TUCKER M. BURNES AND • KATHARINE J. BURNES AKA • _ a KATHARINE BURNES; canCITY OF IOWA CITY, IOWA; • c--,i THE HOUSING FELLOWSHIP • —D 0 FKA GREATER IOWA CITY • _ HOUSING FELLOWSHIP; • -c ."� ~ rn Defendants . : n TO THE ABOVE NAMED DEFENDANTS : You are notified there is a petition now on file in the office of the clerk of the above court . A copy of this filing is attached hereto. The Plaintiff' s attorneys are Petosa, Petosa & Boecker, L.L. P. , by Benjamin W. Hopkins , whose address is 1350 NW 138th Street, Suite 100, Clive, Iowa 50325-8308 . The Plaintiff' s attorney' s phone number is (515) 222-9400, with a facsimile transmission number of (515) 222-9121 . You must serve a motion or answer, within 20 days after service of this original notice upon you and within a reasonable time thereafter file a motion or answer, in the Iowa District Court of Johnson County, at the county courthouse in Iowa City, Iowa. If you do not, judgment by default may be rendered against you for the relief demanded in the petition. If assistance of auxiliary aids or services is required to participate in court due to a disability such as hearing impairment, call the Americans with Disabilities Coordinator at (319) 398-3920MG5ability Coordinators cannot provide legal advice. If you are in need of dual party telephone relay } OB2MA BO Xi, , services, call Relay Iowa TTY at 1-800-735-2942 . ^� Cle: of the Above Court Johnson County Courthouse Iowa City, Iowa 52244-2510 /� J/ YOU ARE ADVISED• TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. LL: 6frk ( tier /y) hlaetl?C °t ' 48105 IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY BANK OF AMERICA, N.A. 94-1687665 : SUCCESSOR BY MERGERQUITY NO.q1506 TO COUNTRYWIDE BANK, �IV\VIFSB OR GINAL OT Plaintiff, : • vs . . • TUCKER M. BURNES AND .• KATHARINE J. BURNES AKA _ o KATHARINE BURNES; © �' CITY OF IOWA CITY, IOWA; .►.-- o THE HOUSING FELLOWSHIP • 'S �� FKA GREATER IOWA CITY • •HOUSING FELLOWSHIP; c--' - �VJ - Defendants . : ) ° , , n TO THE ABOVE NAMED DEFENDANTS : You are notified there is a petition now on file in the office of the clerk of the above court . A copy of this filing is attached hereto . The Plaintiff ' s attorneys are Petosa, Petosa & Boecker, L. L. P. , by Benjamin W. Hopkins , whose address is 1350 NW 138th Street, Suite 100, Clive, Iowa 50325-8308 . The Plaintiff ' s attorney' s phone number is (515) 222-9400, with a facsimile transmission number of (515) 222-9121 . You must serve a motion or answer, within 20 days after service of this original notice upon you and within a reasonable time thereafter file a motion or answer, in the Iowa District Court of Johnson County, at the county courthouse in Iowa City, Iowa. If you do not, judgment by default may be rendered against you for the relief demanded in the petition. If assistance of auxiliary aids or services is required to participate in court due to a disability such as hearing impairment, call the Americans with Disabilities Coordinator at (319) 398-3920x1 , ability Coordinators cannot provide legal advice. If you are in need of dual party telephone relay LODEMA BERKLEY services, call Relay Iowa TTY at 1-800-735-2942 .1I ,, ...,/‘/: WGA A.44;_ec- :‘.e,4.1_0(tize Cle of the Above Court 1 Johnson County Courthouse Iowa City, Iowa 52244-2510 YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. LL= eGn (e rrdiiy) rinafrrc e- 48105 IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY BANK OF AMERICA, N .A. 94-1687665 • SUCCESSOR BY MERGER U,IITTYQANO. EI TO COUNTRYWIDE BANK, V57 FSB PETITION Plaintiff, • vs . -. T� N • a C7 fi TUCKER M. BURNES AND (.'t KATHARINE J. BURNES AKA Ztry -- c'' KATHARINE BURNES; CD-� W i CITY OF IOWA CITY, IOWA; THE HOUSING FELLOWSHIP • FKA GREATER IOWA CITY • *c:, G HOUSING FELLOWSHIP; q� GJ Defendants . NOTICE THE PLAINTIFF HAS ELECTED FORECLOSURE WITHOUT REDEMPTION . THIS MEANS THAT THE SALE OF THE MORTGAGED PROPERTY WILL OCCUR PROMPTLY AFTER ENTRY OF JUDGMENT UNLESS YOU FILE WITH THE COURT A WRITTEN DEMAND TO DELAY THE SALE. IF YOU FILE A WRITTEN DEMAND, THE SALE WILL BE DELAYED UNTIL SIX MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO-FAMILY DWELLING OR UNTIL TWO MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS RESIDENCE BUT NOT A ONE-FAMILY OR TWO-FAMILY DWELLING. YOU WILL HAVE NO RIGHT OF REDEMPTION AFTER THE SALE. THE PURCHASER AT THE SALE WILL BE ENTITLED TO IMMEDIATE ,., POSSESSION OF THE MORTGAGED PROPERTY. YOU MAY PURCH4_S-E;A' 'THE SALE. �''-; •I 7 1141 1 Plaintiff, Bank of America, N .A. successor by merger to Countrywide Bank, FSB, for its cause of action states : 1 . That the Plaintiff is a corporation doing business in the United States of America . 2 . That on or about April 2, 2008, Tucker M. Burnes and Katharine J. Burnes aka Katharine Burnes, husband and wife, made, executed and delivered a promissory note in writing for the sum of $119, 000 . 00 payable in installments, with interest at 6. 125% per annum from such date (the "Note") . A copy of the Note is attached hereto and made a part hereof as Exhibit "A" . 3 . That on or about April 2, 2008 in order to secure the payment of the Note, Tucker M. Burnes and Katharine J. Burnes aka Katharine Burnes, husband and wife, (the "Mortgagor (s) ") made, executed and delivered to Iowa State Bank and Trust; f <7 Company, a real estate mortgage (the "Mortgage") on -te r7 "0 following described real estate (the "Mortgaged Prope.itiy"` :;<;-1-1 / - 1`` • i The Building and improvements only, as presentst R' erected, located or subsequently place upon the iv property (referred to as `Land") legally described as: Lot 58 in Oak Woods Addition Part One, an Addition to the City of Iowa City, Iowa, according to the plat thereof recorded in Book 7, Page 16, Plat Records of Johnson County, Iowa, subject to easements, covenants, and restriction of record thereof. "Improvements" include any valuable addition made to the real property ("Land") intended to enhance its value, beauty or utility or to adapt it for use as a residence, including but not limited to sidewalks, driveways, fences, sewers, pipelines and utilities . Title to the real property ("Land") underlying the Improvements is vested in The Housing Fellowship and is subject to a Ground Lease between 2 The Housing Fellowship and Brian Jeremy Fleener and Tiffany Marie Carver fka Tiffany Marie Fleener recorded at Book 4018, Page 776, Johnson County Recorder which has been assigned to Tucker M Burnes and Katharine J Burnes by Agreement Pursuant to Terms of Ground Lease recorder at Book , Page Johnson County Recorder. The Borrower hereby assigns, transfers and conveys to the Lender all Borrower' s right, title and interest in the said Ground Lease AKA Lot 58 in Oak Woods Addition Part One, an Addition to the City of Iowa City, Iowa, according to the plat thereof recorded in Book 7, Page 16, Plat Records of Johnson County, Iowa, subject to easements, covenants, and restrictions of record thereof. the Mortgage was filed for record April 9, 2008, in Book 4284, Page 1 in the Recorder' s Office of Johnson County, Iowa. A copy of the Mortgage is attached hereto and made a part hereof as Exhibit "B" . Said mortgage is a Purchase Money Mortgage. 4 . That the Mortgaged Property is and at all times (D N relevant hereto was the homestead of the Mortgagor (s): El -71 lL7 a 5. That the Plaintiff has the right to enforce Note I'f. 'r� tI 1=7:.2 f and Mortgage. r 6. That the Plaintiff is the sole and absolute owner`'of the Mortgage; that the Note and Mortgage provide that if default be made at any time in payment of any installment of principal or interest, at the election of the Plaintiff, all indebtedness, without notice of such election, shall become immediately due and payable; that the Plaintiff by reason of the failure of the Mortgagor (s) to pay said installments, declares the Note in default, that there is now due and owing the Plaintiff the sum of $113, 165. 52 with interest at 6. 125% 3 per annum from and including February 1, 2012 plus late fees, attorney fees, abstract expense, protective advances and costs . 7 . That the Plaintiff has given the Mortgagor (s) all required notices, including notice of right to cure said default and notice of acceleration required pursuant to Iowa Code Section 654 . 4B (1) . 8 . That the time to cure the default under Iowa law has now expired. 9 . That said Note and Mortgage provide that if suit be commenced thereon, Mortgagor (s) will pay reasonable attorneys ' fees . An attorneys ' fee affidavit is attached heretaanc 3nade a part hereof as Exhibit "C" . ='-: --{ 10 . That the Plaintiff now hereby in writing wa1e5 any � fl right or claim to a deficiency judgment against the r"::' r`" '5' N Mortgagor (s) . That the Mortgaged Property is the residence of the Mortgagor (s) and is a one-family or two-family dwelling. The Plaintiff hereby elects to foreclose without redemption and the sale of the Mortgaged Property shall occur promptly after entry of judgment, unless the Mortgagor (s) , pursuant to the Notice set forth above, files a written demand to delay the sale, in which event the sale shall be delayed until six months after entry of judgment . 11 . That the following parties are named as Defendant (s) because they claim some right, title or interest in the 4 Mortgaged Property, including, without limitation a right, title or interest as described below but any such right, title or interest is junior and inferior to the interest of Plaintiff: • City of Iowa City, Iowa, Subordination Agreement, dated April 14, 2008, filed April 22, 2008, Book 4289, Page 489 • The Housing Fellowship fka Greater Iowa City Housing Fellowship, Ground Lease Agreement, dated March 28, 2008, filed April 9, 2008, Book 4283, Page 999, property subject to 99 year Ground Lease 12 . That the Mortgage provides that any time after the proper commencement of an action in foreclosure or during the period of redemption, the Court having jurisdiction of the case shall, at the request of the Plaintiff, appoint a receiver to take immediate possession of the Mortgaged Property and of the rents and profits accruing therefrom, to rent the same as he may deem best for the interest of all parties concerned and shall be liable to account to the Mortgagor (s) only for the net profits after application of rents, issues and profits upon the cost of the expense of receivership and foreclosure and the indebtedness, charges and expenses hereby secured and hen q ry mentioned. i`j c7-< -- WHEREFORE WHEREFORE THE PLAINTIFF PRAYS THE COURT: -qr') k 1 . That the Plaintiff have judgment in rem agaxitrtshe F: rJ Mortgaged Property for the amount of unpaid principal and> interest on the Note, as provided in the Note and Mortgage and 5 for late fees, attorney fees, abstract expense, protective advances and costs . 2 . That a receiver be appointed immediately to take care of, manage, lease and collect the rents from the Mortgaged Property, and to apply the same in payment of costs and expenses of said receivership, repairs and expenses of said real estate, accrued and accruing taxes and special assessments, insurance premiums, and in partial payment of the judgment to be entered herein. 3 . That said judgment, together with interest, late fees, attorney fees, abstract expense, protective advances, costs and accruing costs be decreed a prior lien upon the Mortgaged Property from the date of the Mortgage, and that all rights, interests and equities of all Defendants to this suit be :>-4 --I declared junior to the right, title and interest of cth — :-i c) `p Plaintiff. '`i l _' ril 4 . That in the event Plaintiff is required to ake ,. protective advances, including without limitation, advances for taxes or insurance on the Mortgaged Property, the Plaintiff be given an additional lien thereon for such amounts so advanced, which shall be included in the judgment to be entered herein. 5. That the Mortgage be foreclosed and the Defendant (s) ' equity of redemption be barred and foreclosed save as guaranteed by law. That special execution issue for the sale the Mortgaged Property to satisfy said judgment, interest, late 6 fees, attorney fees, abstract expense, protective advances and costs . 6 . That special execution issue to satisfy said judgment, interest and attorneys ' fees, and accruing costs herein, and the Mortgaged Property be sold according to law to satisfy the amount due under the Decree issued by this Court and the Defendants herein or anyone claiming by, through or under them, be forever barred and foreclosed of any interest in the Mortgaged Property, except such rights of redemption as provided by law. 7 . That if the Mortgaged Property is sold and not redeemed, the Clerk of this Court shall issue to the Sheriff of said County, a writ of removal and possession, commanding him to put the grantee named in the Sheriff ' s deed for said premises sold, or his grantee, in possession thereof, and to remove any Defendants, or persons claiming by, through or under any of them, or any person in possession thereof out of such possession. 8 . That the Plaintiff has elected foreclosure without redemption and the sale of the Mortgaged Property shall occur promptly after entry of judgment or in the alternative, if ,A C,l N written demand for delay is filed, the sale shall occur'-six c-3 � r' months after entry of judgment . up r 571 zr CJl 7 9. That the Plaintiff be granted such further relief as may be just and equitable. PETOSA, TOSA & BOECKER, L. L. P. By i / Be W . o• ins AT0003573 13. '� ► h S r- et, to 100 C ` ` ow: '0 -8308 T./ :. one: (515) 222-9900 fr1 mile: (515) 222-9121 ORNEYS FOR PLAINTIFF r.a CJ rV .ter. :-- -- C, %o N - (J, W 8 NOTE April 2,2008 Iowa City , Iowa [Date) [City] [State] 3035 Stanford Ave Iowa City,IA 52245 [Property Address) 1. BORROWER'S PROMISE TO PAY In return for a loan that I have received,I promise to pay U.S.$119,000.00 (this amount is called'Principal"),plus interest,to the order of the Lender. The Lender is Iowa State Bank and Trust Comprtny . I will make all payments under this Note ip the form of cash,check or money order. I understand that the Lender may transfer this Note.The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the"Note Holder." 2. INTEREST Interest will be charged on unpaid principal until the full amount of Principal has been paid.I will pay interest at a yearly rate of 6.125%. . The interest rate required by this Sectloir2'Is'the rate I will pay both before and after any default described in Section 6(B)of this Note. 3. PAYMENTS (A) Time and Place of.Peynients •• I will pay principal and inierest by making a payment every month. I will make my monthly payment on the 1st day of each month beginning on June 1st , 2008 , I will make these payments every month until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. Each monthly payment will be applied as of its scheduled due date and will be applied to interest before Principal.If,on May 1st , 2038 ,I still owe amounts under this Note,I will pay those amounts in full on that date,which is called the"Maturity Date." I will make my monthly payments at 325 S.Clinton St PO Box 1700 Iowa City,IA 52244 or at a different place if required by the Note Holder. cm. (B) Amount of Monthly Payments My monthly payment will be in the amount of U.S.$723.06 tJ Q 4. BORROWER'S RIGHT TO PREPAY - n a I have the right to matte payments Of Principal at any time before they are due. A payment of Principal only is kn6ws a "'t "Prepayment"When I make a Prepayment,I will tell the Note Holder in writing that I am doing so.I may not designate a peymo&as -- a Prepayment if I have not made all the monthly payments due under the Note. • - - tib I may make a full Prepayment or partial Prepayments without paying a Prepayment charge. The Note Holder williusa7ny Prepayments to reduce the amount ofPnacipal that I owe under this Note.However,the Note Holder may apply my Prepayment to the .-p accrued and unpaid interest on the Prepayment amount,before applying my Prepayment to reduce the Principal amount of the Note.If I make a partial Prepayment,there will be no changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing to those changes. • TV 5. LOAN CHARGES If a law,which applies to this loan and which sets maximum loan charges,is finally interpreted•so that the interest or:oder loan UI charges collected or to be collected in connection with this loan exceed the permitted limits,then: (a)any such loan charge shall be W reduced by the amount necessary to reduce the charge to the permitted limit;and(b)any sums already collected from me which exceeded permitted limits will be refunded to me. The Note Holder may choose to make thus refund by reducing the Principal I owe under this Note or by making a direct payment to rhe. If a refund reduces Principal,the reduction will be treated,as a partial Prepayment 6. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charge for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date it is due,I will pay a late charge to the Note Holder.The amount of the charge will be 5.000%of my overdue payment of principal and interest I will pay this late charge promptly but only once on each late payment. (B) Default If I do not pay the full amount of each monthly payment on the date it is due,I will be in default (C) Notice of Default If I am in default,the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date;the Note Holder may require me to pay immediately the full amount of Principal which has not been paid and all the interest that I owe on that amount That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means. ENo Waiver By Note Holder ven if,at a time when I am in default,the Note Holder does not require me to pay immediately in full as described above,the Note Holder will still have the right to do so if I am in default at a later time. (E) Payment of Note Holder's Costs and Expenses • If the Note Holder has required me to pay immediately in full as described above,the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include,fore le,reasonable attorneys'fees. 7. GIVING NOTICES Unless applicable law requires a different method,any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the•Property Address above or at a different address if I give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note:will be given by.delivering it or by mailing it by first class mail to the Note Holder at the address stated in Section 3(A)above or at adifferent address if I am given a nonce of that different address. 8. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note,each person is fully and personally obligated to keep all of the promises made in this Note,including the promise to pay the full amount owed. Any person who is a guarantor,surety or endorser of this Note is also obligated to do these things.Any person who takes over these obligations,including the obligations of a guarantor,surety or endorser of this Note,is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note MULTLSTATSFIXED RATE NO —SinaloForay—• a uae1F1, e, ' YY ho Rum 3200 1101(parr]of2Ma) 9847.CV(4105) 4303819-012 Creative Ttilnidng,Inc EXHIBIT 1 0010(00260498) Ilr against each person individually or against all of us together.This means that any one of us may be required to pay all of the amounts owed under this Note. 9. WAIVERS I and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. 'Presentment' means the right to require the Note Holder to demand payment of amounts due. "Notice of Dishonor"means the righ: to require the Note Holder to give notice to other persons that amounts due have not been paid. 10. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note,a Mortgage,Deed of Trust,or Security Deed(the"Security Instrument"),dated the same date as this Note, protects the Note Holder from possible losses which might result if 1 do not keep the promises which I make in this Note. That Security Instument describes how and under what conditions I may be required to make immediate payment in frill of all amounts I owe under this Note. Some of those conditions are described as follows: If all or any part of the Property or any Interest in the Property is sold or transferred(or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred)without Lender's prior written consent,Lender may require immediate payment in full of all sums secured by this Security Instrument. However,this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. If Lender exercises this option,Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument.If Borrower fails to pay these sums prior to the expiration of this period,Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. WITNESS THE HAND(S)AND SEAL(S)OF THE UNDERSIGNED. (Seal) Bonowa Tucker M Burnes 6)7\521-1kV\i"--v; I v '`KJ" (Seal) Borrows Katharine J Burnes (Seal) Borrower (Seal) Borrower WITHOUT RECOURSE [Sign Original Only] PAY TO THE ORDER OF Countrywide Bank,FSB Iowa State Bank and Trust Company Pe—A9_7,01/Peggy ei e ,VIce-President ry L-71 1-0 FH1+C !_7 • r Cif Co MULTISTATE FLED RATE NOTE—Simstc Family—Fannie MauFred the Mac UNIFORM LNSrRUMENT Form 3200 LD1(pare 2 oft pad,,) 9547.CV(4.e5) 4503519-012 Creative Thinking,Inc. COTo(00260496) • • • 7 7,777 EliddiLIMI:E L DocorDed: 006/3000t'v0e41DEN AM Foe Amt: $52.00 Paco 1 of 10 Johnoon County Iowa Klm Painter County Recorder 4284 pal-10 111111111111111111110111111111111111111111111fle 610 02 001 001 [Space above reserved for Recorder of Deeds certification) Prepared By: Catherine M Franz Iowa State Bank and Trust Company 325 S.Clinton St PO Box 1700 Iowa City,IA 52244(319)356-5960 When Recorded Return To: Iowa State Bank and Trust Company 325 S.Clinton St PO Box 1700 Iowa City,IA 52244 1. Title of Document:MORTGAGE 2. Grantor(s):Tucker M Burnes and Katharine J Burnes,as husband and wife 3. Grantee(s):Iowa State Bank and Trust Company 4. Statutory Mailing Address(s):325 S.Clinton St PO Box 1700 Iowa City,IA 52244 5.Legal Description: Page 3 f-Z.7 N a� 6. Parcel Identification Number:1012460027 --4 7. Document or Instrument#: 11 i— _1G r../1 Pngo I o`9 0742-CV(1578) 4573819{)11 Creaure Thinking,loc. • EXHIBIT .0 �� X99, - N PURCHASE MONEY MORTGAGE _'_' MQRTG.Q,GE ..D ). -rl C d je1 :. <. DEFINTFIONS Lel Words used In multiple sections of this document are defined below and other words ere defined In Sections 3,11,13,18,20 CJ and 21. Certain rules regarding the usage of words used in this document are also provided In Section 16. (A)"Security Instrument"moans this document,which Is dated April 2nd 2008 .together with all Riders to this document. (B) "Borrower"is Tucker M Burnes and Katharine J Burnes,as husband and wife Borrower is the mortgagor under this Security Instrument (C)"Lender"is Iowa State Bank and Trust Company ,Lender is a Cornorntlon organized and existing under the laws of the State of Iowa Lender's address Is ._ . r 1 •I t t s .. ,. i Lender is the mortgagee under this Security Instrument, (I)) "Note"means the promissory note signed by Borrower and dated April 2nd 2008 .The Note states that Borrower owes Lender One Hundred Nineteen'Thousand and 001100 Dollars(U.S.$119,000.00 )plus interest.Borrower has promised to pay this debt in regular Periodic Payments and to pay the debt in full not later than May 1,2038 (E) "Property"means the property that is described below under the heading"Transfer of Rights in the Property." (F) "Loan"means the debt evidenced by the Note,plus interest,any prepayment charges and late charges due under the Note,and all sums due under this Security Instrument,plus interest. (G) "Riders"meers all Riders to this Security Instrument that are executed by Borrower. The following Riders are to be executed by Borrower[check box as applicable]: ❑ Adjustable Rate Rider ❑ Condominium Rider 0 Second Home Rider ❑ Balloon Rider ❑ Planned Unit Development Rider Ei Other(s)[specify)Tax Exempt Finn 0 1-4 Family Rider 0 Bi weekly Payment Rider Financing Rider (II) "Applicable Law"nieanu all conttolliug applicublc falcral,state and lu;ul statutes,regulations,ordlnunccs and administrative rules and orders(that have the effect of law)as well as all applicable final,non-appealable judicial opinions. (I) "Community Association Dues,Fees,and Assessments"means all dues,fees,assessments and other charges thatare imposed on Borrower or the Property by a condominium association,homeowners association or similar organization, (J) "Electronic Funds Transfer"means any transfer of funds,other than a transaction originated by check,draft,orslear paler instrument,which is initiated through an electronic terminal,telephonic Instrument,computer,or magnetic tape so as to order,Instruct,or authorize a financial institution to debit or credit an account. Such term includes,but is not limited to, point-Of-sale transfers,automated teller machine transactions,transfers initiated by telephone,wire transfers,andautomated clearinghouse transfers. (K) "Escrow Items"means those items that are described in Section 3. (L)"MiscelLaneous Proceeds"means any compensation,settlement,award of damages,or proceeds paid byany third party (other than insurance proceeds paid under the coverages described in Section 5)for:(I)damage to,or destruction of,the Property,(il)condemnation or other taking of all or any part of the Property:(iii)conveyance in lieu of condemnation;or (iv)misrepresentations of,or omissions as to,the value and/or condition of the Property. (M) "Mortgage Insurance"means insurance protecting Lender against the nonpayment of,or default on,the Loan. (N) "Periodic Payment"means the regularly scheduled amount due for(1)principal and interest under the Note,plus(ii) any amounts under Section 3 of this Security Instrument. (0) "RESPA"means the Real Estate Settlement Procedures Act(12 U.S.C.§2601 et seq.)and its implementing regulation, Regulation X(24 C.P.R.Part 3500),as they might be amended from time to time,or any additional or successor legislation or regulation that governs the same subject matter.M used in this Security Instrument,"RESPA"refers to all requirements and restrictions that are imposed in regard to a"federally related mortgage loan"oven if the Loan does not qualify as a "federally related mortgage loan"under RESPA. (P)"Successor In Interest of Borrower"means any party that has taken title to the Property,whether or not that party has assumed Borrower's obligations under the Note and/or this Security Instrument TRANSFER OF RIGHTS IN THE PROPERTY This Security Instrument secures to Lender (I)the repayment of the Loan,and all renewals,extensions and medltications of the Note;and(II)the performance of Borrower's covenants and agreements under this Security Instrument and the Note. Por this purpose,Borrower irrevocably mortgages,grants and conveys to Lender,with powerofsale,the followingdescribed property located in the County of .jQ]urson [Type of Recording Jurisdiction] [Name of Recording Jurisdiction] IOWA-Sir to Pradly-Fn.:le MrdYredGto Mac UNIFORM INSTRUMENT Fern 3n16 LEO (pages 4l9 parc+) 9742CV(WO 450I8I9-ol2 Creative T Irldag,ine 0OTo(coa64199) • , r The Building and improvements only,as presently brected,'loc ated or subsequently place upon the property (referred to as"Land")legally described as:Lot 58 In Oak Woods Addition Part One,an Addition to the City of Iowa City,Iowa,according to the plat thereof recorded In Book 7,Page 16,Plot Records of Johnson County,Iowa,subject to easements,covenants,and restriction of record thereof. "Improvements"include any valuable addition made to the real property("Land")Intended to enhance its value,beauty or utility or to adapt it for use as a residence,including but not limited to sidewalks,driveways,fences,sewers,pipelines and utilities. Title to the real property("Lund")underlying the Improvements Is vested in The Housing Fellowship and is subject too Ground Lease between The Housing Fellowship and Brian Jeremy Fleenor and Tiffany Marie Carver flea Tiffany Mario Fleenor recorded at Book 4018,Page 776,Johnson County Recorder which has been assigned to Tucker M Burnes and Katharine J Burnes by Agreement Pursuant to Terms of Ground Lease recorder at Book, ,Page ,Johnson County Recorder. The Borrower hereby as'tgns,transfers and conveys to the Lender ail Borrower's right,title and Interest In the said Ground Lease. C:=> " rn :ty-i —+ e..11011, -�„e -- t.D which currently has the address of 3035 Stanford Ave - -?7 M [Stmt] ---^^ 3L Iown City ,Iowa 52245 ("Property Address"): C.. • N [CRY] [Zip Code] •• TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances,and fixtures now or hereafter a part of the property.All replacements and additions shall also be covered by this Security Instrument All of the foregoing is referred to in this Security Instrument as the'Property." BORROWER COVENANTS that Borrower is lawfully seised of the estate herebyconveyed and has the right to grant and convey the Property and that the Property is unencumbered except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands,subject to any encumbrances of record. THIS SECURITYINSTRUMENT combines uniform covenants for national use and non-uniform cotenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1.Payment of Principal,Interest,Escrow Items,Prepayment Charges,and Late Charges.Borrower shall pay when due the principal of,and interest on,the debtevidecced by the Note and any prepayment charges and late charges due under the Note. Borrower shall also pay funds for Escrow Items pursuant to Section 3.Payments due under the Note and thin Security Instrument shall be made in U.S.cumonoy.However,if any cheek or other instrument received byLend cr as payment under the Note or this Security Instrument is relented to Lender unpaid,Lender may uire that any or all subsequent payments due under the Note and this Security Instrument be made in one or more of the following forms,as selected by Leader:(a)cash;(b)rroneyorder;(c)certified check,bank check,treasurer's check or cashier's check,provided any such check is drawn upon an institution whose deposits are insured by a federal agency,instrumentality,or entity,or(d) Electronic Funds Transfer. Payments are deemed received by Lender when received at the location designated in the Note or at such other - location as may be designated by Lender In accordance with the notice provisions in Section 15. Lender may return any payment or partial payment if the payment or partial payments are insufficient to bring the Loan current Lender maytnxept any payment or partial payment insufficient to bring the Loan current,without waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial payments in the fhture,but Lender is not obligated to applysuch payments at the time such payments are accepted.If each Periodic Payment is applied as of its scheduled due date,then Lender need not pay interest on unaplicd funds.Lender may hold such unnpliedfendsuntilBorrowerntakespaymenttolaingthe Loan current If Borrower does not do so within a reasonable period of time,Lender shall either apply such funds or return them to Borrower.If not applied earlier,such funds will be applied to the outstanding principal balance under the Note immediately prior to foreclosure. No offset or claim which Borrower might have now or in the fixture o nst Lender shall relieve Borrower from making Payments due under the Note and this Security Instrument or performing the covenants and agreements secured by this Security Instrument. 2.Application of Payments or Proceeds.Except as otherwise described in this Section 2,all pa accepted and applied by Lender shall be applied in the following order ofpriorlty. (a)interest due under theNote;(b payments due under the Note;(c)amcunts due under Section 3.Such payments shall be applied to each Periodic Payment in the order in which it became due.Any remaining amounts shall be applied first to late charges,second to any other amounts due under this Security Instrument,and then to reduce the principal balance of the Note. If Lender receives a payment from Borrower fora delinquent Periodic Payment which includes a sufticientaniount to pay any late charge due,the payment may be applied to the delinquent payment and the late charge. If more than one Periodic Payment is outstanding,Lender may apply any payment received from Borrower to the repayment of the Periodic Payments if,and to the extent that,each payment can be paid In full.To the extent that any excess exists after the payment is applied to the full payment of one or more Periodic Payments,such excess may ba applied to any late charges due.Voluntary prepayments shall be applied first to any prepayment charges and then as described In the Note. Any application of payments,insurance proceeds,or Miscellaneous Proceeds to principal due under the Note shall not extend or postpone the due date,or change the amount,of the Periodic Payments. 3.Funds for Escrow Items.Borrower shall pay to Lender onthe day Perth dicPayments are due under the Note until tho Note Is paid in flail,a sum(the"Funds")to provide for payment of amounts due for.(a)taxes and assessments and other items which can attain priority over this Security Instrument as a lien or encumbrance on the Property;(b)leasehold payments or ground rents on the Property,deny;(c)premiums for any and all insurance required b Leader under Section 5; and(d)Marigage Insurance premiums,if any, or any sums payable by Borrower to Lender an Lite of the payment ofMc-tgyrge Insurance premiums in accordance with the provisions of Saxton 10.These Items are called"Escrow Items."Atorigination or at any time during the term of the Loan,Lender may require that Community Association Dues,Fees,and Assessments,if any,be escrowed by Borrower,and such dues,fees and assessments shall be an Escrow Item Borrower shall promptly furnish In Lender all notices of amounts to be paid under this Section.Borrower shall payLeader theFunds for Escrow Items tOWA-SingI Puri fy-Fve5oMacfnaktbMae uraeotMINSTRUMENT Bann 3016 1/01 Ono 3 Ri9Pallei) 9742CV t3An) 4505519-012 Creative Thinking,Int. OOTO(00760490) unless Lender waives Borrower's obligation to pay tho'Funds for any or all Escrow Item.Lender may waive Borrower's obligation to pay to Lander Funds for any or all Escrow Items at any time. Any such waiver may only beim writing.In the event of such waiver,Borrower shall ppaydirectly,when and where payable,the amounts due for any Escrow Items for which payment of Funds has been waived by Lender and,if Lender requires,shall furnish to Lender receipts evidencing such payment within such time period as Lender may require.Borrower's obligation to make such payments and to provide receipts shall for all purposes be deemed to be a covenant and agreement contained in this Security Instrument,as the phrase "covenant and agreement"is used in Section 9.IfBonower is obli ye.ed to pay Escrow Items directly,pursuant to a waiver, and Borrower fails to pay the amount due for an Escrow Item,Le'• r may exercise Its rights under Section 9 and pay such amount and Borrower shall then be obligated under Section 9 to repay to Lender any such amount.Lender may revoke the waiver as to any or all Escrow Items at any time by a notice given In accordance with Section 15 and,upon such revocation, Borrower shall pay to Lender all Funds,and in such amounts,that are then required under this Section 3. Lender may,at any time,collect and hold Funds in an amount(a)sufficient to permit Lender to apply theFunds et the time specified under RESPA.and(b)not to exceed the maximum amount a lender can require under RESPA. Lender shall estimate the amount of Funds due on the basis of current data and reasonable estimates ofexpenditures offuuue Escrow Items or otherwise in accordance with Applicable Law. The Funds shall be held In an institution whose deposits are insured bya federal agency,instrumentality,or entity (including Lender,if Lender is an institution whose deposits aro so insured)or in an Federal HomeLoanBank.Ler lershall apply the Funds to pay the Escrow items no later than the dine specified under RESPA.leader shall Dot charge Borrower for holding and applying the Funds,annually anniyzing the escrow account,or verifying the Escrow Items,unless Lender pays Borrower Interest on the Funds and Applicable Law permits Lender to make such a charge. Unless an agreement is made in writing or Applicable Law requires interest to be paid on the Funds,Lender shall not be required to pay Borrower any interest or earnings on the Funds.Borrower and Lender can agree in writing,however,that Interest shall be paid on the Funds. I rndrr shall give to Borrower,without charge,an annual accounting of the Funds as required by RESPA. If there is a surplus of Funds held in escrow,as defined under RESPA,Lender shall account to Borrower for the excess funds in accordance with RESPA. If there is a shortage of Funds held In escrow,as defined under RESPA,Lender shall notify Borrower as uired by RESPA,and Borrower shall pay to Lender the amount necessary to make up the shortage in accordance with A,but in no more than 12 monthly payments. If there is a deficiency of Funds held in escrow,as defined under RESPA,Lender shall notify Borrower asrequired by RESPA,and Borrower shall pay to Lender the amount necessary to make up the deficiency in accordance with RESPA,but in no more than 12 monthly payments. Upon payment in full of all sums secured by this Security Instrument,Lender shall promptly refund to Borrower any Funds held by Lender. 4. Charges;Liens.Borrower shall pay all taxes,assessments,charges,fines,and Impositions attributable to the Property which can attain priority over this Securleylnstrument,leasehold payments or ground rents on the Property,ifnny, and Community Association Dues,Fees,and Assessments,if any.To the extent that these items arcEscrowItems,Borrower shall pay themin the manner provided in Section 3. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower(a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender,but only so long as Borrower is performing such agreement;(b)contests the lien in good faith by,or defends agelnst enforcement of the lien In, legal proceedings which in Lender's opinion operate to prevent the enforcement of the lien while those proceedings are pending,but only until such proceedings are concluded;or(c)secures from the holder of the lien an agreementsatisfactoryto Lender subordinating the lien to this Securityfnstruntent. If Lender determines that any part of thePropperty is subject to a lien which can attain priority over this SecuntyInstrument,Lender m give Borrower a notice identifying the lien.Within 10 days of the date on which that notice is given,Borrower shall satisfythe lien or take one or more offthe actions set forth above in this Section 4. Lender may require Borrower to pay a one-time charge fora real estate tax verification and/or reporting service used by Lender In connection with this Lean. 5.Property Insurance.Borrower shall keep the improvements now crusting or hereafter crcctcd oothePmpesly insured against loss byline,hazards included within the term"extended coverage,"and any other hazards including,but not limited to,earthquakes and floods,for which Lender requires insurance,This Insurance shall be maintained in the amounts . (including deductible levels)and for the periods that Lender requires. What Lender requires pursuant to the preceding sentences can change duringthe term of the Loan. The Insurance carrier providing the insurance shall be chosen by ro Borwer subject to Lender's right to disapprove Borrower's choice,which right shall not bo exercised unreasonably. Lender may require Borrower to pay, in connection with this Loan, either: (a)a one-time charge for flood zone . determination,certification and tracking services;or(b)a one-time charge for flood zone determination and certification services and subsequent charges each time remappings or similar changes occur which reasonably might affect such determination or certification. Borrower shall also be responsible for the payment of any fees Imposed ley the Federal Emergency Management Agency in connection with the review of any flood zone determination resulting from an objection by Borrower. If Borrower fails to maintain any of the coverages described above,Lender may obtain insurance coverage,at Lender's option and Borrower's expense. Lender Is under no obligation to purchase any particular type or amount of coverage.Therefore,such coverage shall cover Lender,but might or nught not protect Borrower,Borrower's equity in the Property,or the contents of the Property,against any risk,hazard or liability and might provide greater or lesser coverage than was previously in effect.Borrower acknowledges that the cost of the insurance coverage so obtainedmlghtsigni&aw0y exceed thccostofinsuranco thatBorrowercould have obtained.Any amounts disbursed byLenderunder thisSection 5shall become additional debt of Borrower secured by this Security Instrument.These amounts shall bear interest at thNote rate from the date of disbursement and shall be payable,with such interest,upon notice from Lender to Borrower requesting payment. All Insurance policies required by Lender and renewals of such policies shall be subject to Lender's right to disapprove such policies,shall include a standard mortgage clause.,and shall name Lender as mortgagee and/or as an additional loss payee.Lender shall have the right to hold the policies and renewal certificates.If Lender requires,Borower shall promptly give to Lender all receits of paid premiums and renewal notices.If Borrower obtains an formofinsunurcc coverage,not otherwise required by Lender,for damage to,or destruction of,the Property,such policy shall include a standard mortgage clause and shall name.I eerier as mortgagee and/or as an additional losspayee. In the event of loss,Borrower shall give prompt notice to the insurance carrier and Lender.Lender maymake proof of loss if not made prc mp tiy by Borrower.Unless Lender and Berra wer otherwise agree in writing,any insurance proceeds, whether or not the underlying insurance was required by Lender,shall be applied to restoration or repair of the Property,if the restoration or repair is economically feasible and Lender's security is not lessened.During such repair and restoration period,Lender shall have the right to hold such insurance proceeds until Lender has had an opportunity to inspect such Property to ensure the work has been completed to Lender's satisfaction,provided that such inspection shall be undertaken promptly. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work Is completed. Unless an agreement is made In writing or Applicable Law requires interest to be paid on such insurance proceeds,Lender shall not be required to pay Borrower any interest or earnings on such proceeds.Pecs for public adjusters,or other third parties,retained by Borrower shall not be paid out of the insurance proceeds and shall be the sole obligation of Borrower. If the restoration or repair is not economically feasible or Lender's security would be O lessened,the inscranee proceeds shall be applied to the sums secured by this Security Instrument,whether or not then due, with the excess,if any,paid to Borrower.Such insurance proceeds shall be applied in the order provided for in Section 2. IOWA-Slagle Family—FacmlaMa&Frcddta Mae UNIFORM INSTRUMENT Form3atG 1101(p00tygf9pagti , ) 1 9747-CV win 4507819-013 Creative Ttnlnking,Inc. — corocoo7sa4ag , SO I"•' zscj :. ry Cl • If Borrower abandons the Property,Lender Indy file,negotiate and settle any available insurance claim and related matters.If Borrower does not respond within 30 days to a noticem Lender that the insurance carrier has offered to settle a claim,then Lender may negotiate and settle the claim. The 30-day period'will begin when the notice Is given. In either event,or if Lender acquires the Property under Section p or othgrwlse,Borrower hereby assigns to Lender(a)Borrower's rights to any insurance proceeds in an amount not to exceed the amounts unpaid under the Note or this Security Instrument, and(b)any other of Borrower's rights(other than the right to any refund of unearned premiums paid by Borrower)under all insurance policies covering the Property,insofar as such rights are applicable to the coversgeofthe Property.Lender may use the insurance proceeds either to repel(or restore the Property or to pay amounts unpaid under the Note or this Security Instrument,whether or not then due. 6. Occupancy. Borrower shall occupy,establish,and use the Property as Borrower's principal residence within 60 days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy,unless Lender otherwise agrees in writing,which consentshall rot be unreasonably withheld,cr unless extenuating circumstances exist which e o beyond Borrower s control. 7. Preservation,Maintenance and Protection of the Property;Inspections. Borrower shall not destroy, damage or impair the Property,allow the Property to deteriorate or commit waste on the Property, Whether or notBorrower is residing in the Property,Borrower shall maintain the Property in order to prevent the Property from deteriorating or decreasing in value due to its condition. Unless it is determined pursuant to Section 5 that repair or restoration is not economically feasible,Borrower shall promptly repair the Property if damaged to avoid further deterioration or damage.If insurance or condemnation proceeds are paid in connection with damage to,or the taking of,the Property,B orrowershail be responsible for repairing or restoring the Property only if Lender has released proceeds for such purposes. Lender may disburse proceeds for the repairs and restoration in a single payment or in a series of progress payments as the work Is completed. If the insurance or condemnation proceeds are not sufficient to repair or restore the Property,Borrower Is not relieved of Borrower's obligation for the completion of such repair or restoration. Lender or its went may make reasonable entries upon and inspections of the Property. 1111 has reasonable cause, Lender may inspect the interior of the improvements on the Property. Lender shall give Borrower r,otice at the time of or prior to such an interior inspection specifying such reasonable cause. 8.Borrower's Loan Application. Borrower shall be in default if,during the loan application process,Borrower or any persons or entities acting at the direction ofB orrower or with Borrower's knowledge or consent gave materially false, misleading,or inaccurate Information or statements to Lender(or failed to provide I rnrirr with material information)In connection with the Loan. Material representations include,but are not limited to,representations concerning Borrower's occupancy of the Property as Borrower's principal residence. 9. Protection of Lender's Interest in the Property and Rights Under this Security Instrument. If (a)Borrower fails to perform the covenants and agreements contained in this Security Instrument,(b)there is a legal proceeding that might significantly affect Lender's interest In the Propertyand/or rights under this Security Instrument(such as a proceeding in bankruptcy,probate,for condemnation or forfeiture,for enforcement of a Ilen which may attain priority over this Secunty Instrument or to enforce laws or regulations),or(c)Borrower has abandoned the Property,then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument,including protecting and/or assessing the value of the Property,and securing and/or repairing the Property.Lender's actions can include,but are not limited to;(a)paying any sums secured by a lien which has priority over this SecurityInstrument;(b)appearingin court;and(c)paying reasonable attorneys' fees to protect its interest in the Property and/or nights under this Security Instrument,including its secured position in a bankruptcy proceeding. Securing the Property includes,but is not limited to,entering the Property to make repairs,change locks,replace or board up doors and windows,drain water from pipes,eliminate building or other code violations or dangerous conditions,and have utilities turned on or off. Although Lender may take action under this Section 9,Lender does not have to do so and is not under any duty or obligation to do so.It is agreed that Lender incurs no liability for not taking any or all actions authorized under this Section 9. Any amounts disbursed by Lender under this Section 9 shalt become additional debt ofBorrower secured by this Security Instrument.These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such Interest,upon notice from Lender to Borrower requesting payment. If this Security Instrument is on a leasehold,Borrower shall comply with all the provisions ache lease.IPBotrower acquires fee title to the Property,the leasehold and the fee title shall not merge unless Lender egrets to the maga ln writing. 10.Mortgage Insurance.If Lender required Mortgage Insurance as a condition of making the Loan,Borrower shall pay the premiums required to maintain the Mortgage Insurance in effect.If,for any reason,the Mortgage Insurance • coverage required by Lender ceases to be available from the mortgage insurer that previously provided such Insurance and Borrower was required to make separately designated payments toward the premiums for Mortgage Insurance,Borrower shall pay the premiums required to obtain coverage substantially equivalent to the Mortgage Iruurar.ce previously in effect,at a cost substantially equivalent to the cost to Borrower of the Mortgage Insurance previously in effect,from an alternate mortgage insurer selected by Lender. If substantially equivalent Mortgage Insurance coverage is not available,Borrower shall continue to pay to Lender the amount of the separately designated payments that were due when the insunincccoverage ceased to be in effect.Lender will accept,use and retain these payments as a non-refundable loss reserve in lieu ofMortgago Insurance. Such loss reserve shall be non-refundable,notwithstanding the fact that the Loan is ultimately paid in full,and Lender shall not be required to pay Borrower any interest or earnings on such loss reserve.Lender can no longer require loss reserve payments if Mortgage Insurance coverage� (in the amount and for the period that Lender requires)provided by an insurer selected by Lender again becomes available,is obtained,and Lender requires separately designated payments toward the premiums for Mortgage Insurance. If Lender required Mortgage Insurance ns a condition of making the Loan and Borrower was required to make separately designated payments toward the premiums for Mortgage Insurance,Borrower shall pay the premiums required to maintain Mortgage Insurance in effect,or to provide a non-refundable loss reserve,until Lender's requirement for Mortgage Insurance ends in accordance with any written agreement between Borrower and Lender providing for such termination or until termination is required by Applicable Law. Nothing in this Section 10 affects Borrower's obligation to pay interest at the rate provided In the Note. Mortgage Insurance reimburses Lender(or any entity that purchases the Note)for certain losses it may Incur if Borrower does not repay the Loan as agrad. Borrower is nota party to the Mortgage Insurance. Mortgage insurers evaluate their total risk on all such insurance in force from time to time,and may enter into agreements with other parties that share or modify their risk,or reduce losses.These agreements are on terms end coalitions that are satisfactory to the mortgage insurer and the other party(or parries)to these agreements. These agreements may require the mortgage insurer to make payments using any source of funds that the mortgage insurer may have available (which may include funds obtained from Mortgage insurance premiums). As a result of these agreements,Lender,anypurcftaserof theNoto,another insurer any reinsurer,anyother entity, or any affiliate of any of the foregoing. may receive(directly or Indirectly) amounts that derive from(or might be characterized as)a portion of Borrower's payments for Mortgage Insurance,in exchange for sharing or modifying the mortgage insurer's nsk,.or reducing losses. If such agreement provides that an affiliate of Lender takes a share of the insurer a risk in exchange for a share of the premiums paid to the insurer,the arrangement is often termed"captive reinsurance." Further. (a) Any such agreements will not affect the amounts that Borrower has agreed to pay for Mortgage Insurance,or any other terms of the Loan.Such agreements will not increase the amount Borrower will owe for Mortgage Insurance,and they will not entitle Borrower to any refund. rV b IOWA—SIngk Family--Faunae Mne/1+rodGte Mac UNIFORM INSTRUMENT POroi 1016 hill Gaya 3 of 9742CV t3asa) 4fa38i9-e11 Crcatrvc Thlrntng,Itt6 c o5 o3265 491L—: r-, r c1t (b)Any such agreements will not affect the rights Borrower has-If any-with respect to the Mort age Insurance under the Homeowners Protection Aft of 1998 or any other law.These rights may Include the ti t to receive certain disclosures,to request and obtain Cancellation of the Mortgage Insurance,to have the Mo age Insurance terminated automatically,and/or to recSiverkrefurid of any Mortgage Insurance premiums that were unearned at the time of such cancellation or turminttion, 11.Assignment of Miscellaneous Proceeds;Forfeiture.All Miscellaneous Proceeds are hereby assigned toand shall be paid to Lender. If the Property is damaged,such Miscellaneous Proceeds shall be applied to restoration or repair of thePreperty,If the restoration or repair is economically feasible and Lender's security is not lessened.During such repair and restoration period,Lender shall have the right to hold such Miscellaneous Proceeds until Lender has had an opportunity to inspect such Proropperuttyy to ensure the work has been completed to Lender's satisfaction,provided that such inspection shall be undertaken promptly.I ender may ay for the repairs and restoration In a single disbursement or in a series of progress payments as the work is completed Unless an agreement is made in writingor Applicable Law requires interest to be paid on such Miscellaneous Proceeds,Leader shall not be required to pay Borrower any interest or earnings on such Miscellaneous Proceeds.If the restoration or repair is not economically feasible or Lender's security would be lessened the Mlscelianeo is Proceeds shall be applied to the suras secured byy this Security Instrument,whether or not then due,with the excess, If any, paid to Borrower. Such Miscellaneous Premeds shall be applied in the order provided for in Section 2. In the event of a total taking,destruction,or loss In value of the Property,this Miscellaneous Proceeds shall be applied to the sums secured by this Security Instrument,whether or not then due,with the excess,Reny,paid to Borrower. In the event of a partial taking,destruction,or loss In value of the Property in which the fair market value of the Property immediately before the partial taking,destruction,or lass la value is equal to or greater than the amount ofthe sumi secured by this Sccuritylnstrument immediately before the partial taking,destruction or loss in value,unless Borrower and Lender otherwise agree in writing,the sums secured by this Security Instrument squall be reduced by the amount of the Miscellaneous Proceeds multiplied by the following fraction:(a)the total amount of the sums secured immediately before the partial taking,destruction,or loss in value divided by(b)the fair market value of the Property immediately before the partial taking,destruction,or loss in value. Any balance shall be paid to Borrower. In the event of a partial taking,destruction,or loss In value of the Property in which the fair market value of the Property immediately before the partial taking,destruction,or loss in value is less than the amount of the sums secured immediately before the partial inking,destruction,or loss in value,unless Borrower and Lender otherwise ogee in writing, the Mucell aneous Proceeds shall be applied to the sums secured by this Security Instrument whether or not the sums aro then due. If the Property is abandoned by Borrower,or if,after notice by Lender to Borrower that the Opposing Party(as defined in the next sentence)offers to make an award to settle a claim for damages,Borrower fails to respond to Lender within 30 days after the date the notice is given,Lender Is authorized to collect and apply the Miscellaneous Proceeds either to restoration or repair of the Property or to the sums secured by this Security Instrument,whether or not then due, "Opposing Party'means the third party that owes Borrower Miscellaneous Proceeds or the party against whom Borrower has a right of action in regard to Miscellaneous Proceeds. Borrower shall be In default if any action or proceeding,whether civil or criminal,is begun that,in Lender's judgment,could result in forfeiture of theProperty or other material impairment of Lender's interest in the Propertyor rights uncer this Security Instrument.Borrower can cure such a default and,if acceleration has occurred,reinstate as provided in Section 19,by causing the action or preceeding to be dismissed with a ruling that,in Lender's judgment precludes forfeiture of the Property or other material impairment of Lender's interestinthe Property orrights under ttusSecuntylnserument The proceeds of any award or claim for damages that are attributable to the impairment of Lender's interest In the Property are hereby assigned and shall be paid to Lender. All Ivfrsceltaneous Proceeds that are not applied to restoration or repair of the Property shall be applied in the order provided for in Section 2. . 12. Borrower Not Released;Forbear-once By Lender Not a Waiver. Extension of the time for payment or modification of amortization of the sums secured by this Security Instrument granted byLender toBcrrowermany Successor in Interest of Borrower shall not operate to release the liability of Borrower or any Successors in Interest of Borrower. Lender shall not be required to commence proceedings against any Successor in Interest of Borrower or to refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason ofany demand made by the original Borrower or any Successors in Interest of Borrower.Any forbearance by Lender in exercising any right or remedy including,without limitation,Lender's acceptance of payments from third persons,entities or Successors in • Interest of Borrower or in amounts less than the amount then due,shall not be a waiver of or preclude the exercise of any right or remedy. 13.Joint and Several'debility;Co-signers;Successors and Assigns BoundBorrower covenants and agrees that Borrower's obligations and liability shall be joint and several. However,any Borrower who co-signs this Security Instrument but does not execute the Note(a"co-signer"):(a)is co-signing this Security Instrument only to mortgage,grant and convey the co-signer's interest in the Property under the terms of this Securitylnstrumeng(b)is notpersonallyobligated CO pay the turns secured by this Security Instrument;and(c)agrees that Lender and any other Borrower can agree to extend, modify,forbear or make any accommodations with regard to the terns of this Security Instrument or the Note without the co- signer's consent. Subject to the provisions of Section 18,any Successor In Interest of Borrower who assumes Borrower's obligations under this SecurityInstrument in writing,and is approved by Lender,shall obtain all of Borrower's rights and benefits under this Security Instrument. Borrower shall not be released from Borrower's obligations and liability under this Security Instrument unless Lender agrees to such release in writing.The covenants and agreements of this Security Instrument shall Wed(except as provided in Section 20)and benefit the successors and assigns of Lender. 14. Loan Charges. Lender may charge Borrower fees for services performed in connection with Borrower's default,for the purpose of protecting Lender's interest In that Property and rights under this Security Instrument,including, but not limited to,attorneys'fees,property inspection and valuation fees.In regard to any other fees,the absence of express authority in this Security Instrument to charge a specific fee to Borrower shall not be construed as a prohibition on the charging ofsuch fee.Lender may not charge fees that are expressly prohibited by this SecuritylnstrumentorbyApplicable LaIf the Loan is subject to a law which sets maximum loan charges and that law is finally Interpreted so that the interest or other loan charges collected or to be collected in connection with the Loan exceed the permitted limits,then:(a) any such loan charge shall reduced by the amount accessory to reduce the charge to the permitted limit;and(b)any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower.Lender may choose to make this refund by reducing the principal owed under the Note or by making a direct payment to Borrower.If a refund reduces principal,the reduction will be treated as a partial prepayment without any prepayment charge(whether or not a prepayment charge Is provided for under the Note).Borrower's acceptance of any such refund made bydlrece payment to Borrower will constitute a waiver of any right of action Borrower might have arising out of such overcharge. 15. Notices. All notices given by Borrower or Lender is connection with this Security Instrument must be in writing. Any notice to Borrower in connection with this Security Instrument shall be deemed to have been given to Borrower when mailed by first class mail or when actually delivered to Borrower's notice address if sent by other means.Notice to any one Borrower shall constitute notice to all Borrowers unless Applicable Law expressly requires otherwise. The notice address shall be the Property Address unless Borrower has designated a substitute notice address by notice to Lender. e,.a O IOWA-34410 Fmr ty-Venelo MeeNn,tdIo Mae UNIFORM INSTRUMENT Form 3016 1/01(pair 6 of9 pclgtf" 9742.cv(LOO 4503819-012 Creative Waiting,lar. .-) cOTotae160i 0- .. 1 [tem. ri i' >;r` >\) ! j Ca) • • Borrower shall promptly notify Lender of Borrower's Change of address. If Lender specifies a procedure for reporting Borrower's change of address, then Borrower shall only report a change of address through that spcdfied rod:dere.There may beonly one designated notice address unArr this Security Instrument at any one time.Any notice to miter shall tie given by delivering It or by mailing it by first class marl to Lenders address stated herein unless Lender has*dCsignateci another address by notice to Borrower. Any notice In connection with this Security Ins trument shall not be deemed to have been given to Lender until actually received byLcnder. If any notice required by this Security Instrument is also required under Applicable Law,the Applicable Law requirement will satisfy the correspondingrequirement under this Security Instrument. 16. Governing Law,Severablllty;Rules of Construction. This Security Instrument shall be governed by federal law and the law of the jurisdiction In which the Property is located. All rights and obligations contained in this Security Instrument are subject to any requirements and limitations of Appli cable Law.Applicable Law might explicitly or implicitly allow the parties to agree by contractor it might be silent,but such silence shall not be construed as a prohibition againstmentbycontract.In the event that any provision or clause of this Security Instrument or the Note conflicts with Applicable Law,such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision. As used In this Security Instrument:(a)words of the masculine gender shall mean and include corresponding neuter words or words of the feminine gender;(b)words in the singular shall mean and include the plural and vice vasa;and(c)the word"ma gives sole discretion without any obligation to take any action. 17. Borrower's Copy.Borrower shall be given one copy of the Note and of this Security Instrument. 18.Transfer of the Property ora Beneficial Interest in Borrower.As used In this Section 18,"Interest In the Property"means any legal or beneficial interest in the Property,including,but not limited to,those beneficial interests transferred in a bond for deed,contract for deed,installment sales contract or escrow agreement,the intent of which is the transfer of title by Borrower at a future date to a purchaser. If all or any part of the Property or any Interest in the Property Is sold or transferred(or If Borrower is nota natural person and a beneficial interest in Borrowers sold or transferred)without Lender's prior written consent,Lender may require immediate pa nt In full of all sums secured by this Security Instrument. However,this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. If Lender exercises this option,Lender shall give Borrower noticed(acceleration.The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period,Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 19.Borrower's Right to Reinstate After Acceleration.If Borrower meets certain conditions,Borrower shall have the right to have enforcement of this Securitylnstrumcntdiscontlnued at any time prior to the earliest of:(a)five days before sale of the Property pursuant to any power of sale contained in this Security Instrument;(b)such other period as Applicable Law might specify fcr the terrmnation ofBorrower's right to reinstate;or(c)entry of a judgment enforcing this Security Instrument. Those conditions arc that Borrower.(a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred;(b)clues any default of any other covenants or agreements;(c)pays all expenses Incurred in enforcing this Securitylnstrument,including,but not limited to,reasonable attorneys'fees,property inspection and valuation fees,and other fees Incurred for the purpose of protecting Lender's interest in the Property and rights under this Security Instrument;and(d)takes such action as Lender may reasonably require to assure that Lender's interest in the Property and rights under this Security Instrument,and Borrower's obligation to pay the sums secured by this Security Instrument,shall continue unchanged.Lender may require that Borrower pay such reinstatement sums and expenses in one or more of the following forms,as selected by Lender. (a)cash;(b)money order;(c)certified check,bank check,treasurer's check or cashier's check,provided any such check is drawn upon an Institution whose deposits are insured by a federal agency,instrumentality or entity;or(d)Electronic Funds Transfer, Upon reinstaternent by Borrower,this Security Instrument and obligations secured hereby shall remain fully effective as if no acceleration had occurred.However,this right to reinstate shall not apply in the else ofeccelemtionunder Section 18. 20. Sale of Note;Change of Loan Servicer,Notice of Grievance. The Note or a partial interest in the Note (together with this SecurityInstrument?can be sold one or more times without prior notice to Borrower.A sate might result in a change In the entity(known as the 'Loan Seryices )that collects Periodic Payments duo under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the Note,this Security instrument,and Applicable Law. There also might be one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer,Borrower will be given written notice of the change which will state the name and address of the new Loan Servicer,the address to which payments should be made and any other information RESPA requires in connection with a notice of transfer of servicing. If the Note Is sold and thereafter the Loan Is serviced bye Loan Servicer other than the purchaser of the Note,the mortgage loan servicing obligations to Borrower will remain with the Loan Servicer or be transferred to a successor Loan Servicer and are not assumed by the Note purchaser unless otherwise provided by the Note purchaser. Neither Borrower nor Lender may commence,join,or be joined to any judicial action(as either an individual litigator the member of a class)that arises from the other party's actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of,or any duty owed by reason of,this SecurityInstrument,until such Borrower or Lander has notified the other party(with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period slier the giving of such notice to take corrective action.If Applicable Law provides a time period wh ichenust elapse before certain action can be taken that time period will be deemed to be reasonable for purposes of this paragraph.The notice of acceleration and opportunity to cure given to Borrower pursuant to Section 22 and notice of acceleration given to Borrower pursuant to Section 18 shall be deemed to satisfy the notice and opportunity to take corrective action provisions of this Section 20. 21.Hazardous Substances.As used In this Section 21:(a)"Hazardous Substances"are those substennSdefined as toxic or hazardous substances,pollutants,or wastes by Environmental Law and the following substances:gasoline, kerosene,other flammable or toxic petroleum products, toxic pesticides and herbicides,volatile solvents, materials containing asbestos orlbrmaldebyde,and radioactive materials;(b)"Environmental Law"means federal laws and laws of the jurisdiction where the Property is located that relate to health,safety cr environmental protection; "Environmental Cleanup"includes anyresponse action,remedial action,or removal action,as defined in Environme Law;and(d)an "Environmental Condition'means a condition that can cause,contribute to,or otherwise trigger an Environmental Cleanup. Borrower shall not cause or permit the presence,use,disposal,storage,or release ofanyHazardous Substances,or threaten to release any Hazardous Substances,on or in the Property.Borrower shall not dor aor allow anyone else to do anything affecting the Property(a)that is in violation of any Environmental Law,(b)which creates an Environmental Condition,or(c)which,due to the presence,use,or release of a Hazardous Substance,creates a condition that adversely affects the valued the Property.The preceding two sentences shall not apply to the presence,use,orslomge on theProperty of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property(including,but not limited to,hazardous substances in consumer products). Borrower shall promptly give Lender written eotice of(a)any investigation,claim,demand,lawsuit or ether action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge,(b)any Environmental Condition.including but not Urtuled to, any spilling,leaking,discharge,release or threat of release of any Hazardous Substance.and(c)uny condition caused by the • 10WA-Slegta Pcrnny—Focxto Madfm k:a Mae UNIFORM INSrRUG111NT Pone 3 016 1/01(pea.7 of 9payrd rev 9741CV(3A2) 44031111,0 I 1 ?math*lhlalcing,Inc. q ►V • • 001'00:0/160400)t. • - ..mCi tt;Q rwe 7.-<r— r-rI • presence,use or release of a Hazardous Substance which adversely affects the value of the Property.IfBorrower learns,or is notified by any governmental or reg.ulatory authority,or any private party,that any removal or other remediation of any Hazardous Substance affecting the Property Is necessary,Borrower shall promptly take all necessaryremedial actions in accordance with Environmental Law.Nothing herein shall crate any obligation on Lender for an Environmental Cleanup. NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument(but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify:(a)the default;(b)the action required to cure the default;(c)a date,not less than 30 days from the date the notice is given to Borrower,by which the default must be cured;and(d)that failure to cure the default on or before the date specified in the notice may result in acceleration of the auras secured by this Security Instrument,foreclosure by judicial proceeding and sale of the Property.The notice shall further Inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or arty other defense o f Borrower to acceleration and foreclosure, If the default is not cured on or before the date specified In the notice,Lender at Its option may require immediate payment in full of all sums secured by this Security Instrument without furtherdemand and may foreclose this Security Instrument by judicial proceeding.Lender shall be entitled to collect all expenses incurred In pursuing the remedies provided in this Section 22,including,but not Malted to,reasonable attorneys'fay and costs of title evidence. 23. Release. Upon payment of all sums secured by this Security Instrument,Lender shall release this Security Instrument. Lender may charge Borrower a fee for releasing this Security Instrument.but only if the fee is paid to a third party for services rendered and the charging of the fee is permitted under Applicable Law. 24.Waivers.Borrower relinquishes all right of dower and waives all right of homestead and distributive share in and to the Property. Borrower waives any right of exemption as to the Property. 25.HOMESTEAD EXEMPTION WAIVER.I UNDERSTAND THAT HOMESTEAD PROPERTY IS IN MANY CASES PROTECtrHD FROM THE CLAIMS OF CREDITORS AND EXEMPT FROM JUDICIAL SALE;AND THAT BY SIGNING THIS MORTGAGE I VOLUNTARILY GIVE UP MY RIGHT TO THIS PROTECTION FOR THIS MORTGAGED PROPERTY WITH RESPECT TO CLAIMS BASED UPON THIS MORTGAGE ��^r Aprll 2,2008 Tucker Iv1 Burnes [Date] April 2,2008 Katharine J Burnes [Dace] 26. Redemption Period.If the Property is less than 10 acres in size and Lender waives in any foreclosure pro- ceeding any right to a deficiency judgment against Borrower,the period of redemption from judicial sale shall be reduced to 6 months. If the court finds that the Property has been abandoned by Borrower and Lender waives any right to a deficiency Judgment against Borrower,the period of redemption from judicial sale shall be reduced to 60 days. The provisions of this Section 26 shall be construed to conform to the provisions of Sections 628.26 and 628.27 of the Code of lawn. l_5 "r;—. --a 7> crt (.) IOWA-Stngte Fart ty—Fnralu MndVrcddla Mac MFG RM Ih'SIRUME T Fenn 1516 tial (puss d of 9 pia) 914ca_CV Q.c5) 45a3i19412 Crccllvc Thinking,Inc. COTO00260499) • IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE.NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. BY SIGNING BELOW,Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any Rider executed by Borrower and recorded with it. Witnesses: (Seal) Borrower Tucker M Burnes 6X-Ckt"Jryl, L/L.--:---314.X1M4eaD Borrower Kntharine.1 Burnes (Simi) Borrower Ps., � 2 —4 as..a,i --Borrower "� I-- --iCa rn -4rri CJ;;;;. .rte (� • •ISpace Below This Line For Acknowledgment) C.,� STATE OF Iowa ) ss: COUNTY OF Johnson ) On this 2nd day of April 2008 ,before me,the undersigned,a Notary Public is and for said county and state,personally appeared:Tucker M Burnes and Katharine J Barnes.as husband and _ wife to me personally known to be the person(s)named in and who executed the foregoing instrument,and acknowledged that they executed the same as their voluntary act and deed My commission expires:03/26/2009 otary P in and for said County and State SCOTT Scott Schroeder Commission Number 189388 My Corn anion Expires 47,0. IOWA—Slagle Fandly—Pnon o MR 9Froddb Mac UNIFORM INSTRUME W Pam 3056 1102(page Si Ofl parm) 9141CV CMS) 4503319-012 Craoliva Thinking,Inc. aalb(00150494) • N O N w�■ C71 C� '.. CD rn 1731 CI1 W Prepared by end RETURN TO; Iowa State Bank and Trust Co • telephone 318-358-5880 Title of Document: Rider to Mortgage Grantor. Tucker M Burnes and Katharine J Burnes (borrower(s)) Grantee: Iowa Slate Bank and Trust Co (lender) RIDER TO MORTGAGE This Tax-Exempt Financing Rider to Mortgage,made the dale noted below,is Incorporated Into and shall be deemed to amend and supplement the Mortgage of the same dale given by the undersigned(the'Mortgagor)to secure the Mortgagor's Note to Iowa State Bank and Trust Co (herein,the'Lander')and covering the property described in the Mortgage(Ute'Property')to which this Rider Is attached. The provisions hereof shall prevail notes thstanding any contrary provisions to any note cr ether instrument which evidences the obligations secured by the Mortgage. • As tong as the Mortgage is held by the Iowa Finance Authority or backs a mortgage-backed security hold by the Iowa Finance Authority,Countrywide Home Loans,Inc.(the'Servtcer)or such of Its successors or assigns as may by separate instrument assume responslbwty for assuring compliance by the Mortgagor with the provisions of this Rider,may declare al sums secured by the Mortgage to be immedtetely due end payable If: (1)all or part of the property Is sold or otherwise Transferred(other than by devise,descent or operation of law) by the Mortgagor toe purchaser or other transferee: a. who cannot reasonable be expected to occupy the property as a principal residence within a reasonable time after the sale or transfer,ail as provided In Section 143(c)and(I)(2)of the Internal Revenue Code of 1988,as amended(tho'Code');or b. who has had a present ownership Interest in a principal residence during any part of the three-year period ending on the date of the safe or transfer,all as provided In Section 143(d)and(1)(2)of the Code(except that the language'100 percenr shall be substituted for'88 percent or more'where the latter appears In Section 143(d)(1)),unless the property Is In a Targeted Area;or c. at en acquisition cost which Is greater titan ED percent of the average area purchase price(greater than 110 percent for Targeted Area residences),at as provided In Section 143(o)and(1)(2)of the Code;Or d. who has a gross family income In excess of applicable median family Income;ell as provided In Section 143(f)and(q(2)of the Code;or (2)tiro Mortgagor falls,or ceases,to occupy the Property without the prior written consent of the Mortgagee or Its successors or assigns;or (3)the Mortgagor omits or misropresents a tact that Is material with respect to the provfslons of Section 143 of the Coda In the application for the Mortgage which secures the Note. References are to the Code in affect on the date of the execution of the Mortgage and aro doomed to include the eppllcable implementing regulations. By signing below,the .ortga or(s) and agrees to the terms of the Rider to Mortgage. Data: 2 mower CaBcrrower Tucker M Burnes Katharine J Burros Typed Name Typed Name This Instrument was; owlodgod before me on 412/0/{ by T .r M Bu.yr„Katharine J Burnes as Mortgagor(s). I ARYPUII CIna . or SCOTT SCHROEDER z Commission Number 189383 +r M Commissfor Expires 1OWp • • AFFIDAVIT STATE OF IOWA SS COUNTY OF POLK I, Benjamin W. Hopkins, state that I am one of the attorneys for the Plaintiff in this cause; that I am a regular practicing attorney engaged in this case; that there has been no agreement, express or implied, between myself and my client, or between myself and any other person except attorneys associated with me in this case, for any sharing or division of the attorney fees to be taxed herein. I certify under penalty and perjury and pursuant to the laws of the State of Iowa that the preceding is true and correct . Dated this 11th day of October , 2012 . B /7' -• n fp ins AT0003573 Exhibi ■ ' N C3 .te=n; -4 o `1 ry END OF CASE FILE • CIVIL PROCESS WORKSHEET JOHNSON COUNTY SHERIFFS OFFICE• PO BOX 2540, 511 S CAPITOL ST, IOWA CITY, IA 52244-2540•(319) 356-6030 PLAINTIFF: BOKASSA, JERRY Docket No 12-02553 State IOWA vs. Court No CVCV074491 County JOHNSON DEFENDANT: CITY OF IOWA CITY Ref No Received 05/18/2012 11)0155° 0,t-0 NOvailLD 1 Name CITY OF IOWA CITY Zone Party Type DEFENDANT Phone Fax Address IHOLECEK,SARAH 410 E WASHINGTON ST IOWA CITY IA 52240- E-Mail I Employer I Comments (PLAINTIFF REQUESTED HOLECEK BE SERVED MNI Information Race Sex Birth Date Age Hair Height Weight SSN Eyes Skin Notes Documents Document Serve by Date OE PSR Description/Special Instructions COMPLAINT ❑ ❑ IN FORMA PAUPERIS ❑ ❑ OTHER ❑ ❑ Service Information Date Time '\19° Type C �- Gov+ Party P J C 1' 2v i i k Relationship 0Q1OCili-' '< C-1 Qf if Race V - Sex r DOB Location Li\ \ P IC(4t j-1I )) Miles \ Fee Officer 4.).. Attempts Log Date Time Server Notes Date Time Server Notes � Notes: --C N — n N G m o v 0 Printed:Friday, May 18,2012 Johnson County Sheriffs Office Page 1 of 1 • Administrative Release (Letter of Right-To-Sue) 646401p-iv To: ) From: JERRY BOKASSA ) Iowa Civil Rights Commission PO BOX 1905 ) Grimes State Office Building IOWA CITY, IA 52244 ) 400 E. 14th Street ) Des Moines, Iowa 50319 Complaint CP# 07-11-61159 This is your Administrative Release (Right-To-Sue) Letter issued pursuant to Iowa Code Section 216.16 and 161 Iowa Administrative Code Section 3.10. It is issued pursuant to the Complainant's request. The following conditions have been met: `mac --1: 1. The complaint was timely filed with the Iowa Civil Rights Commission (ICRC) in Iowa Code Section 216.15(12); 2. Sixty (60) days have expired since the complaint was filed with ICRC; 3. None of the exceptions set forth in Administrative Rule 161 — 3.10(4) are applicable. With this Administrative Release, the Complainant has the right to commence an action in state district court. That action must be commenced within ninety (90) days of the issue date 4/17/2012. The Right-to-Sue Letter is not a finding by ICRC on the merits of the charge. ICRC will take no further actions in this matter. A copy of this Administrative Release/Letter of Right-To-Sue has been sent to the Respondent(s) and counsel(s) as shown below. The Code allows any party to obtain a complete copy of the case file after a Right-To-Sue has been issued. Requests for copies should be directed to Marcia Coverdale at ICRC. The Iowa Civil Rights Commission Phone: (515) 281-4121 - FAX: (515) 242-5840 , ti cc: File z c SARAH HOLECEK, Respondent's Attorney c . JOHNSON COUNTY SEATS/IOWA CITY TRANSIT CITY OF IOWA CITY MEXICAN BUS DRIVER, BUS #57(BETW 1:38 PM& 2:38 PM) w ICRC/S36(24) C c.; c . 0 ZCI !I g iIN THE IOWA DISTRICT COURT FOR JOHNSON 2 COUNTY 3 . JERRY BOKASSA, IN PRO PER P.O.BOX 1905r 4� r ��3 N IOWA CITY, IOWA. 52244 Z2 ...1,- .' C11C q" p Ti � 213-840-2960 0 c— -v rX z ....475—c �� C....) C. cA SSV 21% ttI 11. . JERRY BOKASSA ) FALSE IMPRISONMENT (710 . 7) 11.E ) ELDER ABUSE. Plaintiff, ) .vs. ) ) o . IOWA CITY TRANSIT &CITY OF ) a N 1166 ) :c") --:-.'! ""T"i IOWA CITY BUS #57 DRIVER-SOSA. >=:.1 T"' ���" 1177 C") < N 1 11% Defendant =< M c' - 73 1 > --, CAUSE OF ACTION 211 ON MAY 4, 2011 ABOUT 1 : 45 P.M ON BUS #57 I WAS INTENTIONALLY 22 ONFINE AGAINST MY WILL BY THE BUS DRIVER OF BUS #57 . 23 2214 DURING THE INCIDENT THE BUS DRIVER CALL HIS SUPERVISORS TO INFORM 25 HEM OF HIS CRIME.AFTER ABOUT 20-MINUTUES I TRIED TO OPEN THE DOOR 2�6 "T THIS TIME THE BUS DRIVER MADE SLUM-GHETTO XESTOR OF REACHING 227 NDER HIS SHIRT AS THOUGH HE HAD A GUN. I WAS FRIGHTEN. 2gg I - 1 - DOCUMENT TITLE (e.g. , COMPLAINT FOR DAMAGES) 1 8Z 2 THE PEOPLE OF IOWA AND IOWA CITY ARE NOT AWARE OF THE RACIAL LZ 3 9Z HATERD BETWEEN BLACKS AND MEXICANS IN THE BIG CITIES . 4 SZ THE PAIR KILL EACH OTHER WHEN EVER THAY COME TOGETHER, 5 bZ ESPECIALLY JAIL. IFOUND THIS OUT WHEN I WENT TO CALIFORNIA TO EZ 6 PAY CHILD SUPPORT.ON UNION JOBS, STORES, BUSES.MY PLACE WAS ROB 7 ZZ 8 OF T.V.MONEY, DRIVE-BY SHOOTING AT MY HOME IN SAN PEDRO, CA. TZ 9 WHOM EVER CAME UP WITH THE IDEA TO PUT THESE PEOPLE FROM THE OZ 10 `1' 6 T BIG CITY SLUMS WAS A FOOL.ATTACKS ON THE GOOD PEOPLE OLIOWA 11 CC) --e n 81 MUST BE PROTECTED. `� N 12 --J2N 8. LT 13 rn �_ 1- ► 91 r.J N "'^0 ST 14 0 15 6T E 16 T 17ZT DATED: April 19, 2012 18r TT YOUR AME 19 In Pro Per OT 20 6 21 8 22 r; L <r- a 9 23 �` '� -r? 24 n p 25 +;;1 26 c.J F t77 27 28 - 2 - DOCUMENT TITLE (e.g. , COMPLAINT FOR DAMAGES) 1 PRECEDENT FOR FALSE IMPRISONMENT 2 KRAFT Vs CITY OF BETTENDORF,359 N.W.2d 466(IOWA 1984) 3 KIRAY Vs. HY-VEE,INC,716 N.W.2d 193 (IOWA Ct App.2006) 4 The detention or restraint need not be accomplished through physical 5 Force or threat of physical force. An action for false imprisonment lies for an unreasonable delay. 6 7 DAMAGES 8 DUE TO WHAT I WOULD CALL A RACIALLY MOTIVATED ACT 9 I AM ASKING FOR$250.000.00. TWO-HUNDRED AND THOUSAND DOLLARS 10 ACTUAL,$250.000.00 PUNITVE IN ORDER TO TEACH THESE NEW PEOPLE 11 FROM AMERICA"S SLUMS NOT TO COMMIT CRIMES. J 12 13 -moi 1 14N.)c-, f7. i + o 15 C tis c 16 o 17 18 L r- 19rnq zx 20 xC t. _ 4 U "' 21 �� 22 -in r .C� Qc3 W 23 �c w 24 25 26 27 28 GJC\Jo14449/ Il utp) IN THE IOWA DISTRICT COURT FOR JOHNSON 2 COUNTY 3 �{ . JERRY BOKASSA, IN PRO PER x"-• j ' i P.O.BOX 1905 . C'. ~ LP IT! ' IOWA CITY, IOWA. 52244 _ fi 213-840-2960 'oo r p� r S5 11(40 til la I . JERRY BOKASSA ) FALSE IMPRISONMENT (710 . 7) U ) ELDER ABUSE. Plaintiff, ) 1144 ) .vs. ) 11% ) . IOWA CITY TRANSIT &CITY OF ) o llFb N IOWA CITY BUS #57 DRIVER-SOSA. 1171 ) -�:'-l'-c,:-5=-� 'c ..,.� �n'"�. N r• 1 Defendant N) -<� -a llG — 0 CAUSE OF ACTION ` 211 ON MAY 4, 2011 ABOUT 1 : 45 P.M ON BUS #57 I WAS INTENTIONALLY 222 ONFINE AGAINST MY WILL BY THE BUS DRIVER OF BUS #57 . 23 2DURING THE INCIDENT THE BUS DRIVER CALL HIS SUPERVISORS TO INFORM 4 25 HEM OF HIS CRIME.AFTER ABOUT 20-MINUTUES I TRIED TO OPEN THE DOOR 2266 'AT THIS TIME THE BUS DRIVER MADE SLUM-GHETTO XESTOR OF REACHING' 227 NDER HIS SHIRT AS THOUGH HE HAD A GUN. I WAS FRIGHTEN . 2f8 .\ - 1 - DOCUMENT TITLE (e.g. , COMPLAINT FOR DAMAGES) U 1 8Z 2 THE PEOPLE OF IOWA AND IOWA CITY ARE NOT AWARE OF THE RACIAL LZ 3 9Z HATERD BETWEEN BLACKS AND MEXICANS IN THE BIG CITIES. 4 SZ THE PAIR KILL EACH OTHER WHEN EVER THAY COME TOGETHER, 5 17Z ESPECIALLY JAIL. IFOUND THIS OUT WHEN I WENT TO CALIFORNIA TO �Z 6 PAY CHILD SUPPORT.ON UNION JOBS, STORES, BUSES.MY PLACE WAS ROB7 ZZ 8 OF T.V.MONEY, DRIVE-BY SHOOTING AT MY HOME IN SAN PEDRO, CA. TZ 9 WHOM EVER CAME UP WITH THE IDEA TO PUT THESE PEOPLE FROM THE 03 106T BIG CITY SLUMS WAS A FOOL.ATTACKS ON THE GOOD PEOPLE OF IOWA S 11 T MUST BE PROTECTED. ;> 13 P{ -.0 9T --- 14sem" — r S T 15 -_,,C r.) - CD £T 16 7 :-J \ TT ZT 17 DATED: April 19, 2012 18 d/ AL.-- \ %'l'=", r YOUR AME OT 19 In Pro Per 20 6 21 8 22 L 23c:)r 9 tea. `r' S 24 t=om 'v O 25 n(> "� ., C.�.` 26 y� IIP: 3 r'4-- 28 .11. 1,- 42 -4-••• ...../ qt.- T - 2 - DOCUMENT TITLE (e.g. , COMPLAINT FOR DAMAGES) • 1 PRECEDENT FOR FALSE IMPRISONMENT 2 KRAFT Vs CITY OF BETTENDORF,359 N.W.2d 466(1OWA 1984) 3 KIRAY Vs. HY-VEE,INC,716 N.W.2d 193 (IOWA Ct App.2006) 4 The detention or restraint need not be accomplished through physical 5 Force or threat of physical force. 6 An action for false imprisonment lies for an unreasonable delay. 7 DAMAGES 8 DUE TO WHAT I WOULD CALL A RACIALLY MOTIVATED ACT (,fib 9 I AM ASKING FOR$250.000.00. TWO-HUNDRED AND THOUSAND DOLLARS 10 ACTUAL,$250.000.00 PUNITVE IN ORDER TO TEACH THESE NEW PEOPLE 11 FROM AMERICA"S SLUMS NOT TO COMMIT CRIMES. 12 c-� o c� 13 m�� ao { 14 �...+-- 15 ocr, 1 z� -v rn 16 rC Cj 17 n= .c 18 19 r� 20 21 C1'Y N � 22 .<r.a - 23 24 25 26 27 28 . C.3.f-) :1 Cq 0-741-01 IN THE IOWA DISTRICT COURT FOR JOHNSON 2 COUNTY 3 4 . JERRY BOKASSA, IN PRO PER . P.O.BOX 1905 c, IOWA CITY, IOWA. 52244 213-840-2960 Nn� "` 71 ZC? 1 I % : -o ill y� r h� -4 1111 la ' . JERRY BOKASSA ) • I ) FALSE IMPRISONMENT (710. 7) 1133Plaintiff, ) ELDER ABUSE. N C=. 1144 ,1 ) N .VS. ) E5 r.: , aa-. r ) ��'..1 ^-C d•� 11$ . IOWA CITY TRANSIT &CITY OF ) cN 1166 ) _.;C7 N 6 ri -o rn 11� IOWA CITY BUS #57 DRIVER-SOBA. 6 cv 1fg Defendant CD 1193 2200 CAUSE OF ACTION 41 ON MAY 4, 2011 ABOUT 1: 45 P.M ON BUS #57 I WAS INTENTIONALLY 222 ONFINE AGAINST MY WILL BY THE BUS DRIVER OF BUS #57 . 203 24 DURING THE INCIDENT THE BUS DRIVER CALL HIS SUPERVISORS TO INFORM 25 HEM OF HIS CRIME.AFTER ABOUT 20-MINUTUES I TRIED TO OPEN THE DOOR 226 'T THIS TIME THE BUS DRIVER MADE SLUM-GHETTOrIESTOR OF REACHING 22'7 NDER HIS SHIRT AS THOUGH HE HAD A GUN. I WAS FRIGHTEN. 2f8 - 1 - DOCUMENT TITLE (e.g., COMPLAINT FOR DAMAGES) I\ . 1 8Z 2 THE PEOPLE OF IOWA AND IOWA CITY ARE NOT AWARE OF THE RACIAL LZ 3 HATERD BETWEEN BLACKS AND MEXICANS IN THE BIG CITIES. 9Z 4 SZ THE PAIR KILL EACH OTHER WHEN EVER THAY COME TOGETHER, 5 6Z ESPECIALLY JAIL. IFOUND THIS OUT WHEN I WENT TO CALIFORNIA TO 6 PAY CHILD SUPPORT.ON UNION JOBS, STORES, BUSES.MY PLACE WAS ROB 7 ZZ 8 OF T.V.MONEY, DRIVE-BY SHOOTING AT MY HOME IN SAN PEDRO,CA. TZ 9 WHOM EVER CAME UP WITH THE IDEA TO PUT THESE PEOPLE FROM THE 10 BIG CITY SLUMS WAS A FOOL.ATTACKS ON THE GOOD PEOPLE OF IOWA 11 MUST BE PROTECTED. o _ 12 O n :! 13 t--C N) 14 7< ` - C E • a L : 1.6 N 17 DATED: April 19, 2012 \ 18 %' 0i- TT 19 YOUR AME In Pro Per 01 20 - L r On; j ti 9 C ti 1 25 26 27 28 T - 2 - DOCUMENT TITLE (e.g. , COMPLAINT FOR DAMAGES) 1 PRECEDENT FOR FALSE IMPRISONMENT 2 3 KRAFT Vs CITY OF BEFI'ENDORF,359 N.W.2d 466(I0WA 1984) KIRAY Vs. HY-VEE,INC,716 N.W.2d 193 (IOWA Ct App.2006) 4 The detention or restraint need not be accomplished through physical 5 Force or threat of physical force. 6 An action for false imprisonment lies for an unreasonable delay. 7 DAMAGES 8 DUE TO WHAT I WOULD CALL A RACIALLY MOTIVATED ACT 9 I AM ASKING FOR$250.000.00. TWO-HUNDRED AND THOUSAND DOLLARS ti 10 ACTUAL,$250.000.00 PUNITVE IN ORDER TO TEACH THESE NEW PEOPLE 11 FROM AMERICA"S SLUMS NOT TO COMMIT CRIMES. 12 13 14 L r 15 xx v x • i i n C2 ' ,, 1r ` 19aZD 20 21 22 O 23 N 29 > K E2 25 -Er N e _‹F r 26 -meq 27 o �l fU 28 CIVIL PROCESS WORKSHEET JOHNSON COUNTY SHERIFFS OFFICE• PO BOX 2540,511 S CAPITOL ST, IOWA CITY, IA 52244-2540•(319) 356-6030 PLAINTIFF: BOKASSA, JERRY Docket No 12-03906 State IOWA vs. Court No CVCV074491 County JOHNSON DEFENDANT: CITY OF IOWA CITY Ref No Received 08/02/2012 DEFENDANT: IOWA CITY TRANSIT Req LI estor(similir Phone BOKASSA,JERRY (213) 840-2960 P.O. BOX 1905, IOWA CITY, IA 52244 Name CITY OF IOWA CITY Zone Party Type DEFENDANT Phone Fax r-� Address 410 E WASHINGTON STCD 17. 71 N IOWA CITY IA 52240- :.>= =� E-Mail Employer) - '`^ m Comments I �...� MNI Information" .411111111111111111111111111.11 Race Sex Birth Date Age Hair Height Weight SSN Eyes Skin Notes Documents Document Serve by Date OE PSR Description/Special Instructions ORIGINAL NOTICE I _ Service Information 60-ei T Date "' I -1.- Time )-.(4 O Type t Party JU [ I `e_ U0)1610(is I Relationship E tA I-'l C Race Sex t- DOB Location V` 1 d f-tme i1/4 ,5 Miles 1 Fee Officer 9 Attempts Log Date Time Server Notes Date Time Server Notes Notes: Printed:Thursday,August 02,2012 Johnson County Sheriffs Office Page 1 of 1 THE IOWA STATE BAR ASSOCIATiON FOR THE LEGAL EFFECT OF THE USE OF Official form No.301 THIS FORM,CONSULT YOUR LAWYER or'T"Te; THE IOWA DISTRICT COURT _= _ A 1 ..�� COUNTY 1.sa p _ssiq, LAW ❑ EQUITY ❑ No. egVA/707 Plaintiff(s), .�y VS. (m cL � , e rt a.S 7'7 , (i.,,,4,,, 6--6 f___,„A., 0- ,� �5:� ORIGINAL;NOTICE ; Defendant(s). TO THE ABOVE-NAMED DEFENDANT(S): You are notified that a petition has been filed in the office of the clerk of this court naming you as the defendant(s) in this action. A copy of the petition, and any documents filed with it, is attached to this notice. The name(s) and address(es) of the plaintiffs(s') attorney(s) (is) (are). i.),,, , 0 -- ,, 1 r,t &s(45 5 1 1 6 D � 1t 0C __Lac,.3p C 1 ,-a ;2. Ze., u The attorney's(s') phone number(s) (is) (are) ?_ ( e"-('C1 )- ? 6 p facsimile number(s) You must serve a motion or answer within 20 days after service of this original notice upon you. d Within a reasonable time thereafter you must file your motion or answer with the Clerk o Co rt for I .I/ `( 41 ounty, at the county courthouse in kik 1& Iowa. 1iou do not, judgment by default may be rendered against you for the relief demanded in the petition. If you require the assistance of auxiliary aids ? y or services to participate in court because of a disability, 3 immediately call your district ADA coordinator at ) "I - 39 39 � X f (M__ (If you are hearing impaired, call Relay Iowa TTY a -400-735-2942.) '0 DMA BERNIE): .1► r c (SEAL) - "4 '" ' ees—a----- I CLOF THE 'BOVE Co�'T 1 � 1 • . County Courthouseus C c', 1- ,•ov,� �_ _/.% ._ _ n .� Iowa S 2 �7 v .'.\ 1"t-0 O r)1, Co.i CY S h g c , CA`'k m r IMPORTANT:YO RE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTEC •UR INTERESTS s CThe Iowa Slate Bar Association 301 ORIGINAL NOTICE FOR PERSONAL SERVICE IOW.DOCST"' 9/97 Revised December,1997 n. 1 JERRY BOKASSA P.O.BOX 1905 2 TOWA CTTY,TOWA 52244 3 TN THE DTSTRTCT COURT TN AND FOR JOHNSON COUNTY 4 C- 5 S r ' JERRY BOKASSA, ) Case No. :CVCW074491 C. - 6 ) Cpp Plaintiff, ) 0 C� 7 ) FALSE IMPRISONMENT. (710.7 <?r-, 'e vs. ) DAMAGES $250,000,00 ACTUAL ° � 8 ) $250,000,00 PUNITIVE. CAtr IOWA CITY TRANSIT AND CITY OF IOWA ) 9 ) c'> BUS #57-DRIVER-SOSA, ) 10 ) Defendant 11 12 13 14 ��q�� ON OR ABOUT ( Vk�t i-1,.° it T WAS DETAIN BY BUS DRIVER 'SOSA' WITH OUT 15 PROVOCATTO FOR UNKNOW REASON BETWEEN T:30 P.M. TO 3:00 P.M . 16 WHILE BEING HELD AGAINST MY WILL HE TALK TO SOME PERSON ON HTS PHONE, 17 .F ALSO WHILE DOING THIS HE REACH UNDER HTS SHIRT AS THOUGH HE HAD A WEAPON. 18 0 I BELIEVE HTM TO HAVE A GUN.AS THIS A GHETTO MOVE,SO TO INTIMIDATE ME. F5 ev 19 - :r r= Y THIS FRIGHTEN ME FOR 5 OR 6 MINUTES. AFTER MY RELEASE T GOT OF THE BUS NEW 75 20 - I THE DENTAL BUILDING TN IOWA CTTY.T CALLED THE POLICE THAY CAME TO WASHINGTON AND 21 CLTNTON STREET TN IOWA CTTY.TOWA. 22 23 JURISDICTION (IOWA CODE 602.6101) 24 THE DISTRICT COURT SHALL HAVE JURISDICTION TN CTVTL TN IOWA. 25 DAMAGES. 26 DUE TO HTS RACIAL MOTIVES AND HTS HATERD OF BLACKS TN THE BTG CITY HE MUST OF 27 THOUGH HE WAS STILL TN THE SLUMS.REACHTNG UNDER HTS SHIRT FOR A WEAPON TN 28 THE BIG CITY TS COMMON.AND SHOULD BE DETERD BY HIS TERMINATION. 29 I AM A 73 YEAR OLD SENIOR AND NO THREAT NO ONE 30 31 JURY TRAIL REQUESTED. 32 41- Thrs OM "A"n Yh (Summary of pleading) - 1 .1I• i'. ;1 6-‘) \)0. 1i-/-14-9/ IN THE IOWA DISTRICT COURT FOR JOHNSON 11 COUNTY (....r r 4 . JERRY BOKASSA, IN PRO PER uoc tea,._ P.O.BOX 1905 c r" rn IOWA CITY, IOWA. 52244 213-840-2960 C' r Co r t% 301 112E ' . JERRY BOKASSA ) FALSE IMPRISONMENT (710 . 7 ) 11.33 ) ELDER ABUSE. Plaintiff, ) M4 ) .vs. 11$ r > . IOWA CITY TRANSIT &CITY OF )) N 1i6� • ) - _' 1177 IOWA CITY BUS #57 DRIVER-SOSA. _y_ , , 1:: Defendant r 1 : '.-''. LI 2b CAUSE OF ACTION 2211 ON MAY 4 , 2011 ABOUT 1 : 45 P.M ON BUS #57 I WAS INTENTIONALLY 222 ONFINE AGAINST MY WILL BY THE BUS DRIVER OF BUS #57 . 2233 2DURING THE INCIDENT THE BUS DRIVER CALL HIS SUPERVISORS TO INFORM 4 2i5 HEM OF HIS CRIME.AFTER ABOUT 20-MINUTUES I TRIED TO OPEN THE DOOR 2�6 "T THIS TIME THE BUS DRIVER MADE SLUM-GHETTO XESTOR OF REACHING' 227 NDER HIS SHIRT AS THOUGH HE HAD A GUN. I WAS FRIGHTEN. 2g8 - 1 - DOCUMENT TITLE (e.g. , COMPLAINT FOR DAMAGES) 1 BZ 2 THE PEOPLE OF IOWA AND IOWA CITY ARE NOT AWARE OF THE RACIAL LZ 3 9Z HATERD BETWEEN BLACKS AND MEXICANS IN THE BIG CITIES. 4 SZ THE PAIR KILL EACH OTHER WHEN EVER THAY COME TOGETHER, 5 6Z ESPECIALLY JAIL. IFOUND THIS OUT WHEN I WENT TO CALIFORNIA TO EZ 6 PAY CHILD SUPPORT.ON UNION JOBS, STORES, BUSES.MY PLACE WAS ROB ZZ 8 OF T.V.MONEY, DRIVE-BY SHOOTING AT MY HOME IN SAN PEDRO, CA. TZ 9 WHOM EVER CAME UP WITH THE IDEA TO PUT THESE PEOPLE FROM THE OZ 106T BIG CITY SLUMS WAS A FOOL.ATTACKS ON THE GOOD PEOPLE OE: IOWA ^ ' � 81 11 '— MUST BE PROTECTED. t-)--C w 12 LT r-. 13 }-- 91 s— S 14 T b 15 T 16 ET 17ZT DATED: April 19, 2012 18 r TT YOUR AME OT 19 In Pro Per 20 6 21 8 22 L 23Cry 9 Orrt ,� 24 c2 ,� S 25n O ' C:7) / sit` 26 27 00 Z 28 ,� - 2 - DOCUMENT TITLE (e.g. , COMPLAINT FOR DAMAGES) 1 PRECEDENT FOR FALSE IMPRISONMENT 2 3 KRAFT Vs CITY OF BETTENDORF,359 N.W.2d 466(I0WA 1984) KIRAY Vs. HY-VEE,INC,716 N.W.2d 193 (IOWA Ct App.2006) 4 The detention or restraint need not be accomplished through physical 5 Force or threat of physical force. An action for false imprisonment lies for an unreasonable delay. 6 7 DAMAGES 8 DUE TO WHAT I WOULD CALL A RACIALLY MOTIVATED ACT 9 I AM ASKING FOR $250.000.00. TWO-HUNDRED AND THOUSAND DOLLARS 10 ACTUAL,$250.000.00 PUNITVE IN ORDER TO TEACH THESE NEW PEOPLE 11 FROM AMERICA"S SLUMS NOT TO COMMIT CRIMES. 12 r) =► ' ry 13 csm N z 14 '*� --c .11 15 cDCT) z.� m-d a 160 Z o c% w 17 D; .0 18 19 • 20 21 o 22 O N 23 24 "r�r?, W rr f 25 v 26 27 28 CIVIL PROCESS WORKSHEET JOHNSON COUNTY SHERIFFS OFFICE•PO BOX 2540,511 S CAPITOL ST, IOWA CITY, IA 52244-2540•(319)356-6030 PLAINTIFF: BOKASSA, JERRY Docket No 12-04105 State IOWA vs. Court No CVCV074491 County JOHNSON DEFENDANT: IOWA CITY TRANSIT Ref No Received 08/14/2012 DEFENDANT: CITY OF IOWA CITY BUS#57 DRIV PER PLAINTIFF'S VERBAL DIRECTIONS SERVE ANYONE EMPLOYED AT THE IOWA CITY ATTORNEY'S OFFICE Requestor(s) Phone BOKASSA,JERRY (213)840-2960 PO BOX 1905, IOWA CITY, IA 52244 Name CITY OF IOWA CITY, LEGAL&fiNANGIAt Zone Party Type OTHER Phone Fax Address 410 E WASHINGTON ST f CA‘41 C (1-60/C IOWA CITY IA 52240- `�� W� ` 194/ i zi g E-Mail � Employer Comments PER PLAINTIFF'S REQUEST SERVE ANYONE AT THE CITY ATTORNEY'S OFFICE Documents Document Serve by Date OE PSR Description/Special Instructions COMPLAINT ❑ Service Information Date Time Type Party re.\ Relationship Race Sex DOB Location Miles Fee Officer Attempts Log Date Time Server Notes Date Time Server Notes Notes: r.. C=. N n E�tCFI G 747-1 M ry co Printed:Tuesday,August 14,2012 Johnson County Sheriffs Office Page 1 of 1 -11 1 JERRY BOKASSA `-r=P A P.O.BOX 1905 2 IOWA CITY, IOWA. 52244 0� i crt (213-840-2960) cellco o O$ 4 / 5 JERRY BOKASSA -PRO-PER p/3 6 IN THE DISTRICT COURT FOR JHONSON COUNTY 7 8 9 10 JERRY BOKASSA ) Case No. : CVCV074491 11 Plaintiff, ) FALSE IMPRISONMENT (710 . 7 ) AMENDMENT TO ORIGINAL 12 ) COMPLAINT OF CIVIL vs . ) PROCEDURE 611 .2 611 . 8, 611 . 9 13 ) 611 . 12, 611, 13 IOWA CITY TRANSIT & CITY OF 14 15 IOWA CITY BUS #57 DRIVER-SOSA 16 Defendant 17 18 19 • 20 ON MAY 4, 2011 ABOUT 1 : 45 P.M. ON BUS #57 I WAS INTENTIONALLY 21 CONFINE AGAINST MY WILL THE BUS DRIVER OF BUS #57 . 22 DURING THE INCIDENT THE BUS DRIVER CALL HIS SUPERVISOR TO INFORM 23 THEM OF HIS CRIME .AFTER ABOUT 20-MINUTUES I TRIED TO OPEN THE 24 25 DOOR AT THIS TIME THE BUS DRIVER MADE A SLUM-GHETTO JESTER OF 26 REACHING UNDER HIS SHIRT AS THOUGH HE HAD A GUN. I WAS FRIGHTEN. 27 28 - 1 - DOCUMENT TITLE (e.g. , COMPLAINT FOR DAMAGES) I ALSO I WOULD LIKE TO INCLUDE THE CHARGE OF (COLLUSION) AGAINST THE SHERIFF SECATARIES FOR DELAYING THE SERVISE OF MY ORIGINAL AND COVER-SHEET,AS TO GIVE THE ASSISTANT CITY D.A MORE OF A FONDATION FOR HIS DISMISSAL. I WILL REPORT THIS TO ATT-GENARAL ERIC HOLDER, LIKE I DID MY BOGUS ASSAULT CHARGE. A.S .A.P. DATED: August 6, 2012 11 Ifs JERRY :• S I PRO-PER P.O.BOX 1905 IOWA CITY, IOWA. 52244 (213-840-2960) cell 1 15 16 17 crn� 18 SIC) M 19 x`./ dam.. 20 pN O i �--4rn 21 :{-+ a r' CP 22CD n Cwt -4 23 24 O ev 25 DC7 ' 26 c)-<: — r cn 27 = t.",. --p ` 28 2 - DOCUMENT TITLE (e.g. , COMPLAINT FOR DAMAGES) - V1L PROCESS WORKSHEET JOHNSON COUNTY SHERIFFS OFFICE •PO BOX 2540,511 S CAPITOL ST, IOWA CITY, IA 52244-2540 • (319) 356-6030 PLAINTIFF: BOKASSA, JERRY Docket No 12-05408 State IOWA vs. Court No CVCV07449 County JOHNSON DEFENDANT: IOWA CITY TRANSIT Ref No Received 11/01/2012 DEFENDANT: CITY OF IOWA CITY VERBAL INSTRUCTIONS BY PLAINTIFF ARE TO PERSONALLY SERVE MARIAN KARR Requestor(s) Phone BOKASSA,JERRY (213)840-2960 PO BOX 1905, IOWA CITY, IA 52244 el Name CITY OF IOWA CITY Zone Party Type DEFENDANT Phone Fax ( w Address MARIAN KARR 410 E WASHINGTON ST I '- IOWA CITY IA 52240- E-Mail 'o Employer N Comments I t.Tt MNI Information Race Sex Birth Date Age Hair Height Weight SSN Eyes Skin Notes Documents Document Serve by Date OE PSR Description/Special Instructions COMPLAINT I Li RI Service Information Date ( ` ) �-- Time ) Type C � W cc& r Party —Tik 1 _ Lo 116f,` ` Relationship i9-c<0 C� C I'AVL V v Race Sex h DOB Location Is 0 C 14/0.949 1:04 Miles ` Fee Officer Attempts Log Date Time Server Notes Date Time Server Notes Notes: Printed:Thursday,November 01,2012 Johnson County Sheriffs Office Page 1 of 1 lj JERRY BOKASSA-PRO-PER 1 P.O.BOX 1905 IOWA CITY,I0WA,52244 2 3 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY 4 Case No. : No. CVCV07449 5 JERRY BOKASSA ) RESPONSE TO THE SECOND PRE-ANSWER TO MOTION TO 6 Plaintiff, ) DISMISS-FALSE IMPRISONMENT (49;727 AMENDED TO CIVIL 611.8 611.1 Rg3.2 ry 7 vs. ) 611.3.611.4-DAMAGES $250.000.di1 __ ACTUAL-$250,000,00. PUNITIVE ' 8 IOWA CITY TRANSIT &CITY OF IOWA CITY BUS ) c- -__ Co 9 #57 DRIVER -SOSA ) =z 10 Defendant 2 77D Cn 11 CAUSE OF ACTION 12 ON MAY 4,2011 ABOUT 1:45 P.M. I WAS INTENTIONALLY CONFINED AGAINST MY WILL BY THE BUS . 13 DRIVER OF BUS #57-SOSA,DURING THE INCIDENT THE BUS CALL HIS SUPERVISOR TO INFORM 14 THEM OF HIS CRIME. AFTER ABOUT 20-MINUTUES I TRIED TO OPEN THE DOOR. 15 AT THIS TIME THE BUS DRIVER MADE ALUM-GHETTO JESTER OF REACHING UNDER HIS SHIRT AS 16 THOUGH HE HAD A GUN,I WAS FRIGHTEN. THE PEOPLE OF IOWA AND IOWA CITY ARE NOT AWARE 17 HATERD BETWEEN BLACKS AND MEXICANS IN THE BIG CITIES.THE PAIR KILL EACH OTHER WHEN 18 EVER THAY COME TOGETHER,ESPECIALLY JAIL OR PRISON.SOMETHING MUST BE DONE TO DETER 19 THIS KIND OF STUFF BEFORE IT SPEADS BARS AND OTHER BUSINESSES.INNOCENT IOWANS 20 WILL BE HURT JUST LIKE IN THE BIG-CITIES. 21 IN ADDITION TO THIS RACISM AGAINST ME AND OTHER BLACKS IS APPARENT AS 85% OF THE 22 PEOPLE IN THE JOHNSON COUNTY JAIL ARE BLACKS.THE IOWA CITY POLICE HAS CHARGE ME 23 WITH ASSUALT ON A WHITE FEMALE BURGLER NAME MIRANDA LOLLA WHO IS NOW IN.,1IAIL o O ^' 24 FOR MURDER.AND RECENTLY ARRESTED ME ON THE WORD OF MARY PALMBERG WHO IS W54 W1TE t7,-.< r 25 BECAUSE SHE SAID I STOLE A FAN WITH (NO) FACTS OTHER THAN HER RACIST WORE4W Hfrf 8 -1026 BEEN HARRASSING ME FOR A YEAR AND A HALF. I INTEND TO FILE A LAWSUIT FOR=66LAT3ON 27 MY 14-AMENDMENT-CITIZENSHIP RIGHTS, PROTECTION OF THE LAWS. CD CJ1 28 IT WILL BE FOR $4,000,000,00. FOUR MILLION DOLLARS BECAUSE MIRANDA LOLLA IS SICK �� �49er/� 5 '[Pleading title summary] - 1 i 1 METH-HEAD AND WAS DRUNK SHE ADMITTED IN COURT COULD HAVE KILL ME LIKE SHE DID HER 2 FRIEND AT THE SAME BAR CALL "THE JOB SITE-AKA WALTS" WHERE SHE AND HER FRIENDS CAME / 3 FROM TO ATTACK ME. ( ADDITION PAPER) 4 5 6 Dated this •CT 30,26 2 7 8 RRY BO. , S - RO-PER •.O.BOX 905 g• OWA CITY,IOWA.52244 CELL-213-840-2960/AM-PM. 10 11 12 JURY TRIAL REQUESTED 13 14 15 16 Na G 17 3 sem^ D—4 d ....... 18 ,771-‹ I 19rri .1 MC 20 SV cn 21 22 23 24 25 26 27 28 [Pleading title summary) - 2 END OF CASE FILE IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY WELLS FARGO , N.A., asTRUSTEE UNDER AHE ROCK 1 CRENTOR CDO 006ST ) NO. e QGv 0-7 Si?'T Si TRUST, ) Plaintiff, ) ORIGINAL NOTICE Vs. ) CORE SYCAMORE TOWN CENTER T, LLC, TIC ) SYCAMORE 1, LLC, TIC SYCAMORE 2, LLC, TIC ) SYCAMORE 3, LLC, TIC SYCAMORE 4, LLC, TIC ) SYCAMORE 5, LLC, TIC SYCAMORE 6, LLC, TIC ) SYCAMORE 7, LLC, TIC SYCAMORE 8, LLC, TIC ) SYCAMORE 9, LLC, TIC SYCAMORE 10, LLC, TIC ) _ SYCAMORE 11, LLC, TIC SYCAMORE 12, LLC, TIC ) �? SYCAMORE 13, LLC, MIDWESTONE BANK FlKIA ) o — IOWA STATE BANK & TRUST COMPANY, PAUL D. ) '(..' SMITH and CITY OF IOWA CITY, IOWA , ) "� Defendants. ) r1" Xi. r -•N Ofit. �.. ;4.- TO THE ABOVE NAMED DEFENDANTS: =P" tr] You are notified that a Petition has been filed in the office of the Clerk of this court naming you as a Defendant in this action. A copy of the Petition (and any documents filed with it) is attached to this notice. The attorney for the Plaintiff is Dan Childers, whose address is 316 2' St. SE, Ste. 124, Cedar Rapids, Iowa 52401. That attorney's phone number is (319) 362- 2137; facsimile number is (319) 362-1640. You must serve a motion or an answer within 20 days after service of this Original Notice upon you and, within a reasonable time thereafter, file your motion or answer with the Clerk of Court for Johnson County, at the county courthouse in Iowa City, Iowa. If you do not, judgment by default may be rendered against you for the relief demanded in the Petition. If you require the assistance of auxiliary aids or services to participate in court because of a disability, immediately call your district ADA coordinator at&QJ-398-3920 Ext. 1105. (If you are hearing impaired, call Relay Iowa TTY at 1-800-735-2942).3t`t r ' r )a Clerk of Cour( Johnson Johnson County Iowa City, Iowa IMPORTANT YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS C m .4_ ,s S�eT,- IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY WELLS FARGO BANK, N.A., as GRANTOR TRUST ) TRUSTEE UNDER THE ROCK 1-CRE CDO 2006 TRUST. ) Plaintiff, ) Case No. vs. ) CORE SYCAMORE TOWN CENTER T, LLC TIC ) MORTGAGE SYCAMORE 1, LLC, TIC SYCAMORE 2,LLC, TIC ) FORECLOSURE SYCAMORE 3, LLC,TIC SYCAMORE 4,LLC,TIC ) PETITION SYCAMORE 5, LLC, TIC SYCAMORE 6, LLC,TIC ) SYCAMORE 7,LLC, TIC SYCAMORE 8,LLC,TIC ) SYCAMORE 9,LLC,TIC SYCAMORE 10,LLC, TIC ) a • SYCAMORE 11, LLC, TIC SYCAMORE 12,LLC,TIC ) SYCAMORE 13, LLC,MIDWESTONE BANK F/K/A ) IOWA STATE BANK& TRUST COMPANY,PAUL D. SMITH,and CITY OF IOWA CITY,IOWA ) J /1 Defendants. NOTICE THE PLAINTIFF HAS ELECTED FORECLOSURE WITHOUT REDEMPTION. THIS MEANS THAT THE SALE OF THE MORTGAGED PROPERTY WILL OCCUR PROMPTLY AFTER ENTRY OF JUDGMENT UNLESS YOU FILE WITH THE COURT A WRITTEN DEMAND TO DELAY THE SALE. IF YOU FILE A WRITTEN DEMAND, THE SALE WILL BE DELAYED UNTIL TWELVE MONTHS (or SIX MONTHS if the petition includes a waiver of deficiency judgment) FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO- FAMILY DWELLING OR UNTIL TWO MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS YOUR RESIDENCE BUT NOT A ONE-FAMILY OR TWO-FAMILY DWELLING. YOU WILL HAVE NO RIGHT OF REDEMPTION AFTER THE SALE. THE PURCHASER AT THE SALE WILL BE ENTITLED TO IMMEDIATE POSSESSION OF THE MORTGAGED PROPERTY. YOU MAY PURCHASE AT THE SALE. IF YOU DO NOT FILE A WRITTEN DEMAND TO DELAY THE SALE AND IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO-FAMILY DWELLING, THEN A DEFICIENCY JUDGMENT WILL NOT BE ENTERED AGAINST YOU. IF YOU DO FILE A WRITTEN DEMAND TO DELAY TILE SALE,THEN A DEFICIENCY JUDGMENT MAY BE ENTERED AGAINST-SOU II 'HE PROCEEDS FROM THE SALE OF THE MORTGAGED PROPPRTY-ARE INSUFFICIENT TO SATISFY THE AMOUNT OF THE MORTGAGZ 1.41BANIi COSTS. IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE ORIS Ndt A ONE-FAMILY OR TWO-FAMILY DWELLING, THEN A DEFICIENCY JIGMLNT . � MAY BE ENTERED AGAINST YOU WHETHER OR NOT YOU FILE A WRITTEN DEMAND TO DELAY THE SALE. The Plaintiff, Wells Fargo Bank,N.A., as Grantor Trust Trustee under the ROCK 1-CRE CDO 2006 TRUST, by and through its undersigned attorneys, states the following cause of action against the Defendants: 1. Plaintiff, Wells Fargo Bank, N.A. ("Wells Fargo"), is a national bank that is authorized to do business in Iowa. 2. Defendant, CORE Sycamore Town Center T, LLC ("CORE"), is a Delaware Limited Liability Company with its principal office located at do CORE Realty Holdings, LLC, 1600 Dove St. Suite 450,Newport Beach, CA 92660, and is a record owner of the property hereinafter described. 3. Defendant, TIC Sycamore 1, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St., Suite 450, Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 4. Defendant, TIC Sycamore 2, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St., Suite 450,Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 5. Defendant, TIC Sycamore 3, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St., Suite 450, Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 6. Defendant, TIC Sycamore 4, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St, Suite 450,Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 7. Defendant, TIC Sycamore 5, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St., Suite 450,Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 8. Defendant, TIC Sycamore 6, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St., Suite 450,Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 9. Defendant, TIC Sycamore 7, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St., Suite 450, Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 10. Defendant, TIC Sycamore 8, LLC, is a Delaware Limited Liability;Erompaliii with its principal office located at 1600 Dove St., Suite 450, Newport Beach, CA, 9264;andie a record owner of the property hereinafter described. p> —tr o, 2 cri ti 11. Defendant, TIC Sycamore 9, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St., Suite 450,Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 12. Defendant, TIC Sycamore 10, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St., Suite 450, Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 13.Defendant, TIC Sycamore 11, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St., Suite 450, Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 14. Defendant, TIC Sycamore 12, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St., Suite 450, Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 15. Defendant, TIC Sycamore 13, LLC, is a Delaware Limited Liability Company with its principal office located at 1600 Dove St., Suite 450, Newport Beach, CA, 92660, and is a record owner of the property hereinafter described. 16. On September 4, 2008, CORE Sycamore Town Center T, LLC, a Delaware Limited Liability Company, executed a Loan Agreement with Prudential Mortgage Capital Company, LLC, a predecessor-in-interest to Plaintiff, Wells Fargo Bank, N.A. (the "Loan Agreement"). The Loan Agreement set defining terms and conditions of the loan. A true and actual copy of the original Loan Agreement is attached hereto as Exhibit "A" and by this reference made a part hereof. 17. On September 4, 2008, CORE Sycamore Town Center T, LLC, executed a promissory note to Prudential Mortgage Capital Company, LLC, a predecessor-in-interest to Plaintiff, Wells Fargo Bank, N.A. (the "Note"). The Note is in the original principal amount of $13,000,000.00, with interest thereon at the rate set forth in said Note, and had an original maturity date of September 5, 2012. A true and actual copy of the original Note is attached hereto as Exhibit"B"and by this reference made a part hereof. 18. To secure the Note, CORE Sycamore Town Center T, LLC, executed and delivered a Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing (the "Mortgage") dated September 4, 2008 to Prudential Mortgage Capital Company, LLC, as predecessor-in-interest to Plaintiff, Wells Fargo, on the real property located in Johnson County, Iowa, described in Exhibit "C", attached hereto and incorporated herein bb referapje (the "Property"). Said Mortgage was filed for record in the office of the Johns c Coin, Recorder on September 24, 2008 as Document No. 021286020030 in Book 4352 at Pries 326' 355 of the records of that office, and a copy is attached to this Petition and marked Exhibit The Property has the addresses of 1660 Sycamore Street and 1861 Lower Muscatineoad Iowa City, Iowa. - rli r.) 3 19. On September 4,2008,the Mortgage was modified by a Tenancy in Common Loan Assumption Agreement and Modification of Mortgage, Security Agreement,Assignment of Leases and Rents and Fixture Filing and Other Loan Documents filed September 24,2008 as Document No. 021286060023 in Book 4352, Pages 390-412 in the office of the Johnson County Recorder from CORE Sycamore Town Center T,LLC,TIC Sycamore 1, LLC,TIC Sycamore 2,LLC, TIC Sycamore 3,LLC,and TIC Sycamore 4,LLC,to Prudential Mortgage Capital Company,LLC. A copy is attached to this Petition and marked Exhibit"E". 20. On September 4,2008, Prudential Mortgage Capital Company, LLC assigned its right, title and interest in the Mortgage to Prudential Mortgage Capital Funding,LLC, a Delaware limited liability company ("Prudential Funding"), by an Assignment of Mortgage, Security Agreement,Assignment of Leases and Rents and Fixture Filing, which assignment was filed for record in the office of the Johnson County, Iowa Recorder on September 24, 2008,as Document No. 021286070006 in Book 4352 at Pages 413-418 of the records of that office ("First Assignment"). A copy is attached to this Petition and marked Exhibit"F". 21. On September 4,2008,the Mortgage was modified by a Tenancy-in-Common Loan Assumption Agreement and Modification of Mortgage and Security Agreement and Other Loan Documents filed October 3,2008 as Document No. 021291940023 in Book 4354,Pages 701-723 in the office of the Johnson County Recorder from CORE Sycamore Town Center T,LLC,TIC Sycamore 5,LLC,TIC Sycamore 6,LLC,TIC Sycamore 7,LLC, and TIC Sycamore 9,LLC to Prudential Mortgage Capital Funding,LLC. A copy is attached hereto as Exhibit"G". 22. On October 24,2008,the Mortgage was modified by a Tenancy-in-Common Loan Assumption Agreement and Modification of Mortgage and Security Agreement and Other Loan Documents filed November 4,2008 as Document No. 021313160023 in Book 4363, Pages 124-146 in the office of the Johnson County Recorder from CORE Sycamore Town Center T, LLC, TIC Sycamore 8,LLC,TIC Sycamore 10,LLC, TIC Sycamore 11, LLC,and TIC Sycamore 12,LLC,to Prudential Mortgage Capital Funding,LLC.A copy is attached to this Petition and marked Exhibit "H". 23. On March 18,2009,the Mortgage was modified by a Tenancy-in-Common Loan Assumption Agreement and Modification of Mortgage and Security Agreement and Other Loan Documents filed March 23,2009 as Document No. 021418770017 in Book 4411,Pages 348-364 in the office of the Johnson County Recorder from CORE Sycamore Town Center T,LLC,and TIC Sycamore 13,LLC to Prudential Mortgage Capital Funding,LLC.A copy is attached to this Petition as Exhibit"I". 24. On May 6, 2009, Prudential Mortgage Capital Funding, LLC,assigned its right,title and interest in the Mortgage to ROCK 1-CRE CDO 2006, LTD, a Cayman Islands exempted company with limited liability, as an interim assignee, by Assignment of Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing, which assignment was filed for record in the office of the Johnson County, Iowa Recorder on May 13,2009, as Documat No. 021472040006 in Book 4435 at Pages 905-910 of the records of that office ("Sfond Assignment"). In the Second Assignment, ROCK 1-CRE CDO 2006,LTD fun er;ass ned cr, -� C3?j - '41.> 4 --: : - t cri rU right,title, and interest in the Mortgage to Wells Fargo Bank,N.A. as Grantor Trust Trustee under the ROCK 1-CRE CDO 2006 TRUST. A copy is attached to this Petition as Exhibit"J". 25. The Note is also secured by an Assignment of Leases and Rents from CORE Sycamore Town Center T,LLC,to Prudential Mortgage Capital Company,LLC.dated September 4,2008, filed September 24,2008 as Document No. 021286030017 in Book 4352,Pages 356-372 in the office of the Johnson County Recorder. A copy is attached to this Petition as Exhibit"K". 26. Prudential Mortgage Capital Company, LLC,assigned its right,title and interest in the Assignment of Leases and Rents to Prudential Mortgage Capital Funding, LLC by an assignment dated June 22,2008,filed September 24,2008 as Document No. 021286080006 in Book 4352, Pages 419-424 in the office of the Johnson County Recorder.A copy is attached to this Petition as Exhibit"L". 27. Prudential Mortgage Capital Funding,LLC,assigned its right,title and interest in the Assignment of Leases and Rents to ROCK 1-CRE CDO 2006,LTD.,as interim assignee by assignment dated May 6,2009 and filed May 13,2009 as Document No. 021472050006 in Book 4435,Pages 911-916 in the office of the Johnson County Recorder. In said assignment,ROCK 1- CRE CDO 2006,LTD,further assigned its right,title and interest in the Assignment of Leases and Rents to Wells Fargo Bank, N.A., as Grantor Trust Trustee under the ROCK 1-CRE CDO 2006 TRUST. A copy is attached to this Petition as Exhibit"M". 28. On September 8,2008, a UCC Financing Statement was filed in Book 4347, Page 325 in the office of the Johnson County Recorder as fixture filing from Defendant CORE to Prudential Mortgage Capital Company, LLC. This Financing Statement was assigned to Prudential Mortgage Capital Funding, LLC by UCC Financing Statement Amendment filed September 23, 2008 in Book 4351, Page 844 in the office of the Johnson County Recorder. The Defendant TIC Sycamore 1,LLC was added as a debtor by UCC Financing Statement Amendment filed September 23, 2008 in Book 4351,Page 846 in the office of the Johnson County Recorder. The Defendant TIC Sycamore 2,LLC was added as a debtor by UCC Financing Statement Amendment filed September 23,2008 in Book 4351, Page 848 in the office of the Johnson County Recorder. The Defendant TIC Sycamore 3,LLC was added as a debtor by UCC Financing Statement Amendment filed September 23,2008 in Book 4351,Page 850 in the office of the Johnson County Recorder. The Defendant TIC Sycamore 4,LLC was added as a debtor by UCC Financing Statement Amendment filed September 23, 2008 in Book 4351,Page 852 in the office of the Johnson County Recorder The Defendant TIC Sycamore 13,LLC was added as a debtor by UCC Financing Statement Amendment filed March 23,2009 in Book 4411,Page 334 in the office of the Johnson County Recorder. A UCC Financing Statement Amendment filed May 13, 2009 in Book 4435,Page 917 in the office of the Johnson County Recorder assigned the Financing Statement to Wells Fargo Bank,N.A. as Grantor Trust Trustee under the ROCK 1-CRE CDO 2006 TRUST. 29.Paul D. Smith and MidWestOne Bank are included as Defendants in :actiap by virtue of a UCC Financing Statement from Paul D. Smith to MidWestOne Bank Dei mbcrf- 2011 and recorded in Book 4844,Page 490 in the office of the Johnson County Rider Lied asa fixture filing. --+� > 5 � s�v 30. City of Iowa City,Iowa is included as a Defendant in this action by virtue of the Condemnation Proceedings filed October 19,2011 and recorded in Book 4817,Page 611,and the Amendment to Application for Condemnation filed December 5,2011 in Book 4839,Page 961 in the office of the Johnson County Recorder for purposes of the Lower Muscatine Road Improvements Project and U.S.Highway 6 and Sycamore Street Intersection Improvement Project for fee simple interest,temporary construction easement and permanent easement. 31. The Note provides that the Defendant,CORE shall be in default in the event said Defendant fails to make any payment due under the Note on the due date thereof. Specifically, the Defendant, CORE, is in default under the Note on account of its failure to pay the outstanding principal balance under the Note,together with accrued and unpaid interest thereon, in full,on September 5, 2012, the current maturity date of the Note. 32. Wells Fargo gave Defendants, CORE, TIC Sycamore 1, LLC, TIC Sycamore 2, LLC, TIC Sycamore 3, LLC, TIC Sycamore 4, LLC, TIC Sycamore 5, LLC, TIC Sycamore 6, LLC, TIC Sycamore 7, LLC, TIC Sycamore 8, LLC, TIC Sycamore 9, LLC, TIC Sycamore 10, LLC, TIC Sycamore 11, LLC, TIC Sycamore 12, LLC, and TIC Sycamore 13, LLC, a default notice and an opportunity to pay all sums due by means of a notice of maturity in a letter dated September 6, 2012, a copy of which is attached to this Petition and marked Exhibit "N". To date, the default outlined in said letter has not been cured. 33. Pursuant to the stated maturity date of the Note and the Defendants' failure to pay the Note in full upon such maturity date,the entire indebtedness owed to Wells Fargo under the Note is immediately due and payable. Further, pursuant to the Note, Wells Fargo has ected to increase the interest rate on the Note effective September 5, 2012 to the ccrent steed nate, default rate of 10.55%. :, ' 34. The indebtedness due and payable under the Note and secured cthe G?ort � consists of: ._ 8 t. — (a) an unpaid principal balance of$12,027,480.21; •• ru (b) interest as provided in the Note through October 19, 2012, in the amount of $145,528.69; (c) default interest as provided in the Note through October 19, 2012, in the amount of$131,106.93; (d) interest on the unpaid principal balance of$12,027,480.21 from October 19, 2012 to the date of judgment in this action at 5.55%per annum with this interest accruing at the rate of $1,854.24 per day; (e) default interest on the unpaid principal balance of$12,027,480.21 from October 19, 2012 to the date of judgment in this action at 5%per annum with this interest accruing at the rate of$1,670.48 per day; 6 (f) abstracting charges in the amount of$3,143.00; (g) deferred origination fee,as provided in the Note,in the amount of$45,500.00; (h) legal fees, as provided in the Note, through October 19, 2012, in the amount of $15,103.38,and additional fees as incurred; (i) late charges as provided in the Note, in the amount of$2,401.66;and (j) the Reserve Account balance of $150,024.52, if any accrued interest, will be credited once the loan is paid in full. 35. The Note and Mortgage allows Wells Fargo to collect attorney fees irtponnection with collection of the Note obligation and foreclosure of the Mortgage. Wells.Fargoa attorneys attach their Affidavit for such fees as Exhibit "0". Wells Fargo asks for siTh.-attori y fees may be approved by this Court. .7 -a' I A 36. Wells Fargo is credibly informed and believes that Defendants mo7Claipa,to hav some lien, claim, right, title or interest in the Property. Wells Fargo believes indherefor alleges that any and all such interests are junior and inferior to Wells Fargo's Ivlortgage:and that Wells Fargo's Mortgage creates a lien, claim and interest in the Property that it super`s to the asserted claims and interests of the Defendants or anyone claiming by, through, or under said Defendants. 37. The Property is more than 10 acres in size, is not used for agricultural purposes, and is a commercial property. 38. The Mortgage provides that in the event of foreclosure of the Mortgage, Wells Fargo may, at its sole option, elect to reduce the period of redemption pursuant to Iowa Code Chapter 628 to such time as may be then applicable and provided by law. 39. Wells Fargo elects foreclosure without redemption pursuant to Iowa Code §654.20 and does not waive any right to a deficiency judgment against Defendants, CORE Sycamore Town Center T, LLC, TIC Sycamore 1, LLC, TIC Sycamore 2, LLC, TIC Sycamore 3, LLC, TIC Sycamore 4, LLC, TIC Sycamore 5, LLC, TIC Sycamore 6, LLC, TIC Sycamore 7, LLC, TIC Sycamore 8, LLC, TIC Sycamore 9, LLC, TIC Sycamore 10, LLC,TIC Sycamore 11, LLC, TIC Sycamore 12,LLC, and TIC Sycamore 13, LLC. 40. Wells Fargo is the owner and holder of the Note and Mortgage. Wells Fargo has demanded payment of the Note, and payment has been refused. 41. This action shall be placed on the lis pendens index in Johnson County pursuant to Iowa Code §617.11. WHEREFORE, Wells Fargo prays: 7 (a) for judgment against Defendants, CORE Sycamore Town Center T, LLC, TIC Sycamore 1, LLC, TIC Sycamore 2, LLC, TIC Sycamore 3, LLC, TIC Sycamore 4, LLC, TIC Sycamore 5, LLC, TIC Sycamore 6, LLC, TIC Sycamore 7, LLC, TIC Sycamore 8, LLC, TIC Sycamore 9, LLC, TIC Sycamore 10, LLC, TIC Sycamore 11, LLC, TIC Sycamore 12, LLC, and TIC Sycamore 13, LLC, for the sum of$12,367,120.87, together with interest on the unpaid principal balance of$12,0275,480.21 at the rate of 10.55%per annum from October 19, 2012, to the date of judgment herein and all taxes, insurance, attorney fees, abstracting charges, advances made on behalf of the Defendants, costs and accruing costs, fees stated in the Note, and that said sum be declared a first lien upon the property from the date of Wells Fargo's Mortgage, prior to and superior to any right,title, lien or interest of the Defendants, or any of them; (b) that Wells Fargo's Mortgage be foreclosed; (c) that any right, title, lien or interest of the Defendants, or any of them in the property be decreed junior and inferior to the lien of Wells Fargo's Mortgage; (d) that unless a demand for delay of sale is filed by Defendants, a special execution issue from this Court promptly upon entry of judgment directing the sale of the property or so much thereof as may be necessary to satisfy said judgment, including interest, attorneys' fees, abstracting charges, appraisal fees, and accruing costs and advances made by Wells Fargo to safeguard its security in the property; (e) that from and after said sale under special execution, the right, title, lien or interest of the Defendants in and to the property be forever cut off, banned and foreclosed and the purchaser at the sheriff's sale shall take free and clear of any right,title, lien or interest of the Defendants, or any of them, in and to the property, including any right of redemption in accordance with Iowa Code Chapter 654; (f) that in the event Wells Fargo is required to advance any further sums for taxes, insurance or other expenses to safeguard its security in the property,that it be given an additional lien against the property for the sums so advanced; (g) that if a deficiency remains after the sale of the property, that a general execution issue against Defendants, CORE Sycamore Town Center T, LLC, TIC Sycamore 1, LLC, TIC Sycamore 2, LLC, TIC Sycamore 3, LLC, TIC Sycamore 4, LLC, TIC Sycamore 5, LLC, TIC Sycamore 6, LLC, TIC Sycamore 7, LLC, TIC Sycamore 8, LLC, TIC Sycamore 9, LLC, TIC Sycamore 10, LLC, TIC Sycamore 11, LLC, TIC Sycamore 12, LLC, and TIC Sycamore 13, LLC,; (h) that once Wells Fargo's judgment is satisfied it will credit the Reserve Account; (i) that in accordance with the judgment of this Court and Iowa Code Chapter 654, a Sheriff's Deed should issue immediately to the purchaser at sale conveying the.absolute title to the property against all Defendants, and all persons claiming by, through or undF r._t4err� with,a Writ of Possession then issuing forthwith under the seal of this Court directed Ye itte Sl riff of - ri �� .7 Johnson County, Iowa, commanding him to put the purchaser at the sheriff's sale, or such purchaser's successor in interest, into immediate possession of the property; and (j) for such other and further relief as the Court may find Wells Fargo entitled to and as may be just and equitable in the premises. / Dan Childers, ID No. LI0007535 ELDERKIN &PIRNIE,P.L.C. 316 Second St. SE, Suite 124 P.O. Box 1968 Cedar Rapids, IA 52406-1968 319-362-2137 Phone/319-362-1640 Fax dchilders@elderkinpirnie.com ATTORNEYS FOR WELLS FARGO BANK, N.A. AS GRANTOR TRUST TRUSTEE UNDER THE ROCK 1-CRE CDO 2006 TRUST 5i 72 cep `'7 N • CP J , -V VJ _ Q Q h, � 71 -.r* a=te ; ZIP 471 9 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY WELLS FARGO BANK, N.A., as GRANTOR TRUST ) TRUSTEE UNDER THE ROCK 1-CRE CDO 2006 ) TRUST. ) Case No. ) Plaintiff, ) ) vs. ) AFFIDAVIT OF VICE PRESIDENT OF CORE SYCAMORE TOWN CENTER T,LLC. TIC ) PRUDENTIAL MORTGAGE SYCAMORE 1,LLC, TIC SYCAMORE 2,LLC,TIC ) CAPITAL COMPANY,LLC, SYCAMORE 3, LLC, TIC SYCAMORE 4, LLC,TIC ) SPECIAL SERVICER FOR SYCAMORE 5,LLC, TIC SYCAMORE 6,LLC,TIC ) WELLS FARGO BANK,N.A., SYCAMORE 7,LLC, TIC SYCAMORE 8,LLC,TIC ) AS GRANTOR TRUST SYCAMORE 9,LLC, TIC SYCAMORE 10,LLC,TIC ) TRUSTEE UNDER THE SYCAMORE 11,LLC, TIC SYCAMORE 12,LLC, ) ROCK 1-CRE CDO 2006 TIC SYCAMORE 13,LLC, MIDWESTONE BANK ) TRUST F/K/A IOWA STATE BANK& TRUST COMPANY, PAUL D. SMITH, and CITY OF IOWA CITY, IOWA Defendants. ) - -' ca J. STATE OF GEORGIA ) s ) ss - -o COUNTY OF FULTON ) The undersigned, Richard Pulido,declares under oath as follows: I,the undersigned, a Vice President of the Prudential Mortgage Capital Company,LLC, Special Servicer for Wells Fargo Bank,N.A., as Grantor Trust Trustee under the ROCK 1-CRE CDO 2006 TRUST after first being first duly sworn on oath,depose and state that I have read the foregoing instrument; that I am personally acquainted with the facts and the statement of account contained therein; that the allegations contained therein are• e and correct as I verily believe. door 3 Dated this �6 day of October,2012 • ?" !'�A� ' 'chard PuIido, a Vice President of Prudential Mortgage Capital Company, LLC, Special Servicer for Wells Fargo Bank, N.A., as Grantor Trust Trustee under the ROCK 1-CRE CDO 2006 TRUST i-, N Subscribed and sworn to before me by Richard Pulido this cQ51 day of October, 2612. L —11 __.. KELLY C. BAILEY Cgatf:' C— tatf GeoNo lic'i/n rNoPubllcseorQ1a �L� d for the Stat Appointed in DeKalb County elgi i Commission.E:: Exhibit A LOAN AGREEMENT DATED AS OF SEPTEMBER 4,2008 BY AND BETWEEN CORE SYCAMORE TOWN CENTER T, LLC, A DELAWARE LIMITED LIABILITY COMPANY AND PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC, o` o m A DELAWARE LIMITED LIABILITY COMPANY ,:., (AS LENDER) �I r"" rn Y V. N r a C. :-) - -.. ._.4 • LOAN AGREEMENT NY:1180077.14 CA) �C O LOAN AGREEMENT THIS LOAN AGREEMENT, made as of September 4, 2008, is between PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC, a Delaware limited liability company (together with its successors and assigns,"Lender"), and CORE SYCAMORE TOWN CENTER T, LLC, a Delaware limited liability company ("Borrower" and sometimes as "Sponsor Borrower"), having an address at 1600 Dove Street, Suite 450 Newport Beach, California 92660. RECITALS A. Borrower desires to obtain a loan (the "Loan") from Lender in the maximum principal amount of THIRTEEN MILLION AND NO/100 DOLLARS ($13,000,000.00) the ("Loan Amount") for the purpose of providing funds to Borrower to(a)acquire and lease up the Project (as hereinafter defined), and (b)pay any other amounts owing to Lender on the Closing Date (as hereinafter defined), including any unpaid portion of the Loan Fee (as hereinafter defined) and any other costs and expenses (including legal fees and costs) incurred by Lender in connection with the Loan. B. The Loan is evidenced by the Note (as hereinafter defined), and will be secured by, among other things, a first priority mortgage (the "Security Instrument") encumbering the Project. C. Lender is willing to make the Loan on the condition that Borrower joins in the execution and delivery of this Agreement(as hereinafter defined)which shall establish the terms and conditions of the Loan. AGREEMENT NOW, THEREFORE, in consideration of the making of the Loan by Lender, and the covenants, agreements, representations and warranties set forth in this Agreement, the parties hereby covenant,agree, represent and warrant as fol lows: ARTICLE I. CERTAIN DEFINITIONS Section 1.1. Definitions. As used in this Agreement the following terms have the following meanings: 1.1.1 "ADA" means The Americans with Disabilities Act of 1990, 42 U.S.C. 12101, et seq. as from time to time amended, together with any and all comparable Iowa Laws. 1.1.2 "Affiliate" of any specified Person means any other Person Controlling,Controlled by or under common Control with such specified Person. CZ.) 1.1.3 "Agreement" means this Loan Agreement, as the seine ma�from time to time hereafter be modified, supplemented or amended. ,; �. •. 1 nvy fi cam• C )Trri LOAN AGREEMENT `�a NY:1180077.14 y:: • C.1 W 1.1.4 "Amortization Payment"means a monthly payment based upon a 30-year amortization schedule, which schedule shall be calculated as of the commencement of the First Extension Period. 1.1.5 "Amortization Trigger" means the commencement of the First Extension Period. 1.1.6 "Anti-Terrorism Regulations" has the meaning set forth in Section 5.6(b). 1.1.7 "Applicant" shall mean the person or entity who or which applied for the Loan. 1.1.8 "Approved Leases" means all current Leases listed in Schedule 1 attached hereto and incorporated herein by this reference and any other Leases that are either (i) approved by Lender in accordance with Section 5.1.15 or(ii) satisfy the Leasing Guidelines set forth on Exhibit C hereto. 1.1.9 "Assignee Lender" has the meaning assigned to it in Section 9.31(a). 1.1.10 "Assignment of Extension Period Interest Rate Protection Agreement" means an agreement substantially similar to the Assignment of Interest Rate Protection Agreement and otherwise acceptable to Lender in form and substance, together with an acknowledgment of the Counterparty to such assignment reasonably acceptable to Lender in form and substance. 1.1.11 "Assignment of Interest Rate Protection Agreement" means that certain Assignment of Interest Rate Protection Agreement of even date herewith pursuant to which the Interest Rate Protection Agreement has been assigned to Lender, together with a written acknowledgment of the Counterparty to such assignment reasonably acceptable to Lender in form and substance. 1.1.12 "Assignment of Leases" means the Assignment of Leases and Rents assigning to Lender as security for the Loan the Leases and all rents arising from the Project. 1.1.13 "Assignment of Management Agreement" means, individually and collectively, (i) the Assignment of Management Agreement between Lender and Property Manager of even date herewith and (ii) the Assignment of Management Agreement between Lender and Property Sub-Manager of even date herewith. 1.1.14 Intentionally Omitted. 1.1.15 Intentionally Omitted. C i 1.1.16 Intentionally Omitted. LOAN AGREEMENT i;►; NY:1180077.14 C=J Y^ • Crl-N^ W 1.1.17 "Bank Monitor Rate" means a rate equal to the average interest rate of money market accounts offered by banks Iocated in 25 cities and/or metropolitan areas as published in the Bank Rate Monitor (referred to therein as the "Bank 25 Average"), as determined and reset by Lender on a monthly basis, or, if such Bank 25 Average is no longer available, based on some substantially similar interest rate indicator customarily used by Lender or its servicing agent as a standard upon which to base interest payment credits on reserves, which account may not yield the highest interest rate then available. 1.1.18 "Bankruptcy Code" means Title 11 of the United States Code, U.S.C. §101 et seq., entitled "Bankruptcy," as amended from time to time, and any successor statute or statutes thereto. 1.1.19 "Bloomberg Page BBAM-1" means the display designated as "Page BBAM-1" on the Bloomberg Professional Service (or such other page as may replace Page BBAM-1 on that service or any successor to such service). 1.1.20 "Borrower"has the meaning assigned to it in the preamble of this Agreement. 1.1.21 "Borrower Parties" has the meaning assigned to it in Section 4.1.2. 1.1.22 "Borrower's Limited Liability Company Agreement"means the Limited Liability Company Agreement for Borrower dated as of March 10,2008. 1.1.23 "Business Day" means any day other than (i) a Saturday or a Sunday, and (ii) a day on which federally insured depository institutions in the State of New York or the State of Iowa are authorized or obligated by law, regulation, governmentakclecree, executive order or event of emergency to be closed. 1.1.24 Intentionally Omitted. „1C matrasmi d t ..,. 1.1.25 Intentionally Omitted. --ti:: c7" n' . = 1.1.26 Intentionally Omitted. c73 1.1.27 Intentionally Omitted. cM 1.1.28 Intentionally Omitted. 1.1.29 Intentionally Omitted. 1.1.30 Intentionally Omitted. 1.1.31 "Cash Management Account" has the meaning assigned to it in Section 10.2.1. 3 LOAN AGREEMENT NY:I 180077.14 1.1.32 "Cash Management Bank" has the meaning assigned to it in Section 10.2.1. 1.1.33 "Cash Management Commencement Date" the earlier to occur of the following: (a) an Event of Default; (b) any date on or after the date that is six(6)months before the end of the Original Maturity Date on which Lender determines, based upon its underwriting determined in Lender's discretion, that the Project, for the trailing twelve (12) month period, has not generated the Permanent Loan Required Net Cash Flow; (c) any date on which Lender determines, based upon its underwriting determined in Lender's discretion, that the Project, for the trailing twelve (12)month period,did not support a Debt Service Coverage Ratio (as hereinafter defined)of at least 1.05:1.00; (d) any date on which Lender determines, based upon its underwriting determined in Lender's discretion, that the Project did not then have an occupancy of at least eighty-five percent(85%); (e) any date on which Lender determines, based upon its underwriting determined in Lender's discretion, that the Project, for the trailing twelve (12) month period,did not have an annualized Net Cash Flow(as hereinafter defined)of at least$1,025,000.00;or (f) any date any Anchor Tenant(as defined below) goes dark or gives notice of its intent not to renew its lease. "Anchor Tenant" for the purposes of this definition only, shall mean any tenant leasing twenty thousand(20,000)square feet or more of space at the Project. 1.1.34 "Cash Management Period" means a period commencing on the Cash Management Commencement Date and ending upon the earlier of(i)the applicable date of satisfaction of the conditions to the Cash Management Period Termination Right or (ii) the repayment in full of the Indebtedness. 1.1.35 "Cash Management Period Termination Right" means the one time right of Borrower to terminate a Cash Management Period prior to the repayment in full of the Indebtedness, which Borrower may exercise by written notice to Lender provided Borrower satisfies the following: (a) if a Cash Management Commencement Date occurred pursuant to subsection 1.1.33(a), upon the lapse of six (6) consecutive months after the accertanc, 'a cure of such Event of Default by Lender, which acceptance shall be granted in £ender'c sole an f 1 absolute discretion,provided no new Events of Default have occurred; _ (b) if the Cash Management Commencement Date oci—dr'd pursuant*, subsection 1.1.33(c), of such definition upon the date on which Lender deterrnilit,s, bad, d upoi�l LOAPf AGREEMENT 'fl NY:1180077.14 Lender's then current underwriting standards and in Lender's discretion,that the Project achieves a Debt Service Coverage Ratio of at least 1.20:1.00 for a period of six(6)consecutive months; (c) if the Cash Management Commencement Date occurred pursuant to subsection 1.1.33(d), upon Lender's determination, based upon Lender's then current underwriting standards and in Lender's reasonable discretion, that the Project, for the trailing six (6) month period,achieves an occupancy of at least 85%; (d) if the Cash Management Commencement Date occurred pursuant to subsection 1.1.33(e), upon the date on which Lender determines, based upon Lender's then current underwriting standards and in Lender's reasonable discretion, that the Project achieves an annualized Net Cash Flow of$1,025,000 (on a trailing twelve (12) month basis) for a period of six(6)consecutive months; (e) if the Cash Management Commencement Date occurred pursuant to subsection 1.1.33(0, of such definition, upon the lapse of six (6) months after a new tenant pursuant to a Lease satisfying the requirements of this Agreement, takes occupancy of the vacated or dark space, opens for business and commences the payment of rent in the previously vacant or dark space;and (f) if any of the triggers which would otherwise trigger a Cash Management Commencement Date has occurred since the original Cash Management Commencement Date, then each of such triggers shall have been cured by Borrower in the manner specified in items(a)—(e)above,it being understood and agreed that Borrower shall not have a right to cure a Cash Management Commencement Date arising under item 1.1.33(b). 1.1.36 "Clearing Account" has the meaning assigned to it in Section 10.1.1. 1.1.37 "Clearing Bank" means the Union Bank or any successor Eligible Institution approved or appointed by Lender. 1.1.38 "Clearing Bank Agreement" means that certain Deposit Account Control Agreement by and among Borrower, Lender and Clearing Bank, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time, relating to the operation and maintenance of the Clearing Account.. 1.1.39 "Closing Date" means the date of disbursement of the Initial Disbursement Amount. 1.1.40 "Code" means the Internal Revenue Code of 1986, as amended, and as it may be further amended from time to time, any successor statutes thereto,together with any applicable .U.S. Department of Treasury regulations promulgated pursuant thereto in temporary or final form. -a 1.1.41 "Collateral" means, collectively, the collateral granted to`lnder pursuant to the Security Instrument, the Assignment of Leases, any reserve accnt.estaished_.,,� hereunder or under the Management Agreement or Sub-Management Agreayt, a1 any1 y fl 5 te, e'.." LOAN AGREEMENT �a NY:1180077.14 � ;i ! 71> f� collateral described in any Loan Document,all Proceeds and products of any of the foregoing, all whether now owned or hereafter acquired, and all other property in which Borrower may now or hereafter have an interest and all funds in the Escrow Fund,the Reserves and other accounts held by Lender. 1.1.42 "Comparison Permanent Loan" shall mean a fixed-rate loan with a term of at least ten(10) years that is made to a borrower substantially similar to Borrower and that is secured by a Comparison Property. 1.1.43 "Comparison Property" shall mean a property substantially similar to the Project located in a market substantially similar to the market in which the Project is located, having a use that is the same as the use of the Project (e.g., multifamily,retail,office, warehouse, hotel), with tenants having substantially similar lease terms and a substantially similar credit quality,each as determined by Lender in its reasonable discretion_ 1.1.44 "Control" (and the terms correlative thereto) when used with respect to any specified Person means the power to direct the management and policies of such Person, or the ownership, control or power to vote more than ten percent (10%) of the voting securities, shares or other beneficial interests of such Person, directly or indirectly, whether through the ownership of voting securities, shares or other beneficial interests, by contract or otherwise. 1.1.45 "Cost Overrun" shall mean, (i) for any given Lease, at any point in time, the amount by which the estimated cost (as determined by Lender in its reasonable discretion,absent manifest error by Lender)or actual cost to complete the Tenant improvements and/or Leasing Commissions shall exceed the TI/LC Limits, (ii)for any Repairs, at any point in time, the amount by which the estimated cost (as determined by Lender in its reasonable discretion, absent manifest error by Lender) to complete such Repairs shall exceed the amounts available for such Repairs in the Replacement Reserve and (iii) for any Required Work, at any point in time, the amount by which the estimated cost(as determined by Lender in its reasonable discretion, absent manifest error by Lender) to complete such Required Work shall exceed the amounts available for such Required Work in the Immediate Repair Reserve. 1.1.46 "Costs" shall have the meaning assigned to such term in Section 8.2. 1.1.47 "Counterparty" shall mean the provider of the Interest Rate Protection Agreement or Extension Period Interest Rate Protection Agreement. 1.1.48 "Debt Service" means, for any period, the principal (if any), interest, Default Rate interest and Late Charges that accrue or are due and payable in accordance with the Loan Documents during such period. 1.1.49 "Debt Service Coverage Ratio" means, for any period, the ratio, as underwritten and determined by Lender in its discretion, calculated by dividing (i) Nst Cash Flow(as underwritten and determined by Lender) for such period, by (ii) Debt Setvice f such period. ,>-- - >=-= 6 c) _... LOAN AGREEMENT --�T r, y�r�] NY:1180077.14 J_ 1 f�7 C.,) 1.1.50 Intentionally Omitted. 1.1.51 Intentionally Omitted. 1.1.52 Intentionally Omitted. -'(7) 1.1.53 "Default" means the occurrence of any event whieh.is et whi ff but for the giving of notice or the passage of time,or both,would be an Event of fje1ault _` •, 1.1.54 "Default Rate" means the per annum interest rate egtf# to the lesser of(i)the maximum amount allowed by law or(ii)the Interest Rate plus five percent (5%) per annum. 1.1.55 "Deferred Origination Fee"means an amount equal to thirty five hundredths of one percent (0.35%) of the Loan Amount, which is earned by Lender as of the Closing Date, in consideration of Lender making the Loan, and which is to be paid to Lender in accordance with the terms of this Agreement. 1.1.56 "Delivered Letter of Credit" shall have the meaning given to such term in Section 2.21.1. 1.1.57 "Determination Date" means with respect to any Interest Accrual Period, the date which is two (2) Eurodollar Business Days before the commencement of such Interest Accrual Period. I.1.58 "Eligible Account" means a separate and identifiable account from all other funds held by the holding institution that is either(A)an account or accounts maintained with a federal or state chartered depository institution or trust company which complies with the definition of Eligible Institution or(b) a segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a combined capital surplus of at least$50,000,000.00 and subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument. 1.1.59 "Eligible Institution" shall mean a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short term unsecured debt obligations or commercial paper of which are rated at least"A-1" by S&P, "P-1" by Moody's and "F-1" by Fitch in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least "AA" by Fitch and S&P and "Aa2" by Moody's). Notwithstanding the foregoing, Lender agrees that, as of the date hereof, Prudential Bank and Trust shall be deemed to be an Eligible Institution. 1.1.60 "Environmental Indemnity Agreement" means the Environmental Indemnity Agreement from Borrower and Guarantor in favor of Lender, dated of 7 LOAN AGREEMENT NY:1180077.14 even date herewith, as the same may hereafter from time to time be supplemented, amended, extended or modified. 1.1.61 "Equipment" means any furniture, fixtures, equipment or other personal property located on the Real Property and owned by Borrower or any Affiliate of Borrower. 1.1.62 "ERISA" means the Employee Retirement Income Security Act of 1974,as amended. 1.1.63 "ERISA Affiliate" has the meaning assigned to it in Section 4.1.12. 1.1.64 "Escrow Fund"has the meaning assigned to it in Section 5.1.4. 1.1.65 "Eurodollar Business Day" means a Business Day on which banks in the City of London,England are open for interbank or foreign exchange transactions. 1.1.66 "Event of Default" has the meaning set forth in Section 7.1. For purposes of this definition, an Event of Default is deemed to be continuing unless and until (i)expressly waived by Lender in its sole and absolute discretion, which waiver may be subject to any such conditions as Lender may impose,or(ii)Lender accepts a cure. 1.1.67 "Executive Order 13224" has the meaning set forth in Section 4.2. 1.1.68 "Extended Maturity Date" shall mean the Original Maturity Date as extended pursuant to the exercise, in accordance with the terms of Section 2.9 of this Agreement,of an Extension Option. 1.1.69 "Extension Option"has the meaning set forth in Section 2.9. 1.1.70 "Extension Period" has the meaning set forth in Section 2.9. 1.1.71 "Extension Period Interest Rate Protection Agreement" shall mean an interest rate hedging product reasonably acceptable to Lender entered into with a Counterparty having the Required Counterparty Rating, to be structured as a 30-clay LIBOR rate cap with a strike price of five and one half of one percent (5.5%) in the notional amount of the Loan Amount, which shall have a term ending on the applicable Extended Maturity Date and be collaterally assigned to Lender pursuant to an Assignment of Extension Period Interest Rate Protection Agreement(which shall,without limitation,direct the Counterparty to make payments under the Extension Period Interest Rate Protection Agreement directly into the Clearing Account or such other account as is directed by Lender), and any replacements, substitutions or extensions thereof as required by the terms and provisions of this Agreement. 1.1.72 "Extraordinary Expense" means an extraordinary opeMing expense or capital expense not set forth in the approved Operating Budget or allote,*.-for itrthe • . CD Replacement Reserve or TI/LC Reserve. .� '7-! I 8 -Ic LOAN AQREEMENT i r" NY:1180077.14 c; E ct 1.1.73 "FEMA"has the meaning assigned to it in Section 4.1.26(d). 1.1.74 "Financing Statements" means any UCC-1 financing statements which Lender requires be authorized by Borrower in connection with the Security Instrument. 1.1.75 "First Extension Notice" has the meaning assigned to it in Section 2.9. 1.1.76 "First Extension Option" has the meaning assigned to it in Section 2.9. 1.1.77 "First Extension Period"has the meaning assigned to it i1Section 2.9. 1.1.78 "First Payment Date" shall mean October 5,200ff -e 1.1.79 "Fitch"means Fitch,Inc. CT 1.1.80 "Formation Documents" has the meaning assi d to-it m Section 4.1.3. - ••q J 4 1.1.81 "GAAP" means generally accepted accounting principles, consistently applied, in the United Sates of America as of the date of the applicable financial report. 1.1.82 "Gross Revenue" means, for any given period, the gross revenues for the Project from any source collected by Borrower for such period (or, for future periods, reasonably expected to be collected), including rents and expense reimbursements, as well as rental income insurance, as amortized over the duration of the term remaining under the applicable Lease. Gross Revenue shall not include (i) any revenues determined by Lender in its reasonable discretion to be extraordinary or one-time sources of revenue, (ii) any revenues derived from a month-to-month Tenant, unless Lender determines that revenues from month-to- month tenancies are reasonably included in Gross Revenues, (iii) any future revenues from any Tenant that is the subject of a bankruptcy or insolvency proceeding, unless such Tenant has affirmed its Lease at the Project, (iv) any revenues derived from the sales of furniture, fixtures and equipment, (v) interest income, (vi) disbursements from the Escrow Fund or any of the Reserves, (vii) insurance proceeds or condemnation awards, (viii) lease termination payments (unless amortized over the duration of the term remaining under the applicable Lease at the time of termination)and(ix) any revenues from any Tenant which has provided Borrower with notice of election to terminate its Lease prior to the normal termination date of such Lease, unless a replacement Lease for such tenant space complying with the requirements of this Agreement has been executed and delivered to Lender. If market vacancy or Lender's underwritten vacancy exceeds the actual vacancy, then the appropriate adjustment to Gross Revenue shall be made by Lender. 1.1.83 "Guarantor" or "TIC Guarantor" means, individually and collectively,those entities or persons listed on Schedule I attached hereto and made a part hereof. 9 LOAN AGREEMENT NY:1180077.14 1.1.84 "Guaranty" means, collectively, each certain Guaranty executed by each Guarantor in favor of Lender, dated of even date herewith, as amended, modified or supplemented from time to time. 1.1.85 "Immediate Repair Reserve" has the meaning assigned to it in Section 2.20.1. 1.1.86 "Impositions" means all taxes (including, without limitation, all real estate, ad valorem, sales (including those imposed on lease rentals), use, single business, gross receipts, value added, intangible transaction privilege, privilege, license or similar taxes), assessments, ground rents, water, sewer or other rents and charges, excises, levies, fees (including,without limitation, license, permit, inspection, authorization and similar fees), and all other governmental charges, in each case whether general or special, ordinary or extraordinary, foreseen or unforeseen, of every character in respect of Borrower, the Collateral, and the Project (including all interest and penalties thereon) which at any time prior to, during or in respect to the Term hereof may be assessed or imposed on or in respect of or be a Lien upon (i) Borrower or Lender,or(ii)the Collateral. 1.1.87 "Improvements" means all buildings, structures and other improvements now existing or hereafter constructed on the Land to the extent not owned by tenants or licensees of the Project, including, without limitation, the commercial building commonly known as Sycamore Town Center and located at 1668 Sycamore Street, Iowa City, Iowa 52240. 1.1.88 "Indebtedness" means, at any given time, the Principal Indebtedness (including, without limitation, indebtedness in the form of mezzanine debt and preferred equity), together with all accrued and unpaid interest thereon and all other payment obligations and payment liabilities due or accruing to Lender pursuant to, or in accordance with, any of the other Loan Documents. 1.1.89 "Indemnified Party"has the meaning assigned in Section 9.25. 1.1.90 "Initial Disbursement Amount"has the meaning assigned to it in Section 2.1(a). 1.1.91 "Instruments"means all instruments,chattel paper,documents or other writings obtained by Borrower evidencing a right to payment, including, without limitation, all notes, drafts, acceptances, documents of title, and policies and certificates of insurance, including but not limited to, liability, hazard, rental and credit insurance, guarantees and securities, now or hereafter received by Borrower or in which Borrower has or acquires an interest pertaining to the foregoing. In addition to the foregoing,"Instruments"shall include the meaning given such term in the UCC. 1.1.92 "Insurance Premiums" has the meaning assigned to it in Section 5.1.4. 1.1.93 "Interest Accrual Period" means (i) the period commencing on the date on which the initial proceeds of the Loan are advanced to Borrower and ending-33n the 10 LOAN AGREEMENT NY:1180071.14 a"'• r.. S t 1 • fourth(4th)day of the calendar month following the calendar month in which the initial proceeds of the Loan are advanced to Borrower (or, if the initial proceeds of the Loan are advanced to Borrower on or before the fourth (4th) day of a calendar month, ending on the fourth(4'") day of the calendar month in which the initial proceeds of the Loan are advanced)and(ii)thereafter, the period commencing on the fifth(5th)day of a calendar month and ending on the fourth(4th) day of following calendar month, provided that in no event shall any Interest Accrual Period extend beyond the Maturity Date. 1.1.94 "Interest Compensation Sum" means the amount of interest which, had the prepayment not been made, would have accrued on the principal sum being prepaid from and including the date of prepayment through and including the end of the then- current Interest Accrual Period. 1.1.95 "Interest Rate" means a per annum interest rate equal to LIBOR plus three hundred (300) basis points, adjusted on the first day of each Interest Accrual Period. The Interest Rate for the first Interest Accrual Period shall be five and fifty five hundredths percent(5.55%). 1.1.96 "Interest Rate Protection Agreement"shall mean an interest rate hedging product reasonably acceptable to Lender entered into with a Counterparty having the Required Counterparty Rating,to be structured as a 30-day LIBOR rate cap with a strike price of no higher than five and one half of one percent (5.5%) in the notional amount of the Loan Amount, which shall have a term ending on the Maturity Date and be collaterally assigned to Lender pursuant to the Assignment of Interest Rate Protection Agreement (which shall, without limitation, direct the Counterparty to make payments under the Extension Period Interest Rate Protection Agreement directly into the Clearing Account or such other account as is directed in writing by Lender), and any replacements, substitutions or extensions thereof as required by the terms and provisions of this Agreement. 1.1.97 "Land" means all of the land described in Exhibit"A'!...attached hereto and incorporated herein by this reference. 1.1.98 "Late Charge" means the amount equal to five=.1i reenf %) of-- any unpaid amount. 1.1.99 "Leases" means all leases and other agreements a cfl rang inentS,..� affecting the use or occupancy of all or any portion of the Real Property nnw" effct hereafter entered into (including, without limitation,all lettings, subleases,licenses .concesons, tenancies and other occupancy agreements covering or encumbering all or any'portion'aif the Real Property), together with any guarantees, supplements, amendments, modifications, extensions and renewals of the same, and all additional remainders, reversions, and other rights and estates appurtenant thereto. 1.1.100 "Lease Guaranty" has the meaning assigned to it in Section 5.1.15. 1.1.101 "Leasing Commissions" shall mean the leasing commissions due to Persons who are not Affiliates of Borrower or Guarantor in connection with the leasing of the 11 LOAN AGREEMENT NY:1180077.14 Project or, if the Person is an Affiliate of Borrower, such Person has played an active role in the leasing transaction. 1.1.102 "Leasing Commission Costs" shall mean the amount of out-of-pocket costs for Leasing Commissions actually incurred by Borrower from time to time after the date hereof with respect to any and all Approved Leases. 1.1.103 "Leasing Costs" shall mean the sum of the Leasing Commission Costs and the Tenant Improvement Costs. 1.1.104 "Leasing Guidelines" means the guidelines set forth on Exhibit C hereto. 1.1.105 "Lender" has the meaning assigned to it in the preamble to this Agreement. 1.1.106 "Letter of Credit" shall mean, collectively, each of the unconditional, irrevocable and freely transferable letters of credit, issued by an Eligible Institution and provided by Hodge Development Company, an Iowa corporation, Oakes Development, Ltd., an Iowa corporation, MEHSM, L.C., an Iowa limited liability company, DVHSM, L.C., an Iowa limited liability company, GASM, L.C., an Iowa limited liability company,DGOSM, L.C.,an Iowa limited liability company, and KDDSM,L.C.,an Iowa limited liability company (individually and collectively, the "Seller") for the benefit of Borrower pursuant to the Purchase and Sale Agreement entered into by Seller and Buyer as of November, 2007, as such Purchase and Sale Agreement has been amended pursuant to that certain Reinstatement Agreement and First Amendment to Purchase and Sale Agreement dated as of February 8, 2008 and the Second Amendment and Reinstatement to Purchase and Sale Agreement dated as of June 2, 2008 and the Third Amendment to Purchase and Sale Agreement dated as of September 4, 2008(collectively,the "P&S Agreement")as more particular described in Sections 3.4.5, 3.4.5.1, 3.4.5.2, 3.4.5.3, 3.4.5.4 and 3.4.5.5 of the P&S Agreement and listed on Exhibit H hereto. The Letter of Credit shall be freely assignable and/or transferable to any successor or assignee of Lender under the Loan Documents without payment by Lender of any costs or fees. 1.1.107 Intentionally Omitted 1.1.108 "LIBOR" means with respect to each Interest Accrual Period, the greater of (1) two and fifty five hundredths percent (2.55%), or (ii) the rate (expressed as a percentage per annum) ("Offered Libor") for deposits in U.& dollars for a one-month period that appears on Bloomberg Page BBAM-1 (or the successor thereto) as of 11:00 a.m., London, England time, on the related Determination Date. If such rate does not appear on Bloomberg Page BBAM-1 as of 11:00 a.m., London, England time, on such Determination Date, Offered Libor shall be the arithmetic mean of the offered rates(expressed as a percentage per annum) for deposits in U.S. dollars for a one-month period that appear on the Reuters Screen LIBOR Page as of 11:00 a.m., London, England time, on such Determination Date, if at least two sue*offered rates so appear. If fewer than two such offered rates appear on the Reuters Scprn LIBOR Page as of 11:00 a.m., London, England time, on such Determination Date, Offered L:ibor��hall 12 v, LOAN AGREEMENT NY:1180077.14 determined from such reporting service or other information as shall be determined by Lender in its reasonable discretion. LIBOR shall be determined by Lender or its agent in accordance with this definition and such determination shall be conclusive absent manifest error. 1.1.109 "Lien" means other than the lien of the Security Instrument and the Assignment of Leases, any deed of trust, mortgage, deed to secure debt, lien (statutory or other), pledge, easement, restrictive covenant, hypothecation, assignment, preference, priority, security interest, or any other encumbrance or charge on or affecting the Project or any portion thereof or any Collateral or Borrower, or any interest in any of the foregoing other than the Leases. 1.1.110 "Loan"has the meaning assigned to it in the Recitals hereto. 1.1.111 "Loan Amount" has the meaning assigned to it in the Recitals hereto. 1.1.112 "Loan Documents"means, collectively,this Agreement,the Note, the Security Instrument, and all other agreements, instruments, certificates and documents executed or delivered by Borrower or Guarantor or any other Person to evidence or secure the Loan or otherwise in satisfaction of the requirements of this Agreement, or the other documents listed above, as each such agreement, instrument, certificate or document may be amended, supplemented or modified from time to time. 1.1.113 "Loan Fee" means a loan fee equal to one and one half of one percent (1.5%) of the Loan Amount, which is being paid to Lender on the Closing Date in consideration of Lender's making the Loan. 1.1.114 "Loan Party" means individually and collectively, each entity comprising Borrower and each Guarantor. 1.1.115 "Loan Year" means the period from the Closing Date through and including the calendar day prior to the twelfth (12th) Payment Date and thereafter each successive 3651366 day period. 1.1.116 "Lockbox Address" shall mean the address of the Clearing Bank as more fully set forth in the Clearing Bank Agreement. 1.1.117 "Lockout Expiration Date"means March 5,2010. 1.1.118 "Management Agreement" or "Property Management Agreement" means that certain Property and Asset Management Agreement dated as of the Closing Date by and between Borrower and Property Manager. a 1.1.119 "Management Fees" means the management fees`Rayabl. an)r'" � Property Manager or Sub-Manager for the management of the Project, whetheriptrrsuatrtto the Management Agreement, Sub-Management Agreement or otherwise. rri 13 .. LOAN AGREEMENT NY:1180077.14 1.1.120 "Material Adverse Condition" means a condition or circumstance that results in or causes,or has a reasonable likelihood of resulting in or causing, a material adverse effect upon (i) the business or the financial condition or results of operation of Borrower or any other Loan Party, (ii)the ability of Borrower to make any payment under or to perform any or all of its obligations under this Agreement or any of the other Loan Documents, (iii) the legality, validity or enforceability of any of the Loan Documents or Lender's ability to enforce any of its rights under the Loan Documents, (iv) the Lien and security interest of Lender in the Collateral or the Project or(v)the value of the Collateral or the Project. 1.1.121 "Maturity Date"means the Original Maturity Date, the Extended Maturity Date (if an Extension Option is successfully exercised pursuant to and in accordance with the conditions contained in Section 2.9), or such earlier date resulting from acceleration of the Indebtedness pursuant to this Agreement. 1.1.122 "Mezzanine Borrower" shall mean SYCAMORE TOWN CENTER MEZZANINE,LLC,a Delaware limited liability company. 1.1.123 "Mezzanine Lender" shall mean ONE CLEVELAND FINANCE LLC, a Colorado limited liability company,together with its successors and assigns. 1.1.124 "Mezzanine Loan" shall mean that certain mezzanine loan made by Mezzanine Lender, in the amount of$7,158,500.00 and secured by one or more pledges of the direct or indirect ownership interest in Borrower made as of the Closing Date. 1.1.125 "Mezzanine Loan Documents" shall mean those documents which evidence and secure the Mezzanine Loan. 1.1.126 "Mezzanine Payment Amount" shall mean, as of any Payment Date, the amount of interest then due and payable for the then-current month pursuant to the terms of the Mezzanine Loan, excluding all other interest that may have accrued pursuant to the terms of the Mezzanine Loan, provided that such payment shall not exceed an amount due and payable with respect to a rate per annum equal to thirteen percent(13.0%).. 1.1.127 "Mezzanine Payment Sub-Account" shall mean the escrow account maintained pursuant to Section 10.3.1(i)hereof. 1.1.128 "Monthly Payment"means (i) if the Amortization Trigger has not occurred, a payment of interest accrued on the Principal Indebtedness for the preceding Interest Accrual Period and(ii)if the Amortization Trigger has occurred, an amount equal to the sum of (x) interest accrued on the Principal Indebtedness for the preceding Interest Accrual Period and (y)the Amortization Payment. 1.1.129 "Moody's" means Moody's Investors Service,Inc. 1.1.130 "Necessary Property Receipts" means any Receipts t�om�,,,, are 3 reasonably anticipated to be needed for the maintenance of the Project or for`Quer Q ect- �» related expenses or for the payment of anticipated amounts to become due urile theL'oan Documents _ 1 14 LOAN AGREEMENT = � •• G� NY:1150077.14 r-- 1.1.131 "Net Cash Flow" or "NCF" means, for any given period, Net Operating Income less underwritten capital expenditures, tenant improvement costs and leasing commissions for such period (which capital expenditures, tenant improvement costs and leasing commissions shall be based upon Lender's underwriting guidelines for a Comparison Permanent Loan),all as underwritten and determined in Lender's reasonable discretion. 1.1.132 "Net Operating Income" or "NOP' means, for any given period, Gross Revenue for such period, less Operating Expenses for such period, all as underwritten and determined in Lender's discretion. 1.1.133 "No Adverse Rating Impact Confirmation" means a written confirmation from each Rating Agency, if any, rating a Secondary Market Transaction that the action being considered shall not result in a downgrade, qualification or withdrawal of the ratings of the securities issued in connection with such Secondary Market Transaction. In the event a Secondary Market Transaction has not yet occurred, Lender shall, in its sole discretion, determine if the action being considered may have resulted in such a downgrade, qualification or withdrawal of ratings had the Secondary Market Transaction occurred. 1.1.134 Intentionally Omitted. 1.1.135 "Note" means and refers to that certain Promissory Note Secured by Mortgage dated of even date herewith by Borrower to Lender pursuant to this Agreement as such promissory note may be modified, amended, supplemented, extended or consolidated in writing, and any note(s)issued in exchange therefor or in replacement thereof. 1.1.136 "Notice"has the meaning assigned to it in Section 9.9. 1.1.137 "Notice Owner" shall mean CORE Realty Holdings, LLC, a California limited liability company. 1.1.138 "OFAC"has the meaning set forth in Section 4.2. 1.1.139 "OFAC Lists"has the meaning set forth in Section 4.2. 1.1.140 "OFAC Violation"has the meaning set forth in Section 5.6(c). 1.1.141 "Operating Account" has the meaning set forth in Section 10.1.5. 1.1.142 "Operating Budget" has the meaning set forth in Section 5.1.11(c). 1.1.143 "Operating Expenses" means, for any given period, all bona fide, normal, customary and reasonable operating expenses of the Project (other than any derating expenses directly paid by Tenants) actually paid or accrued by Borrower duiiig such eriod„r which shall exclude Debt Service and payments by Borrower into the Escrq}v'. une i r any Reserves and which shall include, without limitation (i) management fees,:.. Ether1 or n actually paid, equal to the greater of the actual management fees and four percent 4%)cifrhnnuA "base" or"fixed" Rent due under the Leases and(ii) Impositions and Insurance Phi iumac� J rn 15 LOAN AGREEMENT CJS NY:1180077.14 1.1.144 "Original Maturity Date"means September 5, 2011. 1.1.145 "Owner Group" means, collectively, Borrower, Guarantor and any entity or individual which or who,directly or indirectly,owns,controls or holds the power to vote twenty (20%)percent or more of the voting securities or other equity interests in any entity comprising Borrower. 1.1.146 "Payment Date"means the fifth(5th) day of each calendar month during the Term of the Loan, and the Maturity Date; provided, however, that for purposes of making payments hereunder and under the Note, but not for purposes of calculating Interest Accrual Periods, if the fifth (5th) day of a given month shall not be a Business Day, then the Payment Date for such month shall be the next succeeding Business Day. 1.1.147 "Permanent Loan" means a fixed-rate loan which is amortizing on a 30-year schedule,has a term of ten(10)years and has an interest rate reasonably determined by Lender based upon the interest rate that would be quoted by Lender on a Comparison Permanent Loan. 1.1.148 "Permanent Loan Required Net Cash Flow" means the Net Cash Flow determined by Lender, absent manifest error by Lender, based upon Lender's then- applicable underwriting guidelines, as being required for the Project to support a Permanent Loan in the amount of the then-outstanding Indebtedness to satisfy both the Required DSCR and the Required Agency DS CR. 1.1.149 "Permitted Exceptions" has the meaning set forth in Section 4.1.17. 1.1.150 "Permitted Indebtedness" means trade payables entered into in the ordinary course of business and not to exceed three percent(3%) of the Loan Amount in the aggregate and which remain outstanding for no more than sixty (60) days from the date incurred. 1.1.151 "Permitted Transfer" has the meaning ascribed to such term in Section 6.1.3(b). 1.1.152 "Person" means any individual, corporation, limited liability company, partnership,joint venture, estate, trust, unincorporated association, or any other entity, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing. 1.1.153 "Personal Property" means, collectively, all tangible and intangible personal property in which Lender has a security interest pursuant to the S. urity Instrument or any of the other Loan Documents and any other tangible and intFaiblepepsonal property collateral from time to time granted to Lender as security for the Loan. ��:6 6`n ' �� a.xA 1.1.154 "Plan Assets"has the meaning assigned to it in See la 4.1 J2. ' s rn -rt 16 LOAN AGREEMENT 5.; C.11 NY:1180077.14 1.1.155 "Prepayment Fee" means an amount equal to the sum of three percent (3%) of the principal amount of the Loan being prepaid plus all debt service that would have accrued on the outstanding principal amount of the Loan from the date of such prepayment through the Payment Date in March, 2010 calculated at the rate of interest in effect as of the date of such prepayment. 1.1.156 "Principal Indebtedness" means the principal amount of the entire Loan outstanding as the same may be increased or decreased, as a result of prepayment or otherwise,from time to time. 1.1.157 "Proceeds" means all of Borrower's "proceeds," as such term is defined in the UCC, and,to the extent not included in such definition, all proceeds whether cash or non-cash, movable or immovable, tangible or intangible (including Insurance proceeds, condemnation proceeds and proceeds of proceeds), from the Collateral, including, without limitation, those from the sale, exchange, transfer, collection, loss, damage, disposition, substitution or replacement of any of the Collateral and all income,gain,credit,distributions and similar items from or with respect to the Collateral. 1.1.158 "Prohibited Transfer" means a Transfer (i) occurring without Lender's prior written approval, which approval may be withheld in Lender's sole and absolute discretion,or(ii)which is not a Permitted Transfer. 1.1.159 "Project" means, collectively, the Real Property and the Personal Property. 1.1.160 "Property Condition Report" means that certain Property Condition Report dated May 15, 2008 with respect to the Project prepared by EB1 Consulting under its File No. 11081116. 1.1.161 "Property Manager" means CORE Realty Holdings Management, Inc.,or any successor manager of the Project reasonably approved by Lender. 1.1.162 "Qualified Tenant Estoppel" means a tenant estoppel certificate or other form of certification, in either case reasonably acceptable to Lender in form and substance, in which the Tenant certifies to the following: (i)no default currently exists by either the Tenant or the Borrower under the Lease, (ii) all Tenant Improvements have been completed to the satisfaction of the Tenant, (iii)all tenant allowances, free rent periods and rent concessions have been paid or satisfied, (iv) all Ieasing commissions payable by Borrower have been paid, (v) the Tenant has accepted its tenant space, is in occupancy and is open for business and(vi)the Tenant has commenced the payment of full rent under its Lease. 1.1.163 "Rating Agency" shall mean a nationally-recognizedrating agency rating any Secondary Market Transaction. 1.1.164 "Real Property" means, collectively, the Land, thiltnp.rovaltnents and all appurtenances thereto. r- -f I ntZ 17 LOAN AGREEMENT c.n NY:1180077.14 1.1.165 "Receipts" means all revenue generated by the Project or earned by Borrower with respect to the Project, including without limitation, all rental income, other income,profits or any other proceeds. 1.1.166 "Related Entity"has the meaning assigned to it in Section 4.2. 1.1.167 "Related Party"has the meaning assigned to it in Section 8.1. 1.1.168 "Rent Roil"has the meaning assigned to it in Section 4.1.25. 1.1.169 "Repairs"has the meaning assigned to it in Section 2.19.2. 1.1.170 "Replacement Reserve" has the meaning assigned to it in Section 2.19.1. 1.1.171 "Required Agency DSCR" means the Debt Service Coverage Ratio then required by Lender for a Comparison Permanent Loan. 1.1.172 "Required Counterparty Rating" means a rating by S&P of at least "N' (or equivalent) and a rating by Moody's of at least "A2," (or equivalent) which ratings shall not include a"t" or otherwise reflect a termination risk. 1.1.173 "Required DSCR" means the Debt Service Coverage Ratio then required for a Comparison Permanent Loan computed utilizing then-current rating agency property stress assumptions for a Comparison Property. 1.1.174 Intentionally Omitted. 1.1.175 "Required Work" means any and all items recommended for repair or remediation in the Property Condition Report, as more particularly set forth on Exhibit D hereto, all to be repaired or remediated within ninety (90) days of the Closing Date and otherwise in accordance with the recommendations set forth in such report. 1.1.176 Intentionally Omitted. 1.1.177 "Reserves" shall mean the TI/LC Reserve, the Replacement Reserve, the Immediate Repair Reserve, and all other reserves (other than the Escrow Fund) maintained by Lender from time to time pursuant to the Loan Documents. 1.1.178 "Restricted Party" shall mean each entity comprising Borrower and any Guarantor. 1.1.179 "Reuters Screen LIBOR Page" means the display designated as page "LIBOR"on the Reuters Monitor Money Rates Service(or such other page a5 may t lace the LIBOR page on the service for the purpose of displaying interbank rates from Lmidon Dollars). — a' 7<a- 18 LOAN AGREEMENT NY:1150077.14 fi 1.1.180 "S&P" means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies,Inc. 1.1.181 "Secondary Market Transaction" has the meaning assigned to it in Section 9.35. 1.1.182 "Second Extension Notice" has the meaning assigned to it in Section 2.9. 1.1.183 "Second Extension Option" has the meaning assigned to it in Section 2.9. 1.1.184 "Second Extension Period" has the meaning assigned to it in Section 2.9. 1.1.185 "Security Instrument" has the meaning assigned to it in the Recitals hereto. 1.1.186 "Single Purpose Entity" shall mean an entity complying with the applicable SPE Requirements set forth on Exhibit B hereto. 1.1.187 "Springing Member" shall mean a Person that is not a regular member of the entity which will spring into a non-economic membership interest in the entity upon the last regular member of the entity ceasing to be a member of the entity. 1.1.188 "Sponsor Borrower" shall mean CORE Sycamore Town Center T, LLC, a Delaware limited liability company,until such time as CORE Sycamore Town Center T, LLC transfers a one percent (1%) interest in the Project to CORE Sycamore Town Center P, LLC, a Delaware limited liability company. whereupon at such point CORE Sycamore Town Center P,LLC shall become Sponsor Borrower. 1.1.189 "Sponsor Guarantor" means that certain entity listed as such on Schedule A attached hereto and made a part hereof. 1.1.190 "State"means the State of Iowa 1.1.191 "Sub-Management Agreement" or "Property Sub-Management Agreement" shall mean that certain Property Management Agreement between Sub-Manager and the Property Manager. 1.1.192 "Sub-Manager" shall mean HODGE COMMERCIAL MANAGEMENT, INC., an Iowa corporation. 1.1.193 "Taxes and Insurance Initial Deposit" has the meaning assigned to it in Section 5.1.4. .777 LJ N 1.1.194 "Tenant" means any permitted occupant, tenant,;sil6len or -'l licensee of the Real Property. 19J LOAN AGREEMENT r NY:t I00077.I4c?-- 1 d 1.1.195 "Tenant Improvement Costs" shall means the amount of out-of-pocket costs for Tenant Improvements actually incurred by Borrower from time to time after the date hereof with respect to any and all Approved Leases. 1.1.196 "Tenant Improvements" shall mean those tenant improvements required to be completed by Borrower, or for which a Tenant is entitled to receive a cash allowance or reimbursement from Borrower,pursuant to the terms of the Leases. 1.1.197 "Term" means the period from and after the Closing Date to and including the first to occur of the Maturity Date or the date the Indebtedness is paid in full. 1.1.198 Intentionally Omitted. 1.1.199 "TI/LC Limits" means: (i) for Tenant Improvements, $4.00 per square foot for each new Lease and $2.00 per square foot for each renewal Lease and (ii) for Leasing Commissions, the lesser of actual Leasing Commissions or (i) five percent (5%) of rental income for each new Lease and (ii) two percent (2%) of rental income for each renewal Lease. 1.1.200 "TI/LC Reserve"has the meaning assigned to it in Section 2.18.1. 1.1.201 "TI/LC Reserve Payment" has the meaning assigned to it in Section 2.18.1. 1.1.202 "TI/LC Savings" shall mean, for any Lease, the amount by which the TI/LC Limits for such Lease exceed the aggregate amount of Leasing Costs incurred by Borrower. 1.1.203 "Title Policy"has the meaning assigned to it in Section 3.1.5. 1.1.204 "Transaction Costs" means all fees, costs, expenses and disbursements paid or payable by Borrower relating to the Transactions, including, without limitation,all fees, costs,expenses and disbursements described in Section 9.22. 1.1.205 "Transactions" means the transactions contemplated by the Loan Documents. 1.1.206 "Transfer" means any conveyance, transfer or pledge (including, without limitation, any transfer or pledge of any direct or indirect legal, ownership or beneficial interest(including,without limitation,any profits interest and any indirect or direct change in the management or control of any Restricted Party or any manager, managing member or general partner of a Restricted Party) in a Restricted Party), sale, assignment, bargain, grant of any option with respect to, Lease (including, without limitation, any amendment, extension, modification, waiver or renewal thereof), or other Lien, whether by law or otherwise, of, on, in or affecting any Collateral, any Restricted Party, or the Project, but excluding any Lease entered into in compliance with the provisions of this Agreement. 1.1.207 "TRIA"has the meaning assigned in Section 5.1.1rch). 20 •1,--t -c LOAN AGREEMENT �., al �,, NY:1180077.14 --i C i I` 1.1.208 "UCC" means, with respect to any Collateral, the Uniform Commercial Code in effect in the jurisdiction in which the relevant Collateral is located. ARTICLE IL GENERAL TERMS Section 2.1. Disbursements. (a) Initial Disbursement Amount. Subject to the terms and conditions of this Agreement and in reliance upon the representations, warranties and covenants of Borrower set forth herein, on the Closing Date, Lender shall disburse to Borrower from the proceeds of the Loan the sum of THIRTEEN MILLION AND NO/100 DOLLARS ($13,000,000.00)(the"Initial Disbursement Amount"). (b) Intentionally Omitted. a • < _-sa1B (c) Intentionally Omitted. r- =ic-, a' (d) Intentionally Omitted. fir" 4 --• Section 2.2. Security for the Loan. The Note and Borrower's obligationsher ander' and under the other Loan Documents shall be secured by the Collateral. rn Section 2.3. Note. Borrower's obligation to pay the principal of and interest on the Loan (including Late Charges and Default Rate interest) shall be evidenced by the Note. The Note shall be payable as to principal, interest, Late Charges and Default Rate interest, as specified in this Agreement,with a final maturity on the Maturity Date. Section 2.4. Principal and Interest Payments. 2.4.1 Accrual of Interest. Interest shall accrue on the Indebtedness at the Interest Rate. 2.4.2 Payment of Principal and Interest. (a) On the Closing Date, Borrower shall pay to the Lender interest for the first Interest Accrual Period with respect to the Loan. (b) Commencing on the First Payment Date, and continuing on each Payment Date thereafter through and including the Payment Date immediately prior to the Maturity Date, Borrower shall pay to Lender the Monthly Payment. Section 2.5. Calculation of Interest. Interest shall accrue on the outstanding Principal Indebtedness and all other amounts due to Lender under the Loan Documents commencing on the Closing Date. Interest shall be calculated on the basis of a three hundred sixty(360)day year and the actual number of days elapsed. In computing the number of days during which interest accrues,the day on which funds are initially advanced shall be included regardless of the time of 21 LOAN AGREEMENT NY:I 180077.14 day such advance is made, and the day on which funds are repaid shall be included unless repayment is credited prior to close of business on such day. Section 2.6. Late Charge and Default Rate. If any payment of Debt Service under this Agreement or the Note, or any other amount due under this Agreement, the Note or any other Loan Document, is not paid when due, Borrower,without notice or demand by Lender,shall pay the Late Charge on such overdue amount; provided, however,that a Late Charge shall not be due and payable on the balloon principal payment due on the Maturity Date. During the continuation of an Event of Default, Borrower,without further notice or demand by Lender, shall pay interest at the Default Rate on the outstanding Indebtedness until the Event of Default is cured. Borrower hereby acknowledges that failure to make payments due under this Agreement timely or the occurrence of any other Event of Default shall result in damages to Lender, the extent to which is difficult to estimate, and that the Late Charge and the Default Rate provisions are a reasonable estimate of the detriment to Lender by reason thereof based upon the facts and circumstances which exist as of today. Section 2.7. Loan Fee. Borrower shall pay Lender the Loan Fee on the Closing Date to the extent not already paid to Lender. The Loan Fee shall be deemed fully earned, due and payable on the date of Lender's making the Loan. Section 2.8. Deferred Origination Fee. As additional consideration for Lender making the Loan, the Deferred Origination Fee shall be due by Borrower (but not payable) upon execution of this Loan Agreement. The Deferred Origination Fee shall be payable by Borrower, in addition to all other sums due and payable to Lender, upon any repayment or prepayment of the Loan, whether at maturity, after default or otherwise, and upon acceleration or maturity; provided, however, that in connection with a partial prepayment, at the time of such prepayment only a percentage of the Deferred Origination Fee shall be payable, such percentage being equal to the percentage that the amount of such prepayment represents of the Loan Amount and, in connection with such partial prepayment of the Loan and the Deferred Origination Fee, the amount of Deferred Origination Fee remaining due shall correspondingly be reduced. Notwithstanding the foregoing, in connection with any prepayment of the Loan effectuated hereunder,unless such prepayment results in the Loan being paid in full(at which time the entire Deferred Origination Fee due shall be payable), payment of that portion of the Deferred Origination Fee that would otherwise be payable at the time of such prepayment shall be deferred until such time as the Loan is repaid in full. Notwithstanding the foregoing, in connection with Lender's application of insurance proceeds or condemnation awards to the payment of a portion (but not all) of the balance of the Loan, no portion of the Deferred Origination Fee shall be payable and the amount of the Deferred Origination Fee shall be reduced by a percentage equal to the percentage that the amount of such prepayment by Lender represents of the Loan Amount. Section 2.9. Loan Term; Maturity Date. The Loan shall mature on the Maturity Date. On the Maturity Date, Borrower shall pay to Lender the Indebtedness, includingithout limitation, interest, principal, the Deferred Origination Fee, if any, Late Chal ess5,if m3y, and,,, Default Rate interest, if any. Borrower shall have two (2) options to extend theiriatlritate of the Loan: (i)the first, a twelve(12)month extension(upon exercise in accordai With t e to hereof, the "First Extension Period"), and (ii)the second, a twelve (12)monthnsion (up 22 c� -71 LOAN AGREEMENT NY:1180077.14 It> CFI r-- exercise in accordance with the terms hereof, the "Second Extension Period"; the First Extension Period and the Second Extension Period are each, an "Extension Period"). The exercise of the each extension option (as applicable, the "First Extension Option" or the "Second Extension Option" and each, an "Extension Option"), is subject to satisfaction of the following conditions: (a) Borrower shall have provided Lender with written notice (the "Extension Notice") of the extension not less than twenty (20) days prior to the then-current Maturity Date; provided, however, that Borrower may revoke such notification within three (3) Business Days of providing the Extension Notice by written revocation to Lender; (b) no Event of Default or Default shall have occurred and be continuing at the time the Extension Notice is given or shall have occurred and be continuing at any time thereafter until the effective date of the Extension Period; (c) Borrower shall have paid to Lender, no later than ten (10) days after delivery of the Extension Notice, an extension fee with respect to the Extension Option in an amount equal to twenty five hundredths of one percent (0.25%)of the Loan Amount; (d) Borrower shall have provided Lender with an Extension Period Interest Rate Protection Agreement, together with an Assignment of Extension Period Interest Rate Protection Agreement (including, without limitation, the Counterparty's acknowledgement of the Assignment of Extension Period Interest Rate Protection Agreement); (e) the Project shall support a Debt Service Coverage Ratio (as underwritten and reasonably determined by Lender based upon the then-trailing twelve (12) month period and a debt service constant of 8.40%)of at least 1.20:1.00; (f) Borrower shall have paid all reasonable out-of-pocket costs and expenses incurred by Lender in connection with such extension, including, without limitation, reasonable legal fees and costs; (g) Lender determines that occupancy at the Project is greater than 90%for the trailing twelve(12)month period; (h) Von Maur is achieving sales that are greater than $200.00 per square foot of the space it rents pursuant to its Lease for space at the Project. (i) Cinema 12 is achieving sales that are greater than$200,000.00 per screen pursuant to its Lease for space at the Project; (j) each Anchor Tenant (as such term is defined below) is in occupancy, has at least two(2) years remaining on its term pursuant to its Lease for space at the Project,and has not given notice of its intent to vacate its space at the Project (k) the monthly deposits in the TI/LC Reserve continueti cutnd i 23 LOAN AGREEMENT L� .. NY:1180077.14 • en Cl (1) monthly amortization payments for the duration of the Extension Period each in the amount of the Amortization Payment commence with the first (151) Payment Date during the First Extension Period and continuing on each and every Payment Date thereafter during the Term;and (m) Intentionally Omitted. "Anchor Tenant" for the purposes of this Section 2.9 only shall mean any tenant leasing twelve thousand(12,000)square feet of space or more at the Project. Section 2.10. Prepayment. Except as expressly set forth in this Section 2.10, Borrower may not prepay the Indebtedness in whole or in part. Borrower may prepay the Indebtedness in whole or in part on any date on or after the Lockout Expiration Date, provided Borrower gives Lender ten(10)Business Days' prior written notice and pays to Lender the Deferred Origination Fee then payable(if any)and, if the prepayment is made on a date that is not a Payment Date,the Interest Compensation Sum. If the entire outstanding Principal Indebtedness shall become due and payable hereunder or shall be paid on a date other than a Payment Date, in either case prior to the Lockout Expiration Date, and as a result of (a) an acceleration of the Indebtedness following the occurrence of an Event of Default, including, without limitation, Borrower's prepayment of the Loan in a manner not permitted hereunder or (b)the exercise by Borrower or any other person of any right of redemption or the taking by Borrower or any other Person of any other action to prevent a foreclosure by Lender upon the Collateral, then Borrower shall pay to Lender, in addition to any other sums due Lender hereunder,the Prepayment Fee. 1,43 Ca - . t cr c-- 511 ,--. a c.n Ott 24 LOAN AGREEMENT NY:1180077.14 BY INITIALING THIS PROVISION IN THE SPACE PROVIDED BELOW, BORROWER HEREBY DECLARES AND ACKNOWLEDGES THAT (I) BECAUSE THE DEFERRED ORIGINATION FEE IS A FIXED AMOUNT TO BE PAID ON WHICHEVER DATE THE LOAN IS PAID IN FULL OR IN PART, THE DEFERRED ORIGINATION FEE IS NOT, NOR SHALL IT BE DEEMED TO BE,A PREPAYMENT PREMIUM OR A PENALTY AND (H) THE INTEREST COMPENSATION SUM IS A REASONABLE AND FAIR ESTIMATE OF COMPENSATION FOR THE LOSS THAT LENDER MAY SUSTAIN FROM THE FAILURE OF BORROWER TO MAKE A PREPAYMENT ON A PAYMENT DATE. BORROWER ACKNOWLEDGES THAT, IN ESTABLISHING THE INTEREST RATE, LENDER HAS ASSUMED AND TAKEN INTO ACCOUNT THE FACT THAT THE LOAN WILL NOT BE PREPAID (OTHER THAN AT THE TIMES, AND ON THE TERMS, HEREIN PROVIDED) AND THAT THERE WILL BE NO PROHIBITED TRANSFER OF THE PROJECT OR ANY OTHER EVENT WHICH WOULD CAUSE LENDER TO ACCELERATE THE MATURITY DATE. THE PROVISIONS HEREOF RELATING TO BORROWER'S PAYMENT OF A PREPAYMENT FEE (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF AN ACCELERATION) ARE INTENDED TO COMPENSATE LENDER IN THE EVENT THAT THIS ASSUMPTION PROVES TO BE INCORRECT. BORROWER HEREBY ACKNOWLEDGES THAT: (A) THE INCLUSION OF THIS WAIVER OF PREPAYMENT RIGHTS AND AGREEMENT TO PAY THE PREPAYMENT FEE WAS SEPARATELY NEGOTIATED WITH LENDER; (B) THE ECONOMIC VALUE OF THE VARIOUS ELEMENTS OF THIS WAIVER AND AGREEMENT WAS DISCUSSED; AND (C) THE CONSIDERATION GIVEN BY BORROWER FOR THE LOAN WAS ADJUSTED TO REFLECT THE SPECIFIC WAIVER AND AGREEMENT NEGOTIATED BETWEEN BORROWER AND LENDER AND CONTAINED HEREIN. BORROWER ACKNOWLEDGES AND AGREES THAT THE PREPAYMENT FEE REPRESENTS A REASONABLE AND FAIR ESTIMATE OF COMPENSATION FOR THE LOSS THAT LENDER MAY SUSTAIN FROM THE PREPAYMENT OF THE LOAN PRIOR TO THE LOCKOUT EXPIRATION DATE. BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS NO RIGHT TO PREPAY THE LOAN PRIOR TO THE LOCKOUT EXPIRATION DATE. Borrower's Initials C3 0 N f -'te -- a.. t C., 25 r.„ LOAN AGREEMENT Section 2.11. Application of Payments. Except while an Event of Default exists, all proceeds of any repayment, including prepayments, of the Loan shall be applied to pay: first, any costs and expenses of Lender required to be reimbursed under the terms of the Loan Documents; second, to any Late Charge and accrued and unpaid interest at the Default Rate; third, accrued and unpaid interest at the Interest Rate; fourth, any other amounts then due and owing under the Loan Documents (including, without limitation, the Prepayment Fee and the Deferred Origination Fee); and fifth, to the Principal Indebtedness. After the occurrence and during the continuation of an Event of Default, all proceeds of repayment, including any payment or recovery on the Collateral shall be applied in such order and in such manner as Lender shall elect in Lender's sole and absolute discretion. Section 2.12. Payment of Debt Service,Method and Place of Payment. (a) Except as otherwise specifically provided herein, all payments and prepayments under this Agreement and the Note shall be made to Lender not later than 2:00 p.m., New York time, on the date when due, and shall be made in lawful money of the United States of America in federal or other immediately available funds to an account specified to Borrower by Lender in writing, and any funds received by Lender after such time, for all purposes hereof,shall be deemed to have been paid on the next succeeding Business Day. (b) All payments made by Borrower under the Loan Documents, shall be made irrespective of,and without any deduction for,any set-offs or counterclaims. Section 2.13. Intentionally Omitted. Section 2.14. Intentionally Omitted. Section 2.15. Intentionally Omitted. cacao Section 2.16. Intentionally Omitted. cy, i; 7G ".Section 2.17. Intentionally Omitted. a Section 2.18. TI/LC Reserve. 2.18.1 Establishment of Reserve. Commencing on the First Payment Date and on each Payment Date thereafter, Borrower shall deposit into a reserve account established and held by Lender(the "TULC Reserve") an amount equal to Eleven Thousand Six Hundred Seventy Dollars ($11,670.00) (the "TULC Reserve Payment"). Notwithstanding the foregoing, commencing on the first Payment Date during the First Extension Period and continuing on each and every Payment Date thereafter, the TULC Reserve Payment shall be increased to Fifteen Thousand Two Hundred Dollars($15,200.00). 2.18.2 Use of Funds. Subject to the terms and conditions set forth in this Agreement, Lender shall make disbursements from the 'TULC Reserve to pay or reimburse Borrower for Leasing Costs incurred in connection with the leasing of the space at the Project pursuant to Approved Leases. With respect to any Lease, in no event shall Lender be required to 26 LOAN AGREEMENT NY:1130077.14 disburse from the TI/LC Reserve any amounts in excess the TI/LC Limits pursuant to this Section 2.18.2 for any Lease. 2.18.3 Conditions to Disbursements from TI/LC Reserve. Lender's obligation to disburse funds from the TI/LC Reserve shall be subject to satisfaction of the following conditions with respect to each disbursement: (a) Proper Form. Each request for disbursement from the Tl/LC Reserve shall be in a form reasonably approved or provided by Lender. Without limitation on the foregoing, each request for reimbursement or payment shall include (i)a copy of invoices or other documentation reasonably required by Lender to establish that all items or materials have been purchased and all labor or services have been provided and that such amounts are either then due or have been paid, (ii)if such request is for a final disbursement in connection with Tenant Improvements for a Tenant, a Qualified Tenant Estoppel, (iii) for the final funding in connection with Tenant Improvements for a Tenant, at the election of Borrower either(x) a copy of a certificate of occupancy for the applicable Lease or(y) a certification from Borrower and Borrower's architect or engineer that a new or revised certificate of occupancy is not required with respect to the Tenant Improvements,(iv)a copy of the fully-executed Lease(or modification or extension of Lease) to which the Tenant Improvements and/or Leasing Commissions relate and (v) if such request for disbursement is in connection with Leasing Commissions, a certificate from the leasing agent that no further sums are due to it in connection with the applicable Lease or, if further sums are due, the amount and date when due. Lender shall approve or disapprove each request for disbursement within ten (10)days after Lender receives all information required under this Section 2.18.3 reasonably acceptable to evaluate such request from Borrower. (b) Once Monthly. Borrower shall have made no more than one (1) disbursement request in any given thirty(30)day period and disbursements shall be in minimum amounts of Ten Thousand Dollars ($10,000), except that the final disbursement shall not be subject to this minimum. (c) Event of Default. No Default or Event of Default shall have occurred and be continuing. (d) Lender's Approval. For any disbursement from the TI/LC Reserve for Tenant Improvements in excess of Fifty Thousand Dollars ($50,000), Lender may, at its option,condition disbursement on an inspection and approval of the Tenant Improvements by its independent consultant, during business hours upon reasonable prior written notice to Borrower, provided such process shall not result in unreasonable delay in Lender responding to Borrower's request for the disbursement. (e) Certification. With each disbursement, Borrower shall certify that all work covered by the disbursement request has been completed in a good and workmanlike manner in accordance with any plans and specifications previously approvedly Leratei and that all such work is in compliance with applicable laws, ordinances, rules and`itgulatre s ofmty governmental authority,agent or instrumentality having jurisdiction over the Piiiget. r3 cr% 27 ,gym LOAN AGREEMENT "'^ NY:1180077.14 CJ1 (f) Lien Releases. Borrower shall provide Lender with such lien waivers, sworn statements and other documentation as Lender shall reasonably request, and all such documents shall be reasonably satisfactory to Lender. (g) Date-Down Endorsement. Upon request by Lender, Borrower shall cause to be delivered a"Date-Down Endorsement"to the Title Policy showing no new title exceptions other than Permitted Exceptions and taxes and/or assessments not yet due and payable. (h) Limits on Disbursement Amounts. Leasing Commissions must be at market rates, as reasonably confirmed by Lender. Lender shall not be obligated to disburse funds from the TI/LC Reserve for any Lease in amounts exceeding the applicable TULC Limits. (i) Intentionally Omitted. (j) Compliance with Other Requirements. Borrower shall be in compliance with the other requirements of this Section 2A 8. (k) Payment of Lender's Costs. Borrower shall have paid all of Lender's reasonable out-of-pocket costs and expenses (including, without limitation, reasonable attorney's fees and costs,if any)reasonably incurred in connection with the disbursement. 2.18.4 Cost Overruns. Before Lender shall be obligated to make or continue making any disbursements from the TULC Reserve for any given Lease, Borrower shall be responsible for first paying the Cost Overruns and Borrower shall demonstrate to Lender's satisfaction that the TULC Reserves are "in balance" (i.e., the remaining amount allocated for such Lease under the TI/LC Reserves shall be sufficient to pay the remaining amount of Leasing Costs for such Lease). 2.18.5 Reimbursement of Cost Overruns. In addition to the disbursement amounts outlined in Section 2.18.1, provided that no Default or Event of Default shall exist, Borrower shall have the right to receive from Lender upon request any TULC Savings to pay for, or in reimbursement of,any Cost Overruns with respect to Leasing Costs and to keep the TI/LC Reserve in balance. 2.18.6 Treatment of TI/LC Reserve and Disbursements. If Borrower requests that Lender make a disbursement for Leasing Costs that have not yet been paid by Borrower, or if an Event of Default exists,Lender may, at its option,disburse such funds directly to the provider of materials and/or services. The TT/LC Reserve shall not constitute a trust fund and may be commingled with other monies held by Lender. Borrower hereby assigns to Lender, and grants to Lender, a security interest in, all of Borrower's interest in the TI/LC Reserve as additional security for the Indebtedness. Lender shall be entitled to rely on the information provided to Lender in connection with any requested disbursement from the TI/LC Reserve without any inquiry into the accuracy,validity or contestability of such information. Interest on funds on deposit in the TI/LC Reserve shall be payable in accordance with Section 2.22 G-eof. 11 2.18.7 Completion of Tenant Improvements. Borrower shad iat.a times,.,. diligently pursue the completion of the Tenant Improvements in accordance with-the-Am-18k of tl),e—l– 28 -'r LOAN AGREEMENT -‹ 21,1 NY:1 180077.14 - a CJI applicable Leases. All Tenant Improvements shall be made in a good and workmanlike manner and shall be completed free and clear of any mechanics' or materialmens' liens and encumbrances,provided, however, that, Borrower shall have the right to contest in good faith any such claim or demand, so long as it does so diligently, by appropriate proceedings and without prejudice to Lender and provided that neither the Project nor any interest therein would be in any danger of sale, loss or forfeiture as a result of such proceeding or contest. In the event Borrower shall contest any such claim or demand, Borrower shall promptly notify Lender of such contest and thereafter shall, upon Lender's request, promptly provide a bond, cash deposit or other security satisfactory to Lender to protect Lender's interest and security should the contest be unsuccessful. If Borrower shall fail to immediately discharge or provide security against any such claim or demand as aforesaid, Lender may do so and any and all expenses incurred by Lender, together with interest thereon at the Default Rate from the date incurred by Lender until actually paid by Borrower, shall be immediately paid by Borrower on demand and shall be secured by the Security Instrument and by all of the other Loan Documents securing all or any part of the Debt. Borrower shall pay all costs necessary for completion of the Tenant Improvements and pay all Leasing Commissions for any given Lease (including Cost Overruns) without regard to the sufficiency of the TI/LC Reserve. In the event Lender determines in its reasonable discretion that any Tenant Improvement has not begun as agreed in this Section 2.18.7, is not being performed in a workmanlike or timely manner or has not been completed in a workmanlike manner within the period of completion, Lender shall, after providing Borrower with notice and thirty(30)days opportunity to cure (subject to extension by reason of force majeure or other causes beyond Borrower's reasonable control), have the option of withholding future disbursements from the TI/LC Reserve,proceed under existing contracts or contract with third parties to complete the Tenant Improvements and to apply the TI/LC Reserve towards the labor and materials necessary to make or complete the Tenant Improvements and to exercise any and all remedies available to Lender upon an Event of Default. Nothing in this Section 2.1 8.7 shall be construed in such a way as to make Lender responsible for funding, making or completing the Tenant Improvements. Lender's disbursement of funds from the TI/LC Reserve or other acknowledgement of completion of any Tenant Improvements in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any person that the Tenant Improvements or any other work related to the Project have been completed in accordance with any building or zoning codes, ordinances, statutes, laws, regulations or requirements of any governmental agency. Section 2.19. Replacement Reserve. 2.19.1 Establishment of Reserve. Commencing on the First Payment Date and on each Payment Date thereafter, Borrower shall deposit into a reserve account established and held by Lender (the "Replacement Reserve") an amount equal to Two Thousand Nine Hundred Eighty Five and No/100 Dollars($2,985.00). 2.19.2 Use of Replacement Reserve. Subject to the terms and conditions set forth in this Agreement, Lender shall make disbursements from the Replacement Reserve to reimburse Borrower for costs and expenses incurred by Borrower for capitarepairs, replacements and improvements necessary to keep the Project in good order ag repaiVan. d in a good marketable condition or prevent deterioration of the Project (collectively,-.114 "airs," 29 LOAN AGREEMENTrn NY:1180077.14 Nothing in this Section 2.19 shall be construed in such a way as to make Lender responsible for funding,making or completing any of the Repairs. 2.19.3 Conditions to Disbursement from the Replacement Reserve. Lender's obligation to disburse funds from the Replacement Reserve shall be subject to satisfaction of the following conditions with respect to each disbursement: (a) Proper Form. Each request for disbursement from the Replacement Reserve shall be in a form reasonably approved or provided by Lender. Without limitation of the foregoing, each request for reimbursement or payment shall include a copy of invoices or other documentation reasonably required by Lender to establish that all items or materials have been purchased and all labor or services have been provided and that such amounts are either then due or have been paid. Lender shall approve or disapprove each request for disbursement within ten(10)days after Lender receives all information required by Lender and reasonably acceptable to evaluate such request from Borrower. (b) No Ordinary Wear and Tear. No request for disbursement from the Replacement Reserve shall be with respect to Repairs which constitute the refurbishment of ordinary wear and tear at the Project. (c) Lenders Approval. For any disbursement from the Replacement Reserve in excess of Fifty Thousand Dollars ($50,000.00), Lender may, at its option, condition disbursement on an inspection and approval of the Repairs by its independent consultant, during business hours upon reasonable prior written noticc to Borrower, provided such process shall not result in unreasonable delay in Lender responding to Borrower's request for the disbursement. (d) Once Monthly. Borrower shall have made no more than one (1)disbursement request in any given thirty(30)day period. (e) Event of Default. No Default or Event of Default shall have occurred and be continuing. (f) Certification. With each disbursement, Borrower shall certify that all Repairs covered by the disbursement request have been completed on the Project in a good and workmanlike manner in accordance with any plans and specifications previously approved by Lender and that all such work is in compliance with applicable laws, ordinances, rules and regulations of any governmental authority, agent or instrumentality having jurisdiction over the Project. (g) Lien Releases. Borrower shall provide Lender with such invoices, receipts, lien wavers, sworn statements and other documentation as Lender shall reasonably request,and all such documents shall be reasonably satisfactory to Lender. 2.19.4 Cost Overruns. Before Lender shall be obligated to make or continue making any disbursements from the Replacement Reserve, Borrowers jhall be responsible for first paying the Cost Overruns and Borrower shall demonstrate to fender's satisfaction that the Replacement Reserve is "in balance" (Le., the funds cremair in !hn Replacement Reserve are sufficient to complete the remaining Repairs). 30 ..r• cr, '. LOAN AGRF.F.MENT NY:1180077.14 774.' r s rx , " rn c�A 2.19.5 Treatment of Replacement Reserve. If Borrower requests that Lender make a disbursement for Repairs that have not yet been paid by Borrower, or if an Event of Default exists, Lender may, at its option, disburse such funds directly to the provider of materials and/or services. The Replacement Reserve shall not constitute a trust fund and may be commingled with other monies held by Lender. Borrower hereby assigns to Lender, and grants to Lender, a security interest in, all of Borrower's interest in the Replacement Reserve as additional security for the Indebtedness. Interest on funds on deposit in the Replacement Reserve shall be payable in accordance with Section 2.22 hereof. Section 2.20. Immediate Repair Reserve. 2.20.1 Establishment of Inunediate Repair Reserve. On the Closing Date, Lender shall fund from the Loan Amount the sum of Five Hundred Thousand and No/100 Dollars ($500,000.00) into a reserve established and held by Lender (the "Immediate Repair Reserve"). 2.20.2 Use of Immediate Repair Reserve. Subject to the terms and conditions set forth in this Agreement, Lender shall make disbursements from the Immediate Repair Reserve to reimburse Borrower for expenses actually incurred by Borrower in connection with the completion of the Required Work. With respect to any item of Required Work, in no event shall Lender disburse pursuant to this Section 2.20.2 any amounts from the Immediate Repair Reserve in excess of the estimated amount allocated for such item of Required Work on Exhibit D hereto. 2.20.3 Conditions to Disbursements from Immediate Repair_Reserve. Lender's obligation to disburse funds in the Immediate Repair Reserve shall be subject to satisfaction of the following conditions with respect to each disbursement: (a) Proper Form. Each request for disbursement from the Immediate Repair Reserve shall be in a form reasonably approved or provided by Lender. Without limitation of the foregoing, each request for reimbursement or payment shall include a copy of invoices or other documentation reasonably required by Lender to establish that all items or materials have been purchased and all labor or services have been provided and that such amounts are either then due or have been paid. Lender shall approve or disapprove each request for disbursement within ten (10) days after Lender receives all information required by Lender and reasonably acceptable to evaluate such request from Borrower. (b) Once Monthly. Borrower shall have made no more than one (1) disbursement request in any given thirty(30)day period. (c) Event of Default. No Default or Event of Default shall have occurred and be continuing. (d) Lender's Approval. For any disbursement from the Rep ¢ement Reserve in excess of Fifty Thousand Dollars ($50,000.00), Lender may, at its option, psidition disbursement on an inspection and approval of the Required Work by its indepeii t cotlultan't ,11 during business hours upon reasonable prior written notice to Borrower, provided-suchfrocess•�• ,. 31 LOAN AGREEMENT o� NY:1180077.14 t' CJI rfl shall not result in unreasonable delay in Lender responding to Borrower's request for the disbursement. (e) Certification. With each disbursement, Borrower shall certify that all Required Work covered by the disbursement request have been completed on the Project in a good and workmanlike manner in accordance with any plans and specifications previously approved by Lender and that all such work is in compliance with applicable laws, ordinances, rules and regulations of any governmental authority, agent or instrumentality having jurisdiction over the Project. (f) Lien Releases. Borrower shall provide Lender with such lien waivers, sworn statements and other documentation as Lender shall reasonably request, and all such documents shall be reasonably satisfactory to Lender. (g) Date-Down Endorsement. Upon request by Lender, Borrower shall cause to be delivered a"Date-Down Endorsement"to the Title Policy showing no new title exceptions other than Permitted Exceptions and taxes and/or assessments not yet due and payable. 2.20.4 Cost Overruns. Before Lender shall be obligated to make or continue making any disbursements from the Immediate Repair Reserve, Borrower shall be responsible for first paying any Cost Overruns with respect to the Required Work and Borrower shall demonstrate to Lender's satisfaction that the Immediate Repair Reserve is"in balance"(i.e., the funds remaining in the Immediate Repair Reserve are sufficient to complete the remaining Required Work). 2.20.5 Treatment of Immediate Repair Reserve. If Borrower requests that Lender make a disbursement for Required Work that has not yet been paid by Borrower, or if an Event of Default exists, Lender may,at its option,disburse such funds directly to the provider of materials and/or services. The Immediate Repair Reserve shall not constitute a trust fund and may be commingled with other monies held by Lender. Borrower hereby assigns to Lender, and grants to Lender, a security interest in, all of Borrower's interest in the Immediate Repair Reserve as additional security for the Indebtedness. No interest shall accrue for the benefit of Borrower on the sums on deposit in the Immediate Repair Reserve. 2.20.6 Completion of Required Work. Borrower shall, at all times, diligently pursue the completion of the Required Work in accordance with the Property Condition Report and this Agreement and shall, in any event, complete the Required Work within ninety (90) days of the Closing Date. All Required Work and other work completed on the Project shall be made in a good and workmanlike manner and shall be completed free and clear of any mechanics' or materialmens' liens and encumbrances, provided, howelTg, that, Borrower shall have the right to contest in good faith any such claim or demand, so lcx% as it does so diligently, by appropriate proceedings and without prejudice to Lender aii provigl that fl neither the Project nor any interest therein would be in any danger of sale, loss ofeifeittffe as result of such proceeding or contest. In the event Borrower shall contest any ch c of demand, Borrower shall promptly notify Lender of such contest and thereafY S tall uponi Lender's request, promptly provide a bond, cash deposit or other security satisfaClut.tto Ufl nder 32 ;` = cn LOAN AGREEMENT :_11 NY:1180077.14 to protect Lender's interest and security should the contest be unsuccessful. If Borrower shall fail to immediately discharge or provide security against any such claim or demand as aforesaid, Lender may do so and any and all expenses incurred by Lender, together with interest thereon at the Default Rate from the date incurred by Lender until actually paid by Borrower, shall be immediately paid by Borrower on demand and shall be secured by the Security Instrument and by all of the other Loan Documents securing all or any part of the Debt.Borrower shall pay all costs necessary for completion of the Required Work (including Cost Overruns)without regard to the sufficiency of the funds in the Immediate Repair Reserve. If Lender determines in its reasonable discretion that any Required Work has not begun as agreed in this Section 2.20.6, is not being performed in a workmanlike or timely manner or has not been completed in a workmanlike manner within the period of completion, subject to force majeure, Lender shall, after providing Borrower with notice and thirty (30) days opportunity to cure (subject to extension by reason of force majeure or other causes beyond Borrower's reasonable control), have the option of withholding the disbursements for such unsatisfactory Required Work or such other work, proceed under existing contracts or contract with third parties to complete the Required Work or such other work and to apply the Immediate Repair Reserve towards the labor and materials necessary to make or complete the Required Work or such other work and to exercise any and all remedies available to Lender upon an Event of Default. Nothing in this Section 2.20.6 shall be construed in such a way as to make Lender responsible for funding, making or completing the Required Work. Lender's disbursement of funds from the Immediate Repair Reserve or other acknowledgement of completion of any Required Work or any other work in a manner satisfactory to Lender shall not be deemed a certification or warranty by Lender to any person that the Required Work or any other work related to the Project have been completed in accordance with any building or zoning codes, ordinances, statutes, laws, regulations or requirements of any governmental agency. 2.20.7 Full Disbursement of Immediate Repair Reserve. Notwithstanding anything to the contrary above, if Borrower shall have completed all Required Work in accordance with the terms hereof and satisfied all requirements for disbursement set forth above (with respect to the Required Work completed), then the remaining funds in the Immediate Repair Reserve shall be disbursed to Borrower. Section 2.21. Letter of Credit. 2.21.1 Borrower shall, on or before the Closing Date, deliver to Lender each Letter of Credit issued for the benefit of Borrower. The Letters of Credit delivered to Lender in accordance with this Section 2.21 and any amendment, replacement, extension or supplement of such Letter of Credit or draw down upon such Letter of Credit pursuant to the provisions of this Section 2.21 is hereinafter referred to as a "Delivered Letter of Credit." The Delivered Letter of Credit shall be held by Lender as additional security for the Loan. From and after the occurrence and during the continuance of an Event of Default Lender shall lie the right in its sole and absolute discretion, without notice to Borrower,draw on the geliverecl;LetteF_ of Credit and apply such funds in accordance with the terms and provisions of:Secfton;�.21.2) below. 2.21.2 Each Delivered Letter of Credit shall be held in lieordan5q witl this Section 2.21.2 and otherwise constitute security for the payment of the Deh Upon the.-7 33 LOAN AGREEMENT . " CJ11 f.Jf NY:1180077.14 occurrence of an Event of Default, Lender may draw on each Delivered Letter of Credit and apply the sums received towards the payment of the Debt or any other charges affecting all or any portion of the Property, as Lender in its sole discretion may determine; provided, however, that no such application shall be deemed to have been made by operation of law or otherwise until actually made by Lender as herein provided. Borrower hereby pledges to Lender, each Delivered Letter of Credit and any proceeds thereof and right to draw upon, as additional security for the payment of the Debt, including without limitation all expenses (including reasonable attorneys' fees and out-of-pocket costs), taxes, and all transfer, recordings, filing and other damages in connection with or incidental to the custody, care,transfer or administration of each Delivered Letter of Credit or in any way relating to the enforcement, protection or preservation of the rights of remedies of Lender pursuant to each Delivered Letter of Credit. Notwithstanding anything set forth herein to the contrary, neither Borrower nor any other person or entity through or under Borrower shall have any control over the use of the proceeds of each Delivered Letter of Credit. 2.21.3 Upon any assignment of the Loan, Lender (and any assignee or transferee of the Loan) shall have the right to transfer each Letter of Credit, to the assignee or transferee. If upon any such transfer of the Letter of Credit any fees or charges shall be imposed (collectively,the"Letter of Credit Transfer Fees"),such Letter of Credit Transfer Fees shall be payable solely by or on behalf of Borrower (and Borrower shall pay the same within seven (7) Business Days after demand therefor),but failure to pay such Letter of Credit Transfer Fees shall not prevent or impair any such assignment. It shall constitute an Event of Default if such Letter of Credit Transfer Fees are not paid within such seven (7) Business Days. Within ten(10) days after notice from Lender of any such anticipated assignment, Borrower, at its sole cost, shall arrange for the transfer of each Letter of Credit, as designated by Lender in the foregoing notice, or to have each Letter of Credit amended to reflect the name of the assignee or transferee as beneficiary thereunder, and thereafter Borrower shall look solely to the assignee or transferee for the return of such Letter of Credit. 2.2 1.4 Borrower agrees that it shall be considered an Event of Default hereunder if Borrower shall cancel or terminate, consent to any cancellation or termination of or forfeit any of its rights under the Letter of Credit. 2.21.5 Borrower agrees that upon either (1) the issuer of any Letter of Credit gives notice that it shall not renew such Letter of Credit, (2) Borrower fails to renew any Letter of Credit at least thirty (30) days prior to the then current expiry date of such Letter of Credit or(3) an Event of Default(each a"Letter of Credit Trigger Event"), Lender shall have the right to draw upon the Letter of Credit and either(i)keep the proceeds as additional collateral for the Loan or(ii) apply the proceeds thereof from time to time in the following manner: (1)First to the costs and expenses incurred in connection with the draw upon the Letter of Credit or incidental hereto or to the care or safekeeping of the Letter of Credit or in any way relatin: to the rights of Lender hereunder, including, but not limited to, reasonable attorneys' and expenses; (2) Second, to the satisfaction of the Obligations; and (3) Third,�;_an reri_aining-Ti proceeds to Borrower or to whomever shall be lawfully entitled thereto. - 3_ sc 2.21.6 Notwithstanding the foregoing, it is the parties' uncicrktondal thaP the city of Iowa City shall be obligated to pay to Seller, pursuant to that certain�K xeerr x for; 34 c) LOAN AGREEMENT NY:1180077.14 _,�i Private Redevelopment dated as of September 19, 2000, by and among the City of Iowa City, Iowa, a municipality (the "City"), MGD, L.C., an Iowa limited liability company (the "Developer") and Seller, as amended by that certain First Agreement to the Agreement for Private Redevelopment between the City of Iowa City and MGD, L.C. dated as of March 16, 2004, as further amended by that certain Second Amendment to the Agreement for Private Redevelopment By and Between the City of Iowa City and.MGD, L.C.dated as of May 18,2004 and as further amended by that certain Third Amendment to the Agreement for Private Redevelopment By and Between the City of Iowa City and MGD, L.C. dated as of August 11, 2008 (collectively, with any further amendments, the "Redevelopment Agreement") certain credits for tax payments (the "TIF Reimbursements") on or before September 12th of each year until September 126, 2011. Borrower shall be permitted to draw upon each applicable Letter of Credit given to Borrower by Seller on or after July 14th of each year, which date corresponds roughly to the time period in which the TIF Reimbursements for the applicable year is expected to be disbursed by the city to the Seller. After May 1st of each year, provided no Event of Default has occurred or is then continuing, Lender shall deliver to Borrower within three (3) business days of receipt of request of such delivery(but in no event prior to sixty(60)days prior to the expiration date of such Letter of Credit), the applicable Letter of Credit for such TIF Reimbursements. 2.21.7 Provided Lender has returned the Letter of Credit to Borrower as provided in Section 2.21.6, Borrower covenants that Borrower shall draw upon each Letter of Credit prior to the expiration date of such Letter of Credit and shall make such draw request with sufficient time remaining prior to the expiration date of such Letter of Credit so as to allow for the draw request to be considered and completed by the issuer of the Letter of Credit. Upon receipt of the funds from such draw,Borrower shall place the funds into the Clearing Account. 2.21.8 (i) Should any draw attempt by Borrower pursuant to any Letter of Credit be rejected or refused by the Letter of Credit issuer or (ii) should any payment under a draw request made by Borrower be delayed more than thirty (30) days beyond the date of such draw request, Borrower shall make written demand to Seller for payment to Borrower of the corresponding TIF Reimbursements, as provided for in the P&S Agreement, and Borrower shall cause Seller to promptly remit such payment to Borrower. 2.21.9 (i) Should any draw attempt by Lender of funds pursuant to any Letter of Credit permitted hereunder be rejected or refused by the Letter of Credit issuer, (ii) should any payment under a draw request made by Lender pursuant to any Letter of Credit be delayed more than thirty(30)days beyond the date of such draw request, Lender shall be entitled to make written demand to Seller for payment to Lender of the corresponding TIF Reimbursements, as provided for in the P&S Agreement, and Borrower shall cause Seller to promptly remit such payment to Lender. 2.21.10 Should either of the events described in Section 2.21.8 or 2.21.9 above occur or should the ability of the Letter of Credit issuer to pay any future draw under any Letter of Credit become impaired due to the insolvency or bankruptcy of such issuer,tar should such issuer be subject to a receivership by any governmental authority, theft Borrogr shall cause Seller to promptly find a bank with a rating of at Ieast'A'by Standard an or tack-ttp, 35 LOAN AGREEMENT ir x,. R NY:1180077.14 �+ �. 0 f,T7 the Letter of Credit, which documentation for such back-up of the Letter of Credit shall be acceptable to Lender in Lender's reasonable discretion. Section 2.22. TIF Reimbursement Credits. 2.22.1 Borrower acknowledges and agrees that, pursuant to the Security Instrument, Borrower has collaterally assigned its interests in and to that certain escrow agreement (the "TIF Escrow Agreement") entered into by Seller, Borrower and First American Title Insurance Company (the "TIF Escrow Agent"), to Lender as additional security for the Loan. From and after the occurrence and during the continuance of an Event of Default, Lender shall have the right in its sole and absolute discretion, without notice to Borrower,to send notice to the TIF Escrow Agent that payments to Borrower pursuant to the TIF Escrow Agreement shall cease and Lender shall have the right to draw on the funds available and apply such funds in accordance with the terms and provisions of Section(2.22.2)below. 2.22.2 The TIF Escrow Agreement shall be held in accordance with this Section 2.22.2 and otherwise constitute security for the payment of the Debt. Upon the occurrence of an Event of Default, Lender may apply the sums distributed from the TIF Escrow Agreement towards the payment of the Debt or any other charges affecting all or any portion of the Property, as Lender in its sole discretion may determine; provided, however, that no such application shall be deemed to have been made by operation of law or otherwise until actually made by Lender as herein provided. Borrower hereby pledges to Lender, the TIF Escrow Agreement and any proceeds thereof and right to draw upon, as additional security for the payment of the Debt, including without limitation all expenses (including reasonable attorneys' fees and out-of-pocket costs), taxes, and all transfer, recordings, filing and other damages in connection with or incidental to the custody, care, transfer or administration of the TIF Escrow Agreement or in any way relating to the enforcement, protection or preservation of the rights of remedies of Lender pursuant to the TIF Escrow Agreement. 2.22.3 Upon any assignment of the Loan, Lender (and any assignee or transferee of the Loan) shall have the right to transfer the TIF Escrow Agreement,to the assignee or transferee. If upon any such transfer of the TIF Escrow Agreement any fees or charges shall be imposed (collectively, the "TIF Transfer Fees"), such TIF Transfer Fees shall be payable solely by or on behalf of Borrower (and Borrower shall pay the same within seven(7) Business Days after demand therefor), but failure to pay such TIF Transfer Fees shall not prevent or impair any such assignment. It shall constitute an Event of Default if such TIF Transfer Fees are not paid within such seven (7)Business Days. Within ten (10) days after notice from Lender of any such anticipated assignment, Borrower, at its sole cost, shall arrange for the transfer of the TIF Escrow Agreement, as designated by Lender in the foregoing notice, or to have the TIF Escrow Agreement amended to reflect the name of the assignee or transferee as beneficiary thereunder, and thereafter Borrower shall look solely to the assignee or transferee for the return of the TIF Escrow Agreement. 2.22.4 Borrower agrees that it shall be considered an tent ol:Default hereunder if Borrower shall modify, cancel or terminate, consent to ariTymodation;31 cancellation or termination of or forfeit any payments from the TIF Escrow Agret. --t c7/ rnI 36 =fir 3C 0 LOAN AGREEMENT �='$ NY:1188077.14 c-n Section 2.23. Interest On Reserves. Lender shall cause funds in the TI/LC Reserve and the Replacement Reserve (collectively, the "Interest Bearing Reserves")to he deposited into an interest bearing account. Funds contributed by Borrower to the Interest Bearing Reserves shall earn interest at a rate equal to the Bank Monitor Rate. Interest payable on such amounts shall be computed based on the daily outstanding balance in the applicable Interest Bearing Reserve. Such interest shall be calculated on a simple, non-compounded interest basis based solely on amounts in the applicable Interest Bearing Reserve. All interest earned on amounts in the Interest Bearing Reserves shall be retained by Lender and added to the balance in the applicable Interest Bearing Reserve and shall be disbursed for payment of the items for which other funds in the applicable Interest Bearing Reserve are to be disbursed. Lender will deposit the Escrow Fund, TI/LC Reserve, the Replacement Reserve and the Immediate Repair Reserve with a bank with which it has a banking relationship (and which may be an affiliate of Lender), and Lender may receive certain cash and non-cash benefits relating to the Escrow Fund, TI/LC Reserve,the Replacement Reserve and the Immediate Repair Reserve as well as other deposits provided by Lender to the bank. Except to the extent of the interest to be credited in connection with the Interest Bearing Reserves as described above, Lender will retain all such benefits and will have no obligation to report them or to pay any portion thereof to Borrower. ARTICLE III. CONDITIONS PRECEDENT Section 3.1. Disbursements. Lender's obligation to close and disburse the Loan is subject to satisfaction of all of the following conditions, provided that if Lender authorizes the closing of the Loan without the satisfaction of any condition or the approval of any matter described in this Section 3.1, then the same shall be deemed satisfied or approved unless Lender agrees in writing and Borrower acknowledges prior to closing that such unsatisfied condition or unapproved item will be satisfied or approved post-closing: 3.1.1 Loan Documents. Lender shall have received the following Loan Documents, all in form and substance satisfactory to Lender and fully executed by each party thereto: (a) this Agreement; (b) the Note; (c) the Security Instrument; (d) the Financing Statements; ^' o (e) the Assignment of Leases; " 1 (f) the Environmental Indemnity Agreement; rn (g) the Guaranty; (h) the Assignment of Management Agreement; crs 37 LOAN AGREEMENT NY:1180077.14 (i) the Assignment of Sub-Management Agreement; (j) the Assignment of Interest Rate Protection Agreement with Counterparty acknowledgement;and (k) the Clearing Bank Agreement. 3.1.2 Equity Investment of Borrower. Lender shall have received evidence satisfactory to Lender that Borrower has an equity investment in the Project of not less than SEVEN MILLION ONE HUNDRED THOUSAND and 00/100 Dollars($7,100,000.00). 3.1.3 Environmental, Seismic and Engineering Reports. Lender shall have received (i) a Phase I Environmental audit of the Real Property from an environmental engineering firm selected or approved by Lender with the results of such audit acceptable to Lender in its sole discretion, and (ii) a seismic and engineering report (including ADA compliance) for the Real Property, including the Improvements, from an engineering firm selected or approved by Lender with the results of such report acceptable to Lender. Lender hereby acknowledges that EBI Consulting is an approved engineering firm for the purposes of providing Lender with a Phase 1 Environmental audit and EBI Consulting is an approved engineering firm for the purposes of providing Lender with a seismic and engineering report. 3.1.4 Appraisal. Lender shall have received, at Borrower's sole cost and expense, an MAI appraisal report for the Project prepared for Lender by an independent appraiser in accordance with Lender's appraisal requirements and otherwise acceptable to Lender in form and substance. Lender hereby acknowledges that the Self Contained Appraisal Report,dated May 19,2008 satisfies the requirements pursuant to this Section 3.1.4. 3.1.5 Title. A title company reasonably acceptable to Lender shall have issued or irrevocably committed to issue to Lender a 2006 ALTA extended coverage lender's title insurance policy without exception for creditors' rights or arbitration (or an acceptable endorsement with respect to creditors' rights and/or arbitration) in the Loan Amount insuring the lien of the Security Instrument as a first priority mortgage encumbering Borrower's fee simple interest in the Real Property, and otherwise in form and substance reasonably acceptable to Lender and containing such endorsements as reasonably required by Lender that are available in the State(collectively,the"Title Policy"). 3.1.6 Permits, Licenses and Zoning Letter. Lender shall have received copies of all necessary approvals, permits and licenses for the Project, including a certificate of occupancy for the Improvements (which may include individual tenant certificates of occupancy), and a zoning letter from the city or county where the Real Property is located, in form and substance reasonably acceptable to Lender, indicating that the current uses of the Real Property constitute legal and conforming uses and an acceptable zoning report prepared by a third party consultant acceptable to Lender. Lender hereby acknowledges that the zonta report, dated January 30, 2008, prepared by First American Professional Land Setjces saufres the requirements pursuant to Section 3.1.6. �_ — -n 3.1.7 • Survey. Lender shall have received and approvia of pir Real Property, dated no more than sixty (60) days prior to the Closing Date;jrepared b • 38 ' LOAN AGREEMENT : T••7) NY:1180077.14 registered land surveyor in accordance with the 2005 American Land Title Association/ American Congress on Surveying and Mapping Standards and certified in favor of Lender and the title insurer. The survey shall comply in all material respects with Lender's survey requirements. Lender hereby acknowledges that the survey dated August 19, 2008 and prepared by International Land Services, Inc., satisfies the requirements pursuant to this Section 3.1.7. 3.1.8 Management Contract. Lender shall have approved the Management Agreement and Sub-Management Agreement and the property managers thereunder. Lender hereby acknowledges that Property Manager and Sub-Property Manager are each an approved manager for the Project as of the date hereof. 3.1.9 Opinion of Counsel. Counsel for Borrower shall have executed and delivered an opinion letter, dated as of the date of this Agreement, addressed to Lender and in form and substance reasonably satisfactory to Lender. 3.1.10 Organizational Documents. etc. Each entity comprising Borrower shall have delivered to Lender such organizational documents, operating agreements, certificates of formation, certificates of good standing and resolutions and authorizations from each entity comprising Borrower, and the other Loan Parties as Lender may reasonably require in connection with the Loan. 3.1.11 Representations and Warranties. Each and every representation and warranty made by each entity comprising Borrower contained in this Agreement and the other Loan Documents is true and correct in all material respects. 3.1.12 Event of Default. No Default shall have occurred and be continuing,and Borrower shall certify as to same. 3.1.13 Insurance. Borrower shall have delivered to Lender evidence of the insurance coverage required by this Agreement in form and substance reasonably satisfactory to Lender. 3.1.14 Operating Budget. Lender shall have received a current annual Operating Budget. 3.1.15 Loan Fee and Transaction Costs. Borrower shall have paid Lender (a) the Loan Fee and(b)the Transaction Costs. 3.1.16 Form of Lease. Lender shall have received and approved the form of lease which Borrower proposes to use for the Project. 3.1.17 Leases and Rent Roll. Lender shall have received and approved (a) a current rent roll for the Project in form and substance reasonably acceptable to Lender, which has been certified by Borrower,and(b) all of the Leases affecting the Project. 3.1.18 Estoppels and SNDAs. Lender shall have recei ed all 33quired estoppel certificates from Tenants of the leased space at the Project on Lendersstandl1 form-Si and otherwise in form and content acceptable to Lender. 39 =ata 1z... LOAN AGREEMENT +� IVY:I180077.14 CJm CJ! 3.1.19 Interest Rate Protection Agreement. Lender shall have received and approved the Interest Rate Protection Agreement (including, without limitation, the Counterparty's acknowledgement of the Assignment of Interest Rate Protection Agreement). 3.1.20 Absence of Adverse Conditions. No Material Adverse Condition shall have occurred. 3.1.21 Additional Items. Lender shall have received such other items as Lender may reasonably require, including, without limitation, Borrower and Guarantor background checks and credit reports. ARTICLE IV. REPRESENTATIONS AND WARRANTIES Section 4.1. Representations and Warranties of Borrower. For the purpose of further securing the Loan, for so long as the Loan or any part thereof remains unpaid, each entity comprising Borrower represents, warrants, covenants and agrees as follows: 4.1.1 Organization. As of the Closing Date, to the extent each Loan Party is an entity, each of the Loan Parties(i) is duly organized and validly existing and in good standing under the laws of the State of its formation, (ii) is duly qualified as a foreign entity in the State and in each other jurisdiction in which the ownership and operation of the Project or any of the Collateral makes such qualification necessary, (iii) has the requisite power and authority to carry on its business as now being conducted, and (iv) has the requisite power and authority to execute and deliver, and perform its obligations under,the Loan Documents. 4.1.2 Authorization. The execution and delivery by each Borrower of the Loan Documents,each Borrower's performance of its obligations thereunder and the creation of the security interests and Liens provided for in the Loan Documents (i) have been duly authorized by all requisite entity action on the part of each entity comprising Borrower and any partners, members, officers or shareholders of each entity comprising Borrower or of any affiliate of each entity comprising Borrower executing any of the Loan Documents on behalf of each entity comprising Borrower(collectively, the "Borrower Parties"), (ii) to the best of each Borrower's knowledge, will not violate any provision of any applicable law, any order, writ, decree, judgment, injunction or demand of any court or other governmental authority, any organizational document of any of the Borrower Parties or any indenture or agreement or other instrument to which any of the Borrower Parties is a party or by which any of the Borrower Parties is bound,and(iii)will not be in conflict with,result in a breach of,or constitute(with due notice or lapse of time or both) a default under,or result in the creation or imposition ofy Lien of any nature whatsoever upon any of the property or assets of each Borrowerpursuarit,o, any indenture or agreement or instrument. Except for those obtained or filed orY74--pricjjto t q Closing Date, the Borrower Parties are not required to obtain any consent apprilval cu authorization from, or to file any declaration or statement with, any govemmeat aut yrity other agency in connection with or as a condition to the execution, delivery orjr.:::. of .. 40 cf1 LOAN AGREEMENT C.r. NY:1180077.14 the Loan Documents. The Loan Documents to which each Borrower, or another Loan Party is a party have been duly authorized and validly executed and delivered by such parties. 4.1.3 Ownership Documents. A true and complete copy of the certificate of formation creating each entity comprising Borrower and each Borrower's Limited Liability Company Agreements and any and all amendments thereto (collectively, the "Formation Documents")have been furnished to Lender. The Formation Documents constitute the entire agreement among the respective owners of each entity comprising each Borrower and are binding upon and enforceable against each of the respective owners of each entity comprising Borrower in accordance with their respective terms. There are no other agreements, oral or written, among any of the owners relating to any Borrower. No breach exists under the Formation Documents and no condition exists which,with the giving of notice or the passage of time would constitute a breach under the Formation Documents. 4.1.4 ERISA. Each Borrower has made and shall continue to make all required contributions to all employee benefit plans, if any, and each Borrower has no knowledge of any material liability which has been incurred by any Borrower which remains unsatisfied for any taxes or penalties with respect to any employee benefit plan or any multi- employer plan, and each such plan has been administered in compliance with its terms and the applicable provisions of ERISA and any other federal or state law. 4.1.5 Litigation. As of the Closing Date, there are no actions, investigations, suits or proceedings, at law or in equity, by or before any court, administrative body, arbitration panel, mediation panel, governmental authority or other agency now pending and served or,to the best of Borrower's knowledge, threatened in writing, against any Borrower, any other Loan Party or,to Borrower's knowledge,the Project,the pendency or adverse outcome of which would result in a Material Adverse Condition. 4.1.6 Agreements. No Loan Party is party to any agreement or instrument or subject to any restriction which is likely to result in a Material Adverse Condition that has not previously been disclosed in writing to Lender. To the best of Borrower's knowledge, no Loan Party is in default in any respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any indenture, agreement or instrument to which it is a party or by which it or the Project is bound. 4.1.7 Fraudulent Transfer/Solvency. As of the Closing Date, no Loan Party has entered into the Loan Documents with the actual intent to hinder,delay,or defraud any creditor or any other Person, and each Loan Party has received reasonably equivalent value in exchange for their respective obligations under the Loan Documents. None of the Loan Parties is or shall be rendered Insolvent upon the consummation of the transactions contemplated by the Loan Documents. ("Insolvent" being defined as the sum total of all of a Person's liabilities (whether secured or unsecured, contingent or fixed,liquidated or unliquidated)being in excess of the value of all such Person's non-exempt assets, i.e., all of the assets of such Person that are available to satisfy claims of creditors). The fair saleable value of each Loan Party's a ssts will, immediately following the execution and delivery of the Loan Documents, taken as a*Mole, be greater than such Person's probable liabilities, including the maximum amoun efts ceAtingent liabilities or its debts as such debts become absolute and matured. There P - eer o:• (i), n-4". 4 I —4C-.) o' WAN AGREEMENT �j"' 71 WY:1180077.14 u1 (J. assignment made for the benefit of the creditors of any of them;(ii)appointment of a receiver for any of them or for the Project of any of them; or (iii)bankruptcy, reorganization, or liquidation proceeding instituted by or against any of them. No Loan Party is contemplating either the filing of a petition under any bankruptcy laws or the liquidation of all or any portion of its assets or property. No Loan Party intends to, nor does any Loan Party believe that it will, incur any debts and/or liabilities (including, without limitation, contingent liabilities and other commitments) beyond its ability to pay such debts as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of such Loan Party). 4.1.8 Full and Accurate Disclosure. To the best of Borrower's knowledge, no statement of fact made by or on behalf of any Loan Party or in the Loan Documents or in any other document or certificate delivered to Lender by or on behalf of any Loan Party contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained herein or therein not misleading. To the best of Borrower's knowledge,there is no fact presently known to Borrower that has not been disclosed to Lender which materially adversely affects the ability of any Loan Party to perform its obligations as required by the Loan Documents. 4.1.9 Location of Principal Executive Offices. The location of each Borrower's principal place of business and the location of each Borrower's principal executive office is the address listed in Section 9.9, and Borrower has no other places of business, except for any on-site office in the Improvements. 4.1.10 Compliance. To the best of Borrower's knowledge, each Borrower, the Project and each Borrower's use thereof and operations thereat comply in all material respects with all applicable laws, statutes, rules, regulations, ordinances and private covenants(including without limitation, under ADA). No Loan Party is in default or violation of any order, writ, injunction, decree or demand of any governmental authority, the violation of which is reasonably likely to result in a Material Adverse Condition. To the best of Borrower's knowledge, after due inquiry, there is no evidence of any illegal activities relating to controlled substances at the Project. 4.1.11 Other Debt and Obligations. Each Borrower does not have any financial obligation under any indenture, mortgage, deed of trust, deed to secure debt, loan agreement or other agreement or instrument to which each Borrower is a party, or by which Borrower is bound, other than obligations under the Loan Documents and other than the Permitted Indebtedness. 4.1.12 ERISA. None of any Borrower, any Guarantor or any ERISA Affiliate(as defined below)of the foregoing is an"employee benefit plan,"as defined in ERISA, subject to Title I of ERISA, and none of the assets of any Loan Party constitutes or will constitute "plan assets" of one or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. The consummation of the transaction contemplated hereby will not constitute or result in any transaction prohibited by Section 406 of ERISA or Section 4975 of tl,Code. "ERISA Affiliate"means each Person(as defined in Section 3(9)of F,R1SA)which togetE r with Borrower, any Guarantor or any "Subsidiary" (as defined under ERISA) thbt " tld ba, ca w 1 42 Vit-; v+ LOAN AGREEMENT ...<Z" ! • i NY:1180077.14 D70 .. Cr deemed to be a member of the same "controlled group" within the meaning of Section 414(b), (c), (m)and(o)of the Code,as amended. 4.1.13 Not Foreign Person. Each entity comprising Borrower and the direct owner of each Borrower is not a "foreign person" within the meaning of Code Section 1445(0(3), as amended, and the related Treasury Department regulations, including, but not limited to,temporary regulations. 4.1.14 Investment Company Act, Public Utility Holding Company Act. Each entity comprising Borrower is not (i) an"investment company"or a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940, as amended, (ii) a "holding company" or a "subsidiary company" of a "holding company" or an "affiliate" of either a"holding company" or a "subsidiary company" within the meaning of the Public Utility Holding Company Act of 1935, as amended, or(iii)subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money. 4.1.15 No Defaults. No Default exists under or with respect to any Loan Document. 4.1.16 Homestead. The Project forms no part of any property owned, used or claimed by Borrower as a residence or business homestead and is not exempt from forced sale under the laws of the State in which the Project is located. Borrower hereby disclaims and renounces each and every claim to all or any portion of the Project as a homestead. 4.1.17 Real Property. Fee simple title to the Real Property is owned by Borrower free and clear of all liens, claims, encumbrances, covenants, conditions and restrictions, security interests and claims of others, except for the exceptions contained in the Title Policy, Liens, if any, for Impositions imposed by governmental authorities which are not yet due or delinquent, and such governmental, public utility and private restrictions, covenants, reservations, easements, licenses or other agreements of an immaterial nature which may be granted by Borrower after the Closing Date and which do not cause a Material Adverse Condition (collectively, the "Permitted Exceptions"). The possession of the Real Property has been peaceful and undisturbed and title thereto has not been disputed or questioned to the best of Borrower's knowledge. Each Borrower has full power and lawful authority to grant, bargain, sell, convey, assign, transfer, encumber and mortgage its interest in the Real Property in the manner and form hereby done or intended. The Permitted Exceptions do not and will not materially interfere with the security of the Security Instrument or the other Loan Documents or materially and adversely affect (1) the ability of Borrower to generate income from the Real Property sufficient to pay in full the principal and interest on the Note and otherwise service the Loan in a timely manner or (2) the use of the Real Property for the use currently being made thereof, the operation of the Project as currently being operated or the value of the Project. The Real Property is in compliance with all zoning requirements, building codes, subdivision improvement agreements, and all covenants, conditions and restrictions of record. To the best of Borrower's knowledge, the zoning and subdivision approval of the Real Property and Oat right and ability to use or operate the Improvements are not in any way dependent on grjelategeo any real estate other than the Real Property. To the best of Borrower's knowledge,tteie.area�o, nor," are there any alleged or asserted, violations of law, regulations, ordinances, d4, p�'rmits,�a 43 .:.4.:J LOAN AGREEMENT ...est" — NY:1180077.14 _�r UI licenses, declarations, covenants, or restrictions of record, or other agreements relating to the Real Property, the operation of a retail shopping center project thereon, or any part hereof. Borrower has obtained or will obtain all approvals and permits necessary to construct the Tenant Improvements,the Repairs and the Required Work. 4.1.18 Use of Proceeds: Margin Regulations. Borrower will use the proceeds of the Loan for the purposes described herein. No part of the proceeds of the Loan will be used for the purpose of purchasing or acquiring any "margin stock" within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose which would be inconsistent with such Regulation U or any other Regulations of such Board of Governors,or for any purposes prohibited by applicable Legal Requirements. 4.1.19 Financial Information. To the best knowledge of Borrower, all historical financial data concerning any Loan Party and the Project that has been delivered by or on behalf of Borrower to Lender is true, complete and correct in all material respects. Since the delivery of such data, except as otherwise disclosed in writing to Lender, to the best of Borrower's knowledge, there has been no material adverse change in the financial position of any Loan Party or the Project, or in the results of operations of any Loan Party. No Loan Party has incurred any obligation or liability, contingent or otherwise, not reflected in such financial data which might materially adversely affect its ability to perform its obligations hereunder. 4.1.20 Condemnation. As of the CIosing Date, no condemnation or eminent domain proceeding has been completed, commenced or, to Borrower's knowledge, is contemplated with respect to all or any portion of the Real Property or for the relocation of roadways providing access to the Real Property. 4.1.21 Utilities and Public Access. The Real Property has adequate rights of access to public ways and is served by adequate water, sewer, sanitary sewer and storm drain facilities as are adequate for full utilization of the Real Property for its current purpose. Except as otherwise disclosed by the surveys delivered to Lender prior to the Closing Date, all public utilities necessary to the continued use and enjoyment of the Real Property as presently used and enjoyed are located in the public right-of-way abutting the Real Property, and all such utilities are connected so as to serve the Real Property either(i) without passing over other property or, (ii) if such utilities pass over other property,pursuant to valid easements. Based upon the survey of the Real Property and the Title Policy, to the best of Borrower's knowledge all roads necessary for the full utilization of the Real Property for its current purpose have been completed and dedicated to public use and accepted by all applicable governmental authorities or are the subject of access easements for the benefit of the Real Property. 4.1.22 No Joint Assessment; Separate Lots. Borrower has not consented to or initiated the joint assessment of the Real Property (i) with any other real property constituting a separate tax lot, and (ii) with any portion of the Real Property which imy be deemed to constitute personal property, or any other procedure whereby the liett of anaxes which may be levied against such personal property shall be assessed or levied or chargego the" Real Property as a single lien. As of the Closing Date, the Real Property is paaft-df a"l"arger,-_ shared tax lot. On the Closing Date, Borrower shall cause the survey of the Real?r`opertahto ber" recorded in Johnson County, Iowa to create a separate tax lot for the Real3rOpetty nol o 44 i? LOAN AGREEMENT •- NY:1180077.14 frt ;f? constituting a portion of any other tax lot. In addition to recording the survey, Borrower shall cause all necessary actions and complete all necessary requirements, at its sole cost,to cause the Real Property to become a separate tax lot and be issued a separate tax lot number and shall deliver a notice to Lender upon receipt of the separate tax lot number. The separate tax lot number is expected to be issued within one (1) month of recordation of the survey. Upon issuance of the separate tax lot number, the Real Property shall be comprised of one or more parcels, each of which constitutes a separate tax lot and none of which constitutes a portion of any other tax lot. No portion of the Real Property's tax lot(s), following the issuance of the separate tax lot number, shall cover(s)property other than the Real Property. 4.1.23 Assessments. As of the Closing Date, except as may be disclosed in the Title Report, to the best of Borrower's knowledge, there are no pending or proposed special or other assessments for public improvements or otherwise affecting the Project, nor, to the knowledge of Borrower, are there any contemplated improvements to the Real Property that may result in such special or other assessments. 4.1.24 Enforceability. The Loan Documents are the legal, valid and binding obligations of the Loan Parties, enforceable against the Loan Parties in accordance with their terms, subject only to bankruptcy, insolvency and other limitations on creditors' rights generally and to equitable principles. The Loan Documents are, as of the Closing Date, not subject to any right of rescission, set-off, counterclaim or defense by any Loan Party or any Affiliate thereof, including the defense of usury, nor will the operation of any of the terms of the Note, or any other Loan Documents, or the exercise of any right thereunder, render the Loan Documents unenforceable against any Loan Party or any such Affiliate, in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense by any such Loan Party or such Affiliate, including the defense of usury, and no Loan Party or any Affiliate has asserted any right of rescission, set-off, counterclaim or defense with respect thereto. Borrower knows of no facts that would support a claim of usury to defeat or avoid Borrower's obligation to repay the principal of, interest on,and other sums or amounts due and payable under,the Loan Documents. 4.1.25 Leases. True, correct and complete copies of the Leases and all amendments thereto have been delivered to Lender. Attached hereto as Schedule 1 is a true, correct and complete rent roll for the Project (the "Rent Roll"), which includes all Leases affecting the Project. To the best of Borrower's knowledge, except as set forth in the Rent Roll, or as disclosed in any estoppel certificates delivered by Borrower or any tenant to Lender in connection with the Loan, as of the date of the Rent Roll: (i)each Lease is in full force and effect and all conditions precedent to each tenant's obligations under its Lease have been satisfied; (ii)each Tenant under the Leases have accepted possession of and are in occupancy of all of their respective demised premises, have commenced the payment of rent under such Leases, and,to the best of Borrower's knowledge, there are no offsets, claims or defenses to the enforcement thereof, (iii)all rents due and payable under the Leases have been paid and no portion thereof has been paid for any period more than thirty (30) days in advance; (iv)the rent payable under each Lease is the amount of fixed rent set forth in the Rent Roll,and,to the best of Borrower's knowledge, there is no claim or basis for a claim by the Tenant thereundarfor an adjustment to the rent; (v)no Tenant has made any claim against the landlord tiler thcteases which remains outstanding,there are no defaults on the part of the landlord underrany Lege,and i no event has occurred which, with the giving of notice or passage of time,`ti of r woulel 45 a, LOAN AGREEMENT - ' NY:11800T7.14 r C-11 v7 constitute such a default; (vi)to Borrower's best knowledge,there is no present material default by the Tenant under any Lease; (vii)all security deposits under the Leases are shown on the Rent Roll, (viii) all work to be performed by the landlord under each Lease has been substantially performed, all contributions to be made by the landlord under each Lease to the tenant thereunder have been made, (ix) to the best of Borrower's knowledge and belief, each tenant is free from bankruptcy,reorganization or arrangement proceedings or a general assignment for the benefit of creditors and, (x) no Lease provides any party with the right to obtain a lien or encumbrance upon the Project superior to the lien of the Security Instrument. Except for the Assignment of Leases, neither the Leases nor the rents have been assigned and no other Person has any interest therein except the Tenants thereunder. 4.1.26 Flood Zone. Except as may have been disclosed to Lender in any survey or report provided to Lender for the Project, the Real Property or a portion thereof is not located in a flood hazard area as designated by the Federal Emergency Management Agency ("FEMA"). 4.1.27 Physical Condition. Except as may have been disclosed in any engineering reports provided to Lender in connection with the Loan, to the best of Borrower's knowledge, (i) the Real Property is free of material structural defects and all building systems contained therein are in good working order in all material respects subject to ordinary wear and tear and(ii)as of the Closing Date,the Real Property is free and clear of any damage that would materially and adversely affect its value and, without limiting the foregoing, the Real Property has not been damaged or any previous damage has been fully restored. 4.1.28 Security Deposits. Borrower is in compliance with all applicable law relating to security deposits. 4.1.29 Management Agreement. The Management Agreement is in full force and effect. There is no default, breach or violation existing under the Management Agreement, and no event has occurred (other than payments due but not yet delinquent) that, with the passage of time or the giving of notice, or both, would constitute a default, breach or violation thereunder,by Property Manager, or to Borrower's knowledge Borrower. 4.1.30 Sub-Management Agreement. The Sub-Management Agreement is in full force and effect. There is no default, breach or violation existing under the Sub- Management Agreement, and no event has occurred (other than payments due but not yet delinquent) that, with the passage of time or the giving of notice, or both, would constitute a default, breach or violation thereunder, by Sub-Manager, or to Borrower's knowledge Property Manager. 4.1.31 Single Purpose Entity. Each Borrower is a single-purpose entity whose sole asset is its interest in the Project and whose sole business and purpose is to acquire, own, operate, refurbish, construct, maintain, market, lease, finance, sell and otherwise use the Project, and uses incidental thereto, all as more fully set forth in the Formation Documents. Each Borrower complies with all of the SPE Requirements set forth on Exhibit B hereto 52 a 46 C' LOAN AGREEMENT NY:1180077.14 M`�z 1 rn g a' 4.1.32 Contingent Liabilities; Other Obligations. Each Borrower has no known material contingent liabilities. Each Borrower has no material financial obligation under any indenture,mortgage,deed of trust,deed to secure debt,loan agreement or other agreement or instrument to which such Borrower is a party or by which such Borrower or the Project is otherwise bound, other than obligations incurred in the ordinary course of the operation of the Project and other than obligations under the Loan Documents. 4.1.33 Taxes Paid. Each entity comprising Borrower has filed all federal, state, county and municipal tax returns required to have been filed by such entity comprising Borrower, and has paid such return or any notice of assessment received by such entity comprising Borrower, and each entity comprising Borrower has no knowledge of any basis for additional assessment with respect to such taxes. 4.1.34 No Delinquency. To the best of Borrower's knowledge, after due inquiry, the Project is free from delinquent water charges, sewer charges or rents, taxes and assessments. Each Borrower and,to the best of Borrower's knowledge,the Project, are free from any past due obligations for sales or payroll taxes. 4.1.35 No Labor or Materialman Claims. All parties furnishing labor and materials to Borrower or the Project have been paid in full and, except for such liens or claims insured against by the Title Policy, there are no mechanic's laborer's or materialmen's liens or claims outstanding for work, labor or material affecting the Project, whether prior to, equal with or subordinate to the lien of the Security Instrument. 4.1.36 Seismic Exposure. The Real Property is not located in Zone 3 or Zone 4 of the Seismic Zone Map of the U.S. 4.1.37 Appraisal; Boundary Lines. Except as may have been disclosed in the Title Policy and/or the survey provided to Lender for the Project, all of the Improvements on the Real Property considered material in determining the appraised value of the Real Property lay wholly within the boundaries and, to the extent in effect at the time of construction, building restriction lines of such property, except for encroachments that are insured against by the Title Policy or encroachments that do not materially and adversely affect the value, marketability or current principal use of the Real Property, and (b) no improvements on adjoining properties encroach upon the Real Property so as to materially and adversely affect the value or marketability of the Real Property. 4.1.38 Permits and Licenses. Each Borrower, the Real Property and/or any operator of the Project have been issued all material licenses,permits and franchises required by applicable law,ordinance,code or regulation for the ownership and operation of the Project. 4.1.39 No Insolvency or Judgment. Neither any Borrower, nocAny other Loan Party is currently (a) the subject of or a party to any completed or pending bkruptcy, reorganization or insolvency proceeding or (b) the subject of any judgment uis4tisfieigf recon or docketed in any court. The Loan will not render any Loan Party Insolvetib4 stiff term defined in Section 4.1.7). < 47 LOAN AGREEMENT NY:1180077.14 '-� 4.1.40 No Forfeiture. There has not been committed by any Borrower Party or, to the best of Borrower's knowledge, any other Person, any act or omission affording any government the right of forfeiture as against the Project or any party thereof or any monies paid in performance of any Borrower's obligations under any of the Loan Documents. 4.1.4I No Criminal Acts. As of the Closing Date, no Loan Party has ever been convicted of a felony or is currently the subject of any pending or threatened felony investigation or proceeding. 4.1.42 No Other Security Agreements. There are no security agreements or financing statements affecting any of the Project other than (i) as disclosed in writing by Borrower to Lender prior to the date hereof and Cu) the security agreements and financing statements created in favor of Lender. 4.1.43 Material Contracts. Borrower has delivered to Lender true, correct and complete copies of all contracts which are material to or essential for the ownership or operation of the Project (each, a "Material Contract"). No default exists under any Material Contract which,with the passage of time and/or the giving of notice would permit the other party to (i) terminate the Material Contract or(ii)obtain a lien or encumbrance on the Project superior to the lien of the Security Instrument. 4.1.44 No Purchase Options. None of the Leases contain and no Person possesses any option to purchase or right of first refusal or first offer to purchase the Project or any part thereof or interest therein. Section 4.2. OFAC Lists. Borrower represents and warrants that (i) no Related Entity is (and to Borrower's knowledge after diligent inquiry, no other Person holding any legal or beneficial interest whatsoever in any Borrower or any other Loan Party,directly or indirectly, is) included in, owned by, controlled by, acting for or on behalf of, providing assistance, support, sponsorship, or services of any kind to, or otherwise associated with any of the Persons referred to or described in any list of persons, entities, and governments issued by the Office of Foreign Assets Control of the United States Department of the Treasury ("OFAC") pursuant to Executive Order 13224 — Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism, as amended ("Executive Order 13224"), or any similar list issued by OFAC or any other department or agency of the United States of America (collectively, the "OFAC Lists"), and (ii) none of the Related Entities are controlled by, acting for or on behalf of, providing assistance, support, sponsorship,or services of any kind to, or otherwise associated with any of the Persons referred to or described in any list of persons, entities, and governments issued by OFAC pursuant to Executive Order 13224, or any other OFAC Lists. "Related Entity" shall mean each Loan Party and each general partner or managing member of each Loan Party, and any other Affiliate of a Loan Party which directly or indirectly owns any legal or beneficial interest in an entity comprising Borrower. Section 4.3. Survival of Representations and Warranties. Borrower agrethat all of the representations and warranties of each Borrower and its Affiliates set for#ryin thiVign.• and in the other Loan Documents delivered on the Closing Date (i)are ma$!as of4e Clow Date (except as expressly otherwise provided) and (ii)shall survive the deliver�t..of the Noticed --tom r D 48 ` x. In LOAN AGREEMENT - ,. 7.E �...q NY:1180077.14 Cn continue for so long as any amount remains owing to Lender under this Agreement, the Note or any of the other Loan Documents. All representations, warranties, covenants and agreements made in this Agreement or in the other Loan Documents shall be deemed to have been relied upon by Lender notwithstanding any investigation heretofore or hereafter made by Lender or on its behalf. ARTICLE V. AFFIRMATIVE COVENANTS Section 5.1. Borrower Covenants. Borrower covenants and agrees that, from the date hereof and until payment in full of the Indebtedness: 5.1.1 Existence: Compliance with Legal Requirements. Each Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect the entity existence, rights, licenses, Permits and franchises necessary for the conduct of the business of such Borrower and comply in all material respects or cause compliance in all material respects with all laws applicable to such Borrower and the Collateral. Each Borrower shall notify Lender promptly of any written notice or order that such Borrower receives from any governmental authority or agency relating to the failure of such Borrower or the relevant Guarantor to comply with such applicable laws. Each Borrower shall at all times maintain, preserve and protect all franchises and trade names and preserve all the remainder of its property which is reasonably necessary for the continued conduct of its business. 5.1.2 [Intentionally Omitted] 5.1.3 Taxes and Other Charges. Borrower shall pay,or cause to be paid, all Impositions as the same become due and payable,and deliver to Lender receipts for payment or other evidence satisfactory to Lender that the Impositions have been so paid at least thirty(30) days prior to the applicable delinquency date of each required payment, subject to Section 5.1.4 below. Borrower shall not suffer and shall promptly cause to be paid and discharged(or "bonded off") any Lien against the Project and the Collateral, and shall promptly pay for all utility services provided to the Real Property,provided however, that, Borrower shall have the right to contest in good faith any such claim or demand, so long as it does so diligently, by appropriate proceedings and without prejudice to Lender and provided that neither the Project nor any interest therein would be in any danger of sale, loss or forfeiture as a result of such proceeding or contest. In the event Borrower shall contest any such claim or demand,Borrower shall promptly notify Lender of such contest and thereafter shall, upon Lender's request, promptly provide a bond, cash deposit or other security satisfactory to Lender to protect Lender's interest and security should the contest be unsuccessful. If Borrower shall fail to immediately discharge or provide security against any such claim or demand as aforesaid, Lender may do so and any and all expenses incurred by Lender, together with interest thereon at the Default Rate from the date incurred by Lender until actually paid by Borrower, shall be immediately paid by Borrower on demand and shall be secured by the Security Instrument and by all of the other Loan Documents securing all or any part of the Debt.. After prior notice to Lender, Borrower, at its own expense, may contest by appropriate legal proceeding,promptly initiated and conducted injood Mt and with due diligence, the amount or validity or application of any Impositions, prgvidedat (i)k rt written notice of such contest is provided to Lender, (ii) no Default shall have o iiirec td bei c-;-< i 49 Q+ LOAN AGREEMENT rn NY:1180077.14 G'% continuing and no Event of Default shall have occurred and be continuing, (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder,(iv) Lender determines, in its reasonable judgment, that no part of or interest in the Project or the Collateral will be in danger of being sold, forfeited, terminated, canceled or lost as a result of or during such contest,(v)Borrower shall have furnished to Lender such security as may be required in the proceeding, or as may be reasonably requested by Lender, to ensure the payment of any such Impositions, together with all interest and penalties thereon, provided that if such contest relates to the payment of Impositions, Borrower shall have paid to Lender for deposit in the Escrow Fund an amount equal to the sum of(I)the full unpaid amount of the contested Impositions and (2) an amount determined by Lender as adequate to cover any interest, penalties and costs if the contest is unsuccessful, and (vi)Borrower shall promptly upon final determination thereof pay the final amount of such Impositions (and, subject to proof of payment of the Impositions by Borrower and the absence of an Event of Default, Lender shall disburse to Borrower any sums escrowed or deposited with Lender to with respect to such Impositions), together with all costs, interest and penalties. Upon the request of Borrower, Lender shall pay over any such cash deposit or part thereof held by Lender to the claimant entitled thereto at any time when, in the judgment of Borrower,the entitlement of such claimant is established. 5.1.4 Escrow Fund. On the Closing Date, Borrower shall pay to Lender an amount (which shall be set forth on the settlement statement for the Loan) reasonably determined by Lender which, when added to the other payments required under this Section 5.1,4, would be sufficient to pay the then-next installment of Insurance Premiums and Impositions at least thirty (30) days prior to their applicable due dates or delinquency dates (the "Taxes and Insurance Initial Deposit"), which shall be retained by Lender in the Escrow Fund (defined below) for the payment of the next installment of (a)the Insurance Premiums (as defined below), and (b)any Impositions. On each Payment Date, Borrower shall pay to Lender (i)one-twelfth of an amount which would be sufficient to pay the Impositions payable, or reasonably estimated by Lender to be payable, during the next ensuing twelve(12)months less any amounts paid by Borrower and escrowed by Lender for the payment of taxes at Closing and (ii)one-twelfth of an amount which would be sufficient to pay the premiums due for the renewal of the coverage afforded by the insurance policies required by Lender under this Agreement(the "Insurance Premiums") upon the expiration thereof less any amounts paid by Borrower and escrowed by Lender for payment of Insurance Premiums at Closing (the Taxes and Insurance Initial Deposit, collectively with the amounts in (i) and(ii) above, shall be called the "Escrow Fund"). Notwithstanding the foregoing, the parties acknowledge and agree that the Borrower, Seller and TIF Escrow Agent have entered into that certain Tax Escrow Agreement dated September , 2008 (the "Tax Escrow Agreement") to hold in escrow, with respect to the on the property which shares the tax lot number with the Real Property but which is not part of the Real Property (the "Additional Property"), an amount equal to the taxes for such Additional Property due in October, 2008 and March 2009. Until Lender receives satisfactory written evidence that the Additional Property and the Real Property have been given separate tax lots, Borrower shall (1) cause the tax sums to be disbursed from the TIF Escrow Agent'&1 crow account to the taxing authority at least ten (10) days prior to delinquency, with iiiitteniddenc of such payment being delivered to Lender at least seven (7)days prior to delingti iey, ai hat if ' I this condition isn't satisfied, Lender may, at its sole option but without obligation-tn o so" mak payment of the taxes on the Additional Property from the Escrow Fund and H us wf'shall 501- x� LOAN AGREEMENT v -.� - NY:1180077.14 within three (3) days after written demand, pay to Lender the amount of such payment made from the Escrow Fund and (2) shall not amend, modify,terminate or consent to the amendment, modification or termination of the Tax Escrow Agreement. Should a separate tax lot number for the Real Property not be created or written evidence reasonable satisfactory to Lender that such number has been created has not delivered to Lender prior to February 1, 2009,then starting on the February 5, 2009 Payment Date and until such time as a separate tax lot number for the Real Property is created and written evidence of such separate tax lot number reasonably satisfactory to Lender has been delivered to Lender, Borrower shall be required to deposit into the Escrow Fund on each Payment Date, in addition to the amount required for the collection of Impositions on the Real Property,an amount equal to (i)one-twelfth of an amount which would be sufficient to pay the Impositions payable, or reasonably estimated by Lender to be payable,during the next ensuing twelve(12)months, on the Additional Property. Provided no Event of Default then exists, upon the creation of the separate tax lot number for the Real Property as separate fro the Additional Property and upon delivery to Lender of written evidence reasonably satisfactory to Lender that such Additional Property has been separated for tax purposes, Lender shall disburse to Borrower any remaining sums in the Escrow Fund attributable to the Additional Property. Borrower agrees to notify Lender immediately of any changes to the amounts, schedules and instructions for payment of any Impositions and Insurance Premiums of which they have or obtain knowledge and authorize Lender or its agent to obtain the bills for Impositions directly from the appropriate taxing authority. Provided no Event of Default then exists, Lender will apply the Escrow Fund to payments of Impositions and Insurance Premiums required to be made by Borrower pursuant to Section 5.1.3 and Section 5.1.16 before the same shall be delinquent to the extent that (i) there are funds available in the Escrow Fund and (ii) Lender has received an invoice from the applicable governmental authority and insurance company with respect to Impositions and Insurance Premiums, respectively, that establish the amount(s) due and the due date(s)as and when provided above. If the amount of the Escrow Fund shall exceed the amounts due for Impositions and Insurance Premiums pursuant to Section 5.1.3 and Section 5.1.16, Lender shall, at Borrower's election,return any excess to Borrower or credit such excess against future payments to be made to the Escrow Fund. If the Escrow Fund is not sufficient to pay the insurance premiums and Impositions set forth above, Borrower shall promptly pay to Lender, upon ten(10)days written demand,an amount which Lender shall estimate as sufficient to make up the deficiency. Promptly after Impositions and Insurance Premiums are fixed for the then current year or period, the next ensuing deposits into the Escrow Fund for Impositions and Insurance Premiums shall be adjusted to reflect any decrease or increase in such prorated amounts. Borrower shall be responsible for ensuring the receipt by Lender, at least thirty (30) days prior to the respective due date for payment thereof,of all bills, invoices and statements for all Impositions and Insurance Premiums to be paid from the Escrow Fund. In making any payment from the Escrow Fund, Lender shall be entitled to rely on any bill,statement or estimate procured from the appropriate public office or insurance company or agent without any inquiry into the accuracy of such bill, statement or estimate and without any inquiry into the accuracy, validity, enforceability or contestability of any tax, assessment, valuation, sale, forfeiture, tax lien or title or claim thereof. Borrower hereby assigns to Lender,and grants to Lender, a security interest in, all of Borrower's interest in the Escrow Fund as additional security for all of Borrower's obligations under the Loan and the Loan Documents. The Escrow Funclall not constitute a trust fund and may be commingled with other monies held by Lei;` r:, Interest with not be paid to or accrue for the benefit of Borrower on any funds in the EscrOw:;unc Lends;, 51 LOAN AGREEMENT NV 1180077.14 shall disburse to Borrower all remaining funds in the Escrow Fund, (less all amounts which have been otherwise applied by Lender hereunder)at such time as the Indebtedness has been fully and indefeasibly paid to Lender. No interest shall be paid by Lender on funds on deposit in the Escrow Fund(unless required by applicable law). 5.1.5 Repairs: Maintenance and Compliance. Borrower shall cause the Project to be maintained in a good and safe condition and repair and shall not remove, demolish or materially alter the Improvements or Equipment (except for normal replacement of the Equipment). Borrower shall promptly comply with all requirements of applicable law and promptly cure any violation of laws after Borrower receives notice of such violation. Borrower shall promptly repair, replace or rebuild any part of the Project that becomes damaged, worn or dilapidated and shall complete and pay for any Improvements at any time in the process of construction or repair subject to the application of all reserves held by Lender in accordance with this Agreement. 5.1.6 Performance of Other Agreements. Borrower shall observe and perform or cause to be observed and performed each and every material term to be observed or performed by Borrower pursuant to the terms of any agreement or recorded instrument affecting or pertaining to the Project. 5.1.7 Notice of Default. Borrower shall promptly advise Lender of any Material Adverse Condition not previously disclosed to Lender, or of the occurrence of any Default or Event of Default not previously disclosed to Lender. 5.1.8 Perform Loan Documents. Borrower shall, observe, perform and satisfy all the terms, provisions, covenants and conditions required to be observed,performed or satisfied by it, and shall pay when due all costs, fees and expenses required to be paid by it, under the Loan Documents executed and delivered by Borrower. 5.1.9 Inspection. Subject to the rights of Tenants under the Leases, Lender and its authorized agents may enter upon and inspect the Project as often as Lender determines is reasonably necessary at all reasonable times during the normal business hours for the Project upon forty-eight(48)hours prior notice given orally or in writing to Borrower. 5.1.10 Books and Records. Borrower shall keep and maintain at all times at Borrower's addresses stated in this Agreement, or such other place as Lender may reasonably approve in writing,complete and accurate books of accounts and records adequate to reflect the results of the operation of the Project and copies of all material written contracts and other documents affecting the Project. Lender shall have the right to inspect such books and records from time to time at reasonable times upon reasonable advance notice, at Lender's sole cost. Lender hereby acknowledges that the Property Manager may maintain the books and records with respect to the Project and that such event shall comply with the requirements of this,section. 5.1.1 I Financial Statements; Budgets,Audit Rights. UntiEaymet n full`--n of the Indebtedness, Borrower shall cause the following financial statements and c rmeon, irtt. . form and substance reasonably satisfactory to Lender, to be delivered to Lend,at.and -�" wher hereinafter provided: rn K , 52 ;::o LOAN AGREEMENT .. NY:1180077.14 tY t11 C' (a) promptly and in any event within twenty (20)days after the end of each calendar month, an updated Rent Roll and operating statements for the applicable calendar month showing all revenue,expenses,NOl for the applicable calendar month and variances from the Operating Budget(on a monthly and year-to-date basis); (b) promptly and in any event within forty-five (45) days after the end of each calendar quarter an updated Rent Roll and operating statement for the applicable calendar quarter showing all revenue, expenses, NOI and variances from the Operating Budget (on a quarterly and year to date basis) of each entity comprising Borrower, quarterly balance sheets and statements of financial position of such entity comprising Borrower, such quarterly balance sheets and statements of financial position to be certified by such entity comprising Borrower to fairly represent the financial condition of such entity comprising Borrower as of the date thereof; (c) not later than thirty (30) days before the end of each fiscal year, a proposed detailed operating budget for the Project, covering the upcoming fiscal year. Each budget shall be subject to the reasonable approval of Lender. Each proposed budget sent to Lender for approval shall include,the following in all capital,bold and block letters: "THE FOLLOWING REQUEST REQUIRES A RESPONSE WITHIN 10 BUSINESS DAYS OF RECEIPT. FAILURE TO DO SO WILL BE DEEMED AN APPROVAL OF THE REQUEST." Lender shall provide to Borrower its approval or objections to the budget within ten(10) days of receipt and Borrower shall thereafter have ten(10) days to provide Lender with a revised budget. Each proposed revised budget sent to Lender for approval shall include the following in all capital,bold and block letters: "THE FOLLOWING REQUEST REQUIRES A RESPONSE WITHIN 5 BUSINESS DAYS OF RECEIPT. FAILURE TO DO SO WILL BE DEEMED AN APPROVAL OF THE REQUEST." Lender shall have five (5) days after receipt of a revised budget to provide to Borrower with its approval or any objections. Upon Lender's approval of the proposed budget, such budget shall be deemed an "Operating Budget" for the relevant fiscal year. Until Lender approves an Operating Budget, the prior year's Operating Budget shall apply but with adjustments to reflect actual increases in Impositions, Insurance Premiums and customary operating expenses. Borrower shall operate the Project in accordance with the Operating Budget; (d) for any entity comprising Borrower that is a Sponsor Borrower,as soon as practicable and in any event not later than ninety (90) days after the end of each fiscal year, balance sheets and income and expense statements for the Project and financial statements of such entity comprising Borrower as of the end of each such fiscal year, which balang sheets and statements shall be duly certified by Notice Owner as true and correct as ofte datereof, prepared in accordance with GAAP or such other form as is reasonably acceptabtA,Let r; -11 _; . (e) for any entity comprising Borrower that is not a Sp7tise6r Bthower" after the occurrence of an Event of Default, and upon notice to such entity comprl, iig Borrowe 53 c3 `., IAAF!AGREEMENT NY:1180077.14 from Lender, such entity comprising Borrower shall deliver to Lender, as soon as practicable and in any event not later than ninety (90) days after the end of each fiscal year, balance sheets and income and expense statements for the Project and financial statements of such entity comprising Borrower as of the end of each such fiscal year, which balance sheets and statements shall be duly certified by Notice Owner as true and correct as of the date thereof,prepared in accordance with GAAP or such other form as is reasonably acceptable to Lender; (f) for any entity comprising Borrower that is a Sponsor Borrower, from time to time, such other reports and information which Lender reasonably requires, certified by such entity comprising Borrower to be true, correct and complete in all material respects; (g) for any entity comprising Borrower that is not a Sponsor Borrower, after the occurrence of an Event of Default, and upon notice to such entity comprising Borrower from Lender, such entity comprising Borrower shall deliver to Lender, from time to time, such other reports and information which Lender reasonably requires, certified by such entity comprising Borrower to be true, correct and complete in all material respects;and (h) if any entity comprising Borrower fails to furnish or cause to be furnished promptly any report required by this Section 5.1.11 or if Lender reasonably deems such reports to be unacceptable, Lender may elect (in addition to exercising any other right and remedy), following thirty (30) days prior written notice to Borrower and continued failure of such entity comprising Borrower to cure or cause the cure of such deficiency,to conduct an audit or other review of all books and records of such entity comprising Borrower and/or such other Loan Parties which in any way pertain to the Project and to prepare the statement or statements which such entity comprising Borrower failed to procure and deliver. Such audit or review shall be made and such statement or statements shall be prepared by an independent firm of certified public accountants to be selected by Lender. Borrower shall pay all reasonable out-of-pocket expenses of the audit and other services, which expenses shall be immediately due and payable With 11LI..1%31 thereon at UIG Default Rate. 5.1.12 ERISA Compliance. (a) Each Borrower shall not engage in any transaction, nor will it permit or cause any Guarantor or any Affiliate of the foregoing to engage in any transaction, which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Loan Documents)to be a non-exempt (under a statutory or administrative class exemption)prohibited transaction under ERISA. (b) Borrower shall deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as required by Lender in its reasonable discretion, that: (i)none of Borrower, or any Guarantor is an"employee benefit plan" as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a"governmental plan" within the meaning of Section 3(32) of ERISA; and (ii)none of Borrower,..]r any Guarantor is subject to state statutes regulating investments and fiduciary ribligatiorip with respect to governmental plans. -' C) d 54 —trf LOAN AGREEMENT 7,(i-y-. i! f 1 NY:1180077.14 C� n C37 5.1.13 Entity Status. Borrower will and will cause each other Loan Party to (i)continue to comply with the provisions of all of their respective organizational documents, and the laws of the state in which each such entity was formed relating to each such entity. All customary formalities regarding the existence of Borrower and each other Loan Party will continue to be observed. 5.1.14 Management of Project. The Project will be managed at all times by the Property Manager pursuant to the Management Agreement, or the Sub-Manager pursuant to the Sub-Management Agreement, each which Lender acknowledges is in form and substance reasonably satisfactory to Lender. Any future Property Manager or Sub-Manager shall be subject to Lender's approval, not to be unreasonably withheld,conditioned,or delayed, and, shall enter into a Management Agreement or Sub-Management Agreement, as applicable, reasonably acceptable to Lender, all in Lender's reasonable discretion. Any future Property Manager or Sub-Manager must agree that the Management Agreement or Sub-Management Agreement, as applicable, is subject and subordinate in all respects to the Loan pursuant to Lender's form of subordination agreement. Lender shall have the right to cause Borrower to terminate the Management Agreement or Sub-Management Agreement,without payment of any fee or penalty by Lender, at Lender's request, in accordance with the terms of the Assignment of Management Agreement, (x)upon the occurrence of an Event of Default, or (y)if the Property Manager or Sub-Manager is in default under the Management Agreement or Sub-Management Agreement, as applicable,beyond the expiration of any applicable cure period and such default would permit termination by Borrower under the Management Agreement or Property Manager under the Sub- Management Agreement unless cured within any grace period provided therein. In the event that Property Manager or Sub-Manager is terminated pursuant hereto, Borrower shall immediately seek to appoint a replacement manager acceptable to, and on terms and conditions reasonably acceptable to, Lender in Lender's reasonable discretion. Borrower's failure to obtain such an acceptable manager within thirty (30) days after the effective date of termination of the Management Agreement or Sub-Management Agreement, as applicable, shall constitute an immediate Event of Default. Should Mezzanine Lender or any assignee foreclose on the ownership interests in the Mezzanine Borrower in the Borrower, then upon Lender's written request, Borrower shall enter into a new Property Management Agreement and appoint a new Property Manager acceptable to Lender in Lender's discretion and, if applicable,enter into a new Sub-Management Agreement and appoint a new Sub-Manager acceptable to Lender in Lender's discretion. 5.1.15 Leases. Except as otherwise consented to by Lender, all Leases shall (i) be negotiated beginning with a standard form of lease which shall have been approved by Lender in writing, (ii) be at the then current market rental rate and upon then current market terms for similar properties in the area where the Project is located, and (iii) otherwise conform to the guidelines set forth on Exhibit"C" attached hereto and incorporated herein by this reference (collectively,the "Leasing Guidelines"). At Lender's request, Borrower shall furnish Lender with executed copies of all Leases. Borrower shall have the right to enter in Leases on terms that Borrower deems commercially reasonable, provided that, such Leases shall Vfrnply with foregoing provisions in all material respects_ Borrower shall (A) observe ad perfjn all the material obligations imposed upon the lessor under the Leases if the failure Ac perf n or . observe the same would materially and adversely affect the value of the Project tal€rrjs a'vhole - and shall not do or permit to be done anything to impair the value of the Leases a security for i55 ' LOAN AGREEMENT ~" NY:1150077.14 the Indebtedness; (B) enforce in a commercially reasonable manner all of the terms, covenants and conditions contained in the Leases upon the part of the lessee thereunder to be observed or performed in accordance with commercially reasonable practices for properties similar to the Project; (C) not collect any of the rents more than one (1) month in advance without Lender's prior written consent (provided that a security deposit shall not be deemed rent collected in advance);(D)not execute any other assignment of the lessor's interest in the Leases or the rents; (E) not materially alter, modify or change the terms of the Leases, except in compliance with the Leasing Guidelines or with Lender's prior written consent; (F)promptly send copies to Lender of all written notices of default delivered or received by Borrower under any Lease; (G) not cancel or terminate any Lease or accept the surrender thereof, without the prior written consent of Lender; (H)not alter,modify or materially change or impair the terms of any guaranty, letter of credit or other credit support with respect to any Lease (each a "Lease Guaranty") or voluntarily cancel or terminate any such Lease Guaranty, in any case, without the prior written consent of Lender; (I) not consent to any assignment of or subletting under any Lease, except in accordance with the terms of the Lease without the prior written consent of Lender and (J) not anticipate, discount, release, waive, compromise or otherwise discharge any rent payable under any of the Leases. Notwithstanding the foregoing, Borrower shall not enter into, alter, modify, extend(unless expressly contemplated in a Lease) or change the terms of any Lease in excess of 9,000 square feet without Lender's prior written consent. Each Lease executed after the date hereof must provide in a manner acceptable to Lender, or through an agreement acceptable to Lender, that the Tenant will recognize as its landlord, lessor or licensor, as applicable,and attorn to, any person succeeding to the interest of Borrower under such Lease upon any foreclosure of the Security Instrument or deed-in-lieu of foreclosure. All security deposits of tenants, whether held in cash or in any other form, shall not be commingled with any other funds of Borrower or any other person. 5.1.16 Insurance. Borrower, at Borrower's expense, shall maintain in force and effect on the Project at all times while this Agreement continues in effect the following insurance: (a) Insurance against loss or damage to the Project by fire, windstorm, tornado and hail and against loss and damage by such other, further and additional risks as may be now or hereafter embraced by an "all-risk" or "special form" form of insurance policy. The amount of such insurance shall be not less than one hundred percent (100%) of the full replacement cost (insurable value) of the Improvements (as established by an MAI appraisal), without reduction for depreciation. The determination of the replacement cost amount shall be adjusted annually to comply with the requirements of the insurer issuing such coverage or, at Lender's election, by reference to such indices, appraisals or information as Lender determines in its reasonable discretion in order to reflect increased value due to inflation, Absent such annual adjustment, each policy shall contain inflation guard coverage insuring that the policy limit will be increased over time to reflect the effect of inflation. Full replacement cost, as used herein,means, with respect to the Improvements, the cost of replacing the Improvementgwithout regard to deduction for depreciation, exclusive of the cost of excavations,_.foundans and footings below the lowest basement floor. Borrower shall also maintain insurarf ai loss off'y damage to furniture, furnishings, fixtures, equipment and other items (whetir4ersCrnalty er' fixtures) included in the Project and owned by Borrower from time to tirt to t , extent applicable, in the amount of the cost of replacing the same, in each case, witeAfillation gua din ISI 56 c-: .. LOAN AGREEMENT NY:1180077.14 (/1 coverage to reflect the effect of inflation, or annual valuation. Each policy or policies shall contain a replacement cost endorsement and either an agreed amount endorsement (to avoid the operation of any co-insurance provisions)or a waiver of any co-insurance provisions, all subject to Lender's reasonable approval. The maximum deductible shall be $10,000.00. (b) Commercial General Liability Insurance against claims for personal injury,bodily injury,death and property damage occurring on,in or about the Project in amounts not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate plus umbrella coverage in an amount not less than $10,000,000.00. During any construction on the Project, Borrower's general contractor for such construction shall also provide the insurance required in this Section 5.1.16(b). Lender hereby retains the right to periodically review the amount of said liability insurance being maintained by Borrower and to require an increase in the amount of said liability insurance should Lender reasonably deem an increase to be prudent under then existing circumstances. (c) Boiler and machinery insurance is required if steam boilers or other pressure-fired vessels are in operation at the Project. Minimum liability coverage per accident must equal the greater of the replacement cost (insurable value) of the Improvements housing such boiler or pressure-fired machinery or $2,000,000.00. If one or more large HVAC units is in operation at the Project, "Systems Breakdowns" coverage shall be required, as determined by Lender. Minimum liability coverage per accident must equal the value of such unit(s). (d) If the Improvements or any part thereof are situated in an area now or subsequently designated by the FEMA as a special flood hazard area (Zone A or Zone V), flood insurance in an amount equal to the lesser of: (i)the minimum amount required,under the terms of coverage, to compensate for any damage or loss on a replacement basis (or the unpaid balance of the Indebtedness if replacement cost coverage is not available for the type of building insured); or (ii) the maximum insurance available under the appropriate National Flood Insurance Administration program. The maximum deductible shall be $3,000.00 per building or a higher minimum amount as required by FEMA or other applicable law. (e) During the period of any construction, renovation or alteration of the Improvements which exceeds the lesser of ten percent (10%) of the Loan Amount or $1,000,000.00, at Lender's request, a completed value, "All Risk" Builder's Risk form, or "Course of Construction" insurance policy in non-reporting form with replacement cost and no co-insurance, in an amount approved by Lender, shall be required. During the period of any construction of any addition to the existing Improvements, a completed value, "All Risk" Builder's Risk form or "Course of Construction" insurance policy in non-reporting form, in an amount approved by Lender, shall be required. (f) When required by applicable law, ordinance or other regulation, Worker's Compensation and Employer's Liability Insurance covering all persons subject to the workers' compensation laws of the state in which the Project is located. -- o U _ (g) Business income (loss of rents) insurance in amciwtL suf ient t compensate Borrower for all Receipts during a period of not less than eighteen( )'monis. 57 :"<rr;; ; 711 LOAN AGRF.F.MENT _a --" NY:1180077.14 -' ' '--' c-n Cry amount of coverage shall be adjusted annually to reflect the Receipts payable during the then-succeeding eighteen(18)month period. (h) Such other insurance on the Project or on any replacements or substitutions thereof or additions thereto as may from time to time be reasonably required by Lender against other insurable hazards, casualties or matters which at the time are commonly insured against in the case of property similarly situated, including, without limitation, sinkhole, mine subsidence, earthquake, environmental, terrorism and law and ordinance insurance, due regard being given to the height and type of buildings, their construction, location, use and occupancy. In addition to and not in limitation of the foregoing, Borrower shall maintain, at its expense, terrorism insurance in amount, coverage and form acceptable to Lender and otherwise in compliance with the Terrorism Risk Insurance Act of 2002, Public Law 107-297,as same may be amended ("TRIA"), whether or not TRIA is in effect; provided that, if TRIA is no longer in effect, Borrower shall be required to purchase as much terrorism insurance as may be obtained in the amount equal to three (3)times the premium for terrorism insurance in place in the year that TRIA became ineffective. (i) All such insurance shall (i) be with insurers fully licensed and authorized to do business in the state within which the Project is located and which insurers, unless otherwise approved in writing by Lender, shall have and maintain a rating of at least "A" or higher from Standard&Poor's Rating Services, a division of The McGraw Hill Companies or equivalent rating agency; (ii) contain the complete address of the Project (or a complete legal description); (iii) be for terms of at least one year with premium prepaid; (iv) be subject to the reasonable approval of Lender as to insurance companies, amounts, content, forms of policies, method by which premiums are paid and expiration dates; (v) contain deductibles which do not exceed $10,000.00 (except that (x) there shall be no deductible with respect to the policies described in (b),above, unless otherwise approved by Lender and(y)the deductible with respect to the policy described in clause (d), above, shall not exceed $3,000.00) and (vi) include a standard, non-contributory, Lender clause naming: Prudential Mortgage Capital Company,LLC its successors and assigns as their interests may appear • - c/o Prudential Asset Resources Attn: Insurance Departments 2100 Ross Avenue, Suite 2500 .-.: Dallas,Texas 75201 =-1C� r (x) as an additional insured under all liability insurance policies, (y) as the first m6itgpgen al property insurance policies and (z) as the loss payee on all loss of rents or loss of liiisiness�.. income insurance policies. •• _ tJl (j) Borrower shall, as of the date hereof, deliver to Lender (a)evidence that said insurance policies, have been prepaid as required above and (b)original certificates of insurance signed by an authorized agent of the applicable insurance companies and, upon Lender's request, certified copies of such insurance policies, each evidencing such insurance satisfactory to Lender. Borrower shall renew all such insurance and deliver to Lender certificates and, upon request, policies evidencing such renewals at least thirty (30) days before 58 LOAN AGREEMENT NY:1180077.14 any such insurance shall expire; provided, however, that Borrower shall not be obligated to provide evidence of renewal if(i) sufficient sums are on deposit in the Escrow Fun to pay for such policies, (ii)no Event of Default exists and(iii) Lender is required, but has failed,to pay for such policies out of the Escrow Fund. Borrower further agrees that each such insurance policy: (i) shall provide for at least thirty(30)days' prior written notice to Lender prior to(x)any policy reduction, cancellation or termination for any reason and (y) any modification thereof which affects the interest of Lender, (ii) shall contain an endorsement or agreement by the insurer that any loss shall be payable to Lender in accordance with the terms of such policy notwithstanding any act or negligence of Borrower which might otherwise result in forfeiture of such insurance; (iii) shall waive all rights of subrogation against Lender; (iv) in the event that the Real Property or the Improvements constitutes a legal non-conforming use under applicable building, zoning or land use laws or ordinances, shall include an ordinance or law coverage endorsement which will contain Coverage A: "Loss Due to Operation of Law" (with a minimum liability limit equal to Replacement Cost With Agreed Value Endorsement), Coverage B: "Demolition Cost" and Coverage C: "Increased Cost of Construction" coverages; and (v) may be in the form of a blanket policy provided that, in the event that any such coverage is provided in the form of a blanket policy, Borrower hereby acknowledges and agrees that failure to pay any portion of the premium therefor which is not allocable to the Project or by any other action not relating to the Project which would otherwise permit the issuer thereof to cancel the coverage thereof, would require the Project to be insured by a separate, single-property policy. The blanket policy must properly identify and fully protect the Project as if a separate policy were issued for one hundred percent (100%) of the full replacement cost (insurable value) of the Improvements, without reduction for depreciation, at the time of loss and otherwise meet all of Lender's applicable insurance requirements set forth in this Section 5.1.16. The delivery to Lender of the insurance policies or the certificates of insurance as provided above shall constitute an assignment of all proceeds payable under such insurance policies relating to the Project by Borrower to Lender as further security for the Indebtedness. In the event of foreclosure of the Security Instrument, or other transfer of title to the Project in extinguishment in whole or in part of the Indebtedness, all right, title and interest of Borrower in and to all proceeds payable under such policies then in force concerning the Project shall thereupon vest in the purchaser at such foreclosure, or in Lender or other transferee in the event of such other transfer of title. Approval of any insurance by Lender shall not be a representation of the solvency of any insurer or the sufficiency of any amount of insurance. In the event Borrower fails to provide, maintain, keep in force or deliver and furnish to Lender the policies of insurance required by this Agreement or evidence of their renewal as required herein, Lender may, but shall not be obligated to,procure such insurance and Borrower shall pay all amounts advanced by Lender therefor, together with interest thereon at the Default Rate from and after the date advanced by Lender until actually repaid by Borrower, promptly upon demand by Lender. Any amounts so advanced by Lender, together with interest thereon, shall be secured by the Security Instrument and by all of the other Loan Documents securing all or any part of the Indebtedness. Lender shall not be responsible for nor incur any liability for the insolvency of the insurer or other failure of the insurer to perform, even though Lender has caused the insurance to be placed with the insurer after failure of Borrower to furnish such insurance. Borrower shall not obtain insurance for the Project in addition to that required by Lender without the prior written consent of Lender, which consent will not be unreasonably withheld, conditioned or delayed provided that (i) Lender is a named insured on-such ipgirance, (ii) Lender receives complete copies of all policies evidencing such insuran ,:apd 1) suehj"i . ..yZrz 59 1 rT r' LOAN AGREEMENT van NY:1180077.14 :< I • i r71 insurance complies with all of the applicable requirements set forth herein. To the extent that at any time Lender agrees to accept(a) insurance in amounts less than that which is required by the foregoing provisions of this Section 5.1.16 or(b)insurance from an insurer that is rated less than that which is required by the foregoing provisions of this Section 5.1.16, Lender may terminate its waiver and reassert the aforesaid minimum coverage amounts and rating requirements upon any renewal of any insurance coverage or at any time if(x) the coverage provided under such policies is reduced or (y) the rating of any insurer is reduced or (z) Lender determines that any other material adverse event has occurred with respect to the financial condition of such insurer. 5.1.17 Casualty and Condemnation. (a) Borrower shall give Lender prompt written notice of the occurrence of any casualty affecting, or the institution of any proceedings for eminent domain or for the condemnation of, the Project or any portion thereof. All insurance proceeds on the Project, and all causes of action, claims, compensation, awards and recoveries for any damage, condemnation or taking of all or any part of the Project or for any damage or injury to it for any loss or diminution in value of the Project, are hereby assigned to and shall be paid to Lender. Lender may participate in any suits or proceedings relating to any such proceeds, causes of action, claims, compensation, awards or recoveries, and Lender is hereby authorized, in its own name or in Borrower's name,to adjust any loss covered by insurance or any condemnation claim or cause of action, and to settle or compromise any claim or cause of action in connection therewith, and Borrower shall from time to time deliver to Lender any instruments required to permit such participation; provided, however, that, so long as no Default or Event of Default shall have occurred and be continuing, Lender shall not have the right to participate in the adjustment of any loss which is not in excess of the lesser of (i) five percent (5%) of the Principal Indebtedness and (ii)$550,000.00, which amount, less Lender's reasonable out-of- pocket costs and expenses (including, but not limited to, reasonable legal fees and disbursements) incurred in obtaining those sums, shall be made promptly available to Borrower upon receipt of Lender. All other amounts of insurance proceeds coming into possession of Lender shall not be deemed trust funds and Lender shall have the option in its sole discretion to apply any insurance proceeds it may receive pursuant hereto to the payment of the Indebtedness or to allow all or a portion of such proceeds to be used for the restoration of the Project. In the event any such insurance proceeds shall be used to reduce the Indebtedness, Lender shall apply any sums received by it under this Section 5.1.17 first to the payment of all of its reasonable out- of-pocket costs and expenses (including, but not limited to, reasonable legal fees and disbursements)incurred in obtaining those sums. (b) In the event that less than fifty percent(50%)of the Impronents have been destroyed or in the event that less than twenty-five percent(25%)of the-Land i`s.iaken� then if and so Iong as: fl (i) no Default or Event of Default is then contir iherjnderi or under any of the other Loan Documents;and ) "fl (ii) the Project can, in Lender's judgment, -wit. d&Rent restoration or repair, be returned to a condition at least equal to the condition thereo .that eij ted prior to the casualty or partial taking causing the loss or damage by the earlier to occur (i) 60 LOAN AGREEMENT NY:1180077.14 six (6) months after the receipt of insurance proceeds or condemnation awards by either Borrower or Lender,and(ii) six (6)months prior to the Maturity Date; and (iii) all necessary governmental approvals can be obtained to allow the rebuilding and re-occupancy of the Project as described in Section 5.1.17(bXii)above; 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 reasonable out-of-pocket 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 Project and Debt Service in full with the same coverage ratio considered by Lender in its determination to make the Loan; including, but not limited to, an assessment of the impact of the termination of any Leases due to such casualty or condemnation;and (vi) in the event that the insurance proceeds or condemnation awards received as a result of such casualty or partial taking exceed the lesser of(i) five percent (5%) of the Principal Indebtedness and (ii) $550,000.00, 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 Project as proposed to be restored or repaired to be not less than the appraised value of the Project considered by Lender in its determination to make the Loan; and (vii) Borrower so elects by written notice delivered to Lender within ten(10)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 construction lender, including, but not limited to, the prior approval by Lender, not to be unreasonably withheld, conditioned or delayed, 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 in whatever order Lender directs in its absolute discretion. (c) In all other cases, namely, in the event that fifty pe ent (g/o) or_ more of the Improvements have been destroyed or twenty-five percent (25%)n npor f the fl Land is taken or Borrower does not elect to restore or repair the ProjeEi Iursi nt td"" Section 5.1.17(b)(vii) or otherwise fails to meet the requirements of Section 5.1J:7A), limn, irf' - G1 LOAN AGREEMENT --' NV:1 180077.14 Gil any of such events, Lender may elect, in Lender's sole and absolute discretion and without regard to the adequacy of Lender's security, to do either of the following: (1)accelerate the maturity date of the Note and declare any or all of the Indebtedness to be immediately due and payable and apply the remainder of such sums received pursuant to this Section 5.1.17 to the payment of the Indebtedness in whatever order Lender directs in its absolute discretion, with any remainder being paid to Borrower, or(2) notwithstanding that Borrower may have elected not to restore or repair the Project pursuant to the provisions of clause (b), above, require Borrower to restore or repair the Project in the manner and upon such terms and conditions as would be required by a prudent construction lender, including, but not limited to, the deposit by Borrower with Lender, within thirty (30) days after demand therefor, of any deficiency reasonably determined by Lender to be necessary in order to assure the availability of sufficient funds to pay for such restoration or repair, including, but not limited to, Lender's costs and expenses to be incurred in connection therewith, 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, and apply the remainder of such sums toward such restoration and repair, with any balance thereafter remaining being applied by Lender for payment of the Indebtedness in whatever order Lender directs in its absolute discretion. (d) Any reduction in the Indebtedness resulting from Lender's application of any sums received by it hereunder shall take effect only when Lender actually receives such sums and elects to apply such sums to the Indebtedness and, in any event, the unpaid portion of the Indebtedness shall remain in full force and effect and Borrower shall not be excused in the payment thereof. Partial payments received by Lender, as described in the preceding sentence, shall be applied first to the final payment due under the Note and thereafter to installments due under the Note in the inverse order of their due date. If Borrower elects as provided above or Lender directs Borrower to restore or repair the Project after the occurrence of a casualty or partial taking of the Project as provided above, Borrower shall promptly and diligently, at Borrower's sole cost and expense and regardless of whether the insurance proceeds or condemnation award,as appropriate,shall be sufficient for the purpose, restore,repair, replace and rebuild the Project as nearly as possible to its value, condition and character immediately prior to such casualty or partial taking in accordance with the foregoing provisions and Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses of Lender incurred in administering said rebuilding,restoration or repair, provided that Lender makes such proceeds or award available for such purpose. Borrower agrees to execute and deliver from time to time such further instruments as may be reasonably requested by Lender to confirm the foregoing assignment to Lender of any award,damage, insurance proceeds,payment or other compensation provided that no such additional instruments shall increase the obligations of Borrower set forth in this Agreement. Lender is hereby irrevocably constituted and appointed the attorney-in-fact of Borrower (which power of attorney shall be irrevocable so long as any portion of the Indebtedness is outstanding, shall be deemed coupled with an interest, shall survive the voluntary or involuntary dissolution of Borrower and shall not be affected by any disability or incapacity suffered by Borrower subsequent to the date hereof), with full power of substitution, suect to the terms of this Section 5.1.17, to settle for, collect and receive any such av r1s, damages;.i insurance proceeds, payments or other compensation from the parties or authorijenahi ng the,. same, to appear in and prosecute any proceedings therefor and to give receipts anal-tccquiiancet' therefor. -i Cr) 62 LOAN AGREEMENT •.� * NY:1180077.14 - " =y" Cl1 Section 5.2. Notice of Litigation or Default. Borrower shall promptly provide Lender with: 5.2.1 written notice of any litigation, arbitration, or other proceeding or governmental investigation pending, or to Borrower's knowledge threatened, against or relating to any Borrower, any Guarantor, the Collateral or the Project, in which the amount in dispute is in excess of One Hundred Thousand Dollars($100,000);and 5.2.2 a copy of all notices of default and violations of laws, regulations, codes, ordinances and the like received by any Borrower relating to the Project or the Collateral. Section 5.3. Appraisals. Any time after the occurrence and during the continuance of an Event of Default, Lender shall have the right to (a) require Borrower to obtain within thirty (30) days of demand an appraisal report for the Project prepared for Lender by an independent appraiser in accordance with Lender's appraisal requirements and otherwise reasonably acceptable to Lender in form and substance, or (b) if Borrower fails to obtain such appraisal, Lender may obtain such appraisal at Borrower's sole cost and expense. Lender shall not make such demand more frequently than once per calendar year during the Term of the Loan. Section 5.4. Project Receipts. At all times during the Term (including without limitation, upon an Event of Default), Borrower shall utilize all Receipts first for payment of Debt Service, required payments into Reserve and Operating Expenses. Borrower shall pay to Lender, on demand, (i)the amount of all Receipts received by Borrower following and during the continuation of an Event of Default that are not applied to payment of Debt Service,Reserves or Operating Expenses, and (ii)the amount of Receipts received by Borrower within one hundred eighty(180)days prior to an Event of Default, which were not applied towards payment of Debt Service, Reserves or Operating Expenses that should have been paid by such Receipts and that were not otherwise paid. At Lender's option, any such payments may be applied by Lender to payment of the Indebtedness or such Operating Expenses, in such order asgeender determines, in its sole and absolute discretion_ N moi ; .- Section 5.5. Intentionally Omitted. - -- Section 5.6. Compliance With Anti-Terrorism Regulations. s (a) Borrower hereby covenants and agrees that (i) no Rp1Ted Rstity t' will be included in,owned by, controlled by, act for or on behalf of,provide assistance, su..,.rt, sponsorship,or services of any kind to, or otherwise associate with any of the Person`s refers-. to or described in any list of persons, entities, and governments issued by OFAC pursuant to Executive Order 13224 or any other OFAC Lists, and (ii) none of the Related Entities will be Controlled by,act for or on behalf of,provide assistance,support,sponsorship, or services of any kind to, or otherwise associate with any of the Persons referred to or described in any list of persons, entities, and governments issued by OFAC pursuant to Executive Order 13224, or any other OFAC Lists. (b) Borrower hereby covenants and agrees that it will comply at all times with the requirements of Executive Order 13224; the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701-06; the United and Strengthening America by Providing 63 LOAN AGREEMENT NY:1180077.14 Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56; the Iraqi Sanctions Act, Pub. L. 101-513, 104 Stat. 2047-55; the United Nations Participation Act, 22 U.S.C. Section 287c; the Antiterrorism and Effective Death Penalty Act, (enacting 8 U.S.C. Section 219, 18 U.S.C. Section 2332d, and 18 U.S.C. Section 2339b); the International Security and Development Cooperation Act, 22 U.S.C. Section 2349 aa-9; the Terrorism Sanctions Regulations, 31 C.F.R. Part 595; the Terrorism List Governments Sanctions Regulations, 31 C.F.R. Part 596; and the Foreign Terrorist Organizations Sanctions Regulations, 31 C.F.R. Part 597 and any similar laws are regulation currently in force or hereafter enacted (collectively, the"Anti-Terrorism Regulations"). (c) Borrower hereby covenants and agrees that if it becomes aware or receives any notice that any Related Entity is named on any of the OFAC Lists (such occurrence, an "OFAC Violation"), Borrower will promptly (i) give notice to Lender of such OFAC Violation, and (ii) comply with all Laws applicable to such OFAC Violation (regardless of whether the party included on any of the OFAC Lists is located within the jurisdiction of the United States of America), including, without limitation, the Anti-Terrorism Regulations, and Borrower hereby authorizes and consents to Lender's taking any and all steps Lender reasonably deems necessary, to comply with all Laws applicable to any such OFAC Violation, including, without limitation, the requirements of the Anti-Terrorism Regulations (including the"freezing" and/or"blocking"of assets). (d) Upon Lender's request from time to time during the term of the Loan, Borrower agrees deliver a certification confirming that the representations and warranties set forth in Section 4.2 remain true and correct as of the date of such certificate and confirming Borrower's compliance with this Section 5.6. Section 5.7. Interest Rate Protection Agreements. Borrower shall maintain the Interest Rate Protection Agreement and, if applicable, the Extension Period Interest Rate Protection Agreements, in full force and effect. All amounts paid by the Counterparty under the Interest Rate Protection Agreement or Extension Period Interest Rate Protection Agreement shall be deposited immediately into the Clearing Account or, if the Clearing Account is not then available, into such other account as is specified by Lender in writing. Borrower shall take all actions reasonably requested by Lender to enforce Lender's rights under the Interest Rate Protection Agreement or Extension Period Interest Rate Protection Agreement in the event of a default by Counterparty. In the event that Borrower fails to maintain the Interest Rate Protection Agreement or Extension Period Interest Rate Protection Agreement in accordance with the terms of this Agreement, Lender may, after five (5) days written notice to Borrower, purchase an Interest Rate Protection Agreement complying with the terms of this Agreement and the costs incurring by Lender in connection therewith shall be paid by Borrower to Lender together with interest thereon at the Default Rate from the date such cost was incurred by Lender until such cost is reimbursed by Borrower. In the event of a downgrade of one or more of the ratings of the Counterparty below the Required Counterparty Rating, Borrower shall replace the Interest Rate Protection Agreement or, if applicable, Extension Period Interest Rate Protection Agreement, with an Interest Rate Protection Agreement or, if applicable, Extension Period Inte> st Rate Protection Agreement with a Counterparty that satisfies the Required Counterparty Rig and the other requirements of this Agreement, not later than ten (10) Business D s-afte vritteifi notice by Lender of such downgrade. Zi_—:4 -� 64 a' LOAN AGREEMENT n NV:1180077.14 1Y CJI fir, Section 5.8. SPE Requirements. Each Borrower shall at all times comply with the SPE Requirements set forth on Exhibit B hereto. ARTICLE VI. NEGATIVE COVENANTS Section 6.1. Negative Covenants. Each Borrower covenants and agrees that, until payment in full of the Indebtedness, it will not do, directly or indirectly, any of the following unless Lender consents thereto in writing: 6.1.1 Separateness of Entities. (a) (x): (i) take any actions in violation of such Borrower's Formation Documents, or that would otherwise adversely affect such Borrower's existence as a Single Purpose Entity, (ii) without the prior written consent of Lender(which shall not be unreasonably withheld, conditioned or delayed), amend, modify, waive or terminate such Borrower's Formation Documents or other organizational documents, except for immaterial modifications or to correct scribner's erros, (y): (i)dissolve or liquidate, in whole or in part, or take any action that could have the effect of causing a dissolution or liquidation of any Loan Party,(ii)consolidate or merge with or into any other entity, (iii) make an assignment for the benefit of creditors, file a petition in bankruptcy, petition or apply to any tribunal for the appointment of a custodian, receiver, Lender or other similar official for it,or for a substantial part of its property,commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt or liquidation law, or admit its inability to pay its debts generally as they become due, or (iv) lend money to any Person,or(z) grant a security interest of any nature whatsoever in such Borrower's assets other than as set forth in the Loan Documents. (b) Intentionally Omitted. 6.1.2 Liens on the Collateral. Incur, create, assume,become or be liable in any manner with respect to, or permit to exist, any Lien with respect to any Collateral or the Project except Liens in favor of Lender, provided, however, that Borrower may, by appropriate proceedings, contest the validity or amount of any asserted Lien and, pending such contest, Borrower shall not be deemed to be in default hereunder if(i) written notice of such contest is provided to Lender contemporaneously with Borrower engaging in such contest, (ii) no Default shall have occurred and be continuing and no Event of Default shall have occurred and be continuing, (iii) such contest shall be permitted under and be conducted in accordance with the provisions of any other instrument to which Borrower is subject and shall not constitute a default thereunder, (iv) Lender determines, in its reasonable judgment, that no part of or interest in the Project or the Collateral will be in danger of being sold, forfeited, terminated,canceled or lost as a result of or during such contest, (v)Borrower shall have (A) furnished to Lender such,s, curity as may be required by the applicable governmental authority, governing law or ac•u'cable agreement to undertake such contest, or as may be reasonably requested by Lenoir,to enstirre payment of of any contested sum, together with all interest and penalties that nlle iosec thereon, provided that if such contest relates to the payment of Impositions, Boma i r:shall have c 65 LOAN AGREEMENT CD: NY:1180077.14 - M° C.T1 paid to Lender for deposit in the Escrow Fund an amount equal to the sum of(1)the full unpaid amount of the contested Impositions and (2) an amount determined by Lender as adequate to cover any interest, penalties and costs if the contest is unsuccessful of(B) "bonded off' such Lien,and (vi) Borrower shall promptly upon final determination thereof pay the amount of such Impositions,together with all costs,interest and penalties. 6.1.3 Prohibited Transfer. (a) Allow any Prohibited Transfer to occur. A Prohibited Transfer shall include, without limitation: (i) an installment sales agreement wherein any entity comprising Borrower agrees to sell any interest in the Project or any part thereof for a price to be paid in installments, (ii)an agreement by or on behalf of any entity comprising Borrower leasing all or a substantial part of the Project for other than actual occupancy by a space tenant thereunder, (iii) a sale, assignment or other transfer of, or the grant of a security interest in, any entity comprising Borrower's right, title and interest in and to any Leases or rents derived from the Project, (iv)if a Restricted Party is a corporation,any merger, consolidation or other Transfer of such corporation's stock or the creation or issuance of new stock in one or a series of transactions, (v) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Transfer of the partnership interest in the Restricted Party held by a general or limited partner or the Transfer of any profits or proceeds relating to such partnership interests or the creation or issuance of new partnership interests, (vi)if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager or the Transfer of the membership interest in the Restricted Party held by any member or the Transfer of any profits or proceeds relating to such membership interests or the creation or issuance of new membership interests or(vii) if a Restricted Party is a trust or nominee trust, any merger, consolidation or other Transfer of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests. (b) Notwithstanding Section 6.1.3(a), however, (i) limited partnership and non-managing membership interests (as well as membership interests in single member limited liability companies)in or shares of any entity comprising or in any entity owning a direct or indirect interest in any entity comprising shall not be a Prohibited Transfer so long in the aggregate of all transfers of direct or indirect interests in such entity comprising Borrower, less not less than forty-nine percent (49%) of all direct or indirect interests in such entity comprising Borrower shall have been transferred after the date hereof and the legal, beneficial and actual control of the Project and such entity comprising Borrower shall remain with the Persons holding such control of the Project and such entity comprising Borrower as of the date hereof, (ii) any transfer that occurs by devise or bequest or by operation of law upon the death of any Person comprising Borrower or any general partner, shareholder,joint venturer, member or beneficial owner of a trust shall not be a Prohibited Transfer so long as (1) Lender receives written notice as soon as practicable thereafter, (2) such entity comprising Borrower is reconstituted, if required, following such death and (3) those persons responsible for the control and/or management of the Project and such entity comprising Borrower remains unchanged as a result of such death, or any replacement control and/or management is approved in writing b rg.ender in each instance, with such approval not to be unreasonably withheld, conditirthed or layed, (iii) gifts or other intervivos or testamentary transfers for estate planningt loses?f anyfl 66 �' LOAN AGREEMENT -�C3 Q1 NY:1180077.14 ! � _ .. c,n individual's direct or indirect interests in any entity comprising Borrower or in any of such entity comprising Borrower's shareholders, general partners, members or joint venturers to the spouse or any lineal descendant of such individual, or to a trust for the benefit of any one or more of such individual, spouse or lineal descendant, shall not be a Prohibited Transfer so long as (I) Lender receives written notice as soon as practicable thereafter, (2) such entity comprising Borrower is reconstituted, if required, following such gift and (3) those persons responsible for the control and/or management of the Project and such entity comprising Borrower remains unchanged following such gift or any replacement control and/or management is approved in writing by Lender in each instance, with such approval not to be unreasonably withheld, conditioned or delayed and (iv) any pledge, assignment or other transfer of the direct or indirect interests in Borrower to Mezzanine Lender, or any foreclosure thereof by Mezzanine Lender in accordance with the Mezzanine Loan Documents shall not be a Prohibited Transfer, provided that each of the foregoing are effectuated in compliance with that certain Intercreditor Agreement of even date herewith by and between Mezzanine Lender and Lender (the "Intercreditor Agreement"). Notwithstanding any provision herein to the contrary, unless approved by Lender in advance in writing and in each instance and subject to receipt by Lender of a No Adverse Rating Impact Confirmation, if the Loan has been the subject of a Secondary Market Transaction, there shall not be permitted any (A) Transfer in one or more related transactions of a forty-nine percent (49%) or greater direct or indirect interest in any entity comprising Borrower to any single Person or group of affiliated Persons, or(B) direct or indirect change in the management or control of the Project or any entity comprising Borrower. Any Transfer not expressly permitted hereunder but approved by Lender (in its sole and absolute discretion)may be conditioned upon, at Lender's option, without limitation, (i) Lender's receipt of a No Adverse Rating Impact Confirmation if the Loan has been the subject of a Secondary Market Transaction and (ii) the payment by such entity comprising Borrower of all reasonable out-of-pocket costs and expenses incurred by Lender in connection with any Transfer, including, without limitation, reasonable attorney's fees and costs. Transfers permitted pursuant to this Section 6.1.3(b)shall be "Permitted Transfers". (c) Notwithstanding the foregoing provisions of this Section, Lender shall consent to the sale, conveyance or transfer (hereinafter, a "TIC Sale") of Borrower's interest in the Project(or, alternatively, the sale, conveyance or transfer of ownership interests in Borrower), in whole or in part, to any single entity (provided, however, that with respect to Sponsor Borrower only, a Sponsor Borrower may transfer to more than one entity (each such entity, along with the Borrower and Sponsor Borrower, thereafter a "TIC"), subject to the limitations set forth below), provided that each of the following terms and conditions are satisfied for such TIC Sale: (i) No Default or Event of Default is then continuing hereunder or under any of the other Loan Documents; (ii) The TIC Sale is completed within twelve (12) months from the date hereof; (iii) Borrower gives Lender written notice of tliitermsg such prospective TIC Sale not less than thirty (30) days before the date on which stu 'IC$ale is s scheduled to close and, concurrently therewith, gives Lender all such information gterning thr e Crt 67 t ' - rn LOAN AGREEMENT C. NY:I 180077.14 37' clt proposed transferee of the Project (hereinafter, a"TIC Purchaser") as Lender would require in evaluating an initial extension of credit to a borrower. Such information shall include, but shall not be limited to,the information set forth in Exhibit I attached herto. Among other information, Borrower shall provide with respect to the TIC Purchaser, (1) name, address and social security number of owners of the TIC Purchaser, (2) TIC Purchaser certification as to no judgments, liens, lawsuits, felony charges, loan defaults, bankruptcies, foreclosures,debt resolution or deed- in-lieu actions, (3)financial statements and most recent tax return, (4) an organizational chart of each TIC Purchaser showing complete names, organizational structure and ownership and (5) two (2) years of tax returns, financial statements and acceptable public records and credit searches for any individual or entity with a twenty percent (20%) or greater interest, following such proposed TIC Sale, direct or indirect, in Borrower or any TIC Purchaser. Lender shall have the right to approve or disapprove the proposed TIC Purchaser; provided, however, that if the TIC Purchaser is already an existing Borrower pursuant to a previous TIC Sale or otherwise (an "Existing TIC")or is owned by the same owners (and no other owners) as then own an Existing TIC, then Lender shall not withhold its approval of the TIC Purchaser as long as (x) Lender determines that there has been no material adverse change in the Existing TIC's or said owner's (owners') financial condition and credit history and (y)the Existing TIC is not in default beyond any applicable notice and cure periods under the TIC Agreement. In no event may a TIC Purchaser be a non-United States entity. In determining whether to give or withhold its approval of the proposed TIC Purchaser, Lender shall consider the TIC Purchaser's and its principals' financial strength, the TIC Purchaser's and its principals' general business standing and the TIC Purchaser's and its principals' relationships and experience with contractors, vendors, tenants, lenders and other business entities; provided,however,that,notwithstanding Lender's agreement to consider the foregoing factors in determining whether to give or withhold such approval,such approval shall be given or withheld based on what Lender determines to be commercially reasonable in Lender's sole discretion and, if given, may be given subject to such conditions as Lender may deem appropriate. Lender's approval shall also be conditioned upon receipt of a credit report and public record search satisfactory to Lender from Lender's credit search company (currently NCO Credit Services). Notwithstanding the foregoing, a Delaware single member limited liability company wholly-owned by an entity or individual approved and underwritten by Lender prior to the date hereof, but which did not take a tenancy-in-common interest in the Project on or before the date hereof(a"Pre-Approved TIC Purchaser"), shall not require Lender's approval under this item. (iv) Borrower and the TIC Purchaser pay all of their own costs and expenses incurred in connection with such TIC Sale and pay Lender, concurrently with the closing of such TIC Sale, a non-refundable assumption fee of$2,000.00(provided, however,that for a Pre-Approved TIC Purchaser, no assumption fee shall be payable), together with all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, and rating agency fees (including, but not limited to, rating agency counsel fees), incurred by Lender or otherwise payable in connection with the TIC Sale and the assumption; (v) Borrower and the TIC Purchaser execute and/or authorize, without any cost or expense to Lender, new financing statements or financing Stement amendments and any additional documents reasonably requested by Lender, -piovideghat ntr such documents materially increase the obligations of Borrower set fora , tIrt Documents; s """" 68 LOAN AGREEMENT y ' cit NY:1180077.14M (vi) Borrower delivers to Lender, without any cost or expense to Lender, such endorsements to Lender's title insurance policy, hazard insurance policy endorsements or certificates and other similar materials as Lender may reasonably deem necessary at the time of the Sale, all in form and substance satisfactory to Lender, including, without Iimitation, an endorsement or endorsements to Lender's title insurance policy insuring the lien of this Mortgage, extending the effective date of such policy to the date of execution and delivery (or, if later, of recording) of the assumption agreement referenced below in Section 6.1.3(d) with no additional exceptions added to such policy, and insuring that fee simple title to the Project is vested in the TIC Purchaser; (vii) the selling TIC executes and delivers to Lender, without any cost or expense to Lender, a release of Lender, its officers, directors,employees and agents, from all claims and liability relating to the transactions evidenced by the Loan Documents, through and including the date of the closing of the TIC Sale, which agreement shall be in form and substance satisfactory to Lender and shall be binding upon the TIC Purchaser; (viii) Subject to the provisions of Sections 8_1, 8_2, 8.a and $$^4 hereof, such TIC Sale is not construed so as to relieve the selling TIC of any personal liability under the Note or any of the other Loan Documents for any acts or events occurring or obligations arising prior to or simultaneously with the closing of such TIC Sale, whether or not same is discovered prior or subsequent to the closing of such TIC Sale, and the selling TIC executes,without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of said personal liability. The selling TIC shall be released from and relieved of any personal liability under the Note and all of the other Loan Documents for any acts or events occurring or obligations arising after the closing of such TIC Sale which are not caused by or arising out of any acts or events occurring or obligations arising prior to or simultaneously with the closing of such TIC Sale; (ix) Such TIC Sale is not construed so as to relieve any current indemnitor of its obligations under any guaranty or indemnity agreement, and each such current indemnitor executes, without any cost or expense to Lender, such documents and agreements as Lender shall reasonably require to evidence and effectuate the ratification of each such guaranty and indemnity agreement; (x) The TIC Purchaser shall furnish, if the TIC Purchaser is a corporation, partnership, limited liability company, or other entity, all appropriate documents evidencing the TIC Purchaser's capacity and good standing, and the qualification of the signers to execute the assumption of the Debt, which papers shall include certified copies of all documents relating to the organization and formation of the TIC Purchaser and of the entities,if any, which are partners, shareholders or members of the TIC Purchaser. The TIC Purchaser and such constituent partners,members or shareholders of the TIC Purchaser(as the case may be),as Lender shall require, shall be special purpose, "bankruptcy remote" entities, whose formation documents shall be approved by counsel to Lender. Single-member limited liability companies must be formed in Delaware and contain Lender's standard provisions for such entities and special legal opinions (similar in form and substance to the opinions to Lender..as of a date hereof, subject to any changes then generally required by lenders and/or rae_g-,agexmies irr i connection with loans for securitization and otherwise in form and substa Err re nably 69 =lc) c' LOAN AGREEMENT .R r' NY:1180077.14 ) '' satisfactory to Lender) must be delivered to Lender. The TIC Purchaser shall cause to be delivered to Lender such legal opinions as Lender shall require in connection with the matters set forth in this Section 6.1.3; (xi) If the Loan has been the subject of a Secondary Market Transaction,Lender must receive a No Adverse Rating Impact Confirmation; (xii) Either CORE Sycamore Town Center T, LLC, a Delaware limited liability company, or CORE Sycamore Town Center P, LLC, a Delaware limited liability company,shall at all times own at least one percent(1.0%)of the interest in the Property;and (xiii) all of the terms and conditions of Section 6.1.3(d) below are satisfied. (d) Additional Terms and Conditions of Transfers of TIC Interests. Notwithstanding anything herein to the contrary, any transfer of Borrower's or any Existing TIC's interests in the Project shall be subject to the satisfaction of all of the following terms and conditions: (i) in no event shall there ever be more than thirty-five (35) TICs(for purposes of this determination,two TICs,one of which is owned by a husband and one of which is owned by a wife(or their respective trusts), shall count as only one TIC); (ii) the acquiring TIC must execute and deliver to Lender documentation reasonably acceptable to Lender in form and substance by which such acquiring TIC becomes a party to the TIC Agreement and assumes the obligations of the selling TIC(s) thereunder; (iii) the acquiring TIC must execute and deliver to Lender the assumption agreement attached hereto as Exhibit F (with changes necessary to comport with the facts of the TIC Sale)whereby the acquiring TIC assumes and agrees to pay the Debt,jointly and severally with any remaining TICs and assumes all of the obligations of the selling TIC(s)under the Loan Documents; (iv) the acquiring TIC must execute and deliver to Lender documentation reasonably acceptable to Lender in form and substance by which such acquiring TIC becomes a party to the Property Management Agreement and assumes the obligations of the selling TIC(s)thereunder; (v) the owners of the acquiring TIC must execute and deliver to Lender a guaranty identical in form and substance (except for the identity of parties) as the form attached hereto as Exhibit G; (vi) Sponsor Guarantor (as defined on Schedule A attached hereto) shall remain fully obligated under that certain Guaranty executed by Sponsor guarantor as of the date hereof and the TIC Sale shall not be deemed as having relieved onsor latiarantor of any liability under such agreement, whether prior to, during or after the TIC _ley o l 70 --t C3 t7' LOAN AGREEMENT1 971 NY:1180077.14 " re •'Y" V 1 (vii) Lender shall receive a copy of the recorded deed to the TIC Purchaser promptly following Borrower's receipt of same from the recording office; (viii) legal opinions (similar in form and substance to the opinions to Lender as of the date hereof, subject to any changes then generally required by lenders and/or rating agencies in connection with loans for securitization and otherwise in form and substance reasonably satisfactory to Lender)must be delivered to Lender; (ix) Lender receives such legal opinions as Lender may require with respect to the foregoing, including, without limitation, opinions equivalent to those delivered to Lender at the time of the closing of the Loan;and (x) Should the Mezzanine Loan still be outstanding, Lender shall have received reasonable satisfactory evidence that the net proceeds obtained following the payment of any reasonable and customary out-of-pocket costs pursuant to any TIC Sale have been applied to pay down the Mezzanine Loan. 6.1.4 Other Borrowings. Except as may be allowed pursuant to this Agreement,incur, create, assume, become or be liable for any additional indebtedness except for Permitted Indebtedness. 6.1.5 Change In Business. Make any material change in the scope or nature of its business objectives, purposes or operations, or undertake or participate in activities other than the continuance of its present business as contemplated by the Loan Documents. 6.1.6 Debt Cancellation. Cancel or otherwise forgive or release any material claim or debt owed to such Borrower by any Person, except for adequate consideration or in the ordinary course of such Borrower's business (and, in all events,in compliance with this Agreement). 6.1.7 Affiliate Transactions. Enter into any agreement with an Affiliate of any Borrower,except that Borrower may enter into an agreement with an Affiliate which is on terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than an Affiliate of Borrower and which agreements) may be terminated without cause and without payment of any fee; provided that all such agreements shall give Lender the right to terminate such agreement upon Lender's (or its designee's)taking possession of the Project through foreclosure, an assignment-in-lieu of foreclosure, UCC sale or otherwise. 6.1.8 Lienable Work. Cause any excavation, construction, earth work, site work or any other mechanic's lienable work to be done to or for the benefit of the Project, except as required pursuant to the terms of this Agreement and normal repair,capital improvements and maintenance in the ordinary course of business. C2 9 6.1.9 Certain Restrictions. Enter into any agreement 7icj exlressljc restricts the ability of such Borrower to enter into amendments, modifications orr�ers of any of the Loan Documents. 7<r- zw In 12, 71 f •• LOAN AGREEMENT Cn-J MA1800'77.14 6.1.10 Issuance of Equity Interests. Issue or allow to be created any stocks or shares or shareholder, partnership or membership interests, as applicable, or other ownership interests in such Borrower, other than as permitted in connection with the Mezzanine Loan pursuant to 6.1.3(b)above. 6.1.11 Place of Business. Change its chief executive office or its principal place of business or place where its books and records are kept without reasonable prior written notice to Lender. 6.1.12 Identity. Change its name, identity or organizational structure in any manner which might make any financing or continuation statement filed in connection herewith seriously misleading within the meaning of Section 9-506(b)of the UCC (or any other applicable provision of the UCC). 6.1.13 Subsidiaries. Acquire equity interests in any entity. 6.1.14 Property Manager. Change the Property Manager or Sub-Manager or amend or terminate the Management Agreement or Sub-Management Agreement, except as otherwise contemplated in this Agreement. 6.1.15 Intentionally Omitted 6.1.16 Use of Real Property. Voluntarily permit changes in the plat of subdivision,zoning classification or use of any part of the Real Property. 6.1.17 Necessary Property Receipts. Distribute to its shareholders, members, partners or any other person or entity, directly or indirectly, any Receipts at any time to the extent that same are reasonably anticipated to be needed for the maintenance of the Project or for other Project-related expenses or for the payment of reasonably anticipated amounts to become due under the Loan Documents. 6.1.18 Interest Rate Protection Agreements. Alter, modify, amend, terminate or cancel the Interest Rate Protection Agreement or, if applicable, any Extension Period Interest Rate Protection Agreement,or waive or allow the waiver of any term thereof. 6.1.19 Tenancy-In-Common Provisions. The provisions of this Section 6.1.19 shall apply at all times that the Project is owned by more than one entity. Each entity comprising Borrower (each a "TIC") shall be obligated under this Agreement as a "Borrower" for all purposes set forth in this Agreement. (a) TIC Agreement. Each TIC shall be a party to a Tenants In Common Agreement(the "TIC Agreement"), the form of which has been delivered to Lender by Borrower prior to the date hereof(a true and correct copy of which such form is identified in and attached to a certificate delivered by Borrower to Lender prior to the date hereof). *ach TIC shall cause the TIC Agreement to remain in full force and effect at all times ural paynla-It in full of the Loan. It shall constitute an Event of Default hereunder if, at any time-`, at.theroject owned by multiple tenants-in-common, any of the following shall occur withbtr-Lert4#"er's prioc- written consent: (i)if the TIC Agreement shall not be in full force and effec as cis bind g c"?. 72 :7<i1;1 .. LOAN AGREEMENT vl I NY:1180077.14 1 LIi agreement among all owners of the Project, or (ii)if the TIC Agreement shall be amended, canceled, modified in any material way or terminated, or any party shall be admitted thereto, in each case without the prior written consent of Lender. (b) Property Management Agreement. Each TIC shall be a party to the Property Management Agreement. Simultaneously with such property manager's execution of the Property Management Agreement, such property manager shall deliver to Lender a consent and agreement of manager acceptable to Lender in its sole discretion, which, among other things, confirms that all compensation payable to such property manager is subordinate in all respects to this Mortgage. Except as expressly consented to by Lender in writing, each TIC shall cause the Property Management Agreement to remain in full force and effect at all times until payment in full of the Loan. It shall constitute an Event of Default hereunder if,at any time that the Project is owned by multiple tenants-in-common, any of the following shall occur without Lender's prior written consent: (i) if the Property Management Agreement shall not be in full force and effect as a binding agreement among all owners of the Project (unless a new property management agreement in form and substance approved by Lender in its sole discretion,and with a property manager approved by Lender in its sole discretion,is entered into by all owners of the Project prior to the expiration or termination of the Property Management Agreement), or (ii) if the Property Management Agreement shall be amended, canceled, modified in a material way or terminated(unless a new property management agreement in form and substance approved by Lender in its sole discretion, and with a property manager approved by Lender in its sole discretion,is entered into by all owners of the Project prior to the expiration or termination of the Property Management Agreement),or any party shall be admitted thereto. (c) Waiver of Partition. Without limiting any provision of the TIC Agreement, each TIC hereby expressly waives any right to file an action for partition of the Project until such time as all of the Debt is paid and performed in full. It shall constitute an Event of Default hereunder if any TIC files an action for the partition of the Project. (d) No liens or Security Interests in TIC Interests. Except as otherwise provided in this Agreement, it shall constitute an Event of Default hereunder if a lien or security interest (other than the liens and security interests granted pursuant to the Loan Documents) is granted in any tenant-in-common interest in the Project, whether such lien or security interest is senior or subordinate to the lien and security interest of the Loan Documents. (e) Notice Owner. Each Borrower hereby designates Notice Owner as the party to receive all notices pursuant to Section 9.9 hereof (including, but not limited to, service of process) on behalf of each Borrower pursuant to this Agreement and the other Loan Documents, but the Notice Owner will not be an agent for any of the Borrowers or have power of attorney to act for any of them. The Notice Owner is authorized and shall have the right to communicate with Lender on behalf of all Borrowers and to handle all matters on l lalf of Borrowers under the terms of the Loan Documents unless a Borrower withdraws such ht by-t1 means of prior written notice to Lender. Except for notices from a TIC as to a n> er..persopal such TIC (i.e.,those matters involving such TIC and not involving either the Projj i an}{other TIC),all notices to Lender from Borrower shall be given solely by the Notice OwrfA,and Iti@nder t irt is hereby authorized to act in reliance thereon; (c) Lender shall be authorized to deaDexcluoiwely 1 .,, with Notice Owner with respect to matters involving the obligations of Borrower urei•- he f'oan 73 LOAN AGREEMENT -, NY:t 180077.14 Documents, without consultation with or notice to any TIC;and (d) Lender shall not be required to accept notice from any TIC or party other than the Notice Owner, (e) any substitution of the Notice Owner shall be subject to the approval of Lender, which approval may be conditioned,in part, upon (i) demonstration to Lender's satisfaction that such Notice Owner has experience in owning and operating properties comparable to the Project and, (ii) if a Secondary Market Transaction shall have occurred, Lender's receipt of a confirmation of no Adverse Rating Impact with respect to the designation of the new Notice Owner. (f) TIC Affiliates. Lender acknowledges that merely by virtue of the fact that the TICs have entered into the TIC Agreement, the Loan Documents or any other agreement relating to the Project,that does not make any one TIC an Affiliate of any other TIC. ARTICLE VII. DEFAULTS Section 7.1. Event of Default. The occurrence of one or more of the following events shall be an"Event of Default"hereunder: 7.1.1 If Borrower fails to pay the outstanding Indebtedness, including without limitation, the Deferred Origination Fee(if payable), on the Maturity Date; 7.1.2 If Borrower fails to make when due any Monthly Payment, or any required deposit into any reserve under the Loan Documents; 7.1.3 The occurrence of the events identified elsewhere in the Loan Documents as constituting an"Event of Default" hereunder or thereunder; 7.1.4 If Borrower fails (beyond applicable notice and cure periods) to pay any other liquidated sum payable pursuant to this Agreement or any other Loan Document within five(5) Business Days of when due and payable in accordance with the provisions hereof or thereof, as the case may be; provided that a failure to cure a default that requires an action to be taken by Borrower that may require Borrower to make a payment to a third party shall not constitute a failure to pay a liquidated sum under this Section 7.1.4; 7.1.5 If any representation or warranty made by any Borrower or any Loan Party herein or in any other Loan Document, or in any report, certificate, financial statement or other instrument,agreement or document furnished by or on behalf of any Borrower in connection with this Agreement, the Note or any other Loan Documents executed and delivered by any Borrower, shall be false in any material respect as of the date such representation or warranty was made or remade; 7.1.6 Any violation of the covenants set forth in Section 5.1.16 (Insurance), Section 5.1.17 (Casualty and Condemnation), Section 5.7 (Interest Rate Protection Agreements), Section 6.1.1 (Separateness of Entities), Section 6.1.2 (Liens on the Collateral), Section 6.1.3 (Transfer), Section 6.1.4 (Other Borrowings), Section 6.1.5 (Change In BBiness) or Section 6.1.15 (Single Purpose Entity), Section 6.1.18 (Interest Rate Protection Agreients)) or 6.1.19(Tenancy In Common Provisions); c--; Q .c easing 74 7-74c) LOAN AGREEMENT NY:1180077.14 � . M .• 7.1.7 If any Loan Party makes an assignment for the benefit of creditors; 7.1.8 If a receiver, liquidator or trustee shall be appointed for any Loan Party, or if any Loan Party shall be adjudicated as bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law,shall be filed by or against, consented to,or acquiesced in by any Loan Party or if any proceeding for the dissolution or liquidation of any Loan Party shall be instituted or if any Loan Party shall generally not be paying their respective debts as they become due(provided that, in the case of an involuntary petition in bankruptcy, Borrower shall have ninety (90) days within the filing of such petition to cause such petition to be discharged); 7.1.9 If any Loan Party is deemed to hold "plan assets" within the meaning of ERISA or any regulations promulgated thereunder of an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within the meaning of Section 4975 of the Code); 7.1.10 If any financial statement, report or information provided to Lender by Borrower concerning any Loan Party or the Project proves to be knowingly or intentionally inaccurate or knowingly or intentionally misleading in any material respect; 7.1.11 If any material alteration, modification or removal of any Improvement or Equipment at the Real Property occurs, except as expressly permitted under the terms of the Loan Documents and except for replacement of worn or obsolete Equipment with a replacement of at least the same quality; 7.1.12 If a judgment is entered against such Borrower that materially adversely affects such Borrower's ability to perform its obligations under the Loan Documents, unless such judgment is paid in full within ninety(90)days after the date of such judgment; 7.1.13 The commencement of any action to partition the Real Property that is not terminated within sixty(60)days after filing of such action; 7.1.14 If any Borrower or any other Person shall fail to perform any of the other obligations, agreements, undertakings, terms, covenants, provisions or conditions of this Agreement, the Note, or the other Loan Documents, not otherwise referred to in this Section 7.1, for thirty (30) days after written notice to Borrower from Lender; provided that if such default cannot reasonably be cured within such thirty (30) day period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for so long as it shall require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of one hundred twenty (120) days; provided, however, that if any other Section in this Loan Agreement or any other Loan Document establishes a cure period with respect to a specified Default, such specified cure period shall be in lieu of, and not in addition to,the cure period set forth in this Section 7.A 4; 7.1.15 If Borrower fails to comply with the covenants as tiii ,apAcable,= laws described in Section 5.1.1 for a period of thirty (30) days after receipt of written nce or" violation thereof; 75 LOAN AGREEMENT C� i, a NY:1180077.14 ;0" cn 7.1.16 If any Guarantor shall have failed to materially comply with financial reporting covenants contained in Section 9 of the Guaranty; 7.1.17 An uncured default has occurred under the Interest Rate Protection Agreement or, if applicable, any Extension Period Interest Rate Protection Agreement;or 7.1.18 The Required Work is not completed within the period required under Section 2.20.6. 7.1.19 Any default under Section 4.2 (OF AC Rep) or 5.6 (OFAC Covenant)hereof occurs. Notwithstanding the foregoing, if within five (5)days after written notice from Lender to Borrower that a Borrower other than the Sponsor Borrower has defaulted pursuant to Section 8.3 (such Borrower, a "Defaulting TIC Borrower") any Borrower other than a Defaulting TIC Borrower notifies Lender in writing of the commencement of proceedings to purchase the interest in the Project owned by the Defaulting TIC Borrower pursuant to the buy/sell provisions of the TIC Agreement and such purchase is completed within thirty (30) days thereafter, provided that (1) in the event of a bankruptcy, receivership or insolvency of the Defaulting TIC Borrower or any TIC Guarantor,the purchase of the Defaulting TIC Borrower is approved by the applicable receiver and/or by order of the court having jurisdiction over such proceedings, (2) Lender determines, in its reasonable discretion, that upon the removal of the Defaulting TIC Borrower, no unapproved lien shall remain on the Project and no materially adverse effect on Lender's security for the Loan and/or the Borrower's ability to own and operate the Project and satisfy its obligations under the Loan Documents shall continue to exist and (3) all of Lender's reasonable out-of-pocket costs and expenses are paid in full, a default pursuant to Section 8.3 hereof by a Borrower other than the Sponsor Borrower shall not be considered an Event of Default. Section 7.2. Acceleration;Remedies. Upon the occurrence and during the continuation of an Event of Default, at the option of Lender, the Indebtedness shall become immediately due and payable without notice to Borrower (unless required by applicable law) and Lender shall be entitled to all of the rights and remedies provided in the Loan Documents or at law or in equity. Each remedy provided in the Loan Documents is distinct and cumulative to all other rights or remedies under the Loan Documents or afforded by law or equity, and may be exercised concurrently, independently, or successively, in any order whatsoever. Anything to the contrary herein notwithstanding, if during the term of this Agreement, there occurs an Event of Default under this Agreement or under any of the other Loan Documents, then in addition to all tights and remedies available to Lender under this Agreement,the other Loan Documents and/or at law or in equity,Lender, at its discretion and without regard to the adequacy of any other collateral it may have, may apply all or any portion of any funds held by Lender as additional security for the Borrower's obligations hereunder and under the other Loan Documents, including, without limitation, all funds on deposit in the Escrow Fund and the Reserves, in such manner as Lender may elect in such order and priority as Lender may determine. No application of all ony part of such funds pursuant to this Section 7.2 shall in any way release,satisfy or diJiarge mt of they,,, otherwise unpaid obligations hereunder or under the other Loan Document.iS Io8ielay otI omission of Lender to exercise any of its rights or remedies available after the ci- C3ttren.19%of en LOAN AGREEMENT » �" i NY:118007 7.14 GV r1y Event of Default shall waive, exhaust or impair any of Lender's rights or remedies under the Loan Documents, nor shall any such delay or omission be deemed to be a waiver of, or acquiescence in or to, any Event of Default. Notwithstanding anything contained herein or in any of the other Loan Documents to the contrary, Lender shall not be under any obligation to accept a cure of an Event of Default, unless required by applicable law. Notwithstanding any such delay or omission, Lender thereafter shall have the right, from time to time and as often as Lender deems advisable, to exercise any of its rights or remedies available after the occurrence of any Event of Default. ARTICLE VIII. RECOURSE; INDEMNITY OBLIGATIONS Section 8.1. Non-Recourse Loan. The obligations of Borrower pursuant to the Loan Documents shall constitute general obligations of Borrower. Notwithstanding the foregoing or anything to the contrary contained in this Agreement or in any other Loan Documents,except as provided otherwise in this Article VIII, neither any Borrower, nor any member, partner, shareholder, principal, Affiliate, employee, officer, director, agent or representative of any Borrower(each, a "Related Party") shall have any personal liability for(a) the payment of any sum of money which is or may be payable hereunder or under the Note or any other Loan Documents, including, without limitation, the repayment of the Indebtedness, or (b) the performance or discharge of any covenants, obligations or undertakings of Borrower hereunder or under any Loan Document, and no monetary or deficiency judgment shall be sought or enforced against any Related Party with respect thereto, except that Lender may bring a foreclosure action, an action for specific performance or any other appropriate action or proceeding against any Related Party to enable Lender to enforce and realize upon its interests in the Collateral; provided, however, that except as specifically provided herein, any judgment in any such action or proceeding shall be enforceable against the Related Parties only to the extent of any Borrower's interest in the Real Property and the other Collateral,and Lender agrees that it shall not sue for, seek or demand any deficiency against any Related Party in any such action or proceeding under, or by reason of, or in connection with this Agreement, the Note, or any other Loan Document. The provisions of this Section 8.1 shall not, however, (i) impair the validity of the obligations of any Borrower or in any way affect or impair any Lien or the right of Lender to enforce any and all rights and remedies under and by virtue of the Note,this Agreement, or any other Loan Document including, without limitation, naming any Borrower as a party defendant in any action, or limit Lender from pursuing or seeking to enforce the rights of Lender against any third parties, including, without limitation, any guarantor, indemnitor or surety under any guaranty or indemnity delivered in connection with this Agreement, the Note, or otherwise in connection with the Loan, (ii) constitute a waiver, release or impairment of any obligation evidenced or secured by this Agreement, the Note or any of the other Loan Documents, (iii) impair the enforcement of the security interests and rights and remedies of Lender described in the Security Instrument or (iv) constitute a waiver of any right that Lender may have under Sections 506(a), 506(b), 111 I(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Loan or to require that all Collateral shall continue to secure all of the Loan owing to Lender. Section 8.2. Limited Recourse Liability. Notwithstanding the foregogg, each Borrower and each Guarantor (subject to the terms of each Guaranty) slap be fly avid,. 77 LOAN AGREEMENT ..,..r 1 r- NY:1180077.14 --1 r) CT +q� personally liable for any liabilities, costs, losses, damages, expenses (including, without limitation, reasonable out-of-pocket attorneys' fees and disbursements, and court costs, if any), or claims, but not for consequential losses or damages (collectively, "Costs") actually incurred by Lender (or any Indemnified Party) by reason of or in connection with: (a) the misapplication or misappropriation by any entity comprising Borrower or by any Affiliate of any entity comprising Borrower of any or all money collected, paid or received, or to which any entity comprising Borrower is entitled, relating to the Loan or the Project, including, but not limited to, insurance proceeds, condemnation awards, lease termination penalties, security and/or other deposits and/or Necessary Property Receipts; (b) rents, issues, profits and revenues of all or any portion of the Project received or applicable to a period after the occurrence of any Event of Default or after any event which, with the giving of notice and/or the passage of time,would constitute an Event of Default, which are not applied to pay, first (a) real estate taxes and other charges which, if unpaid, could result in liens superior to that of the Security Instrument and (b) premiums on insurance policies required under the Loan Documents and, second, the other ordinary and necessary expenses of owning and operating the Project and to sums due under the Loan Documents; (c) material physical waste committed on the Project or damage to the Project as a result of intentional misconduct or gross negligence or the removal of all or any portion of the Project in violation of the terms of the Loan Documents; (d) unintentional material misrepresentation or unintentional failure to disclose a material fact (including, without limitation, with respect to any such, misrepresentation or failure to disclose in any materials delivered to Lender) by any Borrower, any Guarantor or Applicant or by any other person or entity authorized or reasonably believed to be authorized to make statements or representations on behalf of any Borrower, any Guarantor or Applicant in connection with the Loan application,Loan closing or security of or for the Loan,or otherwise in connection with the Project or the Loan; (e) failure to pay any valid taxes, assessments, mechanic's liens, materialmen's liens or other involuntary liens,charges for labor or materials or any other charge which, if unpaid, could result in liens on any portion of the Project which would be superior to the lien or security title of the Security Instrument or the other Loan Documents, except to the extent that sums for such purpose(s)have been or are deposited with Lender in accordance with the provisions of the Loan Agreement, subject to the rights pursuant to the Loan Agreement for contesting such lien or"bonding off' such lien; (0 any Lease or any amendment, modification, extension or termination of a Lease entered into or made without Lender's prior written consent, to the extent Lender's prior written consent is required under the Loan Documents (and to the extent ender's consent is not deemed granted pursuant to an express provision of the Loan Doci[ln�ents (g) Intentionally Omitted; CPb "i 783C LOAN AGREEMENT =" NY:1180077.14 -.J (h) the forfeiture of the Project or any material portion thereof, under any applicable state or federal law, regulation,or executive order; (i) Intentionally Omitted; (j) Intentionally Omitted; :. , - 'a (k) the failure of Borrower to pay the Deferred Origination Fete c� (I) any obligation of Lender to indemnify, hold harmless or rc}rnbue 1. Clearing Bank under, pursuant to or in connection with the Clearing Bank Agr4ettencif such Clearing Bank requires any Lender indemnification pursuant to the Clearing Bank Agreeltisnt; (m) the filing of any petition for bankruptcy, reorganization or arrangement pursuant to state or federal bankruptcy law, or any similar federal or state law, by any one or more persons or entities within the Owner Group (other than Borrower or Guarantor) against any Borrower or any Guarantor or if any proceeding seeking the dissolution or liquidation of any Borrower or any Guarantor shall be commenced, consented to or facilitated by any one or more persons or entities within the Owner Group(other than Borrower or Guarantor); (n) the failure by any entity comprising Borrower to maintain its status as a Single Purpose Entity, as required by the Loan Documents; (o) The filing by any entity comprising Borrower of an action for partition of the Project;and/or (p) The termination or modification of the TIC Agreement, the Property Management Agreement or the Sub-Management Agreement without any prior written consent of Lender required under the terms of the Loan Documents. Anything in this Agreement to the contrary notwithstanding, each Borrower and each Guarantor shall only be liable under the above provisions to the extent of Costs arising in whole or in part out of matters caused or affirmatively consented to by (i) such Borrower or Guarantor, (ii)any entity comprising Borrower which is controlled(directly or indirectly)by such Borrower or Guarantor, (iii) any entity comprising Borrower of which such Guarantor is a manager, managing member or general partner, (iv) any entity comprising Borrower in which such Borrower or Guarantor owns a direct or indirect beneficial interest, (v) any entity comprising Borrower with which such Guarantor is affiliated (except to the extent such affiliation is due solely to such entity comprising Borrower's status as a tenant-in-common with respect to the Project), (vi) any Affiliate of such Borrower or Guarantor, or (vii) any of the principals, managers, directors, officers, affiliates and beneficial owners or (at the express direction of any of the foregoing Persons)agents of any of(i), (ii), (iii),(iv),(v)or(vi)above. Section 8.3. Full Recourse Liability. Notwithstanding the foregoing, the Indebtedness shall be fully recourse to each Borrower and each Guarantor (subject to the terms of each Guaranty) and each Borrower and each Guarantor (subject to the terms of each Guaranty) shall be personally liable therefor, in the event that (A) Borrower fails to obtain Lender's prior written consent to any subordinate financing or other voluntary lien encumbering the Project or any 79 LOAN AGREEMENT NY:1180077.14 portion thereof or direct or indirect interests in any entity comprising Borrower (except for pledges of direct or indirect minority interests in an entity comprising Borrower, to the extent Lender's consent for such pledges is not required by the Loan Documents); (B)Borrower fails to obtain Lender's prior written consent to any assignment, pledge, transfer or conveyance of the Project or any portion thereof or any interest therein or any direct or indirect interest in any entity comprising Borrower, to the extent Lender's consent is required by the Loan Documents; (C) fraud (including, without limitation, intentional misrepresentation) of any entity comprising Borrower, Applicant, or any Guarantor or any other person authorized or reasonably believed to be authorized to make statements or representations on behalf of any entity comprising Borrower, Applicant or any Guarantor in connection with the Loan Application, Loan closing or security of or for the Loan, or otherwise in connection with the Project or the Loan; or (1))any petition for bankruptcy, reorganization or arrangement pursuant to state or federal bankruptcy law, or any similar federal or state law, shall be filed or consented to, or acquiesced in by, any entity comprising Borrower or any Guarantor, or any entity comprising Borrower or any Guarantor seeks (or consents to, or acquiesces in) the appointment of a receiver, Iiquidator or trustee, or any proceeding for the dissolution or liquidation of any entity comprising Borrower or any Guarantor shall be instituted or consented to, or acquiesced in by any entity comprising Borrower or any Guarantor. Notwithstanding the foregoing,the occurrence of any of the acts set forth in clauses (A), (B), (C) or(D) above shall only cause the Loan to be fully recourse to such Borrower or Guarantor to the extent that such acts or events arise in whole or in part out of matters caused, or affirmatively consented to, by (i) such Borrower or Guarantor, (ii) any TIC which is controlled(directly or indirectly)by such Borrower or Guarantor, (iii)any TIC of which such Guarantor is a manager, managing member or general partner, (iv) any TIC in which such Guarantor owns a direct or indirect beneficial interest, (v)any TIC with which such Borrower or Guarantor is affiliated, (vi) any Affiliate of such Borrower or Guarantor, or (vii) any of the principals, managers, directors, officers, affiliates and beneficial owners or agents of any of(i), (ii), (iii),(iv),(v)or(vi)above. Section 8.4. Intentionally Omitted. ARTICLE IX. :;:rye: ° MISCELLANEOUS _ Section 9.1. Document Protocol. For all purposes of this Agreement: :< 3 773 (a) the capitalized terms defined in this Agreement hav he mejings assigned to them herein,and include the plural as well as the singular; (b) all accounting terms have the meanings assigned to them in accordance with GAAP; (c) the words "herein," "hereof," and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, or other subdivision; and (d) references to a "Section" or to "Sections" herein refer to the corresponding Sections of this Agreement unless otherwise specifically provided for herein. 80 LOAN AGREEMENT NY:1180077.14 Section 9.2. Survival. Subject to Section 4.3, this Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the execution and delivery of this Agreement and the execution and delivery by Borrower to Lender of the Note, and shall continue in full force and effect so long as any portion of the Indebtedness is outstanding and unpaid. Whenever in this Agreement any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party. All covenants, promises and agreements in this Agreement contained, by or on behalf of Borrower, shall inure to the benefit of the respective successors and assigns of Lender. Nothing in this Agreement or in any other Loan Document,express or implied, shall give to any Person other than the parties and the holder(s) of the Note, and the other Loan Documents, and their legal representatives, successors and assigns, any benefit or any legal or equitable right, remedy or claim hereunder. Section 9.3. LENDER'S CONSULTATION RIGHTS. EXCEPT WITH RESPECT TO COMPLIANCE WITH ENVIRONMENTAL LAWS (AS DEFINED IN THE ENVIRONMENTAL INDEMNITY AGREEMENT) AND THE HANDLING AND DISPOSAL OF HAZARDOUS MATERIALS (AS DEFINED IN THE ENVIRONMENTAL INDEMNITY AGREEMENT), LENDER SHALL HAVE THE RIGHT FROM TIME TO TIME (I) TO CONSULT WITH BORROWER REGARDING THE BUSINESS OPERATION AND MANAGEMENT OF THE PROJECT, AND THE FINANCIAL AND OTHER CONDITION OF BORROWER OR THE PROJECT WITH BORROWER'S OFFICERS, EMPLOYEES, DIRECTORS AND MANAGERS, (II) TO RECEIVE NOTICE FROM BORROWER FROM TIME TO TIME OF ANY MATERIAL DEVELOPMENT AFFECTING BORROWER, OR THE PROJECT AND THE RIGHT TO CONSULT WITH BORROWER WITH RESPECT TO SUCH MATTER, (III) TO DISCUSS WITH BORROWER ANY SIGNIFICANT BUSINESS ISSUES,(IV)TO REQUEST FROM BORROWER SUCH FORECASTS,PROJECTIONS AND OTHER FINANCIAL AND BUSINESS DATA AS LENDER MAY DEEM REASONABLY APPROPRIATE, (V) TO REQUEST A SEMI-ANNUAL MEETING WITH BORROWER TO REVIEW THE PROJECT AND RELATED MATTERS, AND (VI) TO CONSULT WITH BORROWER REGARDING THE OPERATING BUDGET AND ANY CHANGES TO THE OPERATING BUDGET. Section 9.4. [Intentionally Omitted] Section 9.5. Governing Law. This Agreement and the obligations arising hereunder shall be governed by, and construed in accordance with,the laws of the State of Iowa applicable to contracts made and intended to be performed in such jurisdiction, without giving effect to principles of conflicts of laws, and any applicable law of the United States of America. Section 9.6. JURISDICTION AND RESOLUTION OF DISPUTES. 9.6.1 JURISDICTION. ALL JUDICIAL PROCEEDINGS BIUUGHT AGAINST BORROWER OR LENDER ARISING OUT OF OR RELAT 4G T THIS. AGREEMENT OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUT fa ANYn STATE COURT OF COMPETENT JURISDICTION IN THE STATE OF IO C IUNT "" OF JOHNSON OR ANY FEDERAL COURT HAVING JURISDICTION ERc SUCIEI� a trn 81 vim1- -a ,�. 1 LOAN AGREEMENT -. NY:1180077.14 • •• STATE AND COUNTY. BY EXECUTING THIS AGREEMENT; BORROWER AND LENDER IRREVOCABLY: (I) ACCEPT GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVE ANY DEFENSE OF FORUM NON CONVENIENS; (III) AGREE THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO BORROWER OR LENDER AT ITS ADDRESS FOR NOTICE; (IV) AGREE THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER BORROWER AND LENDER IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; (V)AGREES THAT LENDER AND BORROWER RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW; AND (VI) AGREE THAT THE PROVISIONS OF THIS SECTION RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW. 9.6.2 WAIVER OF JURY TRIAL. BORROWER AND LENDER HEREBY EACH WAIVES ITS RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MA ITER OF THIS AGREEMENT, THE LOAN DOCUMENTS AND THE RELATIONSHIP THAT IS BEING ESTABLISHED. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND LENDER, AND BORROWER AND LENDER EACH ACKNOWLEDGES THAT NEITHER THE OTHER PARTY NOR ANY PERSON ACTING ON BEHALF OF THE OTHER PARTY HAS MADE ANY REPRESENTATIONS OF FACT TO INCLUDE THIS WAIVER OF TRIAL BY JURY OR HAS TAKEN ANY ACTIONS WHICH IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. BORROWER AND LENDER EACH ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT LENDER AND BORROWER HAVE EACH ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT LENDER AND BORROWER WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS WITH EACH OTHER PARTY. BORROWER AND LENDER EACH FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED, IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL. o 9.6.3 Intentionally Omitted. G go 9.6.4 Intentionally Omitted. S F2 o� i Section 9.7. Modification; Waiver in Writing. No modification, ;nei inentc-i extension, discharge,termination or waiver of any provision of this Agreement, Tote,gr any other Loan Document, or consent to any departure by Borrower or any of-its Afiiiates therefrom, shall in any event be effective unless the same shall be in a writing signed$' the party against whom enforcement is sought, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which given. Except as otherwise 82 LOAN AGREEMENT NY:1180077.14 expressly provided herein, no notice to or demand on Borrower shall entitle Borrower to any other or future notice or demand in the same, similar or other circumstances. Section 9.8. Delay Not a Waiver. Neither any failure nor any delay on the part of Lender in insisting upon strict performance of any term, condition, covenant or agreement, or exercising any right, power, remedy or privilege hereunder, or under the Note, or of any other Loan Document, shall operate as or constitute a waiver thereof, nor shall a single or partial exercise thereof preclude any other future exercise, or the exercise of any other right, power, remedy or privilege. In particular, and not by way of limitation, by accepting payment after the due date of any amount payable under this Agreement, the Note or any other Loan Document, Lender shall not be deemed to have waived any right either to require prompt payment when due of all other amounts due under this Agreement, the Note or the other Loan Documents, or to declare a default for failure to effect prompt payment of any such other amount. Section 9.9. Notices. All notices, consents, approvals, statements, requests, reports, demands, instruments or other communications to be made, given or furnished pursuant to,under or by virtue of such instrument(each, a "notice") shall be in writing and shall be deemed given or furnished if addressed to the party intended to receive the same at the address of such party as set forth below(i) upon delivery when personally delivered at such address or sent via facsimile with confirmation of successful transmission, (ii) three (3) Business Days after the same is deposited in the United States mail as first class registered or certified mail, return receipt requested, postage prepaid, (iii) one (1) Business Day after the date of depositing of such notice with a nationwide, reputable overnight commercial courier service (assuming such deposit is made on a date on which such courier service will process the notice), or (iv) upon receipt of facsimile from telecopier (with answerback acknowledged) provided that such telecopied notice must also be delivered by one of the means set forth in(i), (ii)or(iii)above: Lender: Prudential Mortgage Capital Company, 100 Mulberry Street,8th Floor Gateway Center Four Newark,New Jersey 07102 --t c Attn: Structured Loan Program --—2 Telephone: (973)367-3070 Facsimile: (973)367-8612 " �-rl With copies to: Prudential Asset Resources,Inc. 2100 Ross Avenue, Suite 2500 Dallas, Texas 75201 - Attention: Structured Loan Program/Rebecca Caldarone Telephone: (214)777-4500 Facsimile: (214)777-4556 And: Arent Fox LLP 1050 Connecticut Avenue,N.W. 83 LOAN AGREEMENT NY:1180077.14 0.1.000 Washington,D.C. 20036 '7. ` r' Attention: Deborah Froling, Esq. '?..e.„ Telephone: 202-857-6075 :7'4 C Facsimile: 202-857-6395 : Trj� Each Borrower: CORE Sycamore Town Center T,LL (Notice Owner) 1600 Dove Street, Suite 450 Newport Beach,California 92660 Attention: William Colvin Telephone: 949-863-1031 Facsimile: 949-863-1022 A party receiving a notice which does not comply with the technical requirements for notice under this Section may elect to waive any deficiencies and treat the notice as having been property given. Any party may change the address to which any notice is to be delivered to any other address within the United States of America by furnishing written notice of such change at least fifteen(15)days prior to the effective date of such change to the other parties in the manner set forth above, but no such notice of change shall be effective unless and until received by such other parties. Section 9.10. Intentionally Omitted. Section 9.11. Headings. The Article and Section headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. Section 9.12. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Section 9.13. Preferences. Lender shall have no obligation to marshal any assets in favor of Borrower or any other party or against or in payment of any or all of the obligations of Borrower pursuant to this Agreement, the Note or any other Loan Document. Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by Borrower to any portion of the obligations of Borrower hereunder. To the extent Borrower makes a payment or payments to Lender for Borrower's benefit, which payment or receipt of proceeds or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the obligations hereunder or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been received by Lender. Section 9.14. Waiver of Notice. Neither Borrower nor any of its Affiliates shall be entitled to any notices of any nature whatsoever from Lender except with respect to matters for 84 LOAN AGREEMENT NY:1180077.14 which this Agreement or the other Loan Documents specifically and expressly provide for the giving of notice by Lender to Borrower or an Affiliate thereof and except with respect to matters for which Borrower and any applicable Affiliate are not, pursuant to applicable law,permitted to waive the giving of notice. Borrower hereby expressly waives the right to receive any notice from Lender with respect to any matter for which this Agreement or the other Loan Documents does not specifically and expressly provide for the giving of notice by Lender to Borrower. Section 9.15. Remedies of Borrower. In the event that a claim or adjudication is made that Lender or its agents have acted unreasonably or unreasonably delayed acting in any case where by law or under this Agreement, the Note, or the other Loan Documents, Lender or such agent, as the case may be, has an obligation to act reasonably or promptly, then in such event Borrower's sole remedy shall be to commence an action seeking injunctive relief or declaratory judgment. Section 9.16. Exhibits Incorporated. The information set forth on the cover, heading and recitals hereof, and the Exhibits and Schedules attached hereto, are hereby incorporated herein as a part of this Agreement with the same effect as if set forth in the body hereof. Section 9.17. Loss of Note. Upon notice from Lender of the loss, theft,or destruction of the Note or any replacement note and upon receipt of an indemnity reasonably satisfactory to Borrower from the Lender, or in the case of mutilation of the Note, upon surrender of the mutilated Note, Borrower shall make and deliver a new note of like tenor in lieu of the then to be superseded Note. Section 9.18. No Joint Venture or Partnership. Borrower and Lender intend that the relationship created hereunder be solely that of borrower and lender. Nothing herein is intended to create a joint venture, partnership, tenancy-in-common, or joint tenancy relationship between Borrower and Lender. Section 9.19. Borrower and Lien Not Released. Without affecting the liability of Borrower or any other person liable for the payment of the Indebtedness, and without affecting Lender's rights under this Agreement, Lender may, from time to time and without notice to any lien holder or holder of any other right or other interest in and to the Project: (a) release any person so liable; (b) waive or modify any provision of this Agreement or the other Loan Documents or grant other indulgences; (c) take additional security for any obligation herein mentioned;or(d)subordinate its rights under any of the Collateral. Section 9.20. Brokers and Financial Advisors. Borrower hereby represents that it has not dealt with any financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the transactions contemplated by this Agreement,other than Cohen Financial. Borrower hereby agrees to indemnify and hold Lender harmless from and against any and all claims, liabilities, costs and expenses of any kind in any way relating to or arising from a claim by any Person that such Person acted on behalf of Borrower in connection with the transactions contemplated herein. Lender hereby represents that it has not dealt with any financial advisors, brokers, underwriters, placement agents, agents or finders in connection with-the tratctions contemplated by this Agreement, other than Cohen Financial. Lender hi ages to- indemnify and hold Borrower harmless from and against any and all claims, liabilWs, casts and II 85C) v' LOAN AGREEMENT 17, NY:1180077.14 -- rc • `f expenses of any kind in any way relating to or arising from a claim by any Person that such Person acted on behalf of Lender in connection with the transactions contemplated herein. The provisions of this Section shall survive the expiration and termination of this Agreement and the repayment of the Indebtedness. Section 9.21. Counterparts. This Agreement may be executed in any number of counterparts,each of which when so executed and delivered shall be an original,but all of which shall together constitute one and the same instrument. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more additional signature pages. Section 9.22. Payment of Expenses. Borrower shall, whether or not the Loan closes, pay all costs incurred by Lender in connection with the Loan, which shall include, without limitation, all commitment fees due and payable at closing and all reasonable out-of-pocket fees, costs, expenses, and disbursements of Lender and its attorneys, local counsel, accountants and other contractors in connection with (i)the negotiation, preparation, execution and delivery of the Loan Documents and the documents and instruments referred to therein, (ii) the creation, perfection or protection of Lender's Liens in the Collateral (including, without limitation, fees and expenses for title and lien searches and filing and recording fees, intangibles taxes, personal property taxes, mortgage recording taxes, due diligence expenses, travel expenses, (iii) the negotiation,preparation, execution and delivery of any amendment, waiver or consent relating to any of the Loan Documents, and (iv) the preservation of rights under and enforcement of the Loan Documents and the documents and instruments referred to therein, including any restructuring or rescheduling of the Indebtedness (collectively, the "Transaction Costs"). Any costs and expenses due and payable to Lender hereunder which are not paid by Borrower within ten (10) days after demand may be paid from any amounts in the Escrow Fund or the Reserves with notice thereof to Borrower. The obligations and liabilities of Borrower under this Section shall survive the Maturity Date and the exercise by Lender of any of its rights or remedies under the Loan Documents. All Transaction Costs owed to Lender hereunder shall be included as additional indebtedness of Borrower under the Loan Documents and, if not paid within ten (10) days after demand, shall bear interest at the Default Rate until paid. Section 9.23. Entire Agreement. This Agreement,together with the Exhibits hereto and the other Loan Documents constitutes the entire agreement among the parties hereto with respect to the subject matter contained in this Agreement, the Exhibits hereto and the other Loan Documents and supersedes all prior agreements, understandings and negotiations between the parties. Section 9.24. Limitation of Interest. It is the intention of Borrower and Leder to conform strictly to applicable laws governing the maximum rate of interest and other larges payable, including without limitation usury laws. Accordingly, if the transactic onteiijlatedli hereby would violate any such applicable law, then, in that event, notwithstandi3tganytjiing to the contrary in any Loan Document, it is agreed as follows: (i)the aggregate of arieensi6ratioti which constitutes interest under applicable law that is taken, reserved, contracted charmed oen received under any Loan Document or otherwise in connection with the Loan'Shan uritlir nq circumstances exceed the maximum amount of interest allowed by applicable law, an-a any 86 LOAN AGREEMENT NY:1180077.14 excess shall be credited to principal by Lender (or if the Loan shall have been paid in full, refunded to Borrower); and (ii) in the event that maturity of the Loan is accelerated by reason of an election by Lender resulting from any Event of Default hereunder or otherwise,or in the event of any required or permitted prepayment, then such consideration that constitutes interest may never include more than the maximum amount of interest allowed by applicable law, and any interest in excess of the maximum amount of interest allowed by applicable law, if any,provided for in the Loan Documents or otherwise shall be canceled automatically as of the date of such acceleration or prepayment and, if theretofore prepaid, shall be credited to principal (or if the principal portion of the Loan and any other amounts not constituting interest shall have been paid in full,refunded to Borrower). in determining whether or not the interest paid or payable under any specific contingency exceeds the maximum amount allowed by applicable law, Lender shall, to the maximum extent permitted under applicable law (a)exclude voluntary prepayments and the effects thereof, and (b) amortize, prorate, allocate and spread, in equal parts, the total amount of interest throughout the entire contemplated term of the Loan so that the interest rate is uniform throughout the entire term of the Loan; provided, that if the Loan is paid and performed in full prior to the end of the full contemplated term hereof, and if the interest received for the actual period of existence thereof exceeds the maximum amount allowed by applicable law, Lender shall refund to Borrower the amount of such excess, and in such event, Lender shall not be subject to any penalties provided by any laws for contracting for, charging or receiving interest in excess of the maximum amount allowed by applicable law. Section 9.25. Indemnity. Borrower shall indemnify, protect, hold harmless and defend Lender, its successors, assigns, shareholders, directors, officers, employees, and agents (but excluding any Person who takes title to the Project, or a portion hereof,from Lender and any of such Person's successors or assigns) (collectively, "indemnified Party") from and against any and all loss, damage, cost,expense (including reasonable attorneys' fees), and claims arising out of third-party claims or in connection with (a) the Project, (b) the Collateral, (c) any act or omission of Borrower, any Loan Party,or their respective employees or agents,whether actual or alleged and/or(d) any and all brokers' commissions or other costs of similar type by any party in connection with the Loan (excluding such costs incurred by Lender as a result of its or any Indemnified Party's actions or initiation), in each case except to the extent arising from the indemnitee's willful misconduct, gross negligence, fraud, bad faith, illegal acts, or malfeasance or to the extent arising and accruing following Lender becoming a mortgagee in possession or a transfer of the Project pursuant to a foreclosure or deed in lieu of foreclosure. Upon written request by an indemnitee, Borrower will undertake, at its own costs and expense, on behalf of such indemnitee, using counsel satisfactory to the indemnitee, the defense of any legal action or proceeding whether or not such indemnitee shall be party and for which such indemnitee is entitled to be indemnified pursuant to this Section. At Lender's option, Lender may, at Borrower's expense, prosecute or defend any action involving the priority, validity or enforceability of the Loan Documents. Section 9.26. Waiver of Setoff and Counterclaim. All amounts Glueur r thigfl Agreement, the Note and the other Loan Documents shall be payable=y ousetof[, ,., counterclaim or any deduction whatsoever. . rn _•-- -4c) 87 LOAN AGREEMENT --� ' NY:1180077.14 = Section 9.27. Intentionally Omitted. Section 9.28. Hierarchy. In the case of any inconsistency between or with this Agreement and/or the Loan Documents, the provisions of this Agreement shall control over those of any of the other Loan Documents. Section 9.29. Publicity. Lender shall have the right to issue press releases, advertisements and other promotional materials describing Lender's participation in the origination of the Loan; provided, however, that if such press releases, advertisements and other promotional materials will include information beyond the name of the Borrower, the amount and date of the Loan, the type of property and the name and/or location of the Project, then, subject to Sections 9.31 and 9.35 below and subject to Lender's obligation to make disclosure to potential investors, rating agencies, accountants, attorneys, governmental agencies and similar parties in connection with a Secondary Market Transaction (which disclosure shall not require Borrower's consent), such press releases,advertisements and other promotional materials shall be subject to Borrower's prior written consent, not to be unreasonably withheld. Section 9.30. Waivers. No party hereto shall be deemed to have waived any material provision of this Agreement unless it does so in writing, and no "course of conduct" shall be considered to be such a waiver, absent such a writing. The failure of Lender to insist upon strict performance of any term hereof shall not be deemed to be a waiver of any term of this Agreement. Borrower shall not be relieved of Borrower's obligations hereunder by reason of: (a)the failure of Lender to comply with any request of Borrower to take any action under any of the Loan Documents or otherwise to enforce any of the provisions hereof or of the Note or the other Loan Documents; (b) the release, regardless of consideration, of the whole or any part of the Collateral, or of any Person liable for the Loan or any portion thereof; or (c) any agreement or stipulation by Lender extending the time of payment or otherwise modifying or supplementing the terms of this Agreement,the Note or the other Loan Documents. Lender may resort for the payment of the Loan to any security held by Lender(including, without limitation, the Escrow Fund and Reserves) in such order and manner as Lender, in its discretion, may elect. Lender may take any action to recover the Loan, or any portion thereof, or to enforce any covenant hereof without prejudice to the right of Lender thereafter to exercise its remedies under the Loan Documents. The rights and remedies of Lender under this Agreement shall be separate, distinct and cumulative and none shall be given effect to the exclusion of the others. No act of Lender shall be construed as an election to proceed under any one provision herein to the exclusion of any other provision. Lender shall not be limited exclusively to the rights and remedies herein stated but shall be entitled to every right and remedy now or hereafter afforded at law or in equity. Section 9.31. Assignment by Lender;Participations;Disclosure of Information. (a) Borrower acknowledges that Lender shall have the right to transfer the Loan to any other Person (the "Assignee Lender") and in such event the Assign Lender shall have the right to directly exercise the rights set forth in Section 9.3. In..tlie evepit of any transfer, Borrower shall be entitled to continue to deal solely and directlyvisji LAder int connection with the interests so assigned and delegated to an Assignee Lend:until e�ice of such assignment and delegation, together with addresses and related informatiosrwl7ih r4pect ti'~ 88 :<�- �• l LOAN AGREEMENT , S NY:1180077.14 co such Assignee Lender, shall have been delivered to Borrower. From and after the date that Lender makes and delivers to Borrower such notice of assignment (x) Assignee Lender thereunder shall be deemed automatically to have become a party hereto and to the extent that rights and obligations hereunder have been assigned and delegated to such Assignee Lender, shall have the rights and obligations of Lender hereunder and under the other Loan Documents, and (y) Lender, to the extent that rights and obligations hereunder have been assigned and delegated by it in connection with such assignment, shall be released from its obligations hereunder and under the other Loan Documents. (b) Borrower acknowledges that at no cost to Borrower, Lender or Assignee Lender may on or after the Closing Date sell or transfer all or a portion of the Loan and all or a portion of its right, title and interest in and to the Loan Documents and/or assign participation interests in the Loan, or pledge, hypothecate or encumber all or any portion of the Loan (including without limitation, the right to pledge or assign the Loan in connection with a warehouse or repurchase credit facility obtained by Lender or Assignee Lender, and the counterparty to such facility shall have the same rights under the Loan and Loan Documents as Lender or Assignee Lender). (c) Borrower and all other Persons associated or connected with the Loan or the Project shall cooperate at no cost to Borrower or Guarantors in all respects with Lender or Assignee Lender in connection with the sale or transfer of all or a portion of the Loan or the sale of participation interests in, or the pledge, hypothecation or encumbrance of all or any portion of the Loan and in connection with a transfer to an Assignee Lender. (d) Lender or Assignee Lender shall have the right (but shall be under no obligation) to make available to any party for the purpose of selling or transferring all or a portion of the Loan and/or assigning participation interests in the Loan, or pledging, hypothecating or encumbering all or any portion of the Loan (including without limitation, the right to pledge or assign the Loan in connection with a warehouse or repurchase credit facility obtained by Lender or Assignee Lender, with such facility being obtained from either a third party or from Lender,Assignee Lender or their Affiliates) any and all information which Lender or Assignee Lender may have with respect to the Collateral, the Project, Borrower, any Loan Party and Guarantor, whether provided by Borrower, any Loan Party, the Guarantor or any third party or obtained as a result of any accounting review or any environmental, engineering or appraisal assessments. Borrower agrees that Lender or Assignee Lender shall have no liability whatsoever as a result of delivering any such information to any third party, and Borrower, on behalf of itself and its successors and assigns, hereby release and discharge Lender and any Assignee Lender from any and all liability, claims, damages, or causes of action, arising out of, connected with or incidental to the delivery of any such information to any third party. Section 9.32. Time of the Essence. Time shall be of the essence in the performjnce of all obligations of each party hereunder. If the date of performance or payment of any oblfations hereunder falls on a day that is not a Business Day, then the date of performan.ce or payment;= shall be extended until the next Business Day. With respect to payments of prin.c.10 dun the Maturity Date, interest shall be payable at the Interest Rate or the Default Rate,.ibe case marc be in accordance with the provisions of this Agreement,during such extension. -=.; )7, 89 LOAN AGREEMENT f.ft NY:1180077.14 00 Section 9.33. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of Borrower and Lender and their respective successors and assigns forever. Section 9.34. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies on any Person other than the parties and their respective permitted successors and assigns. Nothing in this Agreement is intended to discharge any obligation of any third Person to any party or give any third Person any right of subrogation or action against any party. Section 9.35. Secondary Market Transactions. Borrower acknowledges that Lender and its successors and assigns may effectuate a Secondary Market Transaction (defined below). Borrower shall cooperate in good faith with Lender at no material cost to Borrower in effecting any such Secondary Market Transaction and in implementing all requirements imposed by any rating agency involved in any Secondary Market Transaction including, without limitation, all structural or other changes to the Loan, modifications to any documents evidencing or securing the Loan; provided, however, that (except as may be required under the Loan Documents), Borrower shall not be required to modify any documents evidencing or securing the Loan which would modify (A) the interest rate payable under the Note, (B) the stated maturity of the Note, (C) the amortization of principal of the Note, or (D) any other material economic term of the Loan. Borrower shall provide such information, and documents relating to Borrower, any guarantor or indemnitor, the Project and any tenants of the Improvements as Lender may reasonably request in connection with such Secondary Market Transaction. Borrower shall make available to Lender all information concerning its business and operations that Lender may reasonably request. Lender shall be permitted to share all such information received (and any other information previously received or in Lender's possession) with the investment banking firms,rating agencies, accounting firms, law firms and other third-party advisory firms involved with the Loan Documents or the applicable Secondary Market Transaction. It is understood that the information provided by Borrower to Lender may ultimately be incorporated into the offering documents for the Secondary Market Transaction and thus various investors may also see some or all of the information. Lender and all of the aforesaid third-party advisors and professional firms shall be entitled to rely on the information supplied by, or on behalf of, Borrower and Borrower indemnifies and holds Lender harmless hereunder as to any and all losses, claims, damages or liabilities that arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such information or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such information or necessary in order to make the statements in such information, or in light of the circumstances under which they were made,not misleading. Lender may publicize the existence of the Loan in connection with its marketing for a Secondary Market Transaction or otherwise as part of its business development. For purposes hereof, a "Secondary Market Transaction" shall be (a) any sale of the Loan Agreement, Note and other Loan Documents to one or more investors as a whole loan,(b)a participation of the Loan to one or more investors, (c)any deposit of the Loan Agreement, Note and other Loan Documents with a trust or other entity which may sell certificates or other instruments to investors evidencing an ownership interest in the assets of such trust or other entity, or (d) any other sale or transfer of the Loan or any interest therein to one or more investors. N 3 '1190 �'� LOAN AGREEMENT NY:I 180077.14 � c- CD Section 9.36. Secondary Market. Lender may sell, transfer and deliver all or portions of, or interests in,the Loan Documents and/or the Loan to one or more investors in the secondary mortgage market. At any time and from time to time on or after the date hereof, Lender may retain or assign from time to time some or all of the responsibility for servicing the Loan or may delegate some or all of such responsibility and/or obligations to a servicer (as same may be changed from time to time, the "Servicer"), including, but not limited to, any subservicer or master servicer, on behalf of the investors or the holder or holders of the Note. All references to Lender herein shall refer to and include, without limitation, any such Servicer, to the extent applicable. ARTICLE X. CASH MANAGEMENT Section 10.1. Clearing Account; Deposit of Receipts; Withdrawals from Clearing Account. 10.1.1 Borrower confirms that Borrower has established, and Borrower covenants that it shall maintain, pursuant to the Clearing Account Agreement, an Eligible Account at Clearing Bank (the "Clearing Account"). The Clearing Account shall be in the name of the Borrower for the benefit of the Lender,provided that Borrower shall be the owner of all funds on deposit in such accounts for federal and applicable state and local tax purposes and the Clearing Account shall be assigned the tax identification number of Borrower. Borrower acknowledges and agrees that, so long as any portion of the Indebtedness remains outstanding, neither Borrower, Property Manager nor any other Person acting on behalf of, or claiming through, Borrower or Property Manager, shall have any right or authority to change the identity, name, location, account number, bank location or other feature or attribute of the Clearing Account without the prior written consent of Lender, which consent may be withheld by Lender in its sole and absolute discretion. In the event that Clearing Bank requires a modification to the Clearing Bank Agreement, such modification shall only be made following Lender's written consent and if Lender refuses to agree to the requested change, then Borrower shall establish a new Clearing Account at an Eligible Bank. In addition,at the election of Lender,exercised from time to time (i) after the occurrence and during the existence of an Event of Default, (ii) at any time Lender reasonably believes that the Clearing Bank is not adequately performing its duties under the Clearing Bank Agreement, (iii)at any time after the credit rating of the Clearing Bank falls below the requirements of an Eligible Bank (unless Lender has waived the Eligible Bank requirements or(iv) at any time after Lender has waived the Eligible Bank requirements for the Clearing Bank, but Lender has elected, in its sole and absolute discretion, to require that the Clearing Account be located at an Eligible Bank, Borrower will establish a new Clearing Account at an Eligible Bank. Borrower hereby irrevocably appoints Lender as its attorney-in- fact (coupled with an interest) to execute a modification of the Clearing Bank Agreement approved by Lender or establish a new Clearing Account at an Eligible Bank upon Lender's exercise of its rights under the preceding sentence, upon Borrower's failure to do so mahin ten (10) days following Lender's written demand. The initial Clearing Account is idenni5ed on Schedule 2 attached hereto. , ..l m,.. 10.1.2 The Clearing Account shall be under the exclusive minion an control of the Lender and neither Borrower, Manager nor any other party claiming=bait'o 7<.t•-•;-1 p LOAN AGREEMENT 91 NY:1180077.14 cri co or through, Borrower or Manager, shall have any right to transfer,withdraw, access or otherwise direct the disposition of funds on deposit or deposited into in the Clearing Account or have any other right or power with respect to the Clearing Account, provided, however, that Borrower or Manager or their designee shall have the right, if available through the Clearing Bank,to access information regarding balances, deposits into and withdrawals from the Clearing Account, so long as such information access right does not permit Borrower or Manager or any party other than Lender or Servicer to transfer, withdraw, access or otherwise direct the disposition of funds on deposit in the Clearing Account. From and after Lender's acknowledgment in writing to the Clearing Bank that the related Cash Management Period has terminated, Borrower and/or Manager shall again enjoy the right to transfer, withdraw, access or otherwise direct the disposition of funds on deposit in or deposited into the Clearing Account. 10.1.3 Borrower agrees to timely pay the customary fees and expenses of Clearing Bank in connection with the Clearing Account and any Lockbox Address, as such fees and expenses are established from time to time. In the event that Clearing Bank seeks reimbursement of any item deposited into the Clearing Account but returned or disallowed or reimbursement any other monetary sum pursuant to the Clearing Bank Agreement, Borrower shall promptly and timely pay such sum. In the event Clearing Bank socks reimbursement of sums from Lender pursuant to the Clearing Bank Agreement, Borrower shall, upon demand by Lender, pay Clearing Bank such sums. Failure of Borrower to pay any sum due and payable (by Borrower or Lender) to the Clearing Bank in connection with the Clearing Account within five (5) days after written demand by Lender shall constitute an Event of Default under this Agreement. 10.1.4 The following provisions shall apply: (a) Concurrently with the execution of this Agreement, Borrower has established with Clearing Bank a Lockbox Address (which may be an address or post-office box under the Clearing Bank's sole control). (b) Concurrently with the execution of this Agreement and until the Indebtedness is repaid in full, Borrower shall,or shall cause Manager to, notify and advise each Tenant under each Lease (whether such Lease is presently effective or executed after the date hereof) pursuant to an instruction letter in the form of Exhibit E attached hereto (a "Tenant Direction Letter")to send directly to the Lockbox Address (or to the Clearing Account via ACH transfer or wire transfer) all sums due and payable by such Tenant under its Lease as and when due and payable under its Lease. Borrower hereby grants to Lender a power of attorney(which power of attorney shall be coupled with an interest and irrevocable so long as any portion of the Indebtedness remains outstanding)to sign and deliver to any Tenant,upon failure of Borrower to do so within five(5)days following written demand from Lender,a Tenant Direction Letter. (c) Concurrently with the execution of this Agreement and toil the Indebtedness is repaid in full,Borrower shall, or shall cause Manager to, instruct all Perst s that maintain open accounts with Borrower or Manager with respect to the Projecf4ir vitt ►rhom:- 'U Borrower or Manager does business on an "accounts receivable"basis with respecpiiihe koject,,. to deliver all payments due under such accounts directly to the Lockbox Adctrgss'.(orJ? ther' " -4C) aC�;, 92 4 " LOAN AGREEMENT NY:1180077.14 CO Clearing Account via ACH transfer or wire transfer). Neither Borrower nor Manager shall direct any such Person to make payments due under such accounts in any other manner. (d) Intentionally Omitted. (e) If notwithstanding the foregoing, Borrower or Manager should receive any Receipts, the recipient of such Receipts shall deposit same with the Clearing Bank within one(1)Business Day after receipt. (f) Without the prior written consent of Lender, so long as any portion of the Indebtedness remains outstanding, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever or direct or cause any Tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter. (g) So long as any portion of the Indebtedness remains outstanding, neither Borrower, Manager nor any other Person shall open or maintain any accounts other than the Clearing Account into which Receipts are deposited. The foregoing shall not prohibit Borrower or Manager from utilizing one or more separate accounts for the disbursement or retention of funds that have been transferred to Borrower or the Manager pursuant to the express terms of this Agreement. 10.1.5 Absent the existence of a Cash Management Period, on each Business Day on which available funds are on deposit in the Clearing Account, Clearing Bank shall transfer all such available funds to an operating account established, maintained by and under the exclusive dominion and control of Borrower or Manager(the "Operating Account"). Commencing with a Cash Management Commencement Date and continuing during the existence of a Cash Management Period, without limiting the foregoing provisions, all transfers from the Clearing Account to the Operating Account shall immediately cease and Lender shall have the right, at its sole option, to instruct the Clearing Account, from time to time, to administer available sums on deposit in or deposited into the Clearing Account in the manner set forth in Section 10.3 below or to transfer available sums on deposit in the Clearing Account, from time to time, to a Cash Management Account. The initial Operating Account is described on Schedule 2 attached hereto. Section 10.2. Cash Management Account; Processing of Receipts. 10.2.1 At Lender's option, Lender may establish an Eligible Account (the "Cash Management Account") at an Eligible Bank (the "Cash Management Bank"). The Cash Management Account shall be in the name of the Borrower for the benefit of the Lender, provided that Borrower shall be the owner of all funds on deposit in such accounts for federal and applicable state and local tax purposes and the Cash Management Account shall beAssigned the tax identification number of Borrower. 10.2.2 The Cash Management Account shall be un -t a lusiv dominion and control of the Lender and neither Borrower, Manager nor any othptparty alaimitr- on behalf of,or through,Borrower or Manager, shall have any right to transfer,i tshdraNCi,'acce rn 93 �.. LOAN AGREEMENT NY:I180077.14 CJ1 or otherwise direct the disposition of funds on deposit in the Cash Management Account or have any other right or power with respect to the Cash Management Account. 10.2.3 Borrower agrees to timely pay the customary fees and expenses of Cash Management Bank in connection with the Cash Management Account, as such fees and expenses are established from time to time. Failure of Borrower to pay any sum due and payable (by Borrower or Lender) to the Cash Management Bank in connection with the Cash Management Account within five (5) days after written demand by Lender shall constitute an Event of Default under this Agreement. 10.2.4 At Lender's option, the Cash Management Bank (or, if the Lender elects to utilize the Clearing Account as the Cash Management Account, the Clearing Bank (which shall in such case also be referred to herein as the Cash Management Bank))shall transfer sums on deposit in the Cash Management Account to any number of subaccounts (collectively, the "Subaccounts") which subaccounts shall be maintained on a ledger-entry basis and which Subaccounts may include,without limitation, one or more of the Escrow Fund and the Reserves. 10.2.5 Upon a Cash Management Commencement Date and during the existence of a Cash Management Period, Lender or Servicer shall (so long as no Event of Default has occurred and is continuing) direct the Cash Management Bank to disburse amounts on deposit in and deposited into the Cash Management Account in accordance with the provisions of Section 10.3 below (the "Disbursement Instructions"); provided, however, that if no Disbursement Instructions are received by the Cash Management Bank with respect to a monthly period,the Cash Management Bank may allocate and disburse amounts in the Cash Management Account pursuant to the most recent Disbursement Instructions received from Lender or Servicer prior thereto. Section 10.3. Application and Disbursement of Funds. 10.3.1 During any Cash Management Period which is not triggered solely by the commencement of an Extension Period and, during any Extension Period, following the occurrence of any other Cash Management Commencement Date trigger, on each Payment Date Lender shall disburse and/or allocate to Subaccounts, as applicable, amounts deposited into the Cash Management Account in the following order of priority: (a) First, payments to the Escrow Fund in accordance with the terms and conditions of the Section 5.1.4; (b) Second,the payment of the Monthly Payment(which, following an Event of Default shall include,without limitation,interest at the Default Rate); (c) Third, payments to the Replacement Reserve, in accordance with the terms and conditions of Section 2,19; (d) Fourth, payments to the TI/LC Reserve, in accordance nth the terms and conditions of Section 2.18; c3 14.4 07) 94 LOAN AGREEMENT :-� (e) Fifth, payments of any other amounts due under the Loan Documents not otherwise addressed by this Section 10.3.1; (f) Sixth, payments for monthly Operating Expenses, less amounts payable to affiliates of Borrower, pursuant to the terms and conditions of the related approved Operating Budget; (g) Seventh, payments of amounts payable to affiliates of Borrower, pursuant to the terms and conditions of the related approved Operating Budget; (h) Eighth, payment for monthly capital expenditures, pursuant to the terms and conditions of the related approved Operating Budget; (i) Ninth,payment for Extraordinary Expenses approved by Lender, if any; (j) Tenth, but only if(A) an Event of Default is not then continuing and (B) the Mezzanine Loan is then outstanding, to the Mezzanine Loan Sub-Account until an amount equal to the Mezzanine Payment Amount for such Current Month has been allocated to the Mezzanine Loan Sub-Account; (k) Eleventh,payments to Lender to be applied against the outstanding principal due,if any,under the Note;and (1) Lastly,the balance to Borrower or to whomever shall be so entitled under law. 10.3.2 Notwithstanding the foregoing, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited into the Clearing Account and Cash Management Account and that Borrower is liable for any deficiency in available funds to pay items (a)-(e) above, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Servicer. Borrower shall have the right to deposit additional sums into the Clearing Account or Cash Management Account to make up for any deficiency. Nothing in this Section 10.3 shall limit, reduce or otherwise affect Borrower's obligations to make, in a timely fashion,the payments of the Monthly Payment,payments to the Escrow and any other Reserves, and all other payments due under this Agreement and under the other Loan Documents, whether or not sufficient Receipts are available to make such payments. 10.3.3 During any Cash Management Period which is triggered solely by the commencement of an Extension Period, provided no other Cash Management Period trigger has occurred or is occurring, on each Payment Date Lender shall disburse and/or allocate to Subaccounts, as applicable, amounts deposited into the Cash Management Account in the following order of priority: o (a) First, payments to the Escrow Fund in accordan*ledth the tenftri and conditions of the Section 5.1.4; :- 7-3 : Mc ctr, r— rn LOAN AGREEMENT 95 NY:1180077.14 .;, GA (b) Second, the payment of the Monthly Payment(which, following an Event of Default shall include,without limitation,interest at the Default Rate); (c) Third, payments to the Replacement Reserve, in accordance with the terms and conditions of Section 2.19; (d) Fourth, payments to the TI/LC Reserve, in accordance with the terms and conditions of Section 2.18; (e) Fifth, payments of any other amounts due under the Loan Documents not otherwise addressed by this Section 10.3.1; (f) Sixth, payments for monthly Operating Expenses, less amounts payable to affiliates of Borrower, pursuant to the terms and conditions of the related approved Operating Budget; (g) Seventh, payments of amounts payable to affiliates of Borrower, pursuant to the terms and conditions of the related approved Operating Budget; (h) Eighth, payment for monthly capital expenditures, pursuant to the terms and conditions of the related approved Operating Budget; (i) Ninth,payment for Extraordinary Expenses approved by Lender, if any; (j) Lastly,the balance to Borrower or to whomever shall be so entitled under law. 10.3.4 Notwithstanding the foregoing, Borrower acknowledges that Borrower is responsible for monitoring the sufficiency of funds deposited into the Clearing Account and Cash Management Account and that Borrower is liable for any deficiency in available funds to pay items (a)-(e) above, irrespective of whether Borrower has received any account statement, notice or demand from Lender or Servicer. Borrower shall have the right to deposit additional sums into the Clearing Account or Cash Management Account to make up for any deficiency. Nothing in this Section 10.3 shall limit, reduce or otherwise affect Borrower's obligations to make, in a timely fashion, the payments of the Monthly Payment,payments to the Escrow and any other Reserves, and all other payments due under this Agreement and under the other Loan Documents, whether or not sufficient Receipts are available to make such payments. 10.3.5 Notwithstanding any other provision of this Agreement or of the other Loan Documents, following the occurrence and during the existence of an Event of Default, Lender reserves the right, exercisable at its sole option, to apply Receipts and other sums on deposit in or deposited into the Clearing Account, the Cash Management Aclunt, the Escrow Fund (to the extent permitted by applicable law), the Reserves ancbany deer suit, deposited by Borrower with Lender to the payment of the Indebtedness, in stiO dein nanneil,I amounts and times as Lender in its sole discretion determines, and such reserve4.right shall bn.. addition to all other rights and remedies provided to Lender under this Agreeth zt ancRhe (der ' Loan Documents. ;r y -- = 96 c� -- LOAN AGREEMENT NY:118.077.14 Section 10.4. Security Interest. Borrower acknowledges and agrees that it has granted to Lender a first-priority security interest in the Clearing Account and Cash Management Account and the sums on deposit therein, among other things, pursuant to the Security Instrument. Borrower acknowledges and agrees that, without limitation of any other provisions of this Agreement, the Security Instrument or the other Loan Documents, upon the occurrence and during the existence of an Event of Default, Lender may use the Clearing Account, the Cash Management Account and/or any sums on deposit in either of them for any or all of the following purposes: (i) repayment of the Indebtedness, including, but not limited to, principal prepayments,the Deferred Origination Fee and any other prepayment premium or fee applicable to such full or partial prepayment, (ii) reimbursement of Lender for all losses, fees, costs and expenses (including, without limitation, reasonable legal fees and disbursements) suffered or incurred by Lender, but excluding consequential losses or damages, as a result of such Event of Default, (iii) payment of any amount expended in exercising any or all rights and remedies available to Lender at law or in equity or under this Agreement or any of the other Loan Documents, (iv)payment of any item as required or permitted by this Agreement or any of the other Loan Documents or(v)any other purpose permitted by applicable law,provided,however, that any such application of funds shall not cure or be deemed to cure any Event of Default. Without limiting any other provisions hereof, each of the remedial actions described in the immediately preceding sentence shall be deemed to be a commercially reasonable exercise of Lender's rights and remedies as a secured party with respect to the Clearing Account, the Cash Management Account and any sums on deposit in either of them and shall not in any event be deemed to constitute a setoff or a foreclosure of a statutory banker's lien. Nothing in this Agreement shall obligate Lender to apply all or any portion of the Clearing Account or Cash Management Account to effect a cure of any Event of Default, or to pay the Indebtedness, or, during an Event of Default, in any specific order of priority. The exercise of any or all of Lender's rights and remedies under this Agreement with respect to the Clearing Account, Cash Management Account and/or the sums on deposit therein shall not in any way prejudice or affect Lender's right to initiate and complete a foreclosure under the Security Instrument. Section 10.5. Indemnification by Borrower. Lenders shall be responsible for the performance only of such duties with respect to the Clearing Account and Cash Management Account as are specifically set forth herein, and no duty shall be implied from any provision hereof. Lender shall not be under any obligation or duty to perform any act which would involve it in expense or liability or to institute or defend any suit in respect hereof, or to advance any of its own monies. Lender shall not be liable for any acts, omissions, errors in judgment or mistakes of fact or law, including, without limitation, with respect to proceeds on deposit in the Clearing Account or Cash Management Account. Borrower shall indemnify and hold the Indemnified Parties harmless from and against any loss, cost or damage (including, without limitation, reasonable attorneys' fees and disbursements) incurred by such parties in connection with the Clearing Account, Lockbox Address or Cash Management Account other than such as result from the willful misconduct, gross negligence, fraud, bad faith, illegal acts,or malfeasance of Lender or such Indemnified Party or intentional nonperformance by Lender of its obligations under this Agreement. J :v ,,.. Section 10.6. Acknowledgment and Agreement by Property Manager aqgilb-gfinager._ Borrower hereby covenants and agrees that it shall cause the Property Mail3gar and Sub =-- Manager and any successor Property Manager and successor Sub-Manager t rAckno irledge 97 l ` LOAN AGREEMENT NY:I 180077.14 f✓_: .< v' U7 agree to and assume in writing, in Lender's form of Assignment of Management Agreement, the duties and obligations of the Property Manager or Sub-Manager, as applicable, under this Article X. Section 10.7. Miscellaneous. 10.7.1 Borrower agrees that the Cash Management Bank shall pay over to Lender all amounts deposited in the Cash Management Account on demand (to be applied by Lender in accordance with this Article X),without notice to the Borrower. 10.7.2 Borrower confirms and agrees that, notwithstanding the provisions of this Agreement, Borrower retains sole control over the operation and maintenance of the Project, subject to the obligations of Borrower under this Agreement and the other Loan Documents,and Lender is not and shall not be deemed to be a mortgagee in possession. 10.7.3 Each representation made with respect to the entities that constitute Borrower shall be deemed to be made solely by the entity that constitutes Borrower with respect to such entity and to none of the other entities that constitute Borrower. [Next page is signature page.] `�V --. • . 7' l> CJI 98 LOAN AGREEMENT NV:I 180077.14 [signature page to Loan Agreement] The parties hereto have caused this Loan Agreement to be duly executed by their duly authorized representatives,all as of the day and year first above written. LENDER: PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC,a Delaware limit liability company By: Name: Kirk Schaffe Title:. Vice President rn c.11 GO Loan Agreement Signature Page NY:I Ii00773A [signature page!o Loan Agreement] BORROWER: CORE SYCAMORE TOWN CENTER T, LLC, a Delaware limited liability company By: CORE Sycamore Town Center Mezzanine, LLC, a Delaware limited liability company, its sole member By: CORE Realty Holdings,LLC, a California limited liability company, its sole member 0 By: -- Name: ujib l- EL h t1Lly Title: PRESTPF_NT 4 C-FD IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. ti O —4c, c LOAN AGREEMENT 11d — 2012 NOV -6 11: 58 G i CLERK 10‘,'M t tTY, tO : a a' a o a a tA Q CG F■ 4) o EXHIBIT A LEGAL DESCRIPTION OF PROPERTY LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23,Township 79 North,Range 6 West of the 5th Principal Meridian, Iowa City, Johnson County, Iowa, more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway#6,said point being the POINT OF BEGINNING;thence following the easterly right of way lines of said Sycamore Street,North 0 degrees 26 minutes 00 seconds East, a distance of 225.05 feet; thence North 4 degrees 09 minutes 00 seconds West, a distance of 212.68 feet;thence North 0 degrees 26 minutes 00 seconds East, a distance of 168.98 feet to the southwest corner of LOT 1 in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT 1, a distance of 278.80 feet to the southwest corner of said LOT 2; thence North 42 degrees 06 minutes 03 seconds West, a distance of 194.06 feet to the most westerly corner of said LOT 2; thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet; thence North 0 degrees 49 minutes 15 seconds East along the west line of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road; thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of 646.92 feet;thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West,a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve, concave to the Southeast, having a radius of 804.00 feet, a central angle of 23 degrees 01 minute 26 seconds, and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West;thence Southwest along said curve,a distance of 323.08 feet to the intersection with the northerly right of way line of said U.S.Highway#6 at a point of curvature of a non-tangent curve,concave to the South,having a radius of 3015.00 feet,a central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a distance of 893.07 feet; thence North 89 degrees 50 minutes 08 seconds West, a distance of 227.53 feet to the POINT OF BEGINNING. TOGETHER WITH, a non-exclusive easement for ingress, egress and parking ,�- over portions of Lot 1 in Mall First Additional to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9,page 41 of records of Johnson County, Iowa, as set forth in -, certain"Declaration of Mutual Easements",dated September 4,2008 and to be recordird'._, —tc"3 a's __ ,; nfr LOAN AGREEMENT .• NY:1180077.14 c R CO EXHIBIT B SPE REQUIREMENTS The following representations, warranties and covenants are made as to each entity comprising Borrower: Borrower represents warrants and covenants that: (a) Borrower shall not, nor will any member of Borrower,without Lender's prior written consent,amend, modify or otherwise change its certificate of formation, limited liability company agreement or other formation agreement or document,as applicable, in any material term or manner,or in a manner which adversely affects Borrower's existence as a single purpose entity. (b) Borrower shall not liquidate or dissolve(or suffer any liquidation or dissolution),or enter into any transaction of merger or consolidation,or acquire by purchase or otherwise all or substantially all the business or assets of,or any stock or other evidence of beneficial ownership of any entity. (c) Borrower shall not own any asset other than(i)an enclosed community shopping center containing approximately 238,800 rentable square feet on approximately 21.787 acres located at 1660 Sycamore Street in Iowa City, Iowa(the"Property"), in fee simple as the sole owner of the Property or as a tenant-in-common with other tenants-in-common and to sell tenant-in-common interests in,manage and dispose of undivided tenant-in-common interests(the "Interest"),and(ii) incidental personal property necessary for the operation of the Property. (d) Borrower shall not engage, either directly or indirectly, in any business other than the ownership,management and operation of the Property. (e) Borrower shall maintain an arm's-length relationship with each of its affiliates. Borrower shall not enter into any contract or agreement with any affiliate or member of Borrower as applicable except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than an affiliate. (f) Borrower has not incurred and shall not incur any debt for bor@vyed money(including capitalized lease obligations), secured or unsecured, recourse or is�n. coa e, non-contingent or contingent(including guaranteeing any obligation),other than(i)ghe'Loa and(ii)trade payables or accrued expenses incurred in the ordinary course of businesf o'' operating the Property customarily satisfied within 60 days not evidenced by a note r d in a: • aggregate amount not to exceed 3.0%of the original principal balance of the Loan.'No other'ebt '. 1 or other obligation will be secured by the Property. •• (51 (g) Borrower has not made and shall not make any loans or advances to any third party(including any affiliate or member of Borrower). LOAN AGREEMENT NV:1180077.14 (h) Borrower shall be solvent and pay its debts from its assets as the debts become due. (i) Borrower has done or caused to be done and will do all things necessary to preserve its existence,and will observe all formalities applicable to it, including maintaining minute books separate from those of any other entity or affiliate. (j) Borrower will conduct and operate its business in its own name and as presently conducted and operated. (k) Borrower will be,and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity(including any affiliate or member of Borrower,as applicable)and will correct any known misunderstanding regarding its separate identity. (I) Borrower shall file its own tax returns. (m) Borrower shall maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations. (n) Borrower has and shall maintain its assets in such a manner that it is not costly or difficult to segregate,ascertain or identify its individual assets from those of any affiliate,member of Borrower or any individual,corporation,partnership, limited liability company,joint venture,association,joint stock company,trust(including any beneficiary thereof),unincorporated organization or government or any agency or political subdivision thereof("Person"). (o) Borrower shall establish and maintain an office through which its business shall be conducted separate and apart from that of any of its affiliates or member of Borrower,or it shall fairly and reasonably allocate any overhead for shared office space. (p) Borrower shall maintain separate records, financial statements and bank accounts from those of any affiliate or member of Borrower. (q) Borrower shall not commingle assets or funds with those of any affiliate or member of Borrower and it shall maintain all accounts in its own name. (r) Borrower shall pay any liabilities out of its own funds, including salaries of any employees,not funds of any affiliate. (s) Borrower shall not hold itself out to be responsible for the debts or obligations of any other Person. N (t) Borrower shall use stationery, invoices and checks separate from an}e affiliate or member of Borrower. o %~'- 4 ••C ,nom.. rn LOAN AGREEMENTS I" NY:1 180017.14 •• (x) (u) Borrower shall not guarantee,pledge its assets for the benefit of or otherwise become liable on or in connection with,any obligation of any other Person, including any affiliate or member of Borrower. (v) Borrower shall not,nor shall any member of Borrower,as applicable, violate the terms of its certificate of formation, limited liability company agreement or other formation agreement or document as applicable. (w) Except as permitted by the Lender in writing, it shall not sell, encumber (except in favor of the Lender)or otherwise transfer or dispose of all or any portion of the Interest. (x) Borrower shall not do any act which would make it impossible to carry on the ordinary business of the Borrower. (y) Borrower shall at all times have at least one(1)springing member. (z) Borrower shall not,without the prior written vote of one hundred percent (100%)of its members, institute proceedings to be adjudicated bankrupt or insolvent;or consent to the institution of bankruptcy or insolvency proceedings against it;or file a petition seeking,or consent to,reorganization or relief under any applicable federal or state law relating to bankruptcy;or consent to the appointment of a receiver, liquidator,assignee,trustee,sequestrator (or other similar official)of Borrower or a substantial part of Borrower's property;or make any assignment for the benefit of creditors;or admit in writing its inability to pay its debts generally as they become due or declare or effectuate a moratorium on payments on its obligation;or take any action in furtherance of any such action. U-fr. ' Y CrJ rte_ LOAN AGREEMENT NY:1130077.14 EXHIBIT C LEASING GUIDELINES Borrower shall have the right to enter into Leases, without Lender's approval, so long as such Leases comply with the following guidelines: 1. All Leases shall be in Borrower's name and shall be executed or assumed in writing by Borrower. 2. All Leases shall be the result of an arms length transaction. 3. The Tenant shall be an independent third party not affiliated with Borrower. 4. The Lease shall not contain any terms which would materially affect Lender's rights under the Loan Documents and shall include mortgage subordination provisions approved by Lender. 5. No Lease shall, unless otherwise approved by Lender, have a term of less than five (5) years. Notwithstanding anything to the contrary contained herein, Borrower may enter into lease expansions with terms of less than those required above if such expansions are coterminous with the primary Lease and meet the other requirements of these guidelines, and Borrower may renew existing tenants at the property on a month-to-month basis. 6. All Leases shall be fully triple net, with a full pass-through of all pro rata expenses,including management fees,excluding seasonal or kiosk tenancy. 7. The standard form lease,as approved by Lender from time to time, is to be used as the form of lease for all Leases. Use of any lease form which is not substantially in conformance with the approved standard form lease must be approved by Lender in advance; provided, however, that a Lease shall be deemed to be substantially in the form of the standard form lease if any changes thereto (i) reflect commercially reasonable negotiated changes which do not materially increase the obligations of landlord or materially decrease the obligations of tenant as provided in the pre-approved lease form and(ii)do not include any of the following:(A)renewal options at a base rental rate less than the greater of(x) then fair market rental rate or (y) the current base rental rate under the lease, (B) any guarantees by Borrower,or other Loan Party, or any contingent liability, other than tenant finish work, leasing commissions, and lease renewals or expansions, (C) any exclusive uses (other than lease renewals and rights of first refusal to lease additional space, each at prevailing fair market rental rates)and rights to purchase granted to Tenant, (D)construction obligations other than tenant improvements in the premises covered by such lease, or(E)expansion or other rights involving property other than the property which is the subject of the Security Instrument. 8. All new Tenants shall provide a financial statement or other finane81 assurinces acceptable to Borrower prior to execution of their respective Lease. 9. Borrower shall obtain Lender's approval for all leases in excess cIttefi pent ""'" rein LOAN AGREEMENT NY:1180077.14 - (10%)of the net rentable area square feet or five percent(5%)of gross potential rent. 10. All leases must have an average annual "effective rental rate" over the lease term (effective rental rate defined as the rental rate after factoring in concessions such as free rent, moving allowances,etc.)of no less than$7.00/sflnnn for all spaces. 11. Tenant improvement allowances for any Lease shall not be greater than$4.00/sf for new Leases or$2.00/sf for renewals. 12. Leasing commissions paid for any Lease shall not be greater than six percent(6%) of rental income for new Leases or three percent(3%) for renewals. Any Lease which does not comply with the above leasing guidelines shall require Lender's prior written approval. ern rn- ram . CJ'1 LOAN AGREEMENT NV:1180077.14 EXHIBIT D REQUIRED WORK N �y crt p W LOAN AGREEMENT NY:1180077.14 EXHIBIT E FORM OF TENANT DIRECTION LETTER IMANAGER/BORROWER LETTERHEAD] 200_ [Addressee] Re: Dear[ ]: a ("Borrower"), the owner of (the "Property"), has mortgaged the Property to PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC, a Delaware limited liability company(together with its successors and assigns, the "Lender") and has agreed that all rents and other payments due under your Lease (collectively, the "Lease Payments") due for the Property will be paid directly to a specified bank. Therefore, from and after the date hereof, Lease Payments to be paid by you under the lease between you and [,as assigned to, and assumed by, Borrower] (the "Lease") [IF MAILING PERMITTED:] should be sent directly to the following address: Address: All checks should be made out to [BORROWER NAME IN MOST CIRCUMSTANCES]. _ N [IF ACH/WIRE PAYMENT REQUIRED:] Transfer such amounts by the ACH Stnn orire transfer to the following accounts: _ a, Bank Name: --C* lam rn Bank Location: ABA#: Account#: s* tit Account Name: This Payment Direction Letter may only be withdrawn or modified with the prior written instruction of the Lender or its loan servicer (the "Servicer"). Until you receive written instructions from the Lender or the Servicer,continue to send all Lease Payments due under the Lease as set forth above. All Lease Payments must be delivered as set forth above no later than the day on which such amounts are due under the Lease. LOAN AGREEMENT NY:1180077.14 If you have any questions concerning this letter, please contact at . We appreciate your cooperation in this matter. Sincerely, [BORROWER] e=t ry :.. , a a ye LOAN AGREEMENT NY:1180077.14 EXHIBIT F FORM OF TIC ASSUMPTION AGREEMENT TENANCY IN COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS by and among [LIST SELLING TIC] (Selling TIC), and [LIST ASSUMING TIC] (Assuming Purchaser) 3 '.=� and —4. t � �- PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC, e-) ry;, f� a Delaware limited liability company (Lender) •• crt Dated: as of , 200_ Property Address: 1668 Sycamore St. Iowa City, Iowa 52240 County: Johnson State: Iowa Prepared by and When Recorded Return to: Winston&Strawn LLP 200 Park Avenue New York,New York 10166 Attn: David M.Traitel,Esq. PMCC Loan No. 416107997 Counsel Loan No. 81121-690 NY:1180077.14 TENANCY-IN-COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE,SECURITY AGREEMENT,ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING AND OTHER LOAN DOCUMENTS THIS TENANCY IN COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING AND OTHER LOAN DOCUMENTS (this "Agreement") made as of the _ day of , 20_, by and among [SELLING TIC], a limited liability company, having an address , and owning a % undivided tenant in common interest in the Property (as defined below) (the "Selling TIC") and [ASSUMING TIC], a limited liability company having an address at (the "Assuming Purchaser"); and [MODIFY IF DIFFERENT LENDER EXISTS] PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC, a Delaware limited liability company("Lender")having an office at 100 Mulberry Street, Eighth Floor,Gateway Center Four,Newark,New Jersey 07102. WITNESSETH: WHEREAS, Lender is the present holder of a loan originally made on 2008 (the "Closing Date") to the entities listed on Schedule 1 annexed hereto (collectively, "Original Borrower") [IF APPLICABLE: and subsequently assumed, jointly and severally, by the other tenants-in-common listed on Schedule 2 annexed hereto (each, an "Other TIC" and collectively, the "Other TICs") ] by Prudential Mortgage Capital Company, LLC, a Delaware limited liability company ("PMCC") in the original principal amount of$ ,000.00(the"Loan"); WHEREAS, in connection with the Loan, the Original Borrower executed and delivered to PMCC (i) that certain Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing (as the same may have been or may be modified or amended, the "Security Instrument"; capitalized terms used in this Agreement without definition shall have the respective meanings attributed to them in the Security Instrument) dated as of the Closing Date which was recorded on , 2008 as Instrument No. in the records of Johnson County, Iowa, which Security Instrument encumbers that certain real property situated in the City of Iowa City, Johnson County, Iowa(the"Premises")as more particularly described in Exhibit A attached hereto and made a part hereof and the other "Property" as defined in the Security Instrument, (ii) that certain Promissory Note Secured by Mortgage (as same may have been or may be modified or amended, the "Note") in the original principal amount of the Loan and dated the Closing Date, which Note is secured by the Security Instrument, (iii)that certain Assignment of Leases and Rents made as of the Closing Date and recorded on 2008 as Instrument No. in the records of Johnson County, Iowa (the "Assignment of Leases"), (iv) that certain Environmental Indemnity Agreement (the "Hazardous Substances Indemnity") dated as of the Closing Date by Original Borrower and and , in favor of Lender, (v) that certain Loan Agreement (as same may have been modified or amended, the "Loan Agreement") dated the Closing Date and executed by Original Borrower in favor of Lender and (vi) certain other Loan Documents(as defined in the Security Instrument); o NY:1180077.14 = 77,—‹ t Crs lt} WHEREAS, on or about , 2008, the Loan and all of the Loan Documents (as defined in the Security Instrument) were assigned by PMCC to Lender. [ADD ADDITIONAL ASSIGNMENT REFERENCE IF SECOND LOAN TRANSFER HAS OCCURRED] [IF APPLICABLE: WHEREAS, subsequent to the Closing Date, the Other TICS assumed, jointly and severally with Original Borrower, the obligations of Original Borrower under the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents.] WHEREAS, Lender has been requested to consent to a TIC Sale (as defined in the Security Instrument) by Selling TIC to the Assuming Purchaser, in accordance with the Security Instrument, and Lender has approved the assumption by the Assuming Purchaser of the obligations in connection with the Loan subject to satisfaction of the terms and conditions more fully set forth in the Security Instrument;and WHEREAS, Assuming Purchaser has executed that certain Assignment and Assumption of Agreement, the TIC Agreement (as defined below) and the Property and Asset Management Agreement (as may be applicable) (collectively, the "TIC Assumption") whereby Assuming Purchaser has assumed obligations, as tenant-in-common, of Selling TIC under that certain Tenants in Common Agreement dated 2008(the "TIC Agreement"), and has delivered a true and correct copy of the TIC Assumption to Lender;and WHEREAS,pursuant to the Security Instrument, it is a condition to the TIC Sale to Assuming Purchaser that the parties hereto enter into this Agreement; NOW, THEREFORE,in consideration of the Premises, the sum of Ten($10.00) Dollars and other good and valuable consideration the receipt and legal sufficiency of which is hereby acknowledged,the parties hereto hereby unconditionally covenant and agree as follows: 1. Selling TIC and Assuming Purchaser hereby jointly and severally represent to Lender that,simultaneously herewith, Selling TIC is selling to Assuming Purchaser, and Assuming Purchaser is purchasing from Selling TIC, the undivided tenant in common interests set forth next to the entity comprising Assuming Purchaser set forth on Schedule 3 annexed hereto and made a part by this reference (collectively,the "Purchased Interest") in the Property. Assuming Purchaser hereby certifies, represents and warrants to Lender that (A) neither Assuming Purchaser nor its direct owners is a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); (B) Lender is not required to withhold any tax as a result of the transfer of the Property by Assuming Purchasers pursuant to the Security Instrument or upon the exercise by Lender of any of Lender's rights or remedies pursuant thereto; and (C) Assuming Purchaser acknowledges that the foregoing certifications, representations and warranties ma ,e disclosed to the Internal Revenue Service by any transferee and that any fall stateiont contained herein may be punishable by fine, imprisonment or both. 2. Assuming Purchaser hereby unconditionally assumes,jointly a,4 seveily ' with Original Borrower and the Other TICs,the complete performance,fulfillment it tiiscl l'ge J of all of the obligations, conditions and covenants of Original Borrower and the Otf i.,TIC3s,as m "Borrower", "Mortgagor", or "Assignor", as the case may be, contained in the Loai drireer i nt, F NV:118007714 :.T] the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, subject to the benefits of the exculpatory provisions set forth therein (including, without limitation, Article VIII of the Loan Agreement) and Assuming Purchaser shall be a party to the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents as "Borrower", "Mortgagor", or "Assignor", as the case may be, jointly and severally with Original Borrower and the Other TICs. Assuming Purchaser agrees(i)to repay any and all sums due and owing under the Loan Agreement,the Note,the Security Instrument,the Assignment of Leases,the Hazardous Substances Indemnity and the other Loan Documents and (ii)to be bound by all of the terms and conditions of the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases,the Hazardous Substances Indemnity and the other Loan Documents, as if the Assuming Purchasers had executed same, subject to the benefits of the exculpatory provisions set forth therein (including, without limitation, Article VIII of the Loan Agreement). Selling TIC and Assuming Purchaser acknowledge that, but for each of them entering into this Agreement, Lender would not consent to the TIC Sale, and accordingly, Selling TIC and Assuming Purchaser further acknowledge that Lender is relying on the representations and covenants made herein. 3. Assuming Purchaser acknowledges that, from time to time, one or more other purchasing "TICs" (as defined in the Security Instrument) may hereafter assume liability, jointly and severally with Original Borrower and/or one or more of the Other TICs, for the obligations of Original Borrower and/or one or more of the Other TICs under the Loan Documents (as defined in the Security Instrument), and that the liability of Assuming Purchaser thereunder shall not be discharged by reason of the assumption by any other purchasing TIC of the obligations under the Loan Documents(or, should Lender do so, by reason of the release of any party from any liability under the Loan Documents or any of them). Assuming Purchaser expressly acknowledges that, pursuant to the Security Instrument, each purchasing TIC is required to assume,jointly and severally with Original Borrower and/or one or more of the Other TICs and any other purchaser TIC, the obligations under the Loan Documents (subject, in each case,to the benefit of the exculpatory provisions contained therein(including,without limitation, Article VIII of the Loan Agreement)). 4. Lender hereby consents to the transfer of the Purchased Interest to the Assuming Purchaser and to the assumption of the Loan by the Assuming Purchaser as more fully set forth herein. Lender's consent to the transfer of the TIC Interest to the Assuming Purchasers is not intended to be and shall not be construed as a consent to any subsequent direct or indirect transfer of all or any part of the Property, or the Assuming Purchaser's interest in the Purchased Interest or the Property, or an interest in the Assuming Purchaser, nor a waiver of any provisions of the Loan Documents which limit the transferability of the Property, the interests of the TICs, or an interest in the Assuming Purchaser. 5. Assuming Purchaser hereby expressly agrees as follows: (A) All of the terms, provisions, covenants, representations, warranties, conditions and stipulations contained in the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, as assumed hereunder, are hereby ratified and confirmed by Assuming Purchasers in all respsgs, and shall continue to apply with full force and effect to Assuming Purchasers from.and aftetzte date hereof; NY:1180077.14 =4 C) crl -Erv". C11 w • C}! (B) MI of the representations and warranties made by Original Borrower with respect to the Property under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases,the Hazardous Substances Indemnity and the other Loan Documents shall be deemed to be remade by Assuming Purchaser as of the date hereof with respect to all matters specified therein and with respect to this Agreement fully as if set forth herein, all of which remain true and correct; (C) As of the date hereof, the obligations of Assuming Purchaser under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, as assumed hereunder, are not subject to any reduction, limitation, impairment or termination for any reason, including, without limitation,any claim of waiver,release, surrender or compromise; (D) As of the date hereof, to the best knowledge of Assuming Purchaser, no Default (as such term is defined in the Security Instrument) and no Event of Default (as such term is defined in the Security Instrument) has occurred and is continuing under any of the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity or any of the other Loan Documents; (E) Assuming Purchaser covenants and agrees to repay any and all sums due and owing under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents and to be bound, jointly and severally with the other makers thereof, by all of the terms and conditions of the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents as if Assuming Purchaser had executed same, subject, in each case, to the benefit of the exculpatory provisions contained therein (including,without limitation,Article VIII of the Loan Agreement); (F) Assuming Purchaser's rights in and to the Property and the Purchased Interest are subject to the Loan and the provisions of the Loan Agreement, the Note,the Security Instrument, the Assignment of Leases,the Hazardous Substances Indemnity and the other Loan Documents until the Loan is satisfied in full; (G) Assuming Purchaser confirms that CORE Sycamore Town Center T,LLC, a Delaware limited liability company("Sponsor") has been appointed by Original Borrower and the Other TICs as the"Notice Owner" for all purposes as set forth in the Security Instrument and Assuming Purchaser hereby consents to such appointment and agree that Assuming Purchaser has appointed Sponsor as"Notice Owner" for Assuming Purchaser. 6. Without limiting anything set forth in this Agreement or in the Loan Documents,Assuming Purchaser hereby expressly acknowledges the following: IT SHALL CONSTITUTE AN"EVENT OF DEFAULT" UNDER THE LOAN AGREEMENT IF ANY ASSUMING PURCHASER, ORIGINAL BORROWER, ANY OTHER TIC, ANY FUTURE PURCHASING TIC OR ANY OTHER PERSON OR ENTITY NOW OR HEREAFTER PARTY TO THE TIC AGREEMENT, FILES AN ACTION TO PARTITION THE PROPERTY. 7_ Nothing herein shall, or shall be deemed to, release or discharge Original Borrower or any Other TIC, from the performance of all obligations, conditions and covenants contained in the Loan Agreement,the Note, the Security Instrument, the Assignment of Leases, a NY:1180077.14 © N &� r--- r r=oao , _± 4nrn r.....� .1'.. �� 3. the Hazardous Substances Indemnity and/or the other Loan Documents, or to release or discharge Original Borrower or any Other TIC from any liability under the Hazardous Substances Indemnity. 8. Assuming Purchaser hereby represents and warrants to Lender that the execution,delivery and performance of this Agreement has been duly authorized by all necessary and proper action on the part of Assuming Purchaser and, to the extent required, the member(s) thereof, and the execution, delivery and performance by Assuming Purchaser of this Agreement (1) to the best of Assuming Purchaser's knowledge, will not violate any provision of any applicable law or regulation or of any order, writ, judgment, injunction or decree of any governmental authority and (ii)will not violate any provision of,or constitute a default under,or result in the creation or imposition of any lien (other than pursuant to this Agreement and the liens created by the Security Instrument and/or any of the other Loan Documents)on any asset of Assuming Purchaser pursuant to any contract, agreement or other undertakings to which Assuming Purchaser is a party or which is binding upon any Assuming Purchaser,or upon any of assets of Assuming Purchaser. 9. Neither Selling TIC, nor Assuming Purchaser, nor, to the best knowledge of Selling TIC and Assuming Purchaser, any other Original Borrower or Other TIC has any offsets,defenses or counterclaims of any kind whatsoever with respect to the obligations for the repayment of the indebtedness evidenced by the Note or for any other obligation set forth in the Note, the Security Instrument, the Assignment of Leases and Rents, the Hazardous Substances Indemnity or any of the other Loan Documents. Each of Selling TIC and Assuming Purchaser hereby warrant and represent that they have no knowledge of any eminent domain or condemnation proceedings,or similar actions in lieu thereof,threatened or in existence in respect of the Property. Selling TIC represents and warrants to Assuming Purchaser and to Lender that, to the best of Selling TIC's knowledge, no Default or Event of Default has occurred and is continuing. Selling TIC and Assuming Purchaser, each for themselves and, as applicable to the maximum extent possible, for and on behalf of their respective partners, shareholders, beneficiaries, legal representatives, heirs, successors and assigns, hereby release and forever discharge Lender, its officers, employees, the servicers of the Loan and the respective affiliates of the foregoing from and against any and all claims and liability relating to the transactions evidenced by the Loan Documents,through and including the date hereof. 10. Except as modified hereby, the Loan Agreement, the Note, Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and other Loan Documents remain unmodified and in full force and effect. 11. This Agreement shall constitute a "Loan Document" for all purposes provided in the Loan Documents. 12. Assuming Purchaser hereby warrants and represents that it has reviewed and approved the Loan Agreement,the Note,the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents. 13. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF I(WA; PROVIDED THAT TO THE EXTENT ANY OF SUCH LAWS MA .- NOW—OR ;► r NY:i 180071.14 f", Cn `p -1i --" ' ` HEREAFTER BE PREEMPTED BY FEDERAL LAW, SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING; AND PROVIDED FURTHER THAT THE LAWS OF THE STATE OF IOWA SHALL GOVERN AS TO THE CREATION, PRIORITY AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS IN PROPERTY LOCATED IN SUCH STATE. 14. To facilitate execution, this Agreement may be executed in as many counterparts as may be convenient or required. It shall not he necessary that the signature and acknowledgment of, or on behalf of, each party, or that the signature and acknowledgment of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Agreement to produce or account for more than a single counterpart containing the respective signatures and acknowledgment of, or on behalf of,each of the parties hereto. Any signature and acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures and acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature and acknowledgment pages. 15. This Agreement may not be amended, revised, waived, discharged, released or terminated orally but only by a written instrument or instruments executed by the party against which enforcement of the amendment, revision, waiver, discharge, release or termination is asserted. Any alleged amendment, revision, waiver, discharge, release or termination which is not so documented shall not be effective as to any party. 16. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. [No further text this page.] C:=1 O C-) c 0 .11 =fn o+ gn NY:1180077.I4 THUS DONE AND PASSED, on the day, month and year first written above, by the undersigned Mortgagor in the presence of the undersigned Notary and the undersigned competent witnesses,who hereunto sign their names after reading of the whole. SELLING TIC: CORE SYCAMORE TOWN CENTER T,LLC, a Delaware limited liability company By: CORE Sycamore Town Center Mezzanine, LLC, a Delaware limited liability company,its sole member By: CORE Realty Holdings, LLC, a California limited liability company, its sole member By: Name: Title: STATE OF ss. COUNTY OF ) On , 2008, before me, _ a Notary Public the undersigned, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),or the entity upon behalf of which the person(s)acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State o (SEAL) C?� ; py C')—tI km.,. ON LO5AZ326101.3 313957-36 s> NY:1190077.11 .� ASSUMING TIC: TIC SYCAMORE 3,LLC By:CORE Realty Holdings VP,LLC,a Delaware limited liability company, its Authorized Signatory By: _ Name: William R.Colvin Title: President STATE OF ) ss. COUNTY OF ) On , 2008, before me, a Notary Public the undersigned, personally appeared William R. Colvin, personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State (SEAL) f13 fit. cn 1,1) LOSA21326101.3 313957-36 NY:1180077.14 LENDER: Lender is executing this Tenancy-In-Common Loan Assumption Agreement and Modification of Deed of Trust and Security Agreement solely to indicate its consent to the terms hereof.Nothing herein shall,or shall be deemed to,obligate Lender for repayment of any amount evidenced by the Note or secured by the Security Instrument or the other Loan Documents. LENDER: !INSERT NOTARY1 This Instrument was Prepared by: Winston&Strawn LLP 200 Park Avenue New York,New York 10166 Attention: David M.Traitel,Esq. u -.n -.< --0 ill• g c3 LOSA21326101 3 313957-36 NY:1180077.14 EXHIBrr A LEGAL DESCRIPTION [INTENTIONALLY LEFT BLANK ON THIS EXHIBIT D] rn Ts p G7 LOSA2\326101.3 3;3957-36 NY:1I8O077.14 SCHEDULE I ORIGINAL BORROWER [THIS SCHEDULE INTENTIONALLY LEFT BLANK-TO BE COMPLETED FOR EACH TIC SALE] N C.) ww =in -0 -0 rn c> LOSA22326101.3 313957.36 NY:118007114 SCHEDULE 2 OTHER TICS [THIS SCHEDULE INTENTIONALLY LEFT BLANK-TO BE COMPLETED FOR EACH TIC SALE] 0 .11—"' ra "� rn `5 55, C) LOSAA32610I.3 313957-36 NY:I130077.14 SCHEDULE,4 ASSUMING PURCHASER INTERESTS Assuming Purchaser Undivided Fractional Tenants-in-Common interest [THIS SCHEDULE INTENTIONALLY LEFT BLANK-TO BE COMPLETED FOR EACH TIC SALE] O N Ca Q miC --4C: rY i —0 r LOSA21326101.3 313957-36 NY:1180077.14 EXHIBIT G TIC GUARANTY (See Attached) WeleUMW fn'< a' ru. ,. rn 1/4:2 LOAN AGREEMENT NY:1180077.14 GUARANTY This GUARANTY (this "Agreement") is made as of , 2008, by ("Guarantor"), to PRUDENTIAL MORTGAGE CAPITAL COMPANY,LLC,a Delaware limited liability company("Lender"). RECITALS A. Those entities listed on Schedule A, attached hereto and made a part hereof (individually and collectively, the "Borrower"), own that certain real property located in the City of Iowa City, County of Johnson, State of Iowa, and more particularly described in Exhibit A attached hereto(said real property being referred to as the"Land";the Land,together with all structures, buildings and improvements now or hereafter located on the Land, being collectively referred to as the"Property"). B. Lender is making a loan (the "Loan") to Borrower in the maximum principal amount of $13,000,000.00, pursuant to that certain Loan Agreement ("Loan Agreement"), dated of even date herewith, and which is evidenced by that certain Promissory Note Secured by Mortgage executed by Borrower, as maker, and payable to the order of Lender, as holder, and any other promissory note(s) in full or partial substitution thereof(collectively, and as amended and modified from time to time, the"Note")), and will be secured by, among other things, that certain first priority Mortgage, Security Agreement, Assignment of Lease and Rents and Fixture Filing encumbering the Property ("Security Instrument"),encumbering the Property. The Loan Agreement, the Note, the Security Instrument, this Agreement and the other documents evidencing, governing or securing the Loan, and all amendments thereto,are sometimes referred to herein collectively as the "Loan Documents." All capitalized terms not otherwise defined herein shall have the meanings given such terms in the Loan Agreement. C. Guarantor will receive benefits from Lender's making the Loan to Borrower. D. To induce Lender to make the Loan, Guarantor has agreed to enter into this Agreement,Guarantor acknowledging that without this Agreement Lender would be unwilling to make the Loan. AGREEMENT NOW,THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby agrees and covenants as follows: 1. Guaranteed Oblieations. Guarantor shall,jointly and severally with Borrower, be personally liable for the following,and hereby unconditionally guarantees and becomes surety for each and every obligation and liability of Borrower pursuant to the following: 1.1 Limited Recourse Liability. Guarantor shall be fully and personally liable for (the "Guaranteed Obligations") any liabilities, out-of-pocket costs, losses, damages, expenses (including, without limitation, reasonable out-of-pocket attorneys' fees and disburseme , and court costs, if any), or claims (collectively, "Costs") actually incurred by ender ;{or any Indemnified Party, as such term is defined in the Loan Agreement)by reason of or im co ction'i with: . _..m c,—< to .:etc) -o rri t'V Q (a) the misapplication or misappropriation by any entity comprising Borrower or by any Affiliate(as defined in the Loan Agreement)of any entity comprising Borrower of any or all money collected, paid or received, or to which any entity comprising Borrower is entitled, relating to the Loan or the Project(as defined in the Loan Agreement), including, but not limited to, insurance proceeds, condemnation awards, lease termination penalties, security and/or other deposits and/or Necessary Property Receipts; (b) rents, issues, profits and revenues of all or any portion of the Project received or applicable to a period after the occurrence of any Event of Default or after any event which,with the giving of notice and/or the passage of time, would constitute an Event of Default, which are not applied to pay, first (a) real estate taxes and other charges which, if unpaid, could result in liens superior to that of the Security Instrument and (b)premiums on insurance policies required under the Loan Documents and, second, the other ordinary and necessary expenses of owning and operating the Project and to sums due under the Loan Documents; (c) material physical waste committed on the Project or damage to the Project as a result of intentional misconduct or gross negligence or the removal of all or any portion of the Project in violation of the terms of the Loan Documents; (d) unintentional material misrepresentation or unintentional failure to disclose a material fact(including,without limitation,with respect to any such, misrepresentation or failure to disclose in any materials delivered to Lender)by any Borrower,any Guarantor or Applicant or by any other person or entity authorized or reasonably believed to be authorized to make statements or representations on behalf of any Borrower, any Guarantor or Applicant in connection with the Loan application, Loan closing or security of or for the Loan,or otherwise in connection with the Project or the Loan; (e) failure to pay any valid taxes,assessments, mechanic's liens, materialmen's liens or other involuntary liens, charges for labor or materials or any other charge which, if unpaid, could result in liens on any portion of the Project which would be superior to the lien or security title of the Security Instrument or the other Loan Documents, except to the extent that sums for such purpose(s) have been or are deposited with Lender in accordance with the provisions of the Loan Agreement,subject to the rights pursuant to the Loan Agreement for contesting such lien or "bonding off'such lien; (f) any Lease or any amendment, modification, extension or termination of a Lease entered into or made without Lender's prior written consent, to the extent Lender's prior written consent is required under the Loan Documents(and to the extent Lender's consent is not deemed granted pursuant to an express provision of the Loan Documents). (g) Intentionally Omitted; (h) the forfeiture of the Project or any material portion thereof, under any applicable state or federal law,regulation,or executive order; (i) Intentionally Omitted; c a (i) Intentionally Omitted; 2 'fir --o rri CDO (k) the failure of Borrower to pay the Deferred Origination Fee; (t) any obligation of Lender to indemnify, hold harmless or reimburse Clearing Bank under, pursuant to or in connection with the Clearing Bank Agreement, if such Clearing Bank requires any Lender indemnification pursuant to the Clearing Bank Agreement; (m) the filing of any petition for bankruptcy, reorganization or arrangement pursuant to state or federal bankruptcy law,or any similar federal or state law,by any one or more persons or entities within the Owner Group (other than Borrower or Guarantor)against any Borrower or any Guarantor or if any proceeding seeking the dissolution or liquidation of any Borrower or any Guarantor shall be commenced,consented to or facilitated by any one or more persons or entities within the Owner Group(other than Borrower or Guarantor); (n) the failure by any entity comprising Borrower to maintain its status as a Single Purpose Entity, as required by the Loan Documents; (o) The filing by any entity comprising Borrower of an action for partition of the Project;and/or (p) The termination or modification of the TIC Agreement (as defined in the Loan Agreement) without any prior written consent of Lender required under the terms of the Loan Documents. Anything in this Agreement to the contrary notwithstanding, Guarantor shall only be liable under the above provisions to the extent of Costs arising in whole or in part out of matters caused or affirmatively consented to by(i) Guarantor or its related TIC, (ii)any TIC(as defined in the Loan Agreement)which is controlled(directly or indirectly)by Guarantor,(iii)any TIC of which Guarantor is a manager, managing member or general partner, (iv) any TIC in which Guarantor owns a direct or indirect beneficial interest, (v) any TIC with which Guarantor is affiliated (except to the extent such affiliation is due solely to such TIC's status as a tenant-in- common with respect to the Property), (vi) any Affiliate of Guarantor or its related TIC, or(vii) any of the principals, managers, directors, officers, affiliates and beneficial owners or (at the express direction of any of the foregoing Persons)agents of any of(i), (ii), (iii), (iv), (v) or(vi) above. 1.2 Full Recourse Liability. Notwithstanding the foregoing, the Indebtedness shall be fully recourse to Borrower and Guarantor (subject to the terms of each Guaranty) and Borrower and Guarantor (subject to the terms of this Guaranty) shall be personally liable therefor, in the event that (A)Borrower fails to obtain Lender's prior written consent to any subordinate financing or other voluntary lien encumbering the Project or any portion thereof or direct or indirect interests in Borrower(except for pledges of direct or indirect minority interests in an entity comprising Borrower, to the extent Lender's consent for such pledges is not required by the Loan Documents); (B)Borrower fails to obtain Lender's prior written consent to any assignment, pledge, transfer or conveyance of the Project or any portion thereof or any interest therein or any direct or indirect interest in Borrower,to the extent Lender's consent is required by the Loan Documents; (C) fraud (including, without limitation, intentional material misrepresentation) of Borrower, Applicant, or Guarantor or any other person swthorizg or wic �) t -aas --4 n Cn I iV reasonably believed to be authorized to make statements or representations on behalf of Borrower, Applicant or Guarantor in connection with the Loan Application, Loan closing or security of or for the Loan, or otherwise in connection with the Project or the Loan; or (D)any petition for bankruptcy, reorganization or arrangement pursuant to state or federal bankruptcy law, or any similar federal or state law, shall be filed or consented to, or acquiesced in by, Borrower or Guarantor, or Borrower or Guarantor seeks (or consents to, or acquiesces in) the appointment of a receiver, liquidator or trustee, or any proceeding for the dissolution or liquidation of Borrower or Guarantor shalt be instituted or consented to,or acquiesced in by any entity comprising Borrower or any Guarantor. Notwithstanding the foregoing,the occurrence of any of the acts set forth in clauses(A),(B), (C)or(D)above shall only cause the Loan to be fully recourse to Borrower or Guarantor to the extent that such acts or events arise in whole or in part out of matters caused, or affirmatively consented to, by (i) Borrower or Guarantor, (ii) any TIC which is controlled (directly or indirectly) by Borrower or Guarantor, (iii) any TIC of which Guarantor is a manager, managing member or general partner, (iv) any TEC in which Guarantor owns a direct or indirect beneficial interest, (v) any TIC with which Borrower or Guarantor is affiliated, (vi) any Affiliate of Borrower or Guarantor, or (vii) any of the principals, managers, directors, officers, affiliates and beneficial owners or agents of any of(i), (ii), (iii), (iv), (v) or (vi)above. Notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, Lender shall not be deemed to have waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions of the United States Bankruptcy Code to file a claim for the full amount of the Indebtedness or to require that all Collateral shall continue to secure all of the Indebtedness owing to Lender in accordance with the Loan Documents. 2. Nature of Guaranty. 2.1 Primary Liability. The liability of Guarantor shall be direct and immediate as a primary and not a secondary obligation or liability, and is not conditioned or contingent upon the pursuit of any remedies against Borrower, any other guarantor of the Loan or any other person, or against any collateral or liens held by Lender. Guarantor waives any rights which it may have to require that(a) Lender first proceed against Borrower,any other guarantor of the Loan or any other person or entity with respect to the Guaranteed Obligations, or (b) Lender first proceed against any collateral held by Lender, or(c) any party to be joined in any proceedings to enforce the Guaranteed Obligations. 2.2 Unimpaired Liability. The liability of Guarantor under this Agreement shall in no way be limited or impaired by (i) any extensions of time for performance required by any of the Loan Documents, (ii) any sale or transfer of all or part of the Property, (iii) except as provided herein or therein, any exculpatory provision in any of Loan Documents limiting Lender's recourse to any security for the Loan, or limiting Lender's rights to a deficiency judgment against Borrower, (iv) the accuracy or inaccuracy of the representations and warranties made by any Guarantor herein or under any of the Loan Documents, (v)the release of Borrower or any other Person from performance or observance of any of the agreements, covenants,terms or condition contained in any of the other Loan Documents by operation of law, Vonder's voluntary act, or otherwise, (vi) the release or substitution in whole or in part o3ny seen>'ity fob the Loan, (vii)the modification of the terms of any document evidencing, =Wit oBetting g 2._i ..c �a.�. 4 �Ca i 7 '1 forth the terms of the Loan, (viii) the granting of releases, compromises and indulgences with respect to the Loan, the Guaranteed Obligations or any persons or entities now or hereafter liable thereon; (ix) the taking or failure to take any action of any type whatsoever with respect to the Loan or the Guaranteed Obligations (x)any assignment of the Loan Documents or foreclosure of the Security Instrument, (xi) any change in the composition of any entity comprising Borrower, including, without limitation, the withdrawal or removal of Guarantor from any current or future position of ownership, management or control of Borrower or (xii) Lender's failure to file any UCC financing statements (or Lender's improper recording or filing of any thereof) or to otherwise perfect, protect, secure or insure any security interest or lien given as security for the Loan; and, in any such case, whether with or without notice to Borrower and with or without consideration. 2.3 Nature of Guaranty. This Agreement is an irrevocable, absolute, continuing Agreement of payment and performance and not a guaranty of collection. This Agreement may not be revoked by Guarantor and shall continue to be effective with respect to any Guaranteed Obligations arising or created after any attempted revocation by Guarantor and after (if Guarantor is a natural person)Guarantor's death(in which event this Agreement shall be binding upon Guarantor's estate and Guarantor's legal representatives and heirs). The fact that at any time or from time to time the Guaranteed Obligations may be increased or reduced shall not release or discharge the obligation of Guarantor to Lender with respect to the Guaranteed Obligations. This Agreement may be enforced by Lender and any subsequent holder of the Note and shall not be discharged by the assignment or negotiation of all or part of the Note. 2.4 Payment By Guarantor. If all or any part of the Guaranteed Obligations shall not be punctually paid when due, whether at demand, maturity, acceleration or otherwise, each Guarantor shall, immediately upon demand by Lender and without presentment, protest, notice of protest, notice of non-payment, notice of intention to accelerate the maturity, notice of acceleration of maturity or any other notice whatsoever, pay in lawful money of the United States of America, the amount due on the Guaranteed Obligations to Lender at Lender's address as set forth herein. Such written demand(s)may be made at any time coincident with or after the time for payment of all or part of the Guaranteed Obligations and may be made from time to time with respect to the same or different items of the Guaranteed Obligations. Such demand shall be deemed made,given and received in accordance with the notice provisions hereof. 2.5 Waivers. To the extent permitted by law, Guarantor agrees to the provisions of the Loan Documents and hereby waives notice of(i) any loans or advances made by Lender to Borrower, (ii) acceptance of this Agreement, (iii)any amendment or extension of the Note, the Security Instrument,the Loan Agreement or of any other Loan Document,(iv)the execution and delivery by Borrower and Lender of any other loan or credit agreement or of Borrower's execution and delivery of any promissory notes or other documents arising under the Loan Documents or in connection with the Property,(v)the occurrence of(a)any breach by Borrower of any of the terms or conditions of the Loan Agreement or any of the other Loan Documents;or (b) an Event of Default, (vi)Lender's transfer or disposition of the Guaranteed Obligations, or any part thereof, (vii)sale or foreclosure(or the posting or advertising for the sale or foreclosure) of any collateral for the Guaranteed Obligations, (viii) protest, proof of non-payment or default by Borrower, or (ix) any other action at any time taken or omitted by Lender and, genera,Jy, all demands and notices of every kind in connection with this Agreement,the Loan Documei ,any 5 c—_ cr ,.. -4c) m m- mow•�1 •• documents or agreements evidencing, securing or relating to any of the Guaranteed Obligations and the obligations hereby guaranteed. 3. Waiver of Subrogation Rights. Until the Indebtedness is indefeasibly paid in full, Guarantor waives any rights to enforce any remedy which Lender may have against Borrower, any rights to participate in any security for the Loan and any rights of indemnity,reimbursement, contribution or subrogation which Guarantor may have against Borrower or against any other guarantor of the Loan with respect to the Guaranteed Obligations. 4. Amendmeats/Relleasg. Guarantor hereby consents and agrees that Lender may at any time,and from time to time, without notice to or further consent from Guarantor and either with or without consideration do any one or more of the following, all without affecting the agreements contained herein or the liability of Guarantor for the Guaranteed Obligations: (a)release any other guarantor of the Loan; (b) surrender without substitution any property or other collateral of any kind or nature whatsoever held by it,or by any person, firm or corporation on its behalf or for its account, securing the Loan or the Guaranteed Obligations;(c)modify the terms of any document evidencing, securing or setting forth the terms of the Loan; (d) grant releases, compromises and indulgences with respect to the Loan or the Guaranteed Obligations or any persons or entities now or hereafter liable thereon; or(e)take or fail to take any action of any type whatsoever with respect to the Loan or the Guaranteed Obligations. 5. General Waivers by Guarantor. Guarantor hereby waives notice of acceptance of this Guaranty and notice of any liability to which it may apply, and waives diligence, presentment, demand of payment, protest, notice of dishonor or nonpayment or notice of any kind in connection with this Agreement. Guarantor further waives, to the maximum extent permitted by law, (a) any defense based upon an election of remedies (including, if available, an election to proceed by non judicial foreclosure) by Lender, (b) any rights or defenses created by any anti- deficiency statutes applicable to the Loan, (c) any right to require Lender to marshal assets or proceed against or exhaust its recourse against Borrower, any other guarantor of the Loan or other obligated party or any security for the Guaranteed Obligations or to pursue any other remedy before being entitled to payment from Guarantor or before proceeding against Guarantor for payment and performance of the Guaranteed Obligations, (d) any defense that may arise by reason of(A)the revocation or repudiation hereof by any other guarantor, or the revocation or repudiation of any of the Loan Documents by Borrower or any other Person,or(B)the failure of Lender to file or enforce a claim against the estate (either in administration, bankruptcy or any other proceeding) of any other guarantor or any other Person, or (C) the unenforceability in whole or in part of the Loan Documents, (v) the right to assert a counterclaim, other than a mandatory or compulsory counterclaim, in any action or proceeding brought against or by Lender, and (vi) all homestead exemption rights against the obligations hereunder; it being the intention hereof that Guarantor shall remain liable as principal, to the extent set forth herein, notwithstanding any act, omission or thing which might otherwise operate as a legal or equitable discharge of Guarantor. 6. Waiver of Defenses. Guarantor hereby waives and agrees not to assert or. r.c3clviiiiage of any defense based upon: Wit} Q <c -13 a 6 ry CD0 (a) The incapacity, lack of authority, death or disability of Borrower, any other guarantor of the Loan or any other person or entity; (b) The failure of Lender to proceed against Borrower or any other guarantor of the Loan or to proceed against or exhaust any security held by Lender at any time; (c) Any duty on the part of Lender to disclose to Guarantor any facts it may now or hereafter know regarding Borrower or the Project(as defined in the Loan Agreement) regardless of whether Lender has reason to believe that any such facts materially increase the risk beyond that which Guarantor intends to assume or has reason to believe that such facts are unknown to Guarantor, Guarantor acknowledging that it is fully responsible for being and keeping informed of the financial condition and affairs of Borrower; (d) Lack of notice of default, demand of performance or notice of acceleration to Borrower, any other guarantor of the Loan or any other party with respect to the Loan or the Guaranteed Obligations; (e) The consideration for this Agreement; (t) Any acts or omissions of Lender which vary, increase or deci se the"'�tsk o Guarantor; (g) Intentionally Deleted; cr (h) The application by Borrower of the proceeds of the Loan for purpose other than the purposes represented by Borrower to Lender or intended or understood-IV-teller or Guarantor; CD (i) An election of remedies by Lender, including, without limitation, any election to proceed against any collateral by judicial or nonjudicial foreclosure, whether real property or personal property, or by deed in lieu thereof, and whether or not every aspect of any foreclosure sale is commercially reasonable, and whether or not any such election of remedies destroys or otherwise impairs the subrogation rights of Guarantor or the rights of Guarantor to proceed against Borrower or any other guarantor of the Loan by way of subrogation or for reimbursement or contribution,or all such rights; (j) Any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other aspects more burdensome than that of a Guarantor; (k) Lender's election, in any proceeding instituted under the United States Bankruptcy Code, of the application of Section 1111(b)(2)of the United States Bankruptcy Code or any successor statute; (1) Any borrowing or any grant of a security interest under Section 364 of the United States Bankruptcy Code or any action taken or omitted by Lender in any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding (each, an"Insolvency Proceeding") involving Borrower,Guarantor or any other guarantor of the Loan, including any election to have Lender's claim allowed as being secured, partially secured or 7 unsecured, any extension of credit by Lender to Borrower, Guarantor or any other guarantor of the Loan in any Insolvency Proceeding and the taking and holding by Lender of any security for any such extension of credit;and (m) Any other suretyship defense that might, but for the terms hereof, be available to Guarantor. 7. Intentionally Omitted. 8. General Representations and Warranties. Guarantor represents and warrants as follows: 8.1 Compliance with this Agreement will not result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under any agreement, indenture or loan or credit agreement or other instrument to which Guarantor or the Property is subject, or result in the violation of any law, rule,regulation, order,judgment or decree to which Guarantor or the Property is subject; 8.2 To the best knowledge of Guarantor, there is no action, suit, proceeding or investigation pending or threatened against it which, either in any one instance or in the aggregate, may result in any material adverse change in the business, operations, financial condition,properties or assets of Guarantor,or in any material impairment of the right or ability of Guarantor to carry on its business substantially as now conducted,or in any material liability on the part of Guarantor,or which would draw into question the validity of this Agreement or of any action taken or to be taken in connection with the obligations of Guarantor contemplated herein, or which would be likely to impair materially the ability of Guarantor to perform under the terms of this Agreement; 8.3 To the best knowledge of Guarantor's, no approval, authorization, order, license or consent of, or registration or filing with, any governmental authority or other person, and no approval, authorization or consent of any other party is required in connection with this Agreement; 8.4 [If the TIC is a Sponsor,the following will be added: The financial statements of Guarantor furnished to Lender are true, correct and complete and fairly present the financial condition of Guarantor as of the end of and for the reporting periods covered thereby. Except as set forth on such financial statements,no indebtedness for borrowed money has been incurred by Guarantor which indebtedness is outstanding and which might give rise to a lien or claim against any assets of Guarantor other than is permitted pursuant to the Loan Agreement. There are no material liabilities, contingent or otherwise, or any unrealized or anticipated losses from unfavorable commitments, whether arising before or after the date of such financial statements, which are not disclosed in such financial statements, and there has been no material adverse change in the financial condition of the undersigned since the date of the most recent financial statement;and) _ ry 8.5 This Agreement constitutes a valid, legal and binding obligation: Guntor, 611 enforceable against it in accordance with the terms hereof, except as such enfc ce nt?fray be—awn limited by bankruptcy, insolvency,reorganization,moratorium or other similar laWs„affecting they 1.9 a enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). 9. [If the TIC is a Sponsor, the following will be added: Affirmative Covenants. Until payment in full of the Indebtedness, Guarantor shall deliver to Lender, the following financial statements and information which shall be in form and substance reasonably satisfactory to Lender: (a) within ninety(90)days after the end of Guarantor's fiscal year,balance sheets and statements of financial position of Guarantor as of the end of each such fiscal year, which balance sheets and statements shall be prepared and certified to Lender by Guarantor in accordance with GAAP, and which balance sheets shall be accompanied by a separate statement of Guarantor's net worth certified by Guarantor as true and correct; (b) within ninety (90) days of the timely filing thereof, including any available extensions but in no event later than October 30 of a given year, the annual Federal income tax return of Guarantor for the prior tax year;and (c) from time to time, such other reports and information which Lender reasonably requires,certified by Guarantor to be true,correct and complete in all material respects.] 10. [If the TIC is NOT a Sponsor, the following will be added: Affirmative Covenants. After the occurrence of an Event of Default, and upon notice to Borrower from Lender, Guarantor shall deliver to Lender,the following financial statements and information which shall be in form and substance reasonably satisfactory to Lender. (a) within ninety(90)days after the end of Guarantor's fiscal year,balance sheets and statements of financial position of Guarantor as of the end of each such fiscal year, which balance sheets and statements shall be prepared and certified to Lender by Guarantor in accordance with GAAP, and which balance sheets shall be accompanied by a separate statement of Guarantor's net worth certified by Guarantor as true and correct; (b) within ninety (90) days of the timely filing thereof, including any available extensions but in no event later than October 30 of a given year, the annual Federal income tax return of Guarantor for the prior tax year;and (c) from time to time, such other reports and information which Lender reasonably requires,certified by Guarantor to be true,correct and complete in all material respects.] 11. Application of Payments by Lender. All moneys available to Lender for application in payment or reduction of the Indebtedness may be applied by Lender in such manner and in such amounts and at such time or times and in such order and priority as Lender may see fit to the payment or reduction of such portion of the Indebtedness as Lender may elect in its sole discretion. es, utiaim 12. Subordination; No Recourse Against Lender. Guarantor hereby subordinates any and all indebtedness of Borrower now or hereafter owed to Guarantor to all indebtedness of Borrower to Lender. Until the Loan is indefeasibly paid in full, Guarantor shall not demand or accept any payment of principal or interest from Borrower, shall not claim any offset or other reduction of Guarantor's obligations hereunder because of any such indebtedness and shall not take any action to obtain any of the Collateral for the Loan. Further, Guarantor shall not have any right of recourse against Lender by reason of any action Lender may take or omit to take under the provisions of this Agreement or any other Loan Documents, except with respect to losses, claims, damages, liabilities or related expenses resulting from the gross negligence or willful misconduct, fraud,bad faith, illegal acts,or malfeasance of Lender. 13. Reinstatement of Obligations. If at any time all or any part of any payment made by Guarantor or received by Lender from Guarantor under or with respect to this Agreement is or must be rescinded or returned for any reason whatsoever (including, but not limited to, the insolvency, bankruptcy or reorganization of Guarantor), then the obligations of Guarantor hereunder shall, to the extent of the payment rescinded or returned, be deemed to have continued in existence, notwithstanding such previous payment made by Guarantor, or receipt of payment by Lender, and the obligations of Guarantor hereunder shall continue to be effective or be reinstated, as the case may be, as to such payment, all as though such previous payment by Guarantor had never been made. 14. Bankruptcy No Discharge. So long as any of the obligations guaranteed hereunder shall be owing to Lender,Guarantor shall not,without the prior written consent of Lender, commence or join with any other party in commencing any bankruptcy, reorganization or insolvency proceedings of or against Borrower. Guarantor understands and acknowledges that by virtue of this Agreement, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Borrower. As an example and not by way of limitation, a subsequent modification of the obligations of Borrower under the Loan Documents in any reorganization case concerning Borrower shall not affect the obligation of Guarantor to pay and perform its obligations hereunder in accordance with its original terms. In any bankruptcy or other proceeding in which the filing of claims is required by law, Guarantor shall file all claims which Guarantor may have against Borrower relating to any indebtedness of Borrower to Guarantor and shall assign to Lender all rights of Guarantor thereunder. If Guarantor does not file any such claim,Lender,as attorney-in-fact for Guarantor, is hereby authorized to do so in the name of Guarantor or,in Lender's discretion, to assign the claim to a nominee and to cause proof of claim to be filed in the name of Lender's nominee. The foregoing power of attorney is coupled with an interest and cannot be revoked. Lender or its nominee shall have the right, in its reasonable discretion, to accept or reject any plan proposed in such proceeding and to take any other action which a party filing a claim is entitled to do. In all such cases, whether in administration, bankruptcy or otherwise, the person or persons authorized to pay such claim shall pay to Lender the amount payable on such claim and, to the full extent necessary for that purpose, Guarantor hereby assigns to Lender all of Guarantor's rights to any such payni s or distributions; provided, however, Guarantor's obligations hereunder shall not be Misfied iiaicept to the extent that Lender receives cash by reason of any such payment or distribuljpi:,.If Rider receives anything hereunder other than cash, the same shall be held as collateral forum-- untgdue —� under this Agreement. 47,-1 ri‘i rC I0 :•."'•••••• .V 0 15. Notice. All notices, consents, approvals, statements, requests, reports, demands, instruments or other communications to be made, given or furnished pursuant to, under or by virtue of such instrument (each, a "notice") shall be in writing and shall be deemed given or furnished if addressed to the party intended to receive the same at the address of such party as set forth below (i) upon delivery when personally delivered at such address or sent via facsimile with confirmation of successful transmission, (ii) three (3) Business Days after the same is deposited in the United States mail as first class registered or certified mail, return receipt requested, postage prepaid, (iii) one (1) Business Day after the date of depositing of such notice with a nationwide, reputable overnight commercial courier service (assuming such deposit is made on a date on which such courier service will process the notice), or (iv) upon receipt of facsimile from telecopier(with answerback acknowledged) provided that such telecopied notice must also be delivered by one of the means set forth in(i),(ii)or(iii)above: Guarantor: Facsimile: And: Arent Fox LLP 1050 Connecticut Avenue,N.W. Washington,D.C. 20036 0 Attention: Deborah Froling,Esq. Telephone: 202-857-6075 G c, Facsimile: 202-857-6395 . ..e Lender: Prudential Mortgage Capital Company,LLCM" 100 Mulberry Street,8th Floor rn Gateway Center Four v v Newark,New Jersey 07102 •• Attention: Structured Loan Program Facsimile:(973)367-8612 With copies to: Prudential Asset Resources,Inc. 2100 Ross Avenue,Suite 2500 Dallas,Texas 75201 Attention: PMCC Structured Loan Servicing/Rebecca Caldarone Telephone: (214) 777-4556 Facsimile: (415)956-2197 A party receiving a notice which does not comply with the technical requirements for notice under this Section may elect to waive any deficiencies and treat the notice as having been property given. Any party may change the address to which any notice is to be delivered to any other address within the United States of America by furnishing written notice of such change at least fifteen(15)days prior to the effective date of such change to the other parties in the manner set forth above, but no such notice of change shall be effective unless and until received by such other parties. 11 16. Entire Agreement. This Agreement contains the entire understanding of the Guarantor and Lender with respect to the subject matter hereof and may not be amended except in a writing signed by Guarantor and Lender. Should any one or more provisions of this Agreement be determined to be illegal or unenforceable, all other provisions hereof shall remain in full force and effect. 17. Binding Effect. Guarantor further agrees that the provisions of this Agreement shall bind Guarantor and its heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender and its successors and assigns. 18. Governing Law. This Agreement and the obligations arising hereunder shall be governed by, and construed in accordance with, the laws of the State of Iowa applicable to contracts made and intended to be performed in such state, without giving effect to principles of conflicts of laws,and any applicable law of the United States of America. 19. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST GUARANTOR OR LENDER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE COURT OF COMPETENT JURISDICTION IN THE STATE OF IOWA, COUNTY OF JOHNSON OR ANY FEDERAL COURT HAVING JURISDICTION OVER SUCH STATE AND COUNTY. BY EXECUTING AND DELIVERING THIS AGREEMENT; GUARANTOR AND LENDER IRREVOCABLY: (I) ACCEPT GENERALLY AND UNCONDITIONALLY TME NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVE ANY DEFENSE OF FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED,TO GUARANTOR OR LENDER AT ITS ADDRESS FOR NOTICE; (IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER GUARANTOR AND LENDER IN ANY SUCH PROCEEDING IN ANY SUCH COURT; ANn OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; (V)AGREE THAT LENDER AND BORROWER RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION; AND(VI) AGREE THAT THE PROVISIONS OF THIS SECTION RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER LAW. 20. Resolution of Disputes. GUARANTOR AND LENDER, EACH BY ITS ACCEPTANCE OF THIS AGREEMENT, HEREBY WAIVE THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS AGREEMENT AND THE BUSINESS RELATIONSHIP THAT IS BEING ESTABLISHED. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY GUARANTOR AND BY LENDER, AND GUARANTOR ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF OF LENDER HAS MADE ANY REPRESENTATIONS OF FACT TO INCLUDE THIS WAIVER OF TRIAL BY JURY OR HAS TAKEN ANY ACTIONS WHICH IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. GUARANTOR AND LENDER O 12 p CD (,- '� 5 �M ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT GUARANTOR AND LENDER HAVE ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH OF THEM WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. GUARANTOR AND LENDER FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED (OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS AGREEMENT,AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL. `r 20.1 Intentionally Omitted. . 20.2 Intentionally Omitted. -o ; 1 20.3 Intentionally Omitted. 0.24. '� 21. Waiver. No failure to exercise, and no delay in exercising, on the part afLende any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right. The rights of Lender hereunder shall be in addition to all other rights provided by law. No modification or waiver of any provision of this Agreement, nor consent to departure therefrom, shall be effective unless in writing and no such consent or waiver shall extend beyond the particular case and purpose involved. No notice or demand given in any case shall constitute a waiver of the right to take other action in the same,similar or other instances without such notice or demand. 22. Legal Fees. Wherever pursuant to this Agreement it is provided that Guarantor pay any costs and expenses, such costs and expenses shall include, but not be limited to, reasonable out- of-pocket legal fees and disbursements actually incurred by Lender. Guarantor shall reimburse Lender for all reasonable attorneys' fees, costs and expenses actually incurred by Lender in connection with the enforcement of Lender's rights under this Agreement, including, without limitation reasonable out-of-pocket attorneys' fees, costs and expenses for trial, appellate proceedings, out-of-court negotiations, workouts and settlements, or for enforcement of rights under any state or federal statute, including without limitation reasonable attorneys' fees, costs and expenses incurred in bankruptcy and insolvency proceedings, such as (but not limited to) seeking relief from stay in a bankruptcy proceeding. The term"expenses"means any reasonable out-of-pocket expenses actually incurred by Lender in connection with any of the out-of-court,or state, federal or bankruptcy proceedings referred to above, including without limitation the fees and expenses of any appraisers, consultants and expert witnesses retained or consulted by Lender in connection with any such proceeding. Lender shall also be entitled to its reasonable out-of- pocket attorneys' fees,costs and expenses actually incurred in any post judgment proceedings to collect and enforce the judgment. This provision is separate and several, shall survive the termination of this Agreement,and shall survive the merger of this Agreement into any judgment on this Agreement. 23. Enforcement. This Agreement is subject to enforcement at law or in equity, including actions for damages or specific performance. 24. Time. Time is of the essence in this Agreement and all its provisions. I3 25. Counterparts. This Agreement may be executed in one or more counterparts by some or all of the parties hereto,each of which counterparts shall be an original and all of which together shall constitute a single agreement of guaranty. The failure of any party listed below to execute this Agreement, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder. Any signature page of this Agreement may be detached from any counterpart of this Agreement without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Agreement identical in form hereto but having attached to it one or more additional signature pages. 26. Survival. The obligations and liabilities of Guarantor under this Agreement shall fully survive indefinitely notwithstanding any termination, satisfaction, assignment, entry of a judgment of foreclosure,exercise of any power of sale,deed in lieu of foreclosure,or UCC sale. 27. State Saecifc Provisions. In the event any of the provisions in this Section 26 conflict with the provisions of any other Loan Documents,the provisions in this Section 26 shall control. 27.1 Under Iowa Code section 535.17, the following notice should appear in any credit agreement or separate document regarding modification to the terms of a credit agreement. The notice,which must appear in boldface, 10-point(or greater)type,is as follows: 27.2 IMPORTANT: READ BEFORE SIGNING_ THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRI1TEN AGREEMENT. (NO FURTHER TEXT ON THIS PAGE] N CD ' O 71 c-,-< to If k' m Irn -0 m 14 The Guarantor has executed this Agreement as of the date first set forth above. GUARANTOR: STATE OF ) ss. COUNTY OF ) On , 2008, before me, a Notary Public the undersigned,personally appeared ,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. WITNESS my hand and official seal_ Notary Public in and for said r, County and State c=. � y (SEAL) S ` fl -v 6� � o Guaranty Signature Page EXHIBIT A LEGAL DESCRIPTION OF PROPERTY LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23,Township 79 North,Range 6 West of the 5th Principal Meridian, Iowa City, Johnson County, Iowa, more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway#6,said point being the POINT OF BEGINNING;thence following the easterly right of way lines of said Sycamore Street,North 0 degrees 26 minutes 00 seconds East,a distance of 225.05 feet; thence North 4 degrees 09 minutes 00 seconds West, a distance of 212.68 feet;thence North 0 degrees 26 minutes 00 seconds East, a distance of 168.98 feet to the southwest corner of LOT 1 in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT 1, a distance of 278.80 feet to the southwest corner of said LOT 2; thence North 42 degrees 06 minutes 03 seconds West, a distance of 194.06 feet to the most westerly corner of said LOT 2; thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet; thence North 0 degrees 49 minutes 15 seconds East along the west line of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road;thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West, a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve, concave to the Southeast, having a radius of 804.00 feet, a central angle of 23 degrees 01 minute 26 seconds, and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West;thence Southwest along said curve,a distance of 323.08 feet tw the intersection with the northerly right of way line of said U.S. Highway#6 at aToint of curvature of a non-tangent curve,concave to the South, having a radius of 3015.00.i feet,ie central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet'eeting{ North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a stance,!., re' of 893.07 feet; thence North 89 degrees 50 minutes 08 seconds West, a disc of 227.53 feet to the POINT OF BEGINNING. •-!" ill -tee TOGETHER WITH, a non-exclusive easement for ingress, egress and=parking over portions of Lot 1 in Mall First Additional to Iowa City, Iowa, as per plat thereot� recorded in Plat Book 9, page 41 of records of Johnson County, Iowa, as set forth in that certain"Declaration of Mutual Easements",dated September 4,2008 and to be recorded. EXHIBIT H LETTERS OF CREDIT (See Attached) 0 O ,P0 awC• crass Ci orn1 r<n "o r :7V 3> o LOAN AGREEMENT NY:1180077.14 Letters of Credit # Amount Expiration Date Withdrawal Date 506 76,118.96 9/12/2009 7/1412009 507 63,142.66 9/12/2009 7/14/2009 508 63,142.66 9112/2009 7/14/2009 509 18,166.82 9/12/2009 7/142009 510 12,976.30 9/12/2009 7/14/2009 511 12,976.30 9/12/2009 7/142009 512 12,976.30 9/12/2009 7/14/2009 Total 259,500.00 513 78,465.59 9/12/2010 7/14/2010 514 65,089.26 9/12/2010 7/1412010 515 65,089 26 9/12/2010 7114/2010 0 516 18,726.87 9/12/2010 7/14/2010 ;73 517 13,376.34 9/12/2010 7/14/2010 (D 4 0 e 518 13,376.34 9/122010 7/142010 - 519 13,376.34 9/12/2010 7/14/2010 Total 267,500.00Cn 520 19,799.73 9/12/2011 7/142011Cry X 521 16,424.39 9/12/2011 7/14/2011 5_ 522 16,424.39 9/12/2011 7/14/2011 o 523 4,725.47 9/12/2011 7/14/2011 524 3,375.34 9/12/2011 7/14/2011 525 3,375.34 9/122011 7/14/2011 526 3,375.34 9/12/2011 7/14/2011 Total 67,500.00 Exhibit B PROMISSORY NOTE SECURED BY MORTGAGE 513,000,000.00 Sep jipber fir' = C5 1. Loan; Loan Agreement. PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC, a Delaware limited liability company ("Lender"), has made a loan ("Loan") to CORE SYCAMORE TOWN CENTER T, LLC, a Delaware limited liability company ("Borrower"), pursuant to that certain Loan Agreement ("Loan Agreement"), dated of even date herewith, among Lender and Borrower. All initially capitalized terms used in this Promissory Note Secured by Mortgage ("Note") without being defined herein shall have the meanings assigned in the Loan Agreement. 2. Oblieation to Repay. FOR VALUE RECEIVED, Borrower, as maker, hereby unconditionally promises to pay to the order of Lender, as holder, at such address as Lender may designate in its billing statements from time to time, or at such other place as the holder hereof may from time to time designate in writing, the principal sum of THIRTEEN MILLION and No/100($13,000,000.00)(or so much thereof as may be outstanding from time to time), with interest thereon at the Interest Rate from the date hereof until the entire principal balance of the Loan has been paid in full, together with all other amounts owing under the Loan Documents. All payments under this Note shall be made in lawful money of the United States of America. 3. Interest and Principal. Monthly interest payments shall be made on each Payment Date at the Interest Rate in accordance with the Loan Agreement, and principal payments(monthly or otherwise), if any, and all other amounts owing to Lender in respect of the Loan shall be paid in accordance with the Loan Agreement. 4. Maturity. All unpaid principal, interest thereon, and all other unpaid amounts owing under the Loan shall be due and payable in accordance with this Note and the Loan Agreement, but in any event on or before the Maturity Date. 5. Default and Acceleration. If (a) Borrower fails to pay when due any payment of interest or principal (other than maturity) under this Note or the Loan Agreement or the entire outstanding principal balance on the Maturity Date, or (b) Borrower fails to pay any other amount owing under this Note, the Loan Agreement or any other Loan Document on such other date as required under the Loan Agreement or such other Loan Document (in each case, taking into account any applicable grace, notice and/or cure periods), or (c) any other Event of Default occurs, at the option of Lender, except at maturity of this Note when acceleration of the Loan shall be automatic, all of (i) the whole of the principal sum of this Note, (ii) accrued interest including any Default Interest and Late Charges, (iii) all other sums, as provided in this Note, the Loan Agreement or any other Loan Document, and (iv) all sums advanced and out-of- pocket costs and expenses incurred by Lender in connection with the Loan or any part thereof, any renewal, extension, or change of or substitution for the Loan or any part thereof, or the NY:1179033.4 acquisition or perfection of the security therefor, whether made or incurred at the request of Borrower or Lender (all the sums referred to in (i) through (iv) above shall collectively be referred to as the"Debt")shall without notice become immediately due and payable. 6. Prepayment. The Debt may only be prepaid in accordance with Section 2.10(including such other sections referenced therein)of the Loan Agreement. 7. Security. This Note is secured by, among other things, that certain first priority Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing of even date herewith, executed by Borrower in favor of Lender, granting to Lender a first priority deed of trust on a portion of the Property. S. Late Charles. Inaddition to interest as set forth herein, Borrower shall pay Lender a late charge equal to five percent (5%) of any amounts due under this Note in the event any such amount is not paid when due (except as otherwise provided in the Loan Agreement), in order to defray part of the expense incident to handling such delinquent payment or payments; provided that such late charge shall not, together with other interest to be paid on the indebtedness evidenced by this Note or the indebtedness arising under any instrument securing the payment hereof, exceed the maximum interest permitted under applicable law. BORROWER ACKNOWLEDGES AND AGREES THAT (A) LENDER'S ACTUAL DAMAGES RESULTING FROM ANY SUCH DELINQUENCY AND THAT RELATE TO LOST USE OF FUNDS OR COST OF INTERNAL ADMINISTRATION OF DELINQUENT PAYMENTS HEREUNDER WOULD BE EXTREMELY DIFFICULT TO ASCERTAIN,AND (B) UNDER THE CIRCUMSTANCES IN EXISTENCE AS OF THE DATE HEREOF, SUCH LATE CHARGE CONSTITUTES A REASONABLE LIQUIDATION OF SUCH DAMAGES. Acceptance of any late payment shall not constitute a waiver of the late charge with respect to the overdue amount, and shall not prevent Lender from exercising any of the other rights and remedies available to Lender. This provision for imposition of a late charge is not intended to provide Borrower with a grace period for making payments and shall not be construed as extending or rendering inessential the time for payment or performance set forth herein. 9. Waivers. Borrower and all others who may become liable for the payment of all or any part of the Debt do hereby severally waive presentment and demand for payment, notice of dishonor, protest and notice of protest and non-payment and all other notices of any kind, except for notices expressly provided for in the Loan Agreement or in any other Loan Document. No release of any security for the Debt or extension of time for payment of this Note or any installment hereof, and no alteration, amendment or waiver of any provision of this Note, the Loan Agreement or any other Loan Document made by agreement between Lender or any other person or party shall release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower, and any other person or entity who may become liable for the payment of all or any part of the Debt, under this Note,the Loan Agreement or any other Loan Document. 10. Exculpation. Borrower's personal liability under this Note is limited and subject to Article VIII of the Loan Agreement, the terms, covenants and conditions of vivch are hereby made part of this Note to the same extent and with the same force as if tlr+y were llly s�t„� forth herein. '}` —; as 2 =+c7.• cn NY:1179033.4 } _p 11. Governing Law. This Note and the obligations arising hereunder shall be governed by, and construed in accordance with, the laws of the State of Iowa applicable to contracts made and intended to be performed in such state,without giving effect to principles of conflicts of laws,and any applicable law of the United States of America. 12. Notices. All notices required or permitted hereunder shall be given as provided in the Loan Agreement. 13. Incorporation by Reference. All of the terms, covenants and conditions contained in the Loan Agreement are hereby made part of this Note to the same extent and with the same force as if they were fully set forth herein. 14. Miscellaneous. This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought. Whenever used, the singular number shall include the plural, the plural number shall include the singular, and the words "Lender" and "Borrower" shall include their respective successors, assigns,heirs,executors and administrators. 1.5. Joint and Several Liability. If Borrower consists of more than one person,the obligations and liabilities of each such person hereunder shall be joint and several. [SIGNATURE PAGE TO FOLLOW] (� N g «11.11. -4 r" as 3 NY:1179033.4 Borrower has duly executed this Note as of the day and year first above written. IMPORTANT:READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. BORROWER: CORE SYCAMORE TOWN CENTER T,LLC, a Delaware limited liability company By: CORE Sycamore Town Center Mezzanine,LLC, a Delaware limited liability company, its sole member By: CORE Realty Holdings,LLC, a California limited liability company, its sole member By: Cf— Name: vim, ,.Tf}M R. GOj,i/IL' Title: 99ctrpalT I CEQ ry 0 E3N -,- �' -.C o rn �, tv Promissory Nae Signature Page CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT File No: STATE OF California )SS APN No: COUNTY OF Orange ) On August 26,2008 before me, Trade Nguyen ,Notary Public, personally appeared William R.Colvin who proved to me on the basis of satisfactory evidence to be the persons) whose name(s) isfare subscribed to the within instrument and acknowledged to me that he/shefthey executed the same in his/her/their authorized capacity(ies) and that by his/her/Weir signature(s)on the instrument the person(s), or the entity upon behalf of which the persons) acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and offidal seal. ACK MU r COMM. #1731137 � , , . Notary Public •Cslaornia g Signature - atl�- �r Orange County I > lir.l 2011 This area for official notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below,doing so may prove invaluable to persons relying on the documents. INDIVIDUAL I CORPORATE OFFICER(S) TTTLE(S) PARTNER(S) fJ LIMITED n GENERAL ATTORNEY-IN-FACT r; ..: TRUSTEE(S) ' g GUARDIAN/CONSERVATOR Wit` OTHER _.r 73fc SIGNER IS REPRESENTING: 'ry ca Name of Person or Entity Name of Person or Entity OPTIONAL SECTION Though the data requested here is not required by law,it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW • TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE Re ioA¢ed by First American Title Insurance 112001 EXHIBIT C Legal Description of Property LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa,as per plat thereof recorded in Plat Book 9, page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of North Half of the Northeast Quarter of Section 23, Township 79 North, Range 6 West of the 5th Principal Meridian, Iowa City,Johnson County,Iowa,more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway #6,said point being the POINT OF BEGINNING;thence following the easterly right of way lines of said Sycamore Street, North 0 degrees 26 minutes 00 seconds East, a distance of 225.05 feet; thence North 4 degrees 09 minutes 00 seconds West, a distance of 212.68 feet;thence North 0 degrees 26 minutes 00 seconds East, a distance of 168.98 feet to the southwest corner of LOT 1 in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT 1, a distance of 278.80 feet to the southwest corner of said LOT 2;thence North 42 degrees 06 minutes 03 seconds West,a distance of 194.06 feet to the most westerly corner of said LOT 2; thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet;thence North 0 degrees 49 minutes 15 seconds East along the west line of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road;thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West, a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve, concave to the Southeast, having a radius of 804.00 feet,a central angle of 23 degrees 01 minute 26 seconds, and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West; thence Southwest along said curve,a distance of323.08 feet to the intersection with the northerly right of way line of said U.S. Highway#6 at a point of curvature of a non-tangent curve,concave to the South, having a radius of 3015.00 feet, a central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a distance of 893.07 feet; thence North 89 degrees 50 minutes 08 seconds West,a distance of 227.53 feet to the POINT OF BEGINNING. TOGETHER WITH, a non-exclusive easement for ingress, egress and parking over portions of Lot l in Mall First Additional to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 of records of Johnson County, Iowa, as set forth in that certain "Declaration of Mutual Easements",dated September 4,2008 and to be recorded simultaneously herewith. rra ,. •U`s TI :74 c„...4 v� Vim, ^ --n _J� J • :;,1 5°►cot-1-.5° Exhibit D 1111111111111111111111 INT Doc ID: 021286020030 Type: 0EN Recorded: 09/24/2008 at 02:41:09 PM Fee Amt: $162.00 Page 1 of 30 Johnson County Iowa Klm Painter County Recorder 4352 PG326-355 MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING Borrower: CORE Sycamore Town Center T, LLC Lender: Prudential Mortgage Capital Company, LLC Document prepared by: Adam Silver, Esq. 200 Park Avenue New York, NY 10166 Phone: 212-294-6898 Taxpayer: CORE Sycamore Town Center T, LLC c/o CORE Realty Holdings, LLC 1600 Dove Street, Suite 450 Newport Beach, CA 92660 Legal Description: c See attached Exhibit A, pages 29-30 :,c-; •111 Book and Page Reference: N/A cr-irillIMPIP Recording requested by and return to: rri -- First American Title Insurance Company --- National Commercial Services 1900 Midwest Plaza ' C� 801 Nicollet Mall --` Minneapolis, MN 55402 Phone: 612-305-2000 NCS-304940(RH) RECORDINGREQUESTED BY: WINSTON& STRAWN LLP 200 Park Avenue New York,NY 10166 Attar David Traitel,Esq. ��-. ( dH SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE MORTGAGE, SECURITY AGREEMENT.ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING BY CORE SYCAMORE TOWN CENTER T,LLC, a Delaware limited liability company Borrower FOR THE BENEFIT OF PRUDENTIAL MORTGAGE CAPITAL COMPANY,LLC, a Delaware limited liability company ca g 3, Lender E.11 I r m.am• l rid rri PMCC Loan#: 416107997 "" - Attorney File#: 81121.690 =rte PREPARER INFORMATION Adam Silver,Esq, 200 Park Avenue New York,NY 212-294-6898 INDIVIDUAL'S NAME STREET ADDRESS CTIY PRONE NY:1179039.7 r:a rn car ":5 t MORTGAGE, SECURITY AGREEMENT,ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING (this "Mortgage") is made as of this 4th day of September, 2008,by CORE SYCAMORE TOWN CENTER T, LLC,having an address at do CORE Realty Holdings, LLC, 1600 Dove Street, Suite 450, Newport Beach, California 92660 (referred to herein as the "Borrower") for the benefit of PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC a Delaware limited liability company ("Lender"), whose address is 100 Mulberry Street, 0 Floor,Gateway Center Four, Newark,New Jersey 07102. RECITALS A. Lender has agreed, subject to the terms and conditions of that certain Loan Agreement dated as of even date herewith, by and between Borrower and Lender (the "Loan Agreement"), to make a loan(the"Loan") to Borrower. The Loan is evidenced by that certain Promissory Note Secured by Mortgage, executed by Borrower in favor of Lender, of even date herewith in the original principal amount of THIRTEEN MILLION and No/100 ($13,000,000.00) (which note,together with all notes issued in substitution or exchange therefor and all amendments thereto, the"Note"). The Note provides for monthly payments as set forth in the Note and Loan Agreement, with the balance thereof, due and payable on September 5, 2011, unless extended as provided in the Loan Agreement (said date, or any earlier date on which the entire unpaid principal amount shall be paid or required to be paid in full, whether by prepayment, acceleration or otherwise,or later date, as may be extended pursuant to the terms of the Loan Agreement,is hereinafter called the"Maturity Date"). B. Lender wishes to secure (i) the prompt payment of the Note, together with all interest, premiums and other amounts, if any, due in accordance with the terms of the Note, as well as the prompt payment of any additional indebtedness accruing to Lender on account of any future payments,advances or expenditures made by Lender and payable by Borrower pursuant to the Note,the Loan Agreement,this Mortgage or any of the other Loan Documents(as hereinafter defined); (ii)the performance of each and every covenant,condition, and agreement contained in the Note, the Loan Agreement, this Mortgage, that certain Environmental Indemnity Agreement of even date herewith made by Borrower and the Guarantor (as such terms are defined in the Loan Agreement) in favor of Lender, and any other documents evidencing or securing the Loan or executed in connection therewith (such documents together with any modifications, renewals, extensions or replacements thereof are collectively referred to as the "Loan Documents"); and NY:1179039.7 0 .,,_...i t.-,� ir --i =r ren ., (iii) the payment of any and all other debts, claims, obligations, demands, monies, liabilities and indebtedness of any kind or nature now or hereafter owing, arising, due or payable from Borrower to Lender, when the document evidencing the same specifically recites the recording information appearing on this Mortgage and that it is intended to be secured hereby. All payment obligations of Borrower or any Guarantor to Lender under the Loan or any of the Loan Documents are hereinafter sometimes collectively referred to as the "Indebtedness," and all other obligations of Borrower or any Guarantor to Lender under the Loan or any of the Loan Documents are hereinafter sometimes collectively referred to as the"Obligations." C. Borrower hereby acknowledges that it will receive a benefit from Lender making the Loan to Borrower and that this Mortgage is given for value, the adequacy of which is hereby agreed to. AGREEMENT NOW, THEREFORE, TO SECURE the repayment of the Indebtedness and the performance of the Obligations, Borrower has executed this Mortgage and does hereby irrevocably mortgage, grant,transfer,set over, assign, remise,release and warrant to Lender,and convey to Lender and grant a security interest in, all of the following described property and all proceeds thereof (which property is hereinafter sometimes collectively referred to as the "Property"): (a) The real estate described on Exhibit A attached hereto(the"Land"); (b) All of the following (collectively, the "Improvements"): all buildings, structures, improvements and fixtures of every kind or nature now or in the future situated or to be constructed on the Land; to the extent not owned by tenants, licensees or managers of the Property,and all additions,substitutions and replacements to any of the foregoing; (c) All building materials, supplies and equipment now or hereafter placed in or on the Land; (d) All furniture, furnishings, fixtures, goods, equipment, inventory or other personal property owned by Borrower and now or hereafter located in or on, attached to or used in and about the Land or Improvements, including, but not limited to, all machines, engines, boilers, dynamos, elevators, stokers, tanks, cabinets, awnings, screens, shades, blinds, carpets, draperies, lawn mowers, and all appliances, plumbing, heating, air conditioning, lighting, ventilating, refrigerating, disposal and incinerating equipment, and all fixtures and appurtenances thereto, and such other goods and chattels and personal property owned by Borrower as are now or 2 NX:1179039.7 _ _mss © Loa/ -1 C2 r 1 17-71 n hereafter used or furnished in operating the Land or Improvements, or the activities conducted therein, and all building materials and equipment hereafter situated on or about the Land or Improvements, and all warranties and guaranties relating thereto, and all additions thereto and substitutions and replacements therefore, to the extent not owned by tenants, licensees or managers of the Property; (e) To the extent assignable, all plans, specifications, architectural renderings, drawings, models, studies, data, soil test reports, engineering reports, environmental reports and other reports of examination or analysis of the Land or the Improvements; (f) All minerals,crops,timber,trees, shrubs, flowers and landscaping features now or hereafter located on,under or above the Land or the Improvements; (g) All easements, rights-of-way, water, water courses, ditches, wells, reservoirs, drains, vaults, streets, ways, alleys, passages, sewer rights, development rights, mineral rights, water rights and air rights and all estates, rights, titles, interests, tenements, hereditaments, appurtenances, reversions and remainders in any way belonging, relating or appertaining to any of the Land or Improvements, or which hereafter shall in any way belong, relate or be appurtenant thereto, whether now owned or hereafter acquired (collectively, the "Appurtenances"); (h) All leases, licenses, concessions, occupancy agreements and other agreements affecting the use, enjoyment or occupancy of the Land and/or Improvements now or hereafter entered into, whether written or oral (collectively, the "Leases"), all rents, additional rents, prepayments, termination payments, royalties, profits, issues, income, funds, proceeds, receipts, revenues and other benefits from the Land and/or Improvements from time to time accruing under the Leases, the Contracts or the General Intangibles (collectively, the "Rents') and all cash or securities deposited to secure performance by the tenants, lessees, occupants or licensees, as applicable, under the Leases, whether such cash or securities are to be held until the expiration of the terms of said Leases or applied to one or more of the installments coming due prior to the expiration of said terms (collectively, the "Deposits"), whether any such Rents or Deposits are paid or accruing before or after the filing by or against Borrower of any petition for relief under Title 11 of the United States Code ("Bankruptcy Code") to the extent permitted by applicable law, reserving to Borrower, however, so long as no Event of Default (hereinafter defined) hereunder exists, a revocable license to receive and apply the Rents in accordance with the terms and conditions of Section 6 of this Mortgage, subject to Article X of the Loan Agreement; (i) All claims, demands, judgments, insurance proceeds, tax refunds, reserves, deposits, rights of action, awards of damages, compensation, settlements, rebates or credits of 3 NY:1179039.7 a ,mss z.<17 rn C,:+ F-s-s • any taxes or assessments levied against all or any portion of the Property and other rights to the payment of money hereafter made resulting from or relating to (i) the taking of the Land or the Improvements or any part thereof under the power of eminent domain,(ii) any damage(whether caused by such taking,by casualty or otherwise)to the Land, Improvements or Appurtenances or any part thereof,or(iii)the ownership or operation of the Property; (j) To the extent assignable, all management contracts, service contracts, franchises, supply and maintenance agreements, permits, certificates, licenses, approvals, contracts, options, development rights,entitlements and authorizations,however characterized,issued or in any way furnished for the acquisition, construction, development, operation and use of the Land, Improvements and/or Leases, including building permits, environmental certificates, business licenses, licenses, certificates of operation, warranties and guaranties (collectively, the "Contracts"); (k) All present and future accounts, accounts receivable,documents, causes of action, claims, contract rights, general intangibles (including, without limitation, trademarks, trade names, servicemarks and symbols now or hereafter owned by Borrower and now or hereafter used in connection with any part of the Property, all names by which the Property may be operated or known, all rights to carry on business under such names and all rights, interest and privileges which Borrower has or may have as developer or declarant under any covenants, restrictions or declarations now or hereafter affecting the Land or the Improvements), notes, chattel paper, documents, instruments, inventory, goods, equipment and all books and records relating to the foregoing(collectively,the"General Intangibles"); (1) Any cash funds, deposit accounts, monies and other rights and evidence of rights to cash, now or hereafter on deposit with or for the benefit of Lender, including deposits for the payment of real estate taxes and any reserve account or cash collateral account (including without limitation, the Escrow Fund, Replacement Reserve, Tl/LC Reserve, and Immediate Repair Reserve; (m) All refunds, rebates, reimbursements, reserves, deferred payments, deposits, cost savings, governmental subsidy payments, governmentally-registered credits (such as emissions reduction credits), other credits, waivers and payments, whether in cash or in kind, due from or payable by(i)any federal,state,municipal or other governmental or quasi-governmental agency, authority or district (a "Governmental Agency") or (ii) any insurance or utility company relating to any or all of the Property or arising out of the satisfaction of any conditions imposed upon or the obtaining of any approvals for the development or rehabilitation of the Property; 4 NY:1179039.7 c = m r r- `DC7 rt 57.5 C, • (n) All refunds, rebates, reimbursements, credits and payments of any kind due from or payable by any Governmental Agency for any taxes, special taxes, assessments, or similar governmental or quasi-governmental charges or levies imposed upon Borrower with respect to the Property or upon any or all of the Property or arising out of the satisfaction of any conditions imposed upon or the obtaining of any approvals for the development or rehabilitation of the Property; (o) All insurance policies or binders now or hereafter relating to the Property, including,without limitation,all proceeds,awards and unearned premiums thereon; (p) The Clearing Account, the Cash Management Account and (i) all of Borrower's right title and interest in and to all cash, property or rights transferred to or deposited in the Clearing Account and Cash Management Account from time to time by or on behalf of Borrower and (ii) all earnings, investments and securities held in the Clearing Account and the Cash Management Account; (q) All letters of credit and rights to draw upon all letters of credit with respect to which Lender is the beneficiary or assignee, including, without limitation,the Letter of Credit(as defined in the Loan Agreement) and the right to draw upon thereof assigned to Lender in connection with that certain Letter of Credit Control Agreement dated the date hereof made by and between Borrower and Lender, and the proceeds of any draw thereon. (r) All interest in and to the TIF Escrow Agreement made among Borrower, Seller (as such term is defined in the Loan Agreement), Lender and TIF Escrow Agent(as such term is defined in the Loan Agreement) as the same may hereinafter be modified, amended, restated, supplemented, assigned or assumed. (s) All interest in and to the Tax Escrow Agreement dated as of September , 2008, made among Borrower, TIF Escrow Agent and Seller, as the same may hereinafter be modified, amended, restated, supplemented, assigned or assumed (the "Tax Escrow Agreement"). (t) The Interest Rate Protection Agreement (and any Extension Period Interest Rate Protection Agreement)and all rights of Borrower thereunder and all Cap Collateral(as defined in the Assignment of Interest Rate Protection Agreement or the Assignment of Extension Period Interest rate Protection Agreement); (u) All interest in and to that certain Tenants in Common Agreement dated September _, 2008 and made by and among Borrower, TIC Sycamore 1, LLC, a Delaware limited liability company, TIC Sycamore 2, LLC, a Delaware limited liability company and TIC 5 NY:1179039.7 r-«, 0 o .ffi� r-(, ic' I --ice al iu � o Sycamore 3, LLC, a Delaware limited liability company (as the same may hereinafter be modified, amended,restated,supplemented,assigned or assumed,the "TIC Agreement"). (v) All proceeds, products, replacements, additions, substitutions, renewals and accessions of and to the Land, Improvements, Appurtenances or any other property of the types described in the preceding granting clauses; and (w) Any and all after-acquired right, title or interest of Borrower in and to any property of the types described in the preceding granting clauses. TO HAVE AND TO HOLD the Property and all parts thereof, together with the rents, issues, profits and proceeds thereof, unto Lender to it its own proper use, benefit and advantage forever,subject,however,to the terms,provisions and conditions herein set forth. Borrower covenants and agrees with Lender as follows: 1. Payment of Indebtedness; Performance of Obligations. Borrower shall promptly pay when due the Indebtedness and shall promptly perform all Obligations,to the extent the Loan Documents require Borrower to do so. 2. Use of Property. Unless required by applicable law,Borrower shall not permit any material changes in the use of any part of the Property from the use existing at the time this Mortgage was executed. Borrower shall not initiate or acquiesce in a change in the zoning classification of the Property without Lender's prior written consent. 6 NY:I t79039.7 _ E) a C 3 (I -r1 i? .ra o 3. Preservation and Maintenance of Property. Borrower shall: (a) not commit waste or permit impairment or deterioration of the Property; (b)not abandon the Property; (c)keep the Property in good repair and restore or repair promptly, in a good and workmanlike manner, all or any part of the Property to the equivalent of its original condition, subject to ordinary wear and tear, or such other condition as Lender may approve in writing, upon any damage or loss thereto; (d) comply with all laws, ordinances, regulations and requirements of any governmental body applicable to the Property; (e) provide for management of the Property by a property manager reasonably satisfactory to Lender pursuant to a contract in form and substance reasonably satisfactory to Lender; and (f) give notice in writing to Lender of and,unless otherwise directed in writing by Lender, appear in and defend any action or proceeding purporting to affect the Property, the security granted by the Loan Documents or the rights or powers of Lender. Neither Borrower nor any tenant or other person shall remove,demolish or alter any Improvement on the Land except (i)when incident to the replacement of fixtures,equipment,machinery and appliances with items of like kind, (ii) for rehabilitation and renovation contemplated or permitted by the Loan Agreement or (iii) as may be otherwise approved by Lender in Lender's sole and absolute discretion. 4. Protection of Lender's Security. If(a)Borrower fails to pay the Indebtedness or to perform the Obligations, (b)any action or proceeding is commenced which affects or could affect the Property or Lender's interest therein, including any loss, damage, cost, expense or liability incurred by Lender with respect to (i) any environmental matters relating to the Property, or (ii) the preparation of the commencement or defense of any action or proceeding or any threatened action or proceeding affecting the Loan Documents or the Property, then Lender, at Lender's option, may make such appearances, disburse such suns and take such action as Lender deems necessary, in its sole discretion, to protect the Property or Lender's interest therein, including entry upon the Property to take such actions Lender determines appropriate to preserve, protect or restore the Property. Any amounts disbursed by Lender pursuant to this Section 4 (including reasonable attorneys' fees, out-of-pocket costs and expenses), together with interest thereon at the "Default Rate" (defined in the Loan Agreement) from the date of disbursement, shall become additional Indebtedness of Borrower secured by the lien of this Mortgage and the other Loan Documents and shall be due and payable on demand. Nothing contained in this Section 4 shall require Lender to incur any expense or take any action hereunder. 7 NY:1 179039.7 d n.s wt� t r- -9 i • f`J 5. Actions. Borrower shall warrant title, pursuant to a special warranty of title, and appear in and defend any claim or any action or other proceeding purporting to affect title or other interests relating to any part of the Property, the security of this Mortgage or the rights of Lender, and give Lender prompt written notice of any such claim, action or proceeding. Lender may, at the expense of Borrower, appear in and defend any such claim, action or proceeding and any claim, action or other proceeding asserted or brought against Lender in connection with or relating to any part of the Property or this Mortgage. 6. Assignment of Rents. Borrower absolutely and unconditionally assigns and transfers to Lender, all of Borrower's right, title and interest in and to the all present and future Leases and Rents; provided,however, so long as there shall not have occurred an Event of Default, Borrower shall have the right to collect all Rents, and shall hold the same, in trust, to be applied first to the payment of all impositions, levies, taxes, assessments and other charges upon the Property, second to maintenance of insurance policies upon the Property required hereby, third to the expenses of Property operations, including maintenance and repairs required hereby, fourth to the payment of that portion of the Indebtedness then due and payable, and fifth, the balance, if any, to or as directed by Borrower. If an Event of Default has occurred, Borrower's right to collect and secure the Rents shall cease and Lender shall have the sole right, with or without taking possession of the Property to collect and receive all Rents. Borrower has executed and delivered to Lender the Assignment of Leases, and, to the extent the provisions of this Section 6 are inconsistent with the provisions of the Assignment of Leases, the provisions of the Assignment of Leases shall control. Borrower acknowledges and agrees that,other than as approved in writing by Lender, all Leases shall be subordinate to this Mortgage, as this Mortgage may be amended from time to time, unless Lender shall specify otherwise at any time during the term of this Mortgage, and Borrower, if reasonably required by Lender, shall, at Borrower's expense, cause the tenant under each of such Leases to enter into a subordination and attornment agreement with Lender (and Borrower, if Lender requires that Borrower be a party to such agreement) which is in form and substance reasonably satisfactory to Lender, or cause such Leases to be made superior to this Mortgage in a manner reasonably satisfactory to Lender. Each commercial Lease executed subsequent to the recording of this Mortgage shall contain a provision permitting Lender to notify the tenant at any time that the Lease will be prior to the Mortgage. Lender shall be a third party beneficiary of all attornment provisions contained in all Leases. All tenants who execute 8 NiY:1179039.7 0 ''"'a :":71 (71r rn rj leases or lease amendments subsequent to the date of recording of this Mortgage shall be bound by the terms of this provision. Borrower shall not be authorized to enter into any ground lease of the Property without Lender's prior written approval. The foregoing assignment transfers to Lender all of Lender's right, title, and interest in any security deposits, provided that Borrower shall have the right to retain the security deposits so long as there is no Event of Default under this Mortgage or the Loan Documents. Lender shall have no obligation to any tenant with respect to its security deposit unless and until Lender comes into possession and control of the deposit. Borrower acknowledges that Lender has taken all actions necessary to obtain, and that upon recordation of this Mortgage, Lender shall have, to the extent permitted under applicable law, a valid and fully perfected, first priority, present assignment of the Leases, the Rents arising out of the Leases and all security for such Leases. Borrower acknowledges and agrees that upon recordation of this Mortgage, Lender's interest in the Leases and Rents shall be deemed to be fully perfected, "choate" and enforced as to Borrower and all third parties, including, without limitation, any subsequently appointed trustee in any case under the Bankruptcy Code, without the necessity of commencing a foreclosure action with respect to this Mortgage, making formal demand for the Leases or Rents, obtaining the appointment of a receiver or taking any other affirmative action. Without limitation of the absolute nature of the assignment of Rents hereunder, Borrower and Lender agree that (a) this Mortgage shall constitute a"security agreement" for the purposes of Section 552(b) of the Bankruptcy Code, (b)the security interest created by this Mortgage extends to property of Borrower acquired before the commencement of a case in bankruptcy and to all amounts paid as Rents and (c)such security interest shall extend to all Rents acquired by the estate after the commencement of any case in bankruptcy. Notwithstanding the foregoing, the provisions of this Section 6 shall be subject to the terms of Article X of the Loan Agreement. 7. Commercial Code Security Agreement. (a) This Mortgage shall constitute a "security agreement" pursuant to the Iowa Uniform Commercial Code ("UCC") for any portion of the Property which, under applicable law, may be subject to a security interest pursuant to the UCC (such portion of the Property is hereinafter called the "Personal Property"), and Borrower hereby grants to Lender a security 9 NY:I179039.7 Q CD criN --!f ti r •D 14'� ":� cm interest in Borrower's right, title and interest in the Personal Property. Any reproduction of this Mortgage or of any other security agreement or financing statement shall be sufficient as a financing statement. In addition, Lender shall have all of the rights and remedies of a secured party under the UCC as well as other rights and remedies available at law or in equity. (b) Borrower agrees to deliver to Lender any financing statements and further assurances, as well as extensions, renewals and amendments thereof, and reproductions of this Mortgage in such form as Lender may require to perfect a security interest with respect to the Personal Property. Borrower hereby authorizes and empowers Lender and irrevocably appoints Lender its agent and attorney-in-fact, which grant shall be coupled with an interest, to execute and file all financing statements to be filed by Lender simultaneously with the closing of the Loan and all refilings and continuations thereof as Lender deems necessary or advisable to create, preserve and protect such lien. Borrower shall pay all costs of filing such financing statements and any extensions, renewals, amendments and releases thereof, and shall pay all reasonable costs and expenses of any record searches for financing statements as Lender may reasonably require. Without limitation of the foregoing, if an Event of Default occurs, Lender shall be entitled immediately to exercise all remedies available to it under the UCC. Borrower's (Debtor's) principal place of business is at the address set forth in the first paragraph of this Mortgage. Lender's (Secured Party's) principal place of business is at the address set forth in first paragraph of this Mortgage. (c) Any party to any contract subject to the security interest granted herein shall be entitled to rely on the rights of Lender without the necessity of any further notice or action by Borrower. Lender shall not by reason of this Mortgage or the exercise of any right granted hereby be obligated to perform any obligation of Borrower with respect to any portion of the Personal Property nor shall Lender be responsible for any act committed by Borrower, or any breach or failure to perform by Borrower with respect to any portion of the Personal Property. (d) Borrower shall not, without the prior written consent of Lender, sell, assign, transfer, encumber, remove or permit to be removed from the Property any of the Personal Property, other than the sale, assignment, transfer or consumption of inventory in the ordinary course of business or in connection with the renovation and rehabilitation of the Improvements as contemplated or permitted by the Loan Agreement. So long as no Event of Default exists, Borrower may sell or otherwise dispose of the Personal Property when obsolete, worn out, inadequate or unserviceable, but only upon replacing the same with other Personal Property at least equal in value and utility to the disposed Personal Property; provided, further, so long as no Event of Default exists, Borrower may sell or otherwise dispose of Personal Property that is unnecessary for use in the operation of the Property, and in such event, Borrower shall not be obligated to substitute or replace Personal Property unnecessary for use in the operation of the 10 NY:I 179I}39.7 Ps.) c7-{ ten -'-t4- yam: i9 Baa CD Property, as determined by Borrower in its reasonable business judgment. Any replaWment or substituted Personal Property shall be subject to the security interest granted herein. (e) To the extent permitted by law,Borrower and Lender agree that with respect to all items of Personal Property which are or will become fixtures on the Land, this Mortgage, upon recording or registration in the real estate records of the proper office, shall constitute a"fixture filing" within the meaning of Sections 9-102(a)(40) and 9-502 of the UCC. Borrower is the record owner of the Land. (f) The information contained in this Section 7 is provided in order that this Mortgage shall comply with the requirements of the Uniform Commercial Code as presently in effect in the State of Iowa for mortgages to be effective as financing statements filed as a fixture filing. The legal name of each"debtor" and the jurisdiction of its organization is listed on Schedule A attached hereto. The identification number given to each debtor by its jurisdiction of organization is also listed on Schedule A attached hereto. Lender's legal name is "PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC" and the jurisdiction of its organization is Delaware. Borrower's Chief Executive Office is located in the State of California. Borrower agrees to furnish Lender with notice of any change in the name, identity, organizational structure, residence, state of incorporation, state of organization or state of formation or principal place of business or mailing address of Borrower within ten(10)days of the effective date of any such change. (g) Borrower shall, from time to time upon the request of Lender, supply Lender with a current inventory of all of the property in which Lender is granted a security interest hereunder, in such detail as Lender may reasonably require. (h) Any sale made pursuant to the provisions of this Section shall be deemed to have been a public sale conducted in a commercially reasonable manner if held contemporaneously with the foreclosure sale as provided in Section 11 hereof upon giving the same notice with respect to the sale of the Property hereunder as is required under said Section 11. Furthermore, to the extent permitted by law, in conjunction with, in addition to or in substitution for the rights and remedies available to Lender pursuant to any applicable Uniform Commercial Code: (i) In the event of a foreclosure sale, the Property may, at the option of Lender,be sold as a whole or in parts,as determined by Lender in its sole discretion; (ii) It shall not be necessary that Lender take possession of the aforementioned Personal Property, or any part thereof,prior to the time that any sale pursuant to the provisions of 11 NY:I 179039.7 ;te'', rf; 7- f -177 I Q this Section is conducted and it shall not be necessary that said Personal Property, or any part thereof,be present at the location of such sale; and (iii) Lender may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Lender,including the sending of notices and the conduct of the sale,but in the name and on behalf of Lender. (i) Upon the occurrence of an Event of Default under this Mortgage, Lender, pursuant to the appropriate provisions of the UCC, shall have an option to proceed with respect to both the real property portion of the Property and the Personal Property in accordance with its rights, powers and remedies with respect to such real property, in which event the default provisions of the UCC shall not apply. Such option shall be revocable by Lender as to all or any portion of the Personal Property at any time prior to the sale of the remainder of the Property. In such event, Lender shall conduct the sale of the Personal Property in combination with the sale of the remainder of the Property. Should Lender elect to sell the Personal Property or any part thereof which is real property or which Lender has elected to treat as real property or which may be sold together with the real property as provided above, Lender shall give such notice of default and election to sell as may then be required by law. The parties agree that if Lender shall elect to proceed with respect to any portion of the Personal Property separately from such real property, five (5) days' notice of the sale of the Personal Property shall be reasonable notice. The reasonable expenses of retaking,holding, preparing for sale,selling and the Iike incurred by Lender shall include, but not be limited to, reasonable attorneys' fees and out-of-pocket costs and expenses incurred by Lender. 8. Estoppel Certificate. Borrower shall, within twenty (20) days after Lender's request, furnish Lender with a written statement,duly acknowledged, setting forth the sums,according to Borrower's books and records, secured by the Loan Documents and any right of set-off, counterclaim or other defense which exists against such sums and the Obligations. 9. Borrower and Lien Not Released. Without affecting the liability of Borrower or any other person liable for the payment of the Indebtedness, and without affecting the lien or charge of this Mortgage as security for the payment of the Indebtedness, Lender may from time to time and without notice to any junior lien holder or holder of any right or other interest in and to the Property: (a) release any person so liable; (b)waive or modify any provision of this Mortgage or the other Loan Documents or grant other indulgences; (c)release all or any part of the Property; (d) take additional security for any 12 NY:1I79039.7 ca c: 5 obligation herein mentioned; (e) subordinate the Iien or charge of this Mortgage; (f)consent to the granting of any easement;or(g)consent to any map or plan of the Property. 10, Events of Default;Acceleration of Indebtedness. The occurrence of any one or more of the following events shall constitute an "Event of Default"under this Mortgage: (a) the occurrence of an "Event of Default" under and as defined in the Loan Agreement or any other Loan Document;or (b) failure of Borrower, within thirty (30) days after notice and demand, to satisfy each and every Obligation not set forth in the subsection above; provided, however, if such Obligation cannot by its nature be cured within thirty(30)days, and if Borrower commences to cure such failure promptly after written notice thereof and thereafter diligently pursues the curing thereof(and then in all events cures such failure within one hundred twenty(120) days after the original notice thereof), Borrower shall not be in default hereunder during such period of diligent curing. All notices and cure periods described herein shall not be applicable to any event which with the giving of notice, the passage of time or both would constitute an Event of Default, if such event has occurred as of the date on which Lender commences a nonjudicial foreclosure proceeding with respect to another Event or Events of Default. Such event shall constitute an independent Event of Default hereunder. Upon the occurrence and during the continuation of an Event of Default, at the option of Lender, the Indebtedness shall become immediately due and payable without notice to Borrower and Lender shall be entitled to all of the rights and remedies provided in the Loan Documents or at law or in equity. Each remedy provided in the Loan Documents, is distinct and cumulative to all other rights or remedies under the Loan Documents,or afforded by law or equity, and may be exercised concurrently,independently, or successively,in any order whatsoever. 11. Entry;Foreclosure. (a) Surrender Possession. Upon the occurrence and during the continuation of an Event of Default, Borrower, upon demand of Lender, shall forthwith surrender to Lender the actual possession of the Property, or to the extent permitted by law, Lender, or its officers or agents or a receiver appointed by a court of competent jurisdiction, may enter and take possession of all or any part of the Property, and may exclude Borrower and its agents and employees wholly therefrom,and may have joint access with Borrower to the books,papers and 13 NY:1179039.7 C", ....� =MOM cn - S'J i') accounts of Borrower. If Borrower shall for any reason fail to surrender or deliver the Property or any part thereof after such demand by Lender, Lender or such receiver may obtain a judgment or decree conferring on Lender or such receiver the right to immediate possession of the Property or requiring the delivery of the Property to Lender or such receiver, and Borrower specifically consents to the entry of such judgment or decree. Upon every such entering upon or taking of possession, Lender or such receiver may hold, store, use, operate, manage and control the Property and conduct the business thereof, and Lender or such receiver may take any action required by applicable law or which Lender or such receiver believes necessary to enforce compliance with the environmental provisions contained herein or in the other Loan Documents, and negotiate with governmental authorities with respect to the Property's environmental compliance and remedial measures in connection therewith. Lender and such receiver and their representatives shall have no liability for any loss, damage, injury, cost or expense resulting from any action or omission which was taken or omitted in good faith. (b) Pursue Remedies. When the Indebtedness or any part thereof shall become due, whether by acceleration or otherwise, Lender may, either with or without entry or taking possession as herein provided or otherwise, proceed by suit or suits at law or in equity or by any other appropriate proceeding or remedy to: (i) enforce payment of the Note or the performance of any term, covenant, condition or agreement of Borrower under any of the Loan Documents; (ii) foreclose the lien hereof for the Indebtedness or part thereof and sell the Property as an entirety or otherwise, as Lender may determine; and/or (iii) pursue any other right or remedy available to it under or by the Iaw and decisions of the state in which the Land is located. Notwithstanding any statute or rule of law to the contrary, the failure to join any tenant or tenants of the Property as party defendant or defendants in any foreclosure action or the failure of any such order or judgment to foreclose their rights shall not be asserted by Borrower as a defense in any civil action instituted to collect (A) the Indebtedness, or any part thereof, or(B) any deficiency remaining unpaid after foreclosure and sale of the Property. (c) Mixed Collateral. Upon the occurrence and during the continuation of an Event of Default under this Mortgage, Lender, pursuant to the appropriate provisions of the UCC, shall have an option to proceed with respect to both the real property portion of the Property and the Personal Property in accordance with its rights, powers and remedies with respect to such real property, in which event the default provisions of the UCC shall not apply. Such option shall be revocable by Lender as to all or any portion of the Personal Property at any time prior to the sale of the remainder of the Property. In such event Lender shall conduct the sale of the Personal Property in combination with the sale of the remainder of the Property. Should Lender elect to sell the Personal Property or any part thereof which is real property or which Lender has elected to treat as real property or which may be sold together with the real property as provided above, Lender shall give such notice of default and election to sell as may then be 14 NY:1179039.7 V 0 11 -4 C _. -;C) al Y7 rn required by law. The parties agree that if Lender shall elect to proceed with respect to any portion of the Personal Property separately from such real property, ten(10)days' notice of the sale of the Personal Property shall be reasonable notice. The reasonable out-of-pocket 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 out-of-pocket costs and expenses incurred by Lender. (d) Uniform Commercial Code. Notwithstanding anything to the contrary in this Mortgage, upon the occurrence and during the continuation of an Event of Default,Lender may exercise its rights of enforcement with respect to the Personal Property under the UCC, and in conjunction with,in addition to or in substitution for those rights and remedies: (i) Lender may enter upon the Property to take possession of, assemble and collect the Personal Property or to render it unusable; (ii) Lender may require Borrower to assemble the Personal Property and make it available at a place Lender designates which is mutually convenient to Lender to take possession or dispose of the Personal Property; (iii) any sale made pursuant to the provisions of this paragraph shall be deemed to have been a public sale conducted in a commercially reasonable manner if held contemporaneously with the sale of the Property under power of sale as provided herein upon giving the same notice with respect to the sale of the Personal Property hereunder as is required for such sale of the Property under power of sale; (iv) in the event of a foreclosure sale, whether made by Lender under the terms hereof, or under judgment of a court, the Personal Property and the Property may, at the option of Lender,be sold as a whole; (v) it shall not be necessary that Lender take possession of the Personal Property or any part thereof prior to the time that any sale pursuant to the provisions of this paragraph is conducted and it shall not be necessary that the Personal Property or any part thereof be present at the location of such sale; and (vi) Lender may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Lender,including the sending of notices and the conduct of the sale,but in the name and on behalf of Lender. (e) Rescission of Notice of Sale. Lender may from time to time rescind any notice of default or notice of sale before sale as provided above in accordance with the laws of the state 15 NY:1179039.7 N EA) 411 > . . :7( - r iv in which the Land is located. The exercise by Lender of such right of rescission ll not constitute a waiver of any breach or default then existing or subsequently occurring, or impair the right of Lender to execute and deliver other declarations or notices of default to satisfy the obligations of this Mortgage, or otherwise affect any provision, covenant or condition of any Loan Document or any of the rights, obligations or remedies of Lender hereunder or thereunder. (f) Rights and Remedies Cumulative. Lender shall have all powers, rights and remedies under applicable law whether or not specifically or generally granted or described in this Mortgage. Nothing contained herein shall be construed to impair or to restrict such powers, rights and remedies or to preclude any procedures or process otherwise available to holders of mortgages in the state in which the Land is located. Lender shall be entitled to enforce the payment and performance of the Indebtedness or the Obligations and to exercise all rights and powers under this Mortgage or under any other Loan Document or other agreement of any laws now or hereafter in force, notwithstanding the fact that some or all of the Indebtedness and the Obligations may now or hereafter be otherwise secured, whether by deed of trust, mortgage, pledge, lien, assignment or otherwise. Neither the acceptance of this Mortgage nor its enforcement, whether by court action or other powers contained herein, shall prejudice or in any manner affect Lender's right to realize upon or enforce any other rights or security now or hereafter held by Lender. Lender shall be entitled to enforce this Mortgage and any other rights or security now or hereafter held by Lender in such order and manner as it may in its absolute discretion determine. No remedy herein conferred upon or reserved to Lender is intended to be exclusive of any other remedy contained herein or by law provided or permitted, but each shall to the extent permitted by law be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity. Every power or remedy given by any of the Loan Documents to Lender, or to which it may be otherwise entitled, may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by Lender, and it may pursue inconsistent remedies. By exercising or by failing to exercise any right,option or election hereunder, Lender shall not be deemed to have waived any provision hereof or to have released Borrower from any of the obligations secured hereby unless such waiver or release is in writing and signed by Lender. The waiver by Lender of Borrower's failure to perform or observe any term, covenant or condition referred to or contained herein to be perform or observed by Borrower shall not be deemed to be a waiver of such term, covenant or condition or of any subsequent failure of Borrower to perform or observe the same or any other such term, covenant or condition referred to or contained herein, and no custom or practice which may develop between Borrower and Lender during the term hereof shall be deemed a waiver of or in any way affect the right of Lender to insist upon the performance by Borrower of the obligations secured hereby in strict accordance with the terms hereof or of any other Loan Document. 16 NY:1179039.7 C.7 � L7 CD 4dco:ar i,..' t rn cD ;NJ 12. Expenditures and Expenses. In any action to foreclose the lien hereof or otherwise enforce Lender's rights and remedies hereunder, there shall be allowed and included as additional Indebtedness all Transaction Costs (as defined in the Loan Agreement) which may be paid or incurred by or on behalf of Lender. All Transaction Costs and such other costs, expenses and fees as may be incurred or as may be owing by Lender in the protection of the Property and the maintenance of the lien of this Mortgage, including the reasonable out-of-pocket fees, costs and expenses of any attorneys employed by Lender in any litigation or proceeding affecting this Mortgage, the Note, the other Loan Documents, the Property or the Personal Property, including probate, appellate and bankruptcy proceedings, or in preparations for the commencement or defense of any action or proceeding or threatened action or proceeding, including reasonable costs and expenses in connection with obtaining any court order or the appointment of a receiver to enforce Lender's rights pursuant to applicable law, shall be immediately due and payable to Lender, with interest thereon at the Default Rate, and shall be secured by this Mortgage. In addition to the foregoing award of reasonable attorney's fees, costs and expenses, Lender shall be entitled to its reasonable out-of-pocket attorneys' fees, costs and expenses incurred in any post judgment proceedings to collect or enforce any judgment or order relating to this Mortgage, the Note secured hereby or the other Loan Documents. This provision is separate and several and shall survive the merger of this provision into any judgment. 13. Application of Proceeds of Foreclosure Sale. After deducting all reasonable out-of-pocket costs, fees and expenses of this Mortgage, including, without limitation, costs of evidence of title and reasonable attorneys' fees and out-of- pocket costs and expenses of Lender in connection with a sale as provided in Section 11 above, the proceeds of any foreclosure sale of the Property shall be distributed and applied in the order of priority set forth in the Note or the Loan Agreement with the remainder, if any, to be distributed to the person or persons legally entitled thereto. 14. Appointment of Receiver. If an Event of Default is continuing or if Lender shall have accelerated the Indebtedness, Lender, upon application to a court of competent jurisdiction, whether in conjunction with Lender's commencement of judicial proceedings to foreclose the lien hereof, or pursuant to other proceedings, shall be entitled as a matter of strict right, without notice, and without regard to the occupancy or value of the Property or any other security for the Indebtedness or the insolvency of any party bound for its payment, to the appointment, at its option, of itself as mortgagee in possession, or of a receiver to take possession of and to operate the Property or any portion 17 NY:1179039.7 a r C owner aC�� -z] rn 70, thereof, and to collect and apply the Rents, and Borrower hereby irrevocably consents to such appointment and waives notice of any application therefor. In addition, Lender shall have the right to appoint a receiver at any other times permitted under applicable law, The receiver shall have all of the rights and powers to the fullest extent permitted by law. The receiver shall have the right to apply Rents to cleanup, remediation or other response action concerning the release or threatened release of Hazardous Materials (as defined in the Environmental Indemnity Agreement), whether or not such actions are pursuant to an order of any federal, state or local governmental agency. 15. Future Advances. This Mortgage is given to secure not only the existing Indebtedness, but also future advances (whether such advances are obligatory or are made at the option of Lender, or otherwise) made by Lender under the Note, the Loan Agreement, this Mortgage or any other Loan Document, to the same extent as if such future advances were made on the date of the execution of this Mortgage. The total amount of indebtedness that may be so secured may decrease or increase from time to time, but all Indebtedness secured hereby shall in no event exceed [TO BE CONFIRMED: two(2)times]the aggregate face amount of the Note. 16. [Intentionally Omitted] 17. Forbearance by Lender Not a Waiver. Any forbearance by Lender in exercising any right or remedy under any of the Loan Documents, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any right or remedy. Lender's acceptance of payment of any sum secured by any of the Loan Documents after the due date of such payment shall not be a waiver of Lender's right to either require prompt payment when due of all other sums so secured or to declare a default for failure to make prompt payment. The procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of Lender's right to accelerate the maturity of the Indebtedness, nor shall Lender's receipt of any awards, proceeds or damages under the Loan Documents operate to cure or waive Borrower's default in payment or sums secured by any of the Loan Documents. With respect to all Loan Documents, only waivers made in writing by Lender shall be effective against Lender. 18. Waiver of Statute of Limitations. Borrower hereby waives, to the fullest extent permitted by law, the right to assert any statute of limitations as a bar to the enforcement of the lien created by any of the Loan 18 NY:1179039.7 A_ cr SI-r, 7_ TN.) Documents or to any action brought to enforce the Note or any other obligation secured by any of the Loan Documents. 19. Waiver of Homestead and Redemption. Borrower hereby waives, to the fullest extent permitted by law, all right of homestead exemption in the Property. 20. Governins Law;Severability. THIS MORTGAGE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF IOWA (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS)AND ANY APPLICABLE LAWS OF THE UNITED STATE OF AMERICA. THE INVALIDITY, ILLEGALITY OR UNENFORCEABILITY OF ANY PROVISION OF THIS MORTGAGE SHALL NOT AFFECT OR IMPAIR THE VALIDITY, LEGALITY OR ENFORCEABILITY OF THE REMAINDER OF THIS MORTGAGE, AND TO THIS END, THE PROVISIONS OF THIS MORTGAGE ARE DECLARED TO BE SEVERABLE. 21. Notice. (a) Notices shall be given under this Mortgage in conformity with the terms and conditions of the Loan Agreement and in conformity with applicable law. (b) Borrower requests that copies of any notice of default or notice of sale hereunder be sent to Borrower at Borrower's address stated above. 22. Successors and Assigns Bound; Joint and Several Liiability, AQentc Captions. The covenants and agreements contained in the Loan Documents shall bind, and the rights thereunder shall inure to, the respective successors and assigns of Lender and Borrower, subject to the provisions of Section 6.1.3 of the Loan Agreement All covenants and agreements of Borrower shall be joint and several. In exercising any rights under the Loan Documents or taking any actions provided for therein, Lender may act through its employees, agents or independent contractors as authorized by Lender. The captions and headings of the paragraphs of this Mortgage are for convenience only and are not to be used to interpret or define the provisions hereof. 23. Release. 19 NY:1179039.7 O C.0 -rte, 111 (` m Upon payment of all sums secured by this Mortgage, Lender shall promptly release this Mortgage. Borrower shall pay Lender's reasonable costs incurred in releasing this Mortgage and any financing statements related hereto. 24. Exculpation. This Mortgage and other Loan Documents and all of Borrower's obligations hereunder and thereunder are limited and subject to Article VIII of the Loan Agreement, the terms, covenants and conditions of which are hereby made part of this Mortgage to the same extent and with the same force as if they were fully set forth herein. 25, Interest Adjustments; Additional Interest. The Note and the Loan Agreement contain provisions for periodic adjustments in the Interest Rate based on adjustments in LIBOR(as such terms are defined in the Loan Agreement). The lien of this Mortgage, as to principal and adjusted interest and accrued and deferred interest, all pursuant to the Note and the Loan Agreement shall at all times be on a parity with the lien of this Mortgage as to principal and interest at the date of execution of the Note, the Loan Agreement and this Mortgage. 26, Incorporation by Reference. All of the terms, covenants and conditions contained in the Loan Agreement, including, without limitation, Section 9.6 thereof, are hereby made a part of this Mortgage to the same extent and with the same force as if they were fully set forth herein. All initially capitalized terms used in this Mortgage without being defined herein shall have the meanings assigned in the Loan Agreement. The Recitals to this Mortgage are hereby made a part of this Mortgage to the same extent and with the same force as if they were fully set forth herein. 27. Duplicate Originals;Counterparts. This Mortgage may be executed in any number of duplicate originals and each duplicate original shall be deemed to be an original. This Mortgage may be executed in several counterparts, each of which counterparts shall be deemed an original instrument and all of which together shall constitute a single Agreement. The failure of any party hereto to execute this Mortgage, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder. Any signature page of this Mortgage may be detached from any counterpart of this Mortgage without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Mortgage identical in form hereto but having attached to it one or more additional signature pages. 20 NY:1179039.7 ca m CS"‹ 1 rem Ci a' <17.; 1 ._., ... � o N, 28. State Specific Provisions. In the event any of the provisions in this Section 4.37 conflict with the provisions of any other Loan Documents, the provisions in this Section 4.37 shall control, (a) Redemption. It is agreed that if this Mortgage covers less than ten (10) acres of land, and in the event of the foreclosure of this Mortgage and sale of the property by sheriff's sale in such foreclosure proceedings, the time of one year for redemption from said sale provided by the statutes of the State of Iowa shall be reduced to six (6) months provided the Lender, in such action files an election to waive any deficiency judgment against Borrower which may arise out of the foreclosure proceedings; all to be consistent with the provisions of Chapter 628 of the Iowa Code. If the redemption period is so reduced, for the first three (3) months after sale such right of redemption shall be exclusive to the Borrower, and the time periods in Sections 628.5, 628.15 and 628.16 of the Iowa Code shall be reduced to four (4) months. (b) It is further agreed that the period of redemption after a foreclosure of this Mortgage shall be reduced to sixty(60)days if all of the three following contingencies develop: (1) The real estate is less than ten (10) acres in size; (2) the Court finds affirmatively that the said real estate has been abandoned by the owners and those persons personally liable under this Mortgage at the time of such foreclosure; and (3) Lender in such action files an election to waive any deficiency judgment against Borrower or their successors in interest in such action. If the redemption period is so reduced, Borrower or their successors in interest or the owner shall have the exclusive right to redeem for the first thirty(30)days after such sale, and the time provided for redemption by creditors as provided in Sections 628.5, 628.15 and 628.16 of the Iowa Code shall be reduced to forty(40)days. Entry of appearance by pleading or docket entry by or on behalf of Borrower shall be a presumption that the property is not abandoned. Any such redemption period shall be consistent with all of the provisions of Chapter 628 of the Iowa Code. This paragraph shall not be construed to limit or otherwise affect any other redemption provisions contained in Chapter 628 of the Iowa Code. (c) It is further agreed, pursuant to Section 654.20 of the Iowa Code, now enacted or hereafter modified, amended or replaced, that foreclosure without redemption may be conducted between the Borrower and Lender. (d) Surrender of Note. In the event of foreclosure of this Mortgage, the Borrower hereby agrees that a court may, and request the court to, enter a special order directing the clerk of court to enter and record the judgment contained in the foreclosure decree on the Note secured by the Mortgage without requiring that the Note be first filed with the clerk of court for cancellation. The Borrower further agrees, because the Note secured by this Mortgage is also 21 NY:1179039.7 hJ n N cD V 6", C) r>) secured by other collateral and will be necessary for any realization upon such collateral, that notwithstanding Iowa Rule of Civil Procedure 228, as presently enacted or as hereinafter amended or replaced, the clerk of court may, in the event of foreclosure of this Mortgage, enter and record the judgment contained in the foreclosure decree on the Note secured by the Mortgage without the requirement that the Note be first filed with the clerk of court for cancellation. (e) Non-Statutory Liens. The Borrower hereby represents, warrants and agrees that the liens and security interest granted hereby are not the type of lien referred to in Chapter 575 of the Iowa Code, as now enacted or hereafter modified, amended, or replaced. The Borrower, for itself and all persons claiming by, through or under the Borrower, agrees that it claims no lien or right to a lien of the type contemplated by Chapter 575 or any other chapter of the Iowa Code and further waives all notices and rights pursuant to said law with respect to the liens and security interests hereby granted, and represents and warrants that it is the sole party entitled to do so and agrees to indemnify and hold harmless the Lender from any loss, damage and cost, including attorney's fees, threatened or suffered by the Lender arising either directly or indirectly as a result of any claim of the applicability of said law to the liens and security interest hereby granted. (f) Property. The Borrower represents, warrants and covenants that none of the Property constitutes and none of the loans secured by the Mortgage will be used to purchase any: (i) real property that is a single-family or a two-family dwelling occupied or to be occupied by the Borrower; (ii) agricultural products or property used for an agricultural purpose as defined in Section 535.13 of the Iowa Code; (iii) agricultural land as defined in Section 9H.1(2) of the Iowa Code; or (iv) property used for an agricultural purpose as defined in Section 570A.1(2)of the Iowa Code. (g) Acknowledgement of Receipt of Documents. Each Borrower hereby acknowledges receipt of a copy of this Mortgage together with a copy of each other Loan Document. (h) Judicial and Non-judicial Foreclosure. Without limiting Section 3 of this Mortgage, if an Event of Default shall occur, then the Property shall be subject to, in addition to any other remedies set forth in Section 3 of this Mortgage,judicial and non judicial foreclosure, all as provided by law. (i) IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT 22 NY:1179039.7 N iJ Des _ i ,.<r - n 57, nc tV CD 1V CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. This NOTICE SHALL ALSO BE EFFECTIVE WITH RESPECT TO ALL OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN YOU AND LENDER, THE MODIFICATION OF ANY OTHER CREDIT AGREEMENT NOW IN EFFECT BETWEEN YOU AND LENDER, WHICH OCCURS AFTER RECEIPT BY YOU OF THIS NOTICE, MAY BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL OR IMPLIED MODIFICATIONS TO SUCH CREDIT AGREEMENTS ARE NOT ENFORCEABLE AND SHOULD NOT BE RELIED UPON. (j) Purchase Money Mortgage. This Mortgage is a purchase money mortgage as defined in the Iowa Code. [SIGNATURES BEGIN ON NEXT PAGE] 23 NY:1179039.7 `71 jC7 -ir. try c . jr, Borrower has executed this Mortgage or has caused the same to be executed by its duly authorized representative as of the date first above written. BORROWER: CORE SYCAMORE TOWN CENTER T,LLC, a Delaware limited liability company By: CORE Sycamore Town Center Mezzanine, LLC, a Delaware limited liability company,its sole member By: CORE Realty Holdings, LLC, a California limited liability company, its sole member By: -- Name: Uljl.h,Z/}M Pv . CQl..(ay Title: p Sj O 'T o:0 Mortgage Signature Page CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT File No: STATE OF California )SS APN No: COUNTY OF Orange ) On August 26,2008 before me, Trade Nguyen ,Notary Public,personally appeared William R.Colvin who proved to me on the basis of satisfactory evidence to be the person(e) whose namc(o) Is/are subscribed to the within Instrument and acknowledged to me that he/she/they executed the same In his/her/their authorized capadtyfics) and that by his/her/their signatures) on the Instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the Instrument. I certify under PENALTY OF PERJURY under the taws of the State of California that the foregoing paragraph is true and correct. RACIE MGUYEN WITNFcS my hand and official *. at seal. .,� a:. COMM. 111731137 z Notary Public •Cslifornsa Signature r//� �- Orange County E lues Mur.15.2011 This area for official notarial seal. OPTIONAL SECTION • CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill In die data below,doing so may prove invaluable to persons relying on the documents. INDIVIDUAL I CORPORATEff ��pp�� OFFICERS) TITLES) f-AR,TNER(S) I—I LIMITED I J GENERAL ' I I ATTORNEY-IN-FACT I-I TRUSTEE(S) _ o I-I GUARDIAN/CONSERVATOR CD f-( OTHER SIGNER IS REPRESENTING: r)C.! trua --i C'7 Name of Person or Entity Name of Person or Entity x • OPTIONAL SECTION c� n.� • Though the data requested here is not required by law, It could prevent fraudulent reattachment of this form. • THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TTTLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE Reproduced dr costi t nae Treanor,Umoi F 1 = f 44 Y 20121t'OV -6 PM 12: 02 E Cal l Ci.ER_', r IOW: CITY, 10WA 8 N 13 N N 6A g Q O v 0 JD o U CI a a H � '' t U c E-, vi O U O U R '- ` 11 - ' rn nK C,: w" a rn N) EXHIBIT A Legal Description of Property LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23,Township 79 North,Range 6 West of the 5th Principal Meridian, Iowa City, Johnson County, Iowa, more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway#6,said point being the POINT OF BEGINNING;thence following the easterly right of way lines of said Sycamore Street,North 0 degrees 26 minutes 00 seconds East, a distance of 225.05 feet; thence North 4 degrees 09 minutes 00 seconds West, a distance of 212.68 feet; thence North 0 degrees 26 minutes 00 seconds East, a distance of 168.98 feet to the southwest corner of LOT 1 in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT 1, a distance of 278.80 feet to the southwest corner of said LOT 2; thence North 42 degrees 06 minutes 03 seconds West, a distance of 194.06 feet to the most westerly corner of said LOT 2; thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet; thence North 0 degrees 49 minutes 15 seconds East along the west line of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road; thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West, a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve, concave to the Southeast, having a radius of 804.00 feet, a central angle of 23 degrees 01 minute 26 seconds, and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West; thence Southwest along said curve, a distance of 323.08 feet to the intersection with the northerly right of way line of said U.S. Highway#6 at a point of curvature of a non-tangent curve, concave to the South,having a radius of 3015.00 feet, a central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a distance of 893.07 feet; thence North 89 degrees 50 minutes 08 seconds West, a distance of 227.53 feet to the POINT OF BEGINNING. NY:1179039.7 TOGETHER WITH, a non-exclusive easement for ingress, egress and parking over portions of Lot 1 in Mall First Additional to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 of records of Johnson County, Iowa, as set forth in that certain "Declaration of Mutual Easements", dated September 4, 2008 and to be recorded simultaneously herewith. _w -)- v+ v NY:1174139.7 (Page 1 cf 23) 59 Coq 330 EXHIBIT "E" JJ Doo ID: OD/24/200S at�C :4/� Pr Fee Art: $117.00 Page I cf ea Johnson County Iove Kim Painter County Recorder 8K4352 PG390-412 TENANCY IN COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS Parties to the Agreement CORE Sycamore Town Center T, LLC;TIC Sycamore 1, LLC;TIC Sycamore 2,LLC; TIC Sycamore 3, LLC;TIC Sycamore 4, LLC;and Prudential Mortgage Capital Company, LLC Document prepared by: David M.Traftel, Esq. Winton&Strawn LLP 200 Park Avenue New York,NY 10166 Phone: 212-294-6898 ra Taxpayer: CORE Sycamore Town Center T, LLC c10 CORE Beatty Holdings, LLC ;-_, 1600 Dove Street, Suite 450 Newport Beach, CA 92660 E Legal Description: See attached Exhibit A, page 20 Book and Page Reference: N/A Recording requested by and return to: Rrst American Title Insurance Company National Commercial Services 1900 Midwest Plaza 801 Nicollet Mall Minneapolis,MN 55402 Phone: 612-305-2000 PICS-304940(RH) Book Md. sage 390. rile l+wher (Page 2 of 23) TENANCY LN COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE ANI) SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS by and among CORE SYCAMORE TOWN CENTER T,LLC (Selling TIC), and ^' TIC SYCAMORE 1,LLC :� TIC SYCAMORE 2,LLC ic-, 0' rn TIC SYCAMORE 3,LLC x and : v TIC SYCAMORE 4,LLC w (individually and collectively,Assuming Purchaser) and PRUDENTIAL MORTGAGE CAPITAL COMPANY,LLC, a Delaware limited liability company (Lender) Dated: as of September 4,2008 Pi ()petty Address: 1668 Sycamore St. Iowa City,Iowa 52240 County: Johnson State: Iowa Prepared by and When Recorded Return to: Winston&Strawn LLP 200 Park Avenue New York,New York 10166 Attn: David M.Traitel,Esq. PMCC Loan No. 416107997 Counsel Loan No. 81121-690 Book 4352. Paas 390. Tile Number (Dago 3 of 23) TENANCY IN COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE,SECURITY AGREEMENT,ASSIGNMENT OF LEASES AND RENT'S AND FIXTURE FILING AND OTHER LOAN DOCUMENTS THIS TENANCY IN COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING AND OTHER LOAN DOCUMENTS (this "Agreement") made as of the 4th day of September, 2008, by and among CORE SYCAMORE TOWN CENTER T, LLC, a Delaware limited liability company, having an address at cio CORE Realty Holdings, LLC, 1600 Dove Street, Suite 450, Newport Beach, California 92660, and owning a 100% undivided tenant in common interest in the Property (as defined below) (the"Selling TIC")and TIC SYCAMORE 1,LLC,a Delaware Iimited liability company, TIC SYCAMORE 2, LLC, a Delaware limited liability company, TIC SYCAMORE 3, LLC,a Delaware limited liability company and TIC SYCAMORE 4,LLC, a Delaware limited liability company,each having an address at c o CORE Realty Holdings,LLC, 1600 Dove Seat, Suite 450, Newport Beach, California 92660 (individually and collectively, the "Assuming Purchaser"); and PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC, a Delaware limited liability company("Lender")having an office at 100 Mulberry Street, Eighth Floor,Gateway Center Four,Newark,New Jersey 07102. WITNESSETH: { WHEREAS,Lender is the present holder of a loan originally made on September 2008 (the "Closing Date") to the entities listed on Schedule I annexed hereto (collectively, Original Borrower") by Lender in the original principal amount of $13,000,000.00 (the "Loan"); WHEREAS, in connection with the Loan, the Original Borrower executed and delivered to Lender (i) that certain Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing (as the same may have been or may be modified or amended, the "Security Instrument"; capitalized terms used in this Agreement without definition shall have the respective meanings attributed to them in the Security Instrument) dated as of the Closing Date which was recorded concurrently herewith in the records of Johnson County, Iowa, which Security Instrument encumbers that certain real property situated in the City of Iowa City, Johnson County, Iowa (the "Premises") as more particularly described in Exhibit A attached hereto and made a part hereof and the other "Property" as defined in the Security Instrument, (ii) that certain Promissory Note Secured by Mortgage (as same may have been or may be modified or amended, the "Note") in the original principal amount of the Loan and dated the Closing Date,which Note is secured by the Security Instrument, (iii)that certain Assignment of Leases and Rents made as of the Closing Date and recorded concurrently herewith in the records of Johnson County, Iowa (the "Assignment of Leases"), (iv) that certain Panironrriental Indemnity Agreement (the "Hazardous Substances Indemnity")dated as of the Closing Date by Original Borrower and John R. Saunders,in favor of Lender, (v)that certain Loan Agreer lent ,;,.p„ (as same may have been modified or amended, the "Loan Agreement") dated the Closing bate r- and executed by Original Borrower in favor of Lender and(vi)certain other Loan D40anen talas 471 defined in the Security Instrument); F rook 4352, PaRre 350, File ?tuber ra N (Page 4 of 23) ©�� relOP 74 .171 WHEREAS, Lender has been requested to consent to a TIC Sale (as-defined in the Security Instrument) by Selling TIC to the Assuming Purchaser, in accordance with the Security Instrument,and Lender has approved the assumption by the Assuming Purchaser of the obligations in connection with the Loan subject to satisfaction of the terms and conditions more fully set forth in the Security Inatniment;and WHEREAS, Assuming Purchaser has executed that certain Assignment and Assumption of Agreement, the 11C Agreement (as defined below) and the Property and Asset management Agreement (as may be applicable) (collectively, the "TIC Assumption") whereby Assuming Purchaser has assumed obligations, as tenant-in-common, of Selling TIC under that certain Tenants in Common Agreement dated September 4, 2008 (the 'TIC Agreement"), and has delivered a true and correct copy of the TIC Assumption to Lender;and WHEREAS,pursuant to the Security Instrument, it is a condition to the TIC Sale to Assuming Purchaser that the parties hereto enter into this Agreement; NOW,THEREFORE,in consideration of the Premises,the sum of Ten($10.00) Dollars and other good and valuable consideration the receipt and legal sufficiency of which is hereby acknowledged,the parties hereto hereby unconditionally covenant and agree as follows: 1. Selling TIC and each Assuming Purchaser hereby jointly and severally represent to Lender that, simultaneously herewith, Selling TIC is selling to Assuming Purchaser, and each Assuming Purchaser is purchasing from Selling TIC, the undivided tenant in common interests set forth next to the entity comprising Assuming Purchaser set forth on Schedule 3 annexed hereto and made a part by this reference(collectively,the"Purchased Interest")in the Property. Each Assuming Purchaser hereby certifies,represents and warrants to Lender that(A) neither Assuming Purchaser nor its direct owners is a foreign corporation, foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations); (B) Lender is not required to withhold any tax as a result of the transfer of the Property by Assuming Purchasers pursuant to the Security Instrument or upon the exercise by Lender of any of Lender's rights or remedies pursuant thereto; and (C) Assuming Purchaser acknowledges that the foregoing certifications,representations and warranties may be disclosed to the Internal Revenue Service by any transferee and that any false statement contained herein may be punishable by fine,imprisonment or both. 2. Each Assuming Purchaser hereby unconditionally assumes, jointly and severally with Original Borrower,the complete performance, fulfillment and discharge of all of the obligations, conditions and covenants of Original Borrower, as "Borrower", "Mortgagor", or "Assignor", as the case may be, contained in the Loan Agreement, the Note, the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, subject to the benefits of the exculpatory provisions set forth therein (including, without limitation,Article VIII of the Loan Agreement)and Assuming Purchaser shall be a party to the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents as "Borrower","Mortgagor',or "Assignor", as the case may be, jointly and severally with Original Borrower, Assuming Purchaser agrees (i) to repay any and all sums due and owing under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents and(ii)to be bound by all of the terms and conditions of the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Hook 4952, Page 590, File lrtmber (Page 5 of 23) c_)-< t -nm -C rT; Substances Indemnity and the other Loan Documents, as if the Assuming Purchaseri had executed same, subject to the benefits of the exculpatory provisions set forth therein(including, without limitation, Article VIII of the Loan Agreement). Selling TIC and Assuming Purchaser acknowledge that,but for each of them entering into this Agreement, Lender would not consent to the TIC Sale, and accordingly, Selling TIC and Assuming Purchaser further acknowledge that Lender is relying on the representations and covenants made herein. 3. Assuming Purchaser acknowledges that, from time to time, one or more other purchasing "TICS" (as defined in the Security Instrument) may hereafter assume liability, jointly and severally with Original Borrower, for the obligations of Original Borrower under the Loan Documents (as defined in the Security Instrument), and that the liability of Assuming Purchaser thereunder shall not be discharged by reason of the assumption by any other purchasing TIC of the obligations under the Loan Documents (or, should Lender do so, by reason of the release of any party from any liability under the Loan Documents or any of them). Assuming Purchaser expressly acknowledges that, pursuant to the Security Instrument, each purchasing TIC is required to assume, jointly and severally with Original Borrower and any other purchaser TIC, the obligations under the Loan Documents (subject, in each case, to the benefit of the exculpatory provisions contained therein (including, without limitation, Article VIII of the Loan Agreement)). 4. Lender hereby consents to the transfer of the Purchased Interest to the Assuming Purchaser and to the assumption of the Loan by the Assuming Purchaser as more fully set forth herein Lender's consent to the transfer of the TIC Interest to the Assuming Purchasers is not intended to be and shall not be construed as a consent to any subsequent direct or indirect transfer of all or any part of the Property,or the Assuming Purchaser's interest in the Purchased Interest or the Property,or an interest in the Assuming Purchaser,nor a waiver of any provisions of the Loan Documents which limit the transferability of the Property, the interests of the TICs, or an interest in the Assuming Purchaser. 5. Assuming Purchaser hereby expressly agrees as follows: (A) All of the terms, provisions, covenants, representations, warranties, conditions and stipulations contained in the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases,the Hazardous Substances Indemnity and the other Loan Documents, as assumed hereunder,are hereby ratified and confirmed by Assuming Purchasers in al] respects, and shall continue to apply with full farce and effect to Assuming Purchasers from and after the date hereof; (B) All of the representations and warranties made by Original Borrower with respect to the Property under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases,the Hazardous Substances Indemnity and the other Loan Documents shall be deemed to be remade by Assuming Purchaser as of the date hereof with respect to all matters specified therein end with respect to this Agreement fully as if set forth herein, all of which remain true and correct; (C) As of the date hereof, the obligations of Assuming Purchaser under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, as assumed hereunder, are not subject to any reduction, limitation, impairment or termination for any reason, including, without limitation,any claim of waiver,release,surrender or compromise; Book 4352. Page 390, Pile Xut+h.r r� 3 (Page 6 of 23) -' '---t rj—, t (D) As of the date hereof, to the best knowledge of Assuming Purchaser, no Default (as such term is defined in the Security Instrument) and no Event of Default (as such term is defined in the Security Instrument)has occurred and is continuing under any of the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity or any of the other Loan Documents; (E) Assuming Purchaser covenants and agrees to repay any and all sums due and owing under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents and to be bound, jointly and severally with the other makers thereof,by all of the terms and conditions of the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents as if Assuming Purchaser had executed same, subject, in each case, to the benefit of the exculpatory provisions contained therein (including,without limitation,Article VIII of the Loan Agreement); (F) Assuming Purchaser's rights in and to the Property and the Purchased Interest are subject to the Loan and the provisions of the Loan Agreement, the Note,the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents until the Loan is satisfied in full; (G) Assuming Purchaser confirms that CORE Sycamore Town Center T,LLC, a Delaware limited liability company("Sponsor") has been appointed by Original Borrower as the "Notice Owner" for all purposes as set forth in the Security Instrument and Assuming Purchaser hereby consents to such appointment and agree that Assuming Purchaser has appointed Sponsor as "Notice Owner"for Assuming Purchaser, 6. Without limiting anything set forth in this Agreement or in the Loan Documents,Assuming Purchaser hereby expressly acknowledges the following: IT SHALL CONSTITUTE AN "EVENT OF DEFAULT"UNDER THE LOAN AGREEMENT IF ANY ASSUMING PURCHASER, ORIGINAL BORROWER, ANY FUTURE PURCHASING TIC OR ANY OTHER PERSON OR ENTITY NOW OR HEREAFTER PARTY TO THF, TIC AGREEMENT, FILES AN ACIZON TO PARTITION THE PROPERTY. 7. Nothing herein shall, or shall be deemed to, release or discharge Original Borrower, from the performance of all obligations, conditions and covenants contained in the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and/or the other Loan Documents, or to release or discharge Original Borrower from any liability under the Hazardous Substances Indemnity. 8. Assuming Purchaser hereby represents and warrants to Lender that the execution,delivery and performance of this Agreement has been duly authorized by all necessary and proper action on the part of Assuming Purchaser and,to the extent required, the member(s) thereof, and the execution, delivery and performance by Assuming Purchaser of this Agreement (i) to the best of Assuming Purchaser's knowledge, will not violate any provision of any applicable law or regulation or of any order, writ, judgment, injunction or decree of any governmental authority and(ii)will not violate any provision of, or constitute a default under,or result in the creation or imposition of any lien (other than pursuant to this Agreement and the liens created by the Security Instrument and/or any of the other Loan Documents)on any asset of Book 4352, Page 390, rue Mirber N �-+ (Page 7 of 23) O �r •�1 "IC asr - r.. • Assuming Purchaser pursuant to any contract, agreement or other undertaking to which Assuming Purchaser is a party or which is binding upon any Assuming Purchaser,or upon any of assets of Assuming Purchaser. 9. Neither Selling TIC, nor Assuming Purchaser,nor, to the best knowledge of Selling TIC and Assuming Purchaser, any other Original Borrower has any offsets, defenses or counterclaims of any kind whatsoever with respect to the obligations for the repayment of the indebtedness evidenced by the Note or for any other obligation set forth in the Note, the Security Instrument,the Assigmnent of Leases and Rents, the Hazardous Substances Indemnity or any of the other Loan Documents. Each of Selling TIC and Assuming Purchaser hereby warrant and represent that they have no knowledge of any eminent domain or condemnation proceedings, or similar actions in lieu thereof, threatened or in existence in respect of the Property. Selling TIC represents and warrants to Assuming Purchaser and to Lender that, to the best of Selling TIC's knowledge, no Default or Event of Default has occurred and is continuing. Selling TIC and Assuming Purchaser, each for themselves and,as applicable to the maximum extent possible,for and on behalf of their respective partners,shareholders,beneficiaries,legal representatives,heirs, successors and assigns,hereby release and forever discharge Lender,its officers,employees,the servicers of the Loan and the respective affiliates of the foregoing from and against any and all claims and liability relating to the transactions evidenced by the Loan Documents, through and including the date hereof 10. Except as modified hereby, the Loan Agreement, the Note, Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and other Loan Documents remain unmodified and in full force and effect. 11. This Agreement shall constitute a *Loan Document" for all purposes provided in the Loan Documents. 12. Assuming Purchaser hereby warrants and represents that it has reviewed and approved the Loan Agreement,the Note,the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents. 13, THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED EN ACCORDANCE WITH THE LAWS OF THE STATE OF IOWA; PROVIDED THAT TO THE EXTENT ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING; AND PROVIDED FURTHER THAT THE LAWS OF THE STATE OF IOWA SHALL GOVERN AS TO THE CREATION, PRIORITY AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS IN PROPERTY LOCATED IN SUCH STATE. 14. To facilitate execution, this Agreement may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature and acknowledgment of;or on behalf of, each party,or that the signature and acknowledgment of all persons required to bind any party, appear on each counterpart. All counterpart; shall collectively constitute a single instrument. It shall not be necessary in making proof of this Agreement to produce or account for more than a single counterpart containing the respective signatures and acknowledgment of,or on behalf of; each of the parties hereto. Any signature and Hook 4352. Pace 390, Number (Page B of 23) acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures and acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature and acknowledgment pages. 15. This Agreement may not be amended, revised, waived, discharged, released or terminated orally but only by a written instrument or instruments executed by the party against which enforcement of the amendment, revision, waiver, discharge, release or termination is asserted. Any alleged amendment, revision, waiver, discharge, release or termination which is not so documented shall not be effective as to any party. 16. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. [No further text this page.] N N - c —4 Book 4352, Pape 390, rile Number (Page 9 of 23) 17- _o ;^'i THUS DANE AND PASSED, on the day,month and year first written above, Or the undersigned Mortgagor in Notary and the undersiffned competent witnesaea,who hereunto sign their nenes after reading of the whole, SELLING TIC: CORE SYCAMORE TOWN CENTER T,LLC, a Delaware limited liability company By: CORE Sycamore Town Center Mezzanine,LLC, a Delaware limited liability company,its sole member By: CORE Realty Holdings,LLC, a California limited liability company,its sole member By: `�-- -C---- _ Name: oittaack P (AV Title: rkEsr Dgall- 1 GE0 STATE OF ) ss. COUNTY OF \ ) On , 2008, bef. • me, a Notary Public the undersigned, personally •_. personally known to me (or f proved to me co the basis of sari:, :v cry evii,,: . ) to be the persons) whose Hamate) is/are subscribed to the within instrument : i ac• edged to me that he/she/they executed the same in his/her/their authorized capacity(ies . .4 that by his/her/their signatures) on the instrument the peasants),or the entity upon behalf which the person(s)acted,executed the instrument WITNESS my hand and oflic'• seal. Notary Public in • • • said County and Stale (SEAL) Boom 4352. Pea. 390. rile &mber (Page 10 of 23) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT • File Na STATE OF California )SS APN No: COUNTY OF Orange ) On August 26,2006 berme me, Tracie laymen Notary Public,personally appeared Williams R.COMM who proved instrument and G on the to r of bests that he/she/theySatisfaexecoot be the same his/# �efr whose name(*) Isfere odbedtyffe tra the at in by h�signature(s)on the Instrument the persons), or the entity upon behalf of whidi the e� that he Instrument per'.�onfs'1 aged, executed the I certify under PENALTY OF PERRIRY under ttte laws of the State of Catfomia that the foregoing paragraph is true and correct WITNESS my hand and official seal. COMM. "+' N �- w M. 01731137 Z Signature rte. -r —' t�^-, No Public•California � °` ►,,,, warty g - MN.IS 2011 Title area for Ofilelei notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below,doing so may prove Invaluable toeersons is ytng an the documents. fi ❑ INDMDUAL ❑ CORPORATE OFFICER(S) TITLE(S) .�} � ❑ PAIN ) 0 i eTED ❑ GENERAL ."7 --R 1I`� n ATTORNEY-IN-FACT Q TRUSTEES) Q GUARDIAN/CONSERVATOR n OTHER SIGNER IS REPRESENTING: Nan.of Person or Entity Name of Person or Entity OPTIMAL.SSE;ITON Though the data requested here is not required by law,it could prevent fraudulent reattachment of the form. THS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMEfYR NUMBER OF PAGES DATE OF DOCUMENT SIGNERS)OTHER THAN NAMED ABOVE Rao*ce1erWit koala*TWitk urare1/X01 Book 4352, Paae 390. rale Number (Page 11 of 23) ASSUMING TIC: TIC SYCAMORE 1,LLC By:CORE Realty Holdings VP,LLC,a Delaware limited liability company,its uthoriaed Signatory By: sr;_)--` 1'. CJr_ Name: William R.Colvin Tide: President STATE OF ) ss. COUNTY OF On , 2008, b ere me, a Notary Public the undersigned,personally ap• . William R vin,personally known to me(or proved to me on the basis of satisfactory evi.- cc)to be person(s)whose name(s)is/are subscribed to the within instrument and adamwl- to a that hc/shelthey executed the same in his/her/their authorized capacity(ies), and that b b':.,. /their signature(s)on the instrument the person(s),or the entity upon behalf of which the •n(s)acted,executed the in: n ent. WITNESS my hand and offi. al seal. Notary Public in an4r said County and State (SEAL) c:)":::" N t tr .d. Boole 4352, Page 390, Pile Number (Page 12 of 23) 71.0....wom— — CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT File No: STATE DF Ca/Wornla )SS APN No: COUNTY OF Orange ) On August 26r 2008 before me, Trade Mquys■ ,Notary Public,personally appeared Wllliim R.Colvin who proved to me on the basis of satisfactory evidence to be the persons) whose name* Iseere subscribed to the within Instrument and acknowledged to me that heIsheAihet EXecuped the same In his/her/their authorized capecity(ies) and that by i his/her/their signature(s)on the Instrument the person(-9, or the entity upon behalf of which the person aged, executed the instrument I certlly under PENALTY OF PERJURY under the laws of the State of Caffomia that the foregotn9 paragraph is true and correct. • i 1 I WITNESS my hand and(Ada!saaL .fir• • COMMAp MUTER �_ SIgnature i '.•% NNotarya Cour�ity � AD 1, w. .... '"rAfar ts.2D11 This ares for official notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER . Though statute does not require the Notary to 111 In the data below,doing so may prove Invaluable to persons relylogon the documents.. _ CD N I } INDIVIDUAL b Cb < '' 11 rn CORPORATE OFFICER(S) TRLf(S) cD-C t Pr r:ENi L^__1 UMrrM El GENERAL Vic-, Cs I I [] ATFORNEY IN-FACE --0 rn n TRt1STFE(S) crie _,=^ a • r3 El GUARDIAN/CONSERVATOR > Cb n OTHER SIGNER IS REPRESENTING: I Name of Person or Entity Name of Person or Entity OPTIOL NASECTION Though the data requested here Is not required by law,R could prevent fraudulent reattachrnent of this f run. THIS CERTIFICATE MUST BE ATTACHED TO TIRE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE RipoAsed tv MI Awetaa Me>y+ese ee=ell Boot 4352, Page 390, Tile Number (Page. 13 of 23) ASSUMING TIC: TIC SYCAMORE 2,LLC By:CORE Realty Holdings VP, LLC,a Delaware limited liability eotnpaany,its Authorized Signatory By: Name: William R.Colvin Tale:President STATE OF ) COUNTY OF ) On 2008, • are me, _ a Notary Public the undersigned,personally .. William R. ••loin,personally known to me(or proved to me on the basis of satisfactory dence)to • • person(s)whose name(s)is/are subscribed to the within instrument and ackno ledged • that he/she/they executed the same in hieher/tbeir authorized capecity(ies),and b a er/their signatures)on the instrument the person(a),or the entity upon behalf of which •. person(s)acted,executed the instrument. WITNESS my hand an. •ff'icial • • . Notary Pub' a and for said County : : State (SEAL) a 7 75 .7IcCD CJ Book 1352, Pace 390, rile IRS; (Page 14 of 23) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT Fie No: STATE OF Callfentla )SS APN No: COUNTY OF Orange _) On August 26,2008 _before me, Tracie Nguyen ,Notary PubEc,personally appeared W1Naiil R.Colvin who paned to me on the basis of %atfsfaciury evidence to be the person(s) whose instrument and acknowledged to me that helms executed the same In his,/Her/thit author1aed subscribed bsaihie to the that by tristhe> efr signatures)on the instrument the person(s), cr the entity upon behalf of which the e) acted, and by Instrument, p > exeaitad the ; I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraptr is true and correct. NESS my hand and official teal. • ACIE WffNOU 0 ,'i COMM. e1731137 Signature /� i < ��"rt+:' Notary PaDtic•C�lftomia 8 „./e cm.* Elva;Ier.1k2011 t This area for dada'notarial see!. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER sghh statute does not require the Notary to fill in the data below,doing so may prove invaluable to persons relyirnQtin the doa u — G� El INDIVIDUAL n cORPORATE OFFICER(S) TrTLE(s) Ca)'` I � �) PARTNWS) ❑ L IMrTEO ❑ GENER , ��n —� £ l s n ATTORNEY-IN-FACT - r.:*? {� GUARDTANJOONS€RVAToR .3; w fl OMER SIGNER IS REPRESENTING: Name of Person Or Entity Name of Persona 1310ty OPTIOIdA1 SECTION Though the data requested he is not required by law,It could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE aurechted bow 11111101111 tide lw.rotte Ilan mee.aweer.. Hook 4352. Nape 790. rile ifs (Page 15 of 23) I ASSUMING TIC; TIC SYCAMORE 3,LLC By: CORE Realty Holdings VP,LLC,a Delaware limited liability company, . uthorized Signatory By: : (e`_ Name:William R. Colvin Title:President STATE OF ) ) ss. COUNTY OF } ) On , 2'I:, before me, a Notary Public the undersigned,personall appeared Wil. R. Colvin,personally known to me(or proved to me on the basis of satisfact.ry evideck to be the person(s)whose name(s)is/are subscribed to the within instrument and :, . owl-•ged to me that he/she/they executed the same in his/her/their authorized c apecity(ies), . • •.: by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of : .'ch the person(s)acted,executed the instrument. WITNESS my • and . - .'. seal. Notary Pu lic in and for said • County and State (SEAL) o N c)1 t r— +cam al :<� -T, rn is Book 4352, Page 390. rile Nuhn+ (Page 16 of 23) ti CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT File No: STATE OF California )SS APN No: COUNTY OF ()ratite ) On August 2G,2008 before me, Trade Nguyen ,Notary Public,personally appeared William R.Colvin who proved to me on the basis of satisfactory evidence to be the person whose nerne(s) Isere subscribed to the within Instrument and admowiedQed to me that he/ehgyrey executed the same In hls/heelthelr authorized capac tyles) and that by ITisiberftltelr signature)On the Instrument the per&onts), or the entity upon behalf of which the Instrument pe n( acted, smarted the I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct. WITNESS my hand andd�andel seal. ► j Signature /�ZKu.�i �-,,. ... Noh •#1731137 �... - v,„r, - to t Thus area for official notarial seal. rw. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to till in the data below,doing so may prove Invaluable to persons mitt on the documents. ri INDIVIDUAL c..) ..C; a Q CORPORATE OfFICER(S) TTtLE(S) ::..' -•� `-"°• u Gc71tLFv,L :-"in 711 1:=I -f+ -.� %O N= TRUSTEE(S) ,. f-� GUARDIAN/CONS VATOR '). Cb c...)OMIT SIGNER IS REPRESENTING: Name of Person or Entity Name of Penson or Entity OPTIONAL SECTION Though the data requested here is not requt'ed by law,it could prevent fraudulent reattachment of this fonm. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE — — - — gWdCee Iv fist h�11eo r Trtle Dme1 j WW1 Book 4352, Page 39C, rile quribat (Page 2.7 of 23) ASSUMING TIC: TIC SYCAMORE 4,LLC By:CORE Realty Holdings VP,I.,LC,a Delaware Iimited liabi ' compan ,i uthorized Signatory By: • Name:William R.Colvin Title:President STATE OF ) ) =- COUNTY OF On , 2008, before me, a Notary Public the undersigned,personally .:.. Wild': , R. Colvin, personally known to me(or proved to me on the basis of sadsfactmy • 'deuce) . . the person(s)whose name(s) is/are subscribed to the within instrument and ackno :•ged . me that he/she/they executed the same in his/her/their authorized capacity(ies),and by •'s/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which . •erson(s)acted,executed the instrument. WITNESS nay hand and offic": Notary Public in and for :•'d County and State (SEAL) / U iv C71 (7) 11 '7-f'. 1 tl =in r - N � O co Book 4332, page 390, Ma flosbor (Page 18 of 23) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT Fie STATE OF California No: APN No: COUNTY OF Orange ) ! On September 3,2008 before me, Tracie Nguyen _,Notary Public,personally appeared William R.Colvin who paved to me on the basis of satisfactory evidence to be the pernon(s) whose names) Ware subscribed to the wf ten Instrument and acknowledged to me that he/she/they Executed the seine in his/her/their authortzed capacity(ies) and that by his/her +eir signature(s) on the instrument the penon(s), or the entity upon behalf of which the person(a)acted, eraearted the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the ftregdrig paragraph Is true and correct WITNESS my hand and official seall. • : 11731137g ora •Cafiloynis Signature AftOanm,Ey•e%M r.15,2011 This area for official notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fli in the data beow,doin I documents 9 so may prove invaluable to persons relying on the A fl INDMDUAL [� CORPORATE OFRCER(S) 'MUM n PAR'TNMR(S) ❑ umrrED U GENERAL . t F-1 ATTORNEY-IN-FACT n TRusrEE(s) r`+• 1_i GUARDIAN/CONSERVATOR �� tv [] OTHER Q I SIGNER IS REPRESENTING: Name of Parson or Eftity - 141arne of Person or frngty OPTIONAL SECTION Though the data requested here is not required by law,It could prevent fraudulent reattachment of tis form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMET SIGNER(S)OTHER THAN NAMED ABOVE nvreauced by nu mien=rek Lruranoir 11200i Book 4352, gage 390, rile 1P,.mbo.rl (Page 19 of 23) LENDER: PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC, a Delaware limited liability company Lender is executing this Tenancy-In-Common Loan Assumption Agreement and Modification of Deed of Trust and Security Agreement solely to indicate its consent to the tenets hereof.Nothing herein shall,or shall be deemed to,obligate Lender for repayment of any amount evidenced by the Note or secured by the Security Instrument or the other Loan Documents, LENDER: PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC, a Delaware limited liability company C� By: Name: Kirk Schaffer Title: Vice President STATE OF Ce.1.:4.a ) ) ss. COUNTY OF "e,,,s4 On , 2008, before mc, _ ,r� '5ti ��� a Notary Public the undersigad,personally appeared Kirk Schaffer,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hcr/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of'which the person(s)acted,executed the instrument. WITNESS my hand and official sea]_ Notary Public in and for said ..., GwEtt scNMitt ' >f :: Commtulort# 1774067 Countyand State ; - tg���-"�,;:.0 notary PuWlC-California V...$4, Alameda County RfiCcenmacommOct21.X111 This Instrument was Prepared by: Winston&Straws LLP 200 Park Avenue > New York,New York 10166 Attention: David M.Treitel,EN. -iC C'+ i rn CD • Book 4352. pane 390. rile ember (wag. 20 of 23) r° EXHIBIT A 7:4 D • 1 Legal Description of Property n: e:, LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23,Township 79 North,Range 6 Weat of the 5th Principal Meridian, Iowa City, Johnson County, Iowa, more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway#6,said point being the POINT OF BEGINNING;thence following the easterly right of way lines of said Sycamore Street,North 0 degrees 26 minutes 00 seconds East,a distance of 225.05 feet; thence North 4 degrees 09 minutes 00 seconds West, a distance of 212.68 feet; thence North 0 degrees 26 minutes 00 seconds East, a distance of 168.98 feet to the southwest corner of LOT 1 in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT 1, a distance of 278.80 feet to the southwest corner of said LOT 2; thence North 42 degrees 06 minutes 03 seconds West, a distance of 194.06 feet to the most westerly corner of said LOT 2; thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet; thence North 0 degrees 49 minutes 15 seconds East along the west line of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road; thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West, a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve, concave to the Southeast, having a radius of 804.00 feet, a central angle of 23 degrees 01 minute 26 seconds, and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West; thence Southwest along said curve,a distance of 323.08 feet to the intersection with the northerly right of way line of said U.S. Highway#6 at a point of curvature of a non-tangent curve,concave to the South,having a radius of 3015.00 feet, a central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a distance of 893.07 feet; thence North 89 degrees 50 minutes 08 seconds West, a distance of 227.53 feet to the POINT OF BEGINNING. TOGETHER WITH, a non-exclusive easement for ingress, egress and parking over portions of Lot 1 in Mall First Additional to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9,page 41 of records of Johnson County, Iowa, as set forth in that certain`Declaration of Mutual Easements", dated September 4,2008 and to be recorded simultaneously herewith. Book 4352. Paola 390. rile Number (Page 21 of 23) SCHEDULE I ORIGINAL BORROWER CORE SYCAMORE TOWN CENTER T,LLC,a Delaware limited liability company CD O i 71.1 brn y�' d Hoeft 4352. Deas 350. Ills 1104baz awcF+a arra 'oic Opts 'Leff Topa c cL • LU HL CanlJ ACITguctlioR Z ainCEEEDS t$Z 3o ZZ geed) (Pagc 23 of 23) SCHEDULE 3 ASSUMING PURCHASER INTERESTS Assigning Purehant Undivided Fractional Tcsn is-i. -Common Intim TIC SYCAMORE 1, LLC 2.014% TIC SYCAMORE 2,LLC 3.239% TIC SYCAMORE 3,LLC 3.638% TIC SYCAMORE 4, LLC 3.638% 0 - . 7 t �� jCr 4 e Back 4352, Psce 390. File rittbe,l Sci VI 330 c. — 111111111111111111111 Doc ID: 02128607000E Type: OEN Recorded: 09/24/2008 et 02:47:31 PM Fee Amt: $32.00 Peas 1 of 6 Exhibit F Johnson County Iowa Kim Painter County Recorde." 4352 Pa413-418 ASSIGNMENT OF MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING Assignor: Prudential Mortgage Capital Company, LLC Assignee: Prudential Mortgage Capital Funding, LLC Document prepared by: Adam Silver, Esq. Winston&Strawn LLP -- 200 Park Avenue `��_1 New York, NY 10166 Phone: 212-294-6898 n cr _r 'o Taxpayer: :n CORE Sycamore Town Center T, LLC o j c/o CORE Realty Holdings, LLC 1600 Dove Street, Suite 450 .c- Newport Beach, CA 92660 Legal Description: See attached Exhibit A, page 6 Book and Page Reference: Mortgage recorded in Book435�, page_3.1{0 Recording requested by and return to: First American Title Insurance Company National Commercial Services 1900 Midwest Plaza 801 Nicollet Mall Mlnneapolis, MN 55402 Phone: 612-305-2000 NCS-304940(RH) ASSIGNMENT OF MORTGAGE,SECURITY AGREEMENT,ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING PRUDENTIAL MORTGAGE CAPITAL COMPANY,LLC, (Assignor) to PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC, (Assignee) CD vf. c-9 Dated as of2.< r. 1 September 4,2008 =le - =� c7 County of Johnson (the"County") State of Iowa(the"State") 1600 Sycamore Street, 1861 Lower Muscatine Road Iowa City,Iowa Loan No.: 416107997 W&S File No. 81121-690 NY:1191340.2 • ASSIGNMENT OF MORTGAGE,SECURITY AGREEMENT,ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC,a Delaware limited liability company,whose address is 100 Mulberry Street, GC4 Eighth Floor,Newark,New Jersey 07102- 4069(the"Assignor"),as the holder of the instrument hereinafter described and for valuable consideration hereby endorses,assigns,sells,transfers and delivers to PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC,a Delaware limited liability company whose address is 100 Mulberry Street, GC4 Ninth Floor,Newark,New Jersey 07102-4069(the"Assignee"),its successors, participants and assigns,all right,title and interest of Assignor in and to that certain MORTGAGE,SECURITY AGREEMENT,ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING(the "Mortgage")given by CORE SYCAMORE TOWN CENTER T,LLC (the"Borrower"),to Assignor dated as of even date herewith("Closing Date")and recorded concurrently herewith in the Official Records of the County,securing the payment of a certain Promissory Note dated as of even date therewith,in the original principal amount of THIRTEEN MILLION AND 00/100 DOLLARS ($13,000,000.00)made by the Borrower,payable to the order of Assignor,and creating a first lien on the property described in Exhibit"A"attached hereto and by this reference made a part hereof;which Mortgage was modified by that certain Tenancy In Common Loan Assumption Agreement and Modification of Mortgage and Security Agreement and Other Loan Documents by and among Borrower and TIC Sycamore 1,LLC,TIC Sycamore 2, LLC,TIC Sycamore 3,LLC and TIC Sycamore 4, LLC dated as of the Closing Date and recorded concurrently herewith in the Official Records of the County; TOGETHER WITH any and all notes and obligations therein described, the debt and claims secured thereby and all sums of money due and to become due thereon, with interest provided for therein, and Assignor hereby irrevocably appoints Assignee hereunder its attorney to collect and receive such debt,and to foreclose,enforce and satisfy the foregoing the same as it might or could have done were these presents not executed, but at the cost and expense of Assignee; and TOGETHER WITH any and all other liens, privileges, security interests, rights, entitlements, equities, claims and demands as to which Assignor hereunder possesses or to which Assignor is otherwise entitled as additional security for the payment of the notes and other obligations described herein. This Assignment shall be governed in all respects by the laws of the State and shall be binding upon and shall inure to the benefit of the panics hereto and their respective successors and assigns. [NO FURTHER TEXT ON THIS PAGE] �; MI ^i rti 7C cD NY:1191340.2 IN WITNESS WHEREOF, Assignor has caused this instrument to be executed by its duly authorized officer as of `l ,2008. PRUDENTIAL MO TGAGE CAPITAL COMPANY,LLC, elaware limited liability company By: Name: Kirk Schaffer Title: Vice President r.2 C� O ti �cf, -a SV NY:119134S STATE OF CALIFORNIA } } ss. COUNTY OF SAN FRANCISCO } On July 22,2008 ,before me, GWEN SCHMITI' ,Notary Public,personally appeared KIRK SCHAFFER , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. cs _ --- Signature of Notary Public rj a, -Gr --3 !i1 rrl -: • I.;JJ .;� GWEN SCHMITT Commission # 1774567 Notary Public-California 2 f Alameda County 3_ _ _-_ My Comm._ BpiesOc$_2120_12i N or CJS EXHIBIT A • Ti `l11 Legal Description of Property -73 LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23, Township 79 North,Range 6 West of the 5th Principal Meridian, Iowa City, Johnson County, Iowa, more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway#6,said point being the POINT OF BEGINNING;thence following the easterly right of way lines of said Sycamore Street,North 0 degrees 26 minutes 00 seconds East,a distance of 225.05 feet; thence North 4 degrees 09 minutes 00 seconds West, a distance of 212.68 feet; thence North 0 degrees 26 minutes 00 seconds East, a distance of 168.98 feet to the southwest corner of LOT 1 in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT 1, a distance of 278.80 feet to the southwest corner of said LOT 2; thence North 42 degrees 06 minutes 03 seconds West, a distance of 194.06 feet to the most westerly corner of said LOT 2; thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet; thence North 0 degrees 49 minutes 15 seconds East along the west line of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road; thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West, a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve, concave to the Southeast, having a radius of 804.00 feet, a central angle of 23 degrees 01 minute 26 seconds, and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West;thence Southwest along said curve,a distance of 323.08 feet to the intersection with the northerly right of way line of said U.S. Highway#6 at a point of curvature of a non-tangent curve, concave to the South,having a radius of 3015.00 feet, a central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a distance of 893.07 feet; thence North 89 degrees 50 minutes 08 seconds West, a distance of 227.53 feet to the POINT OF BEGINNING. TOGETHER WITH, a non-exclusive easement for ingress, egress and parking over portions of Lot 1 in Mall First Additional to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 of records of Johnson County, Iowa, as set forth in that certain "Declaration of Mutual Easements", dated Seer 2008 and to be recorded simultaneously herewith. atlitiSr °.8/1 NY:1 191340.2 • 11111111111111111111111111111111 Doo ID: 0212121940023 Type: GEN Recorded: 10/03/200® et Z0:23:66 Art Exhibit G Fee Amt: $117.00 Page 1 of 23 Johnson County Iowa Kim Painter County Recorder 4354 P0701-723 TENANCY-IN-COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS Parties to the Agreement: CORE SYCAMORE TOWN CENTER T,LLC; TIC Sycamore 5, LLC;TIC Sycamore 6,LLC;`TIC g. Sycamore 7, LLC;TIC Sycamore 9, LLC;and Prudential Mortgage Capital Company, Lb .x,a Document prepared by: =in / David M.Traitel,Esq. . Winston&Strewn LLP 200 Park Avenue ' . 11,71 .v New York,NY 10166 Phone: 212-294-6898 cit Taxpayer: CORE Sycamore Town Center T, LLC c/o CORE Realty Holdings, LLC 1600 Dove Street,Suite 450 Newport Beach,CA 92660 Legal Description: See attached Exhibit A, page 20 Document or instrument number of previously recorded documents: N/A Recording requested by and return to: First American Title Insurance Company National Commercial Services 1900 Midwest Plaza 801 Nicollet Mall Minneapo'ls,MN 55402 Phone: 612-305-2000 NCS-304940(RH) TENANCY-IN-COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS by and among CORE SYCAMORE TOWN CENTER T,LLC, (Selling TIC), and TIC SYCAMORE 5,LLC,TIC SYCAMORE 6,LW,TIC SYCAMORE 7,LW and TIC SYCAMORE 9,LLC (individually and collectively,Assuming Purchaser) and PRUDENTIAL MORTGAGE CAPITAL FUNDING,LW, o a Delaware limited liability company :t'3 -6 t (Lender) Dated: as of September,2008 li11 Property Address: =: = 1668 Sycamore St. Iowa City,Iowa 52240 County: Johnson State: Iowa Prepared by and When Recorded Return to: Winston&Strawn LLP 200 Park Avenue New York,New York 10166 Attn: David M.Traitel,Esq. PMCC Loan No. 416107997 Counsel Loan No.81121-690 (3oL9cto-i TENANCY-IN-COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS THIS TENANCY IN COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING AND OTHER LOAN DOCUMENTS (this "Agreement") made as of the 4a'day of September,2008,by and among CORE SYCAMORE TOWN CENTER T, LLC,a Delaware limited liability company,having an address at do CORE Realty Holdings,LLC, 1600 Dove Street, Suite 210, Newport Beach, California 92660, and owning a 100% undivided tenant in common interest in the Property(as defined below)(the"Selling TIC")and TIC SYCAMORE 5,LLC, a Delaware limited liability company,TIC SYCAMORE 6,LLC,a Delaware limited liability company, TIC SYCAMORE 7,LLC, a Delaware limited liability company and TIC SYCAMORE 9, LLC,a Delaware limited liability company, each having an address at c/o CORE Realty Holdings, LLC, 1600 Dove Street, Suite 450, Newport Beach, California 92660 (individually and collectively, jointly and severally, the "Assuming Purchaser"); and PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC,a Delaware limited liability company("Lender")having an office at 100 Mulberry Street, Eighth Floor,Gateway Center Four,Newark,New Jersey 07102. WITNESSETH: WHEREAS,Lender is the present holder of a loan originally made on March 26, 2008 (the "Closing Date") to the entities listed on Schedule 1 annexed hereto (collectively, "Original Borrower") and subsequently assumed,jointly and severally, by the other tenants-in-common listed on Schedule 2 annexed hereto (each, an "Other TIC" and collectively, the "Other TICS") by Prudential Mortgage Capital Company, LLC, a Delaware limited liability company ("PMCC") in the original principal amount of$13,000,000.00(the"Loan"); WHEREAS,in connection with the Loan,the Original Borrower executed and delivered to Lender(i) that certain Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing (as the same may have been or may be modified or amended, the "Security Instrument"; capitalized terms used in this Agreement without definition shall have the respective meanings attributed to them in the Security Instrument) dated as of the Closing Date which was recorded concurrently herewith in the records of Johnson County,Iowa,which Security Instrument encumbers that certain real property situated in the City of Iowa City,Johnson County,Iowa(the "Premises")as more particularly described in Exhibit A attached hereto and made a part hereof and the other"Property"as defined in the Security Instrument, (ii)that certain Promissory Note Secured by Mortgage(as same may have been or may be modified or amended, the "Note") in the original principal amount of the Loan and dated the Closing Date, which Note is secured by the Security Instrument,(iii) that certain Assignment of Leases and Rents made as of the Closing Date and recorded concurrently herewith in the records of Johnson County,Iowa (the "Assignment of Leases"),(iv)that certain Environmental Indemnity Agreement(the "Hazardous Substances Indemnity") dated as of the Closing Date by Original Borrower and John R. Saunders, in favor of Lender, (v) that certain Loan Agreement (as same may have been modified or amended,the "Loan Agreement")dated the Closing Date and executed by Original Borrower in favor of Lender and(vi)certain other Loan Documents(as defined in the Security Instrument); WHEREAS,on or about September,,?6,2008,the Loan and all of the Loan Documents (as defined in the Security Instrument)were assigned by PMCC to Lender. WHEREAS, subsequent to the Closing Date, the Other TICs assume jointly; nd severally with Original Borrower, the obligations of Original Borrower under the Note,:ffie Secijrity C 1 Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents. WHEREAS, Lender has been requested to consent to a TIC Sale (as defined in the Security Instrument) by Selling TIC to the Assuming Purchaser, in accordance with the Security Instrument, and Lender has approved the assumption by the Assuming Purchaser of the obligations in connection with the Loan subject to satisfaction of the terms and conditions more fully set forth in the Security Instrument;and WHEREAS,Assuming Purchaser has executed that certain Assignment and Assumption of Agreement, the TIC Agreement (as defined below) and the Property and Asset Management Agreement(as may be applicable)(collectively,the "TIC Assumption") whereby Assuming Purchasers have assumed obligations, as tenant-in-common, of Selling TIC under that certain Tenants In Common Agreement dated September 4, 2008,(the"TIC Agreement"),and has delivered a true and correct copy of the TIC Assumption to Lender;and WHEREAS, pursuant to the Security Instrument, it is a condition to the TIC Sale to Assuming Purchaser that the parties hereto enter into this Agreement; NOW,THEREFORE,in consideration of the Premises,the sum of Ten($10.00)Dollars and other good and valuable consideration the receipt and legal sufficiency of which is hereby acknowledged,the parties hereto hereby unconditionally covenant and agree as follows: 1_ Selling TIC and each Assuming Purchaser hereby jointly and severally represent to Lender that, simultaneously herewith, Selling TIC is selling to Assuming Purchaser, and Assuming Purchaser is purchasing from Selling TIC,the undivided tenant in common interests set forth next to the entity comprising Assuming Purchaser set forth on Schedule 3 annexed hereto and made a part by this reference (collectively, the "Purchased Interest") in the Property. Each Assuming Purchaser hereby certifies,represents and warrants to Lender that(A)neither Assuming Purchaser nor its direct owners is a foreign corporation,foreign partnership, foreign trust or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations);(B)Lender is not required to withhold any tax as a result of the transfer of the Property by Assuming Purchasers pursuant to the Security Instrument or upon the exercise by Lender of any of Lender's rights or remedies pursuant thereto; and (C) Assuming Purchaser acknowledges that the foregoing certifications,representations and warranties may be disclosed to the Internal Revenue Service by any transferee and that any false statement contained herein may be punishable by fine,imprisonment or both. 2. Each Assuming Purchaser hereby unconditionally assumes,jointly and severally with Original Borrower and the Other TICs,the complete performance,fulfillment and discharge of all of the obligations, conditions and covenants of Original Borrower and the Other TICs, as "Borrower", "Mortgagor",or "Assignor",as the case may be,contained in the Loan Agreement,the Note,the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, subject to the benefits of the exculpatory provisions set forth therein (including, without limitation, Article VIII of the Loan Agreement) and Assuming Purchaser shall be a party to the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents as"Borrower", "Mortgagor",or"Assignor",as the case may be, jointly and severally with Original Borrower and the Other TICs. Assuming Purchaser agrees(i)to repay any and all sums due and owing under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases,the Hazardous Substances Indemnity and the other Loan Documents and(ii)to be bound by all of the terms and conditions of the Loan Agreement, the Note, the Security Instnlnlent, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, as if the/ Assuming Purchasers had executed same, subject to the benefits of the exculpatory pi Visions set forth' therein (including,without limitation,Article VIII of the Loan Agreement). Selling TIC and Aissumitilan. elft Purchaser acknowledge that,but for each of them entering into this Agreement,Lender would not consent to the TIC Sale,and accordingly, Selling TIC and Assuming Purchaser further acknowledge that Lender is relying on the representations and covenants made herein. 3. Each Assuming Purchaser acknowledges that, from time to time, one or more other purchasing 'TLCs" (as defined in the Security Instrument) may hereafter assume liability,jointly and severally with Original Borrower and/or one or more of the Other TICs, for the obligations of Original Borrower and/or one or more of the Other TICs under the Loan Documents (as defined in the Security Instrument), and that the liability of Assuming Purchaser thereunder shall not be discharged by reason of the assumption by any other purchasing TIC of the obligations under the Loan Documents(or, should Lender do so, by reason of the release of any party from any liability under the Loan Documents or any of them). Assuming Purchaser expressly acknowledges that,pursuant to the Security Instrument, each purchasing TIC is required to assume,jointly and severally with Original Borrower and/or one or more of the Other TICs and any other purchaser TIC,the obligations under the Loan Documents(subject, in each such case, to the benefit of the exculpatory provisions contained therein (including, without limitation,Article VIII of the Loan Agreement)). 4. Lender hereby consents to the transfer of the Purchased Interest to the Assuming Purchaser and to the assumption of the Loan by the Assuming Purchaser as more fully set forth herein. Lender's consent to the transfer of the TIC Interest to the Assuming Purchasers is not intended to be and shall not be construed as a consent to any subsequent direct or indirect transfer of all or any part of the Property,or the Assuming Purchaser's interest in the Purchased Interest or the Property,or an interest in the Assuming Purchaser, nor a waiver of any provisions of the Loan Documents which limit the transferability of the Property,the interests of the TICs,or an interest in the Assuming Purchaser. 5. Assuming Purchaser hereby expressly agrees as follows: (A) All of the terms, provisions, covenants, representations, warranties, conditions and stipulations contained in the Loan Agreement,the Note, the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, as assumed hereunder, are hereby ratified and confirmed by Assuming Purchasers in all respects, and shall continue to apply with full force and effect to Assuming Purchasers from and after the date hereof; (B) All of the representations and warranties made by Original Borrower with respect to the Property under the Loan Agreement,the Note,the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents shall be deemed to be remade by Assuming Purchaser as of the date hereof with respect to all matters specified therein and with respect to this Agreement fully as if set forth herein,all of which remain true and correct; (C) As of the date hereof, the obligations of Assuming Purchaser under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, as assumed hereunder, are not subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, any claim of waiver, release,surrender or compromise; (D) As of the date hereof,to the best knowledge of Assuming Purchaser,no Default (as such term is defined in the Security Instrument) and no Event of Default (as such term is defined in the Security Instrument)has occurred and is continuing under any of the Loan Agreement,the Note,the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity or any of the other Loan Documents; (E) Assuming Purchaser covenants and agrees to repay any and all sums due and owing under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents and to be bound,jointly and severally with the other makers thereof, by all of the terms and conditions of the Loan Agreement, the Note;-:the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other loan -=l C—. cn 1 ;.R rn cJl Documents as if Assuming Purchaser had executed same, subject, in each case, to the benefit of the exculpatory provisions contained therein (including, without limitation, Article VIII of the Loan Agreement); (F) Assuming Purchaser's rights in and to the Property and the Purchased Interest are subject and subordinate to the Loan and the provisions of the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents until the Loan is satisfied in full; (G) Assuming Purchaser confirms that CORE Sycamore Town Center T, LLC, a Delaware limited liability company("Sponsor")has been appointed by Original Borrower as the "Notice Owner" for all purposes as set forth in the Security Instrument and Assuming Purchaser hereby consents to such appointment and agree that Assuming Purchaser has appointed Sponsor as "Notice Owner" for Assuming Purchaser. 6. Without limiting anything set forth in this Agreement or in the Loan Documents, Assuming Purchaser hereby expressly acknowledges the following: IT SHALL CONSTITUTE AN "EVENT OF DEFAULT" UNDER THE LOAN AGREEMENT IF ANY ASSUMING PURCHASER,ORIGINAL BORROWER, ANY OTHER TIC,ANY FUTURE PURCHASING TIC OR ANY OTHER PERSON OR ENTITY NOW OR HEREAF"I LR PARTY TO THE TIC AGREEMENT, FILES AN ACTION TO PARTITION THE PROPERTY. 7. Nothing herein shall, or shall be deemed to, release or discharge Original Borrower or any Other TIC,from the performance of all obligations, conditions and covenants contained in the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and/or the other Loan Documents,or to release or discharge Original Borrower or any Other TIC from any liability under the Hazardous Substances Indemnity. 8. Assuming Purchaser hereby represents and warrants to Lender that the execution, delivery and performance of this Agreement has been duly authorized by all necessary and proper action on the part of Assuming Purchaser and,to the extent required,the member(s)thereof, and the execution, delivery and performance by Assuming Purchaser of this Agreement (i) to the best of Assuming Purchaser's knowledge,will not violate any provision of any applicable law or regulation or of any order, writ,judgment, injunction or decree of any governmental authority and (ii)will not violate any provision of,or constitute a default under,or result in the creation or imposition of any lien(other than pursuant to this Agreement and the liens created by the Security Instrument and/or any of the other Loan Documents) on any asset of Assuming Purchaser pursuant to any contract, agreement or other undertakings to which Assuming Purchaser is a party or which is binding upon any Assuming Purchaser,or upon any of assets of Assuming Purchaser. 9. Neither Selling TIC, nor Assuming Purchaser, nor, to the best knowledge of Selling TIC and Assuming Purchaser,any other Original Borrower or Other TIC has any offsets,defenses or counterclaims of any kind whatsoever with respect to the obligations for the repayment of the indebtedness evidenced by the Note or for any other obligation set forth in the Note, the Security Instrument,the Assignment of Leases and Rents,the Hazardous Substances Indemnity or any of the other Loan Documents. Each of Selling TIC and Assuming Purchaser hereby warrant and represent that they have no knowledge of any eminent domain or condemnation proceedings, or similar actions _in lieu thereof, threatened or in existence in respect of the Property. Selling TIC represents and waist is to Assuming Purchaser and to Lender that, to the best of Selling TIC's knowledge, no Default or E. ent of Default has occurred and is continuing. Selling TIC and Assuming Purchaser,each for tliemselve$and, as applicable to the maximum extent possible, for and on behalf of their respective partners,_ arehQ7ders, -.at Cil beneficiaries, legal representatives, heirs, successors and assigns, hereby release and forever discharge Lender, its officers, employees, the servicers of the Loan and the respective affiliates of the foregoing from and against any and all claims and liability relating to the transactions evidenced by the Loan Documents,through and including the date hereof. 10. Except as modified hereby,the Loan Agreement, the Note, Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and other Loan Documents remain unmodified and in full force and effect. 11. This Agreement shall constitute a "Loan Document" for all purposes provided in the Loan Documents. 12. Assuming Purchaser hereby warrants and represents that it has reviewed and approved the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents. 13. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF IOWA; PROVIDED THAT TO THE EXTENT ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING; AND PROVIDED FURTHER THAT THE LAWS OF THE STATE OF IOWA SHALL GOVERN AS TO THE CREATION, PRIORITY AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS IN PROPERTY LOCATED IN SUCH STATE. 14. To facilitate execution,this Agreement may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature and acknowledgment of,or on behalf of, each party, or that the signature and acknowledgment of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Agreement to produce or account for more than a single counterpart containing the respective signatures and acknowledgment of, or on behalf of, each of the parties hereto. Any signature and acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures and acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature and acknowledgment pages. 15. This Agreement may not be amended, revised, waived, discharged, released or terminated orally but only by a written instrument or instruments executed by the party against which enforcement of the amendment, revision, waiver, discharge, release or termination is asserted. Any alleged amendment, revision,waiver,discharge,release or termination which is not so documented shall not be effective as to any party. 16. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. [No farther text this page,] C 77= l rtycwo r P; THUS DONE AND PASSED, on the day, month and year first written above, by the undersigned Mortgagor in the presence of the undersigned Notary and the undersigned competent witnesses,who_hereunto sign their names after reading of the whole. SELLING TIC: CORE SYCAMORE TOWN CENTER T,LLC, a Delaware limited liability company By: CORE Sycamore Town Center Mezzanine,LLC, a Delaware limited liability company,its sole member By: CORE Realty Holdings,LLC, a California limited liability company,its sole member By: 1C2_ Name: .kill iMM. Title: Pvesvic?} • STATE OF 0, ) ) ss. COUNTY OF (pony) ) On 2008,before me-Tan / R a _ a Notary Public the undersigned,personally appeared 1 ,j' ;' . • a ,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person®whose name®is/at- subscribed to the within instrument and acknowledged to me that heJshe&tl►ey executed the same in his/ieir authorized capacity(ies),and that by his/herir signature®)on the instrument the person(4),or the entity upon behalf of which the person®acted,executed the instrument. WITNESS my hand and o cial seal. (k::: ..< .�, tAM'A PLAZA ,'�f'.`_ Corr►mltdon N 1740647 . Wary Public-California Notary Public in fors deif---) 2 i.:13,--:.:. rr% oronpe county t ' MyCc r .e_aa21.zott Courty and State c� G'C, '�1) (SEAL) CP N7 ).'"°::: f 7 rw+ E9 r`'r; —0 cJ .1; CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF California )SS COUNTY OF ( ) / t'j ) C% APA ..d► „Akio 4 before me. m ,Notary Pu ,personally appeared UW1U M° i - _t a{t , who me on the basis of satisfactory evidence to be the person whose name(?) is/am-subscribed to the within instrument and acknowledged to me that he/Me/they executed the san�fe in his/her/their authtlrized capady(als),and that by his/her/air signaturey$) on the instrument the person(, our the entity upon behalf of which the person}acted,executed the instrument I certify under•a TY OP PERJURY under the Jaws of the State of California that the foregoing paragraph is true and correct WITNESS • ,"/and official seal �I �, WA Sign .. c4O-_._) ",�i��* YCrowew..rMa�ion i 174W47 6 1 t_••.11 Notary Public-Catltonilo 1 %. R.) prong.County MMOaRrt9 ,IuMp2i•2011 ro p This area for official notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below,doing so may prove invaluable to persons relying on the documents. ❑ INDIVIDUAL n CORPORATE OFFICER(S) TITLE(S) CD. N PARTNER(S) {� LIMITED ❑ GENERAL .C ' f 1 ATTORNEY-IN-FACT L"9" CFt I' (�TRUSTEE(S) " If-u El GUARDIAN/CONSERVATOR •r —C.1 ril .-r} r n OTHER : SIGNER IS REPRESENTING: `c. `n I Name of Person or Entity Name of Person or Entity OPTIONAL SECTION Though the data requested here is not required by law,it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT I SIGNER(S)OTHER THAN NAMED ABOVE ASSUMING TIC: TIC SYCAMORE 5,LLC By: CORE Realty Holdings VP,LLC,a Delaware limited liability company,its Authorized Signatory By— ' i e.-- Name:William R.Colvin Title;President STATE OF eft\ ) ss. COUNTY OF 3 ) On •96,2008;before me, lrAQ i QXQ --------a Notary Public the undersigned,personally appeared William R. loin,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person()whose name()is/ace-subscribed to the within instrument and acknowledged to me that he/sliefthey executed the same in hist authorized capacity(ies), and that by his/letheir signature()on the instrument the person(),or the entity upon behalf of which the person()acted,executed the instrument. WITNESS my hand and official seal. _ A PLAZA 1Cama 06u ► 41 r �� . Notary Public -California r./ OranQs county - Notary Public to d for 'd = pp t!Om_ A¢_212217:2--- z1,2Q11 County and State (SEAL) N b- 1 7.<1r1 –o ; d CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF California )SS COUNTY OF Of. / ei ) • 2. aj __before me, P ,Notary Pubic,personally appeared { / 16 - e • who to me on the basis of satisfactory evidence to be the Person whose name is/ace-subbed to the within Instrument and acknowledged to me that they executed the same in his/her/their authorized ca oty(7es}, and that by him signaturecf)on the Instrument the person(), or the entity upon behalf of which the person)acted,executed the instrument. certify under PENALTY OF PERJURY under the laws of the Slate of California that the foregoing paragraph is true and correct. WITNESS m h and official seal. Si9 natu t Commission• 1740647 �� Colitoonia n; Oror Public Coon j t • „1„, 4�,r..P$aI2 211.. •30,1 This This area for official notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below,doing so may prove invaluable to persons relying on the documents. INDMDUAL 1 CORPORATE OFFICER(S) lIRE(S) L� PARTNER(S) ElLIMITED ❑ GENERAL CJ ATTORNEY-IN-FACT -3-/., itt TRUSTEE(S) -t'-% - !n F ] GUARDIAN/CONSERVATOR OTHER — SIGNER IS REPRFSFNTING: c-ri Name of Person or Entity Name of Person or Entity OPTIONAL SECTION Though the data requested here is not required by law,it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE ASSUMING TIC: TIC SYCAMORE 6,LLC By: CORE Realty Holdings VP,LLC,a Delaware limited liability compan; its Authorized Signatory By: � i Name:William R.Colvin Title:President STATE OF ,aAlctrnta_.) ) ss COUNTY OF ar_a_l_ez ) On 4*c 5.2008,before me,_ 10� � _ a Notary Public the undersigned,personally appeared William Covin,personally know;to me(or proved to me on the basis of satisfactory evidence)to be the person)whose name)is/are-subscribed to the within instrument and acknowledged to me that he/she they executed the same in his/herkhoir authorized capacity(iea,and that by his/her/their signature(/)on the instrument the person,or the entity upon behalf of which the person()acted,executed the instrument. WI a my hand and official seal. • utrvA Pt !moi',` Commiulion f 1740647 atI ■• -•f i Notary Public-California EL. I 'a1 Lel I ;�f Oranfls County t Notary Public i f and 'ter sai sg 3___ _ _ _""Cemn Pa2120:2t_C County and State 00 (SEAL) r.. 0 ::3- pmr `,— I :It'd Cr‘1 (=IT K5 a =„ O C.n CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF California )SS COUNTY OF Cyel, e, ) p � personally appeared a On � *� . .�,_ 016 114:�� before me, � _1 Notary Public,personal. who me on the basis of satisfactory evidence to be the person�F' whose name( lsfarc subscribed to the within instrument and admowledged to me that he/sho/they-executed the sarhe in • his/her/their authorized capadty(+e•s} and that by his/he ►eiF-signature(7) on the instrument the person(, or the entity upon behalf of which the person(/)acted,executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS hand d official seal, Sig SIA Ja ` Irk`? Com miwo,•1740+11 a ,lMolal►Pubic•CoNforryp P.1 I aQ+v � �,rbOlwceu,M2h,.got h This area for da OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fiN in the data below,doing so may prove invaluable to persons relying on the documents. INDIVIDUAL n CORPORATE OFFICER(S) TITLES) c I PAR-E3(S) ❑ LIMITED ❑ CTNERAL N O ATTORNEY-IN-FACT �"- r- •a w t? O y n f 1 TRUST�(S) >--1 .s , I GUARDIAN/CONSERVATOR \J C) al I I I OTHER -71 SIGNER IS REPRESENTING: iV O _ Name of Person or Entity Name of Person or Entity OPTIONAL SECTION Though the data requested here is not required by law,it could prevent fraudulent reattadirnent of this form_ THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: _ NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE • ASSUMING TIC: TIC SYCAMORE 7,LLC By: CORE Realty Holdings VP,LLC,a Delaware limited liability company, its Authorized Signatory By:_!�t1 Name: William R.Colvin Title:President • STATE OF TiapiaLka,) ) ss. COUNTY OF__ ) On o ,2008,,,before me, ua7a- a Notary Public the undersigned,personally appeared William IJColvin,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(whose name(X)is/alta subscribed to the within instrument and acknowledged to me that he/sholthey-executed the same in his/her air authorized capacity(ies3,and that by hisihe.gheir signature)on the instrument the person(/),or the entity upon behalf of which the person®acted,executed the instrument. WITNESS my hand and official seal. #41111If: Commission• 1740647 I �` :ate - '► Notary Public-Califon*: NotaryPublic i an r sai ♦' "j Orange Coollyr. Coi and State �- " "--MYCofrxRB�YsaA:21�2at1 (SEAL) - V L y� _1 r�r : - III � n :7) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF California )SS COUNTY OFCl ) O . • • before me, I ` tCL7Q.. ,Notary Public,personally appeared 1,,\/ d * 1 i� who proved on the basis of satisfactory evidence to be the person} name( is/are subscribed to the within instrument and acknowledged to me that heicheithey executed the same in hIs/heFAheir authorized mpadtyffere, and that by his/herkheir-signature0) on the instrument the person(, or the entity upon behalf of which the person(O aged,executed the Instrument. I certify ander PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS o I - d • d official seal. 1 i Signature &_ �� CorM»MNon# / 6,147 No1nrY MrbNc.CoNftxNo Oron� ou Cnty My � Ip21,2011 This area for offidal notarial seat. • OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below,doing so may prove invaluable to persons relying on the documents. N i c7 F-1 INDIVIDUAL El CORPORATE OFFICERS) TTRE(S) r PARTNERS) ❑ LIMITED ❑ GENERAL 1 ATTORNEY-IN-FACT -4 C-2 O/ I I TRtSTEE(S) I.tI "n -s El GUARDI/W/CONSERVATOR Fl OTHER SIGNER IS REPRESENTING: CFI Name of Person or Entity Name of Person or Entity OPTIONAL SECTION Though the data requested here is not required by law,it mold prevent fraudulent reattachment of this form_ THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE • ASSUMING TIC: TIC SYCAMORE 9,LLC By: CORE Realty Holdings VP,LLC,a Delaware limited liability comp ,its Authorized Signatory By: `. Name:William R.Colvin Title: President STATE OF 011itbaatai ) } ss. COUNTY OF Dinez_ ) On ,2008,before me,-Ta1T 1Q - -a Notary Public the undersigned,personally appeared William olein,personally known to me(or proved to me on the basis of satisfactory evidence)to be the person(p whose name()is/are-subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed the instrument. WITNESS my hand and official seal. IANYA PI.AU r.•- Comtnwlon a 1740e47 j � ' Notary Public-California Notary Public' said�`J orange County = County and State ` - phoann►_b Avr21.2m 1 (SFAI) ) Gjez....„ a/Ha-C-41 11 cm (-n CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF California )S5 COUNTY OF , S ) Qn eo\_ rig en! before me, ,Notary Public,personally appeared W]`_`af i 1 ' • •t 61`0. who me on the basis of satisfactory evidence to be the person(,yf whose name(?) isiace subscribed to the within Instrument and acknowledged to me that heisheiNvey.executed the same in ( his,(her{their authorised capadty(les), and that by his/her/tk it signature( )-en the instrument the person(s), or the entity upon behalf of which the person(()acted,eraecuted the Instrument. 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS ltd and official SIgnatu c r Coe nNnof}on•1710817 Q Nam Public ir« canta L ' Orange County - 7��'`*�- OertM�►�p ► IiYp►l�pr 21.2D1}-11 This area for oflidal notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below,doing so may prove invaluable to persons relying on the documents. INDIVIDUAL n CORPORATE OFTICER(S) TIRES) -50 ❑ PARTNER(S) ❑ LIMITED n GENERAL n ATTORNEY-IN-FACTf 23.1 1 1 TRUST 1t(S) „ I (1 GUARDIAN/CONSERVATOR • rz -"C - - i'1y.: SV r� OTHER SIGNER IS REPRESENTING: Name of Person or Entity Name of Person or Entity OPTIONAL SECTION Though the data requested here is not required by law,it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE LENDER: Lender is executing this Tenancy-In-Common Loan Assumption Agreement and Modification of Mortgage,Security Agreement and Financing Statement(Fixture Filing)solely to indicate its consent to the terms hereof.Nothing herein shall,or shall be deemed to,obligate Lender for repayment of any amount evidenced by the Note or secured by the Security Instrument or the other Loan Documents. LENDER: Prudential Mortgage Capital Funding,LW,a Delaware limited liability company By: Name: _ r Title: C) eftwoma 1 `+ O� STATE OF ) "'art r ):S "�'`-; COUNTY OF - ) ` ° ' o Before me, a No=:a Public in and for said county and state, personally appeared , the of Prudential Mortgage Capital Funding, LLC, Delaware limited liability corn.•ny,and . knowledged the execution of the foregoing instrument as such officer acting for and on bet'. of said Erni d liability company. Witnes' y hand and Notan. Seal this day of Si_a attire: c.4 r, o—. r oyc o—`ry', STATE OF CALIFORNIA } } ss. COUNTY OF SAN FRANCISCO } On September 25, 2008 ,before me, GWEN SCHMITT , Notary Public, personally appeared KIRK SCHAFFER , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity,and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify wider PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Signature of Notary Public ru c GWEN SCHNIII7 Commission it 177+1667 Notary Public-California c-Z-- !__ Alameda County ._<r p�a N u mit f" EXHIBIT A —4C). LEGAL DESCRIPTIONr. LOTS 2,3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23, Township 79 North, Range 6 West of the 5th Principal Meridian,Iowa City,Johnson County,Iowa,more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway #6, said point being the POINT OF BEGINNING; thence following the easterly right of way lines of said Sycamore Street,North 0 degrees 26 minutes 00 seconds East, a distance of 225.05 feet;thence North 4 degrees 09 minutes 00 seconds West,a distance of 212.68 feet;thence North 0 degrees 26 minutes 00 seconds East,a distance of 168.98 feet to the southwest corner of LOT 1 in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT 1,a distance of 278.80 feet to the southwest corner of said LOT 2;thence North 42 degrees 06 minutes 03 seconds West,a distance of 194.06 feet to the most westerly corner of said LOT 2;thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet; thence North 0 degrees 49 minutes 15 seconds East along the west line of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road; thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West,a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve,concave to the Southeast,having a radius of 804.00 feet,a central angle of 23 degrees 01 minute 26 seconds,and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West;thence Southwest along said curve, a distance of 323.08 feet to the intersection with the northerly right of way line of said U.S. Highway#6 at a point of curvature of a non-tangent curve, concave to the South,having a radius of 3015.00 feet, a central angle of 16 degrees 58 minutes 18 seconds,and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a distance of 893.07 feet;thence North 89 degrees 50 minutes 08 seconds West,a distance of 227.53 feet to the POINT OF BEGINNING. TOGETHER WITH, a non-exclusive easement for ingress, egress and parking over portions of Lot 1 in Mall First Additional to Iowa City,Iowa,as per plat thereof recorded in Plat Book 9, page 41 of records of Johnson County, Iowa,as set forth in that certain "Declaration of Mutual Easements",dated September 4,2008 and to be recorded simultaneously herewith. SCHEDULE 1 ORIGINAL BORROWER NAME ADDRESS CORE SYCAMORE TOWN CENTER T,LLC,a Delaware c/o CORE Realty Holdings,LLC, limited liability company 1600 Dove Street,Suite 210,Newport Beach,California 92660 r•-> c=7 SCHEDULE 2 OTHER TICS NAME ADDRESS TIC Sycamore I,LLC,a Delaware Iimited liability c/o CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 210,Newport Beach,California 92660 TIC Sycamore 2,LLC,a Delaware limited liability c/o CORE Realty Holdings,LLC, company1600 Dove Street,Suite 210,Newport Beach,California 92660 TIC Sycamore 3,LLC,a Delaware limited liability c/o CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 210,Newport Beach,California 92660 TIC Sycamore 4,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 210,Newport Beach,California 92660 r4 c:c) mc-, na t --tis SCHEDULE 3 ASSUMING PURCHASER INTERESTS Assuming Purchaser Undivided Fractional Tenants-in-Common Interest TIC Sycamore 5,LLC,a Delaware limited liability company 2.765% TIC Sycamore 6,LLC,a Delaware limited liability company 2.195% TIC Sycamore 7,LLC,a Delaware limited liability company 1.856% TIC Sycamore 9,LLC,a Delaware limited liability company 2.780% C. . -. cr. -4 C' (page 1 of 23) I11B '1111111N1I4l1l111J II I�II�'�ll Doc ID: 021313180023 Tvoe: QEN EXHIBIT "H" Recorded: 11/04/200e at 10:28:20 An Fee Anit: $117.00 Page 1 of 23 Johnson County Iowa Kim Painter County Reoorder BK4363 Pg124-146 �S35/ TENANCY-IN-COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS Parties to the Agreement: CORE SYCAMORE TOWN CENTER T, LLC;TIC Sycamore 8, LLC;TIC Sycamore 10, LLC; TIC Sycamore 11, LLC;TIC Sycamore 12, LLC; and Prudential Mortgage Capital Company,LLC Document prepared by: Winston &Strewn LLP 200 Park Avenue New York,New York 10166 Attn: David M.Trait,Esq. Phone: 212-294-6898 r_ Taxpayer: "�� cr► I� CORE Sycamore Town Center T,LLC rn C/0 CORE Realty Holdings,LLC -r° 1600 Dove Street, Suite 450 Newport Beach, CA 92660 Legal Description: See attached Exhibit A, page 19 Document or instrument number of previously recorded documents: n/a Recording requested by and return to: First American Title Insurance Company National Commercial Services 1900 Midwest Plaza 801 Nicollet Mall Minneapolis,MN 55402 Phone: 612-305-2000 NCS-304940(RI1) Book 4363, Page 124, Tile Ntmber (Page 2 of 23) NCS—2649+oo-/I TENANCY-IN-COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS by and among CORE SYCAMORE TOWN CENTER T,LLC, (Selling TIC), and TIC SYCAMORE 8,LLC,TIC SYCAMORE 10,LLC,TIC SYCAMORE 11,LLC and TIC SYCAMORE 12,LLC (individually and collectively,Aasuming Purchaser) and PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC, a Delaware limited liability company (Lender) Dated: as of October 24,2008 Property Address: _ 1668 Sycamore St. © '_: Iowa City,Iowa 52240 .--, rj “.1 County: Johnson State: Iowa fi r) CT' 3 rn ,Prepared Iv and Winston&Strawn LLP 200 Park Avenue •• New York,New York 10166 rn Attn: David M.`fraitel,Esq. PMCC Loan No. 416I 07997 Counsel Loan No.81121-690 Doo* 4363, P •lia 324• rue number (Page 3 of 23) =�r I —ns —I C7 CT I TENANCY-IN-COMMON LOAN ASSUMPTION AGREEMENT AND MODIIrICA ION,OF rn MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS~' v' THIS TENANCY IN COMMON LOAN ASSUMPTION AGREEMENTDAND MODIFICATION OF MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING AND OTHER LOAN DOCUMENTS (this "Agreement") made as of the 24th day of October, 2008, by and among CORE SYCAMORE TOWN CENTER T, LLC, a Delaware limited liability company,having an address at do CORE Realty Holdings, LLC, 1600 Dove Street, Suite 2.10, Newport Beach, California 92660, and owning a 100% undivided tenant in common interest in the Property(as defined below)(the "Selling TIC")and TIC SYCAMORE 8,LLC, a Delaware limited liability company, TIC SYCAMORE IQ, LLC, a Delaware limited liability company,TIC SYCAMORE 11,LLC,a Delaware limited liability company and TIC SYCAMORE 12, LLC,a Delaware limited liability company,each having an address at do CORE Realty Holdings,LLC, 1600 Dove Street, Suite 450,Newport Beach, California 92660(individually and collectively,jointly and severally, the ''Assuming Purchaser"); and PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC, a Delaware limited liability company ("Lender")having an office at 100 Mulberry Street, Eighth Floor,Gateway Center Four,Newark,New Jersey 07102. W ITNESSLTH: WHEREAS, Lender is the present holder of a loan originally made on March 26, 2008 (the "Closing Date") to the entities listed on Schedule 1 annexed hereto (collectively, "Original Borrower") and subsequently assumed,jointly and severally, by the other tenants-in-common listed on he ' le 2 annexed hereto (each, an Other TIC" and collectively, the "Other TICs") by Prudential Mortgage Capital Company, LLC, a Delaware limited liability company ("PMCC") in the original principal amount of$13,000,000.00(the"Loan"); WHEREAS, in connection with the Loan,the Original Borrower executed and delivered to Lender (i) that certain Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing (as the same may have been or may be modified or amended, the "Security Instrument"; capitalized terms used in this Agr emernt without definition shall have the respective meanings attributed to them in the Security Instrument) dated as of the Closing Date which was recorded concurrently herewith in the records of Johnson County,Iowa, which Security Instrument encumbers that certain real property situated in the City of Iowa City, Johnson County, Iowa(the "Premises") as more particularly described in Exhibit A attached hereto and made a part hereof and the other"Property" as defined in the Security Instrument, (ii) that certain Promissory Note Secured by Mortgage(as same may have been or may be modified or amended, the "Note") in the original principal amount of the Loan and dated the Closing Date, which Note is secured by the Security Instrument, (iii) that certain Assignment of Leases and Rents made as of the Closing Date and recorded concurrently herewith in the records of Johnson County, Iowa (the "Assignment of Leases") (iv) that certain Environmental Indemnity Agreement(the "Hazardous Substances Indemnity") dated as of the Closing Date by Original Borrower and John R. Saunders, in favor of Lender, (v) that certain Loan Agreement (as same may have been modified or amended,the "Loan Agreement") dated the Closing Date and executed by Original Borrower in favor of Lender and(vi)certain other Loan Documents(as defined in the Security Instrument); WHEREAS,on or about September 4,2008,the Loan and all of the Loan Documents(as defined in the Security Instrument)were assigned by PMCC to Lender. WHEREAS, subsequent to the Closing Date, the Other TICs assumed, jointly and severally with Original Borrower, the obligations of Original Borrower under the Note, the Security Book 4363, Page 124, rile 9•as'::r (page 4 of 23) -IC Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the othec'Loan - Documents. WHEREAS, Lender has been requested to consent to a TIC Sale (as defined in the Security Instrument) by Selling TIC to the Assuming Purchaser, in accordance with the Security Instrument, and Lender has approved the assumption by the Assuming Purchaser of the obligations in connection with the Loan subject to satisfaction of the terms and conditions more fully set forth in the Security Instrument;and WHEREAS,Assuming Purchaser has executed that certain Assignment and Assumption of Agreement, the TIC Agreement (as defined below) and the Property and Asset Management Agreement(as may be applicable)(collectively, the "TIC Assumption")whereby Assuming Purchasers have assumed obligations, as tenant-in-common, of Selling TIC under that certain Tenants In Common Agreement dated September 4, 2008, (the "TIC Agreement"),and has delivered a true and correct copy of the TIC Assumption to Lender;and WHEREAS, pursuant to the Security Instrument, it is a condition ro the TIC Sale to Assuming Purchaser that the parties hereto enter into this Agreement; NOW,THEREFORE,in consideration of the Premises,the sum of Ten(S10.00)Dollars and other good and valuable consideration the receipt and legal sufficiency of which is hereby acknowledged,the parties hereto hereby unconditionally covenant and agree as follows: '- Selling TIC and each Assuming Purchaser hereby jointly and severally represent to Lender that, simultaneously herewith, Selling TIC is selling to Assuming Purchaser, and Assuming Purchaser is purchasing from Selling TIC, the undivided tenant in common interests set forth next to the entity comprising Assuming Purchaser set forth on Schedule 3 annexed hereto and made a part by this reference (collectively, the "Purchased Interest") in the Property. Each Assuming Purchaser hereby certifies, represents and warrants to Lender that(A)neither Assuming Purchaser nor its direct owners is a foreign corporation, foreign partnership, foreign trust or foreign estate(as those terms are defined in the Internal Revenue Code and Income Tax Regulations);(B)Lender is not required to withhold any tax as a result of the transfer of the Property by Assuming Purchasers pursuant to the Security Instrument or upon the exercise by Lender of any of Lender's rights or remedies pursuant thereto; and (C) Assuming Purchaser acknowledges that the foregoing certifications,representations and warranties may be disclosed to the Internal Revenue Service by any transferee and that any false statement contained herein may be punishable by fine, imprisonment or both, 2. Each Assuming Purchaser hereby unconditionally assumes,jointly and severally with Original Borrower and the Other TICs,the complete performance, fulfillment and discharge of all of' the obligations, conditions and covenants of Original Borrower and the Other TICs, as "Borrower", "Mortgagor",or "Assignor", as the case may be, contained in the Loan Agreement,the Note,the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, subject to the benefits of the exculpatory provisions set forth therein (including, without limitation, Article VIII of the Loan Agreement) and Assuming Purchaser shall he a party to the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents as "Borrower", "Mortgagor",or"Assignor",as the case may he, jointly and severally with Original Borrower and the Other TICs. Assuming Purchaser agrees(i)to repay any and all sums due and owing under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases,the Hazardous Substances Indemnity and the other Loan Documents and (ii)to be bound by all of the terms and conditions of the Loan Agreement,the Note, the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, as if the Assuming Purchasers had executed same, subject to the benefits of the exculpatory provisions set forth therein (including, without limitation, Article VIII of the Loan Agreement). Selling TIC and Assuming Book 4363, Page 124, rile mtmbet r ) N _ (7".-.. (Page 5 of 23) ✓ t i tl.:,� • r� en Purchaser acknowledge that,but for each of them entering into this Agreement,Lender would-not consent to the TIC Sale, and accordingly, Selling TIC and Assuming Purchaser further acknowledge that Lender is relying on the representations and covenants made herein, 3. F,ach Assuming Purchaser acknowledges that, from time to time, one or more other purchasing "ITCs" (as defined in the Security Instrument) may hereafter assume liability,jointly and severally with Original Borrower and/or one or more of the Other TICs, for the obligations of Original Borrower and/or one or more of the Other TICs under the Loan Documents (as defined in the Security Instrument),and that the liability of Assuming Purchaser thereunder shall not be discharged by reason of the assumption by any other purchasing'11C of the obligations under the Loan Documents(or, should Le^der do so, by reason of the release of any party from any liability under the Loan Documents or any of them). Assuming Purchaser expressly acknowledges that, pursuant to the Security Instrument, each purchasing TIC is required to assume,jointly and severally with Original Borrower and/or one or more of the Other TICs and any other purchaser TIC, the obligations under the Loan Documents(subject, in each such case, to the benefit of the exculpatory provisions contained therein (including, without limitation,Article Vitt of the Loan Agreement)). 4. Lender hereby consents to the transfer of the Purchased Interest to the Assuming Purchaser and to the assumption of the Loan by the Assuming Purchaser as more fully set forth herein. Lender's consent to the transfer of the TIC Interest to the Assuming Purchasers is not intended to be and shall not be construed as a consent to any subsequent direct or indirect transfer of'all or any part of the Property, or the Assuming Purchaser's interest in the Purchased Interest or the Property, or an interest in the Assuming Purchaser, nor a waiver of any provisions of the Loan Documents which limit the transferability of the Property,the interests of the TICs,or an interest in the Assuming Purchaser. 5. Assuming Purchaser hereby expressly agrees as follows: (A) All of the terms, provisions, covenants, representations, warranties, conditions and stipulations contained in the Loan Agreement,the Note,the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, as assumed hereunder, are hereby ratified and confirmed by Assuming Purchasers in all respects, and shall continue to apply with full force and effect to Assuming Purchasers from and after the date hereof; (8) All of the representations and warranties made by Original Borruwer with respect to the Property under the Loan Agreement,the Note, the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents shall be deemed to be remade by Assuming Purchaser as of the date hereof with respect to all matters specified therein and with respect to this Agreement fully as if set forth herein,all of which remain true and correct; (C) As of the date hereof, the obligations of Assuming Purchaser under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, as assumed hereunder, are not subject to any reduction, limitation, impairment or termination for any reason, including, without limitation, any claim of waiver, release,surrender or compromise; (U) As of the date hereof, to the best knowledge of Assuming Purchaser, no Default (as such term is defined in the Security Instrument)and no Event of Default(as such term is defined in the Security Instrument) has occurred and is continuing under any of the Loan Agreement,the Note, the Security Instrument, the Assignment of Leases,the Hazardous Substances Indemnity or any of the other Loan Documents; (E) Assuming Purchaser covenants and agrees to repay any and all sums due and owing under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents and to be bound,jointly and severally with the other makers thereof, by all of the terms and conditions of the Loan Agreement,the Note, the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Dock 4363, rage 124, rile x.IDber cJ ry (page 6 of 23) n-e t -t? I 'l r J Documents as if Assuming Purchaser had executed same, subject, in each case, to the beiifit of the exculpatory provisions contained therein (including, without limitation, Article VIII of the Loan Agreement); (F) Assuming Purchaser's rights in and to the Property and the Purchased Interest are subject and subordinate to the Loan and the provisions of the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents until the Loan is satisfied in full; (0) Assuming Purchaser confirms that CORE Sycamore Town Center T, LLC, a Delaware limited liability company("Sponsor")has been appointed by Original Borrower as the "Notice Owner" for all purposes as set forth in the Security Instrument and Assuming Purchaser hereby consents to such appointment and agree that Assuming Purchaser has appointed Sponsor as "Notice Owner" for Assuming Purchaser. 6. Without limiting anything set forth in this Agreement or in the Loan Documents, Assuming Purchaser hereby expressly acknowledges the following: IT SHALL CONSTITUTE AN "EVENT OF DEFAULT" UNDER THE LOAN AGREEMENT IF ANY ASSUMING PURCHASER,ORIGINAL BORROWER, ANY OTHER TIC,ANY FUTURE PURCHASING TIC OR ANY OTHER PERSON OR ENTITY NOW OR HEREAFTER PARTY TO THE TIC AGREEMENT, FILES AN ACTION TO PARTITION THE PROPERTY. 7. Nothing herein shall, or shall be deemed to, release or discharge Original Borrower or any Other TIC, from the performance of all obligations, conditions and covenants contained in the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and/or the other Loan Documents,or to release or discharge Original Borrower or any Other TIC from any liability under the Hazardous Substances Indcmnity- 8. Assuming Purchaser hereby represents and warrants to Lender that the execution, delivery and performance of this Agreement has been duly authorized by all necessary and proper action on the part of Assuming Purchaser and,to the extent required, the member(s)thereof, and the execution, delivery and performance by Assuming Purchaser of this Agreement (i) to the best of Assuming Purchaser's knowledge,will not violate any provision of any applicable law or regulation or of any order, writ,judgment, injunction or decree of any governmental authority and (ii)will not violate any provision of,or constitute a default under, or result in the creation or imposition of any lien(other than pursuant to this Agreement and the liens created by the Security Instrument and/or any of the other Loan Documents) on any asset of Assuming Purchaser pursuant to any contract, agreement or other undertakings to which Assuming Purchaser is a party or which is binding upon any Assuming Purchaser, or upon any of assets of Assuming Purchaser, 9. Neither Selling TIC, nor Assuming Purchaser, nor, to the best knowledge of Selling TIC and Assuming Purchaser,any other Original Borrower or Other TIC has any offsets,defenses or counterclaims of any kind whatsoever with respect to the obligations for the repayment of the indebtedness evidenced by the Note or for any other cbligation set forth in the Note, the Security Instrument,the Assignment of Leases and Rents,the Hazardous Substances Indemnity or any of the other Loan Documents. Each of Selling TIC and Assuming Purchaser hereby warrant and represent that they have no knowledge of any eminent domain or condemnation proceedings, or similar actions in lieu thereof, threatened or in existence in respect of the Property. Selling TIC represents and warrants to Assuming Purchaser and to Lender that, to the best of Selling TIC's knowledge, no Default or Event of Default has occurred and is continuing. Selling TIC and Assuming Purchaser, each for themselves and, as applicable to the maximum extent possible,for and on behalf of their respective partners,shareholders, nook 4363, Page 124, lila r.nber (PagQ 7 of 23) beneficiaries, legal representatives, heirs, successors and assigns, hereby release and forever discharge Lender, its officers, employees, the servicers of the Loan and the respective affiliates of the foregoing from and against any and all claims and Iiability relating to the transactions evidenced by the Loan Documents,through and including the date hereof. 10. Except as modified hereby,the Loan Agreement,the Note, Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and other Loan Documents remain unmodified and in full force and effect. 11. This Agreement shall constitute a"Loan Document" for all purposes provided in the Loan Documents. 12. Assuming Purchaser hereby warrants and represents that it has reviewed and approved the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents. 13. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF IOWA; PROVIDED THAT TO THE EXTENT ANY OF SUCH LAWS MAY NOW OR HEREAFTER BE PREEMPTED BY FEDERAL LAW, SUCH FEDERAL LAW SHALL SO GOVERN AND BE CONTROLLING; AND PROVIDED FURTHER THAT THE LAWS OF THE STATE OF IOWA SHALL GOVERN AS TO THE CREATION, PRIORITY AND ENFORCEMENT OF LIENS AND SECURITY INTERESTS IN PROPERTY LOCATED IN SUCH STATE. 14. To facilitate execution, this Agreement may be executed in as many counterparts as may be convenient or required. It shall not be necessary that the signature and acknowledgment of,or on behalf of, each party,or that the signature and acknowledgment of all persons required to bind any party, appear on each counterpart. All counterparts shall collectively constitute a single instrument. It shall not be necessary in making proof of this Agreement to produce or account for more than a single counterpart containing the respective signatures and acknowledgment of, or on behalf of, each of the parties hereto. Any signature and acknowledgment page to any counterpart may be detached from such counterpart without impairing the legal effect of the signatures and acknowledgments thereon and thereafter attached to another counterpart identical thereto except having attached to it additional signature and acknowledgment pages. 15. This Agreement may not be amended, revised, waived, discharged, released or terminated orally but only by a written instrument or instruments executed by the party against which enforcement of the amendment, revision, waiver, discharge, release or termination is asserted, Arty alleged amendment,revision,waiver,discharge, release or termination which is not so documented shall not be effective as to any party. 16. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. [No farther text this page.] N :9 Z G -n i n — -.K -, N 4.0 • • c'7 Book 4363, Page 124, tiles T (Page 8 of 23) THUS DONE AND PASSED, on the day. month and year first written above, by the undersigned Mortgagor in the presence of the undersigned Notary and the undersigned competent witnesses,who hereuntoAign their names after reading of the whole. SELLING TIC: CORE SYCAMORE TOWN CENTER T,LLC, a Delaware limited liability company By: CORE Sycamore Town Center Mezzanine,LLC, a Delaware limited liability company, its sole member By: CORE Realty Holdings,LLC, a California limited liability company, its sole member By: / 1:0_, — Name: ` //i4...ot ez/ l Title: pr-y,cid -t-- STATE OF _ ) ) ss. COUNTY OF } On ,2008,before me, a Notary Public the undersigned,personally appeared personally known to mc(or proved to me on the basis of satisf= ory evidence)to be the person(s)whose name(s)is/are subscribed to the within instrum- and acknowledged to me that he/she/they executed the same in his/her/their authorized capa ' (les),and that by his/her/their signature(s)on the instrument the person(s),or the entity up behalf of which the person(s)acted, executed the instrument. WITNESS my hand a.6 official seal. C) Notary Pub ' in and for said County - d State a, r' (SEAL) -<,F,., —v M :c Book 4363, Page 124, rile number CPage 9 of 23) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT File No: STATE OF California )55 APN No: COUNTY OF Orange On October 24,2008 before me, Trade Nguyen , Notary Public,personally appeared Wfilhne R.Cohrin who proved to me on the basis of satisfactory evidence to be the person(e) whose names) i514,are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/here# authorized capadtyNes} and that by hls/her/the4c signature(s)on the Instrument the person(s), or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and offlda!sealJE • Ot 73 Signature '��/ i I county �`. Ceram, cies Mar 1 3111 This area for official notarial seal. 1111.1111.11.111111111111.11111111111.11111.11111111111111.1........111 OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does rot require the Notary to fill in the data below,doing so may prove Invaluable to persons relying on the documents. El INDIVIDUAL LJ CORPORATE OFFICERS) TITLES) o El PARTNER(S) ❑ LIMITED ( 1 GENERAL o '- (� ATTORNEY-IN-FACT 1 �.1 0 7 TRUS r t-t(S) n GUARDIAN/CONSERVATOR 0 OTH ER " SIGNER IS REPRESENTING: • "-" Q'. Name of Person or Entity Name of Person or Entity OPTIONAL SECRON Though the data requested here Is riot required by law, It could prevent fraudulent reattachment of this form. THYS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT t � SIGNER(S)OTHER THAN NAMED ABOVE oak Boot 4363, Page 124, Ills limber (Page 10 of 23) ASSUMING TIC: TIC SYCAMORE 8,LLC By:CORE Realty Holdings VP, LLC,a Delaware limited liability company, its Authorized Signatory By: ) ' I Name: William R. Colvin Title:President STATE OF ) ) ss. COUNTY OF ) On , 2008,before me, a Notary Public the undersigned,personally appeared Willi R.Colvin,personally known to me(or proved to me on the basis of satisfactory evidence) :+ be the person(s)whose name(s)is/are subscribed to the within instrument and aclanowled: : to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that 8y his/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which : e person(s)acted,executed the instrument. WITNESS my hand and 8 'icial seal. Notary Public in . d for said County and S. • (SEAL) � J 1'J ..r tC3, tr,•... O Book 4363, page 124, rile 1vubm, (Page 11 of 23) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT File No: STATE OF California )SS APV No: COUNTY OF Orange On Odvber 24,2006 before me, Tracie Nguyen ,Notary Public,personally appeared Wiliam R.Colvin who proved to me on the basis of satisfectory evidence to be the person(e) whose name(s) isfare subscribed to the within Instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized mpacItycies) end that by his/ Ir signature(s) on the Instrument the person(s), or the entity upon behalf of which the persons acted, executed the i Instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct. WITNESS my hand and official seal. COMM. 731137 x Signature iytrc�.�- a ice, Nota Public•California G Comm. rafter.15 2011 This area for official notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill In the data below,doing so may prove invaluable to persons relying on the documents. Q INDIVIDUAL 11 ❑ CORPORATE OFFICER(S) TITLE(S) n PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT fir''' —0 ill n TRUSTEE(S) r : ric -• , f 0 GUARDIAN/CONSERVATOR = .a [] OTHER SIGNER IS REPRESENTING: Name of Person or Entity �. � Name of Person or Entity OPTIONAL SECT IOtl Though the data requested here is not required by law,It could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE Book 4363, Page 124, Pile Number (page 12 of 23) ASSUMING TIC: TIC SYCAMORE 10,LLC By:CORE Realty Holdings VP, LI,C,a Delaware limited liability mpany2 A rized Signatory Name;William R. Colvin Title:President STATE OE ) ss. COUNTY OF On , 2008,before me, a Notary Public the undersigned,personally appeared Willia R.Colvin,personally known to me(or proved to me on the basis of satisfactory evidence)to •- the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged . me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by is/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which th.person(s)acted,executed the instrument. WITNESS my hand and oftl al seal. Notary Public in and '+r said County and State (SEAL) 1 .r✓ .. r�,rca :-P. --o rn N C3 • gook 4343, rage 124, Vile Mabee (Page 13 of 23) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT Elle No: STATE OF California x. )S5 APN No: COUNTY OF Orange ) On October 24,MS before me, Tracie Nguyen ,NotaryPublic IA lliam R.Cohn ,personally appeared who proved to me on the basis of satisfactory evidence to be the persons) whose name%) Were subscribed to the width) Instrument and acknowledged to me that he/she/they executed the same In him authorized tapacttyfiesy and that by his/beythelf signatures) on the instrument the person( ), or the entity upon behalf of which the persons)acted,executed the Instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct. WITNESS my hand and official seal. - IE J(WJ -M �' COMM. #1731137 z S"gnature /p, i tI t'y. ' Notary Public-California 8 ` r►, Orin a County res Mar.1. 201 i v This area far official notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below,doing so may prove Invaluable to persons relying on the documents. 0 INDIVIDUAL n CORPORATE OFFICERCS) TTI1.E(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERALa-, 1 El ATTORNEY-IN-FACT ::.;;.--2--1 ' -„.,R ni GUARDIAN/CONSERVATOR <P OTHER --- -='r SIGNER IS REPRESENTING: o Name of Parson or Entity Name of Person or Entity . OPTIONAL SECTION Though the data requested here is not required by law,it could prevent fraudulent reattachment of this form. THS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES _ DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE i Book 4343, Pao 124, rile Number (Page 14 of 23) ASSUMING TIC: TIC SYCAMORE 11,LLC By:CORE Realty Holdings VP,LLC,a Delaware limited liability ,mpany, its A orized Signatory BY : -✓`—� Name;William R.Colvin Title:President STATE OF ) ) ss. COUNTY OF ) On ,2008,before me, a Notary Public the undersigned,personally appeared William '.Colvin,personally known to me(or proved to me on the basis of satisfactory evidence)to • the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged t. me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by • s/her/their signature(s)on the instrument the person(s),or the entity upon behalf of which the . rson(s)acted,executed the instrument. WITNESS my hand and offe• al seal. Notary Public in a . for said County and Stat: (SEAL) rw 3 Cil :, �m�pp • tom'., ��. •• Book 4363, Page 124, File Number (Page 15 of 23) r 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT File No: STATE OF California )SS APN No: COUNTY OF Orange On October 24,2006 before me, Trade Nmen Notary Public,personally appeared William R Colvin who proved to me on the basis of satisfactory evidence to be the person($ whose narne(s) isiere subscribed to the within Instrument and acknowledged to me that he/she/they executed the same In his/her/their authorized capadty(ies) and that by hls/her/thelr signature(s) on the Instrument the person(s), or the entity upon behalf of which the persons)acted, executed the Instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct. WITNESS my hand and official seal. .. - , TRACIk: t. 1'E COMM. 01731137 z Signature /. �� Notary va boe•California o `,,-,77/ Caron. nos Mar.15,2011 This area for official notarial seal, OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below,doing so may prove invaluable to persons relying on the documents. n INDIVIDUAL (l CORPORATE OFFICER(S) TITLE(S) [l PARTNERCS) ❑ LIMITED p GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) o °v ❑ GUARDIAN/CONSERVATOR n SER u. SIGNER IS REPRESENTING: 611 Name of Person 4N'Entity Name of Person or Entity . OPTIONAL SECTION Though the data requested here Is not required by law,it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW Trf LE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE Book 4363, Page 124, rile IItmiber (Page 16 of 23) ASSUMING TIC: TIC SYCAMORE 12,LLC By:CORE Realty Holdings VP, LLC,a Delaware limited liability mpany,' A orized Signatory B `--�. Y• Name: William R.Colvin Title: President STATE OF ) ss. COUNTY OF i ) r On ,2008,before me, J a Notary Public the undersigned,personally appeared William ' .Colvin,personally known to me(or proved to me on the basis of satisfactory evidence)to be c person(s)whose names)is/are subscribed to the within instrument and acknowledged to that he/she/they executed the same in his/her/their authorized capacity(ies),and that by hi ' el./their signature(s)on the instrument the person(s),or the entity upon behalf of which the p Non(s)acted,executed the instrument. WITNESS my hand and official-al. Notary Public in and for : d County and State (SEAL) 1 ad 1 ram Z< z,r, —v in -. tA,.. Hook 4363, Page 124, Pile SRmtnr (Page 17 of 23) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT File No: STATE OF California )S5 APN No: COUNTY OF Orange ) On October 24,2005 before me, Track Nguyen ,Notary Public,personally appeared William R.Colrrin who proved to me on the basis of satisfactory evidence to be the persons) whose name(s) Is'are subscribed to the within Instrument and acknowledged to me that he/sMithey executed the game in his/he authorized capadtyfies} and that by his/heritheif signature(s) on the Instrument the person(s),or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. ~ f WITNESS my hand and official seal. TIMME NGUYEN COMM. #1731137 i J br"-N, i Notary Public-California A SigltiatUre it:t w;` Orange County Carom, •Tres Mer.15,2011 This area for official notarial seal. • OPTIONAL Secriow CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to fill in the data below,doing so m documents. may Proms Invaluaable to pers0 reiying:{�r the ❑ INDIVIDUAL15 '. T'#v (l CORPORATE OFFICER(S) TITLES) c-) Cr• ❑ PARTNER(S) ❑ LIi.1ITED El GENERAL n ATTORNEY-IN-FACT n = TtUSTEE(S) ❑ GUARDIAN/CONSERVATOR --r n OTHER SIGNER IS REPRESENTING: Name of Person or Entity Name of Person or Entity OPTIONAL SECTION Though the data requested here Is not required by law,it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE Hoer 4363, Page 124, rile Number (Page 18 of 23) LENDER: Lender Is executing this Tenancy-In-Common Loan Assumption Agreement and Modification of Mortgage,Security Agreement and Financing Statement(Fixture Filing)solely to indicate its consent to the terms hereof,Nothing herein shall,or shall be deemed to,obligate Lender for repayment of any amount evidenced by the Note or secured by the Security Instrument or the other Loan Documents. LENDER: Prudential Mortgage Capital Funding,LLC,a Delaware lim'ted liability compan By _ _. Name: Rt.sr Title: STATE OF ) ):SS COUNTY OF_ Before me, a No Public in and for said county and state, personally appeared the AL. of Prudential Mortgage Capital Funding, LLC, Delaware limited liability corny-.y,and apt iowiedged the execution of the foregoing instrument as such officer acting for and on beha of said limite, liability company. Witness y hand and Notarial •al this day of Signature: 'cNa"" '2`-twt� d r—, czt ---4C a .x„-,. -v c9 Book 4363, Page 124, Pile Mabey (Paga lg of 23) STATE OF CALIFORNIA } } ss. COUNTY OF SAN FRANCISCO } On October 23, 2008 , before me, GWEN SCHMITT , Notary Public, personally appeared KIRK SCHAfFER , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. Signature of Notary Public c.D E3 a: :-cam GWEN SCHMITT w�l aC zili r.A. Commission# 1774867 Cis, Notary Public-California 7 Alameda County k --jCJ try . 11dYComr►19q�teat]c!21.2UT1 j=. -p § Rook 4363, Page. 124, rile Number (Page 20 of 23) c.7 `^' r �(7, -i TA .1'71 �aC r0r0'' - EXHIBIT A LEGAL DESCRIPTION LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9,page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23, Township 79 North, Range 6 West of the 5th Principal Meridian, Iowa City,Johnson County,Iowa,more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway #6, said point being the POINT OF BEGINNING; thence following the easterly right of way lines of said Sycamore Street,North 0 degrees 26 minutes 00 seconds East, a distance of 225.05 feet;thence North 4 degrees 09 minutes 00 seconds West,a distance of 212.68 feet;thence North 0 degrees 26 minutes 00 seconds East,a distance of 168.98 feet to the southwest corner of LOT I in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT I,a distance of 278.80 feet to the southwest corner of said LOT 2;thence North 42 degrees 06 minutes 03 seconds West, a distance of 194.06 feet to the most westerly corner of said LOT 2;thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2,a distance of 413.72 feet; thence North 0 degrees 49 minutes 15 seconds East along the west line of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road; thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West,a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve,concave to the Southeast,having a radius of 804.00 feet,a central angle of 23 degrees 01 minute 26 seconds, and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West; thence Southwest along said curve, a distance of 323.08 feet to the intersection with the northerly right of way line of said U,S. Highway#6 at a point of curvature of a non-tangent curve,concave to the South,having a radius of 3015.00 feet, a central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a distance of 893.07 feet; thence North 89 degrees 50 minutes 08 seconds West, a distance of 227.53 feet to the POINT OF BEGINNING. TOGETHER WITH, a non-exclusive easement for ingress, egress and perking over portions of Lot 1 in Mall First Additional to Iowa City,Iowa,as per plat thereof recorded in Plat Book 9,page 41 of records of Johnson County,Iowa, as set forth in that certain "Declaration of Mutual Easements", dated September 4, 2008 and recorded in the records of Johr.son County, Iowa. Bock 4363, Page 124, Tile Number • • (Page 21 of 23) SCHEDULE I ORIGINAL BORROWER NAME — _ ADDRESS CORE SYCAMORE TOWN CENTER T,LLC,a Delaware c/o CORE Realty Holdings,LLC, limited liability company 1600 Dove Street,Suite 210,Newport Beach,California 92660 d ins Ci f 5 1 oemee -.F 1 • II Book 4369, Page 124, rile Number (Page 22 of 23) SCHEDULE 2 OTHER TICS NAME ADDRESS TIC Sycamore 1,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450, Newport Beach,California 92660 TIC Sycamore 2,LLC.a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450, Newport Beach,California 92660 TIC Sycamore 3,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450, Newport Beach,California 92660 TIC Sycamore 4,LLC, a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450, Newport Beach, California 92660 TIC Sycamore 5,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street, Suite 450, Newport Beach,California 92660 TIC Sycamore 6,LLC,a Delaware limited Iiability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450, Newport Beach,California 92660 TIC Sycamore 7,LLC,a Delaware limited Iiability do CORE Realty Holdings,LLC, company 1600 Dove Street, Suite 450, Newport Beach,California 92660 TIC Sycamore 9,LLC,a Delaware limited liability c/o CORE Realty Holdings,LLC, company 1600 Dove Street, Suite 450, Newport Beach,California 92660 cs r .-7.! t ---f c o' r5 Booz 1363, Pass 124, Ills lumber (Page 23 of 23) SCHEDULE 3 ASSUMING PURCHASER INTERESTS Assuming Purchaser Undivided Fractional Tenants-in-Common Interest TIC Sycamore 8,LLC,a Delaware limited liability company 3.919% TIC Sycamore 10,LLC,a Delaware limited liability company 3.277% TIC Sycamore 11,LLC,a Delaware limited liability company 2.160% TIC Sycamore 12,LLC,a Delaware limited liability company 3.000% ra • jam; in O ' Soak 4363, wage 124, rile Number (Page 1 of 17) /7.2gdCO/ EXHIBIT "I" II!' 1::i1111111341111111111 Doc ID; 021416770017 TYDI: DEN Recorded; OS/23/2009 at 03:02:50 pn Fee Amt: $87.00 Pato) l of 17 Johnson County Iowa Kim Painter County Recorder 4411 o348-364 TENANCY-IN-COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS Parties to the Agreement: CORE SYCAMORE TOWN CENTER T,LIZ; TIC Sycamore(3LLC;and Prudential Mortgage aloe!tel Company, LLC Document prepared by: David M.natal,Esq. o Whelan&Strewn LLP 200 Perk Avenue 9 =� New York,NY 10166 Phone:212-294-6898 -,, c Taxpoynell r:t -' CORE Sycamore Town Center T,LLC -r,' �u clo CORE Realty holdings,LLC ;=, 1600 Dove Street,Suite 450 .. Newport Beech,CA 92660 { Legal Description: See attached Hdilbit A, page 11 Document or Instrument number of previously recorded document: &aoK4351 . , ()Olt t Recording requested by and return to: First American Title Insurance Company National Commercial Services 1900 Midwest Plaza 601 Nloollet Mail Minneapolis, MN 55402 Phone:612-305-2000 r 04940-13•' AI 3 nanior/9 ra,niee, ace. p3a Book 4411, Page 348, rile limber (Page 2 of 17) TENANCY-IN-COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS by and among CORE SYCAMORE TOWN CENTER T,LLC, (Selling TIC), and TIC SYCAMORE 13,LLC (Assuming Purchaser) and `= 72PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC, a Delaware limited liability company _,r t j_"" (Lender) --e -� Dated: as of March 2009 ra= - Property AdOressi I668 Sycamore St Iowa City,Iowa 52240 County: Johnson State: Iowa Prepared brand When Recorded Return to: Winston&Stavin LLP 200 Park Avenue New York,New York 10166 Attn: David M.Traitel,Esq. PMCC Loan No. 416107997 Counsel Loan No.81121-690 Book 4411, Ham 340, rile "mint • a -11 (Page 3 of 17) `- c.vowel ,.� TENANCY-IN-COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION. )F = MORTGAGE AND SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS.� THIS TENANCY IN COMMON LOAN ASSUMPTION AGREEMENT AND MODIFICATION OF MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING AND OTHER LOAN DOCUMENTS (this "Agreement") made as of the it) day of March, 2009, by and among CORE SYCAMORE TOWN CENTER T, LLC,a Delaware limited liability company,having an address at c/o CORE Realty Holdings,LLC, 1600 Dove Street, Suite 210, Newport Beach, California 92660, and owning a 100% undivided tenant in common interest in the Property (as defined below) (the "Selling TIC") and TIC SYCAMORE 13, LLC, a Delaware limited liability company ("Assuming Purchaser"); and PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC, a Delaware limited liability company ("Lender") having an office at 100 Mulberry Street,Eighth Floor,Gateway Center Four,Newark,New Jersey 07102. WITNESSETFI: WHEREAS, Lender is the present holder of a loan originally made on September 4, 2008 (the "Closing Date") to the entities listed on Schedule 1 annexed hereto (collectively, "Original Borrower") and subsequently assumed,jointly and severally, by the other tenants-in-common listed on Schedule 2 annexed hereto (each, an "Other TIC" and collectively, the "Other TICS") by Prudential Mortgage Capital Company, LLC, a Delaware limited liability company ("PMCC") in the original principal amount of$13,000,000.00(the"Loan"); WHEREAS,In connection with the Loan,the Original Borrower executed and delivered to Lender (i)that certain Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing (as the same may have been or may be modified or amended, the "Security Instrument"; capitalized terms used in this Agreement without definition shall have the respective meanings attributed to them in the Security Instrument)dated as of the Closing Date which was recorded on September 24, 2008 in Book 4352, at326 in the records of Johnson County,page Iowa, which Security Instrument encumbers that certain real property situated in the City of Iowa City, Johnson County, Iowa (the "Premises")as more particularly described in Exhibit A attached hereto and made a part hereof and the other "Property" as defined in the Security Instrument, (ii)that certain Promissory Note Secured by Mortgage(as same may have been or may be modified or amended,the"Note)in the original principal amount of the Loan and dated the Closing Date, which Note is secured by the Security Instrument,(iii) that certain Assignment of Leases and Rents made as of the Closing Date and recorded concurrently herewith in the records of Johnson County, Iowa (the "Assignment of Leases"), (iv) that certain Environmental Indemnity Agreement(the"Hazardoua Substances Indemnity")dated as of the Closing Date by Original Borrower and John R.Saunders,in favor of Lender,(v)that certain Loan Agreement(as same may have been modified or amended,the"Loan Agreement")dated the Closing Date and executed by Original Borrower in favor of Lender and (vi) certain other Loan Documents (as defined in the Security Instrument); WHEREAS,on or about September 4,2008,the Loan and all of the Loan Documents(as defined in the Security Instrument)were assigned by PMCC to Lender. WHEREAS, subsequent to the Closing Date, the Other TICs ase mhed, jointly and severally with Original Borrower, the obligations of Original Borrower under the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents. WHEREAS, Lender has been requested to consent to a TIC Sale (as defined in the Security Instrument) by Selling TIC to the Assuming Purchaser, in accordance with the Security Book 4411, Page 368, Tile timber (Page 4 of 17) Instrument, and Lender has approved the assumption by the Assuming Purchaser of the obligations in connection with the Loan subject to satisfaction of the terms and conditions more fully set forth in the Security Instrument;and WHEREAS,Assuming Purchaser has executed that certain Assignment and Assumption of Agreement, the TIC Agreement (as defined below) and the Property and Asset Management Agreement(as may be applicable)(collectively,the "TIC Assumption")whereby Assuming Purchasers have assumed obligations,as tenant-in-common, of Selling TIC under that certain Tenants In Common Agreement dated September 4, 2008,(the"TIC Agreement"),and has delivered a true and correct copy of the TIC Assumption to Lender,and WHEREAS, pursuant to the Security Instrument, it is a condition to the TIC Sale to Assuming Purchaser that the patties hereto enter into this Agreement; NOW,THEREFORE,in consideration of the Premises,the sum of Ten($10.00)Dollars and other good and valuable consideration the receipt and legal sufficiency of which is hereby acknowledged,the parties hereto hereby unconditionally covenant and agree as follows: 1. Selling TIC and Assuming Purchaser hereby jointly and severally represent to Lender that, simultaneously herewith, Selling TIC is selling to Assuming Purchaser, and Assuming Purchaser is purchasing from Selling TIC,the undivided tenant in common interests set forth next to the entity comprising Assuming Purchaser set forth on Schedule 3 annexed hereto and made a part by this reference(collectively, the 'Tarchssed Interest")in the Property. Assuming Purchaser hereby certifies, represents and warrants to Lender that(A)neither Assuming Purchaser nor its direct owners is a foreign corporation,foreign partnership,foreign trust or foreign estate(as those terms are defined in the Internal Revenue Code and Income Tea Regulations);(B)Lender is not required to withhold any tax as a result of the transfer of the Property by Assuming Purchasers pursuant to the Security Instrument or upon the exercise by Lender of any of Lender's rights or remedies pursuant thereto; and(C)Assuming Purchaser acknowledges that the foregoing certifications, representations and warranties may be disclosed to the Internal Revenue Service by any transferee and that any false statement contained herein may be punishable by fine,imprisonment or both. 2. Assuming Purchaser hereby unconditionally assumes,jointly and severally with Original Borrower and the Other TICs, the complete performance, fulfillment and discharge of all of the obligations, conditions and covenants of Original Borrower and the Other TICs, as "Borrower", "Mortgagor",or"Assignor",as the case may be,contained in the Loan Agreement,the Note,the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, subject to the benefits of the exculpatory provisions set forth therein (including, without limitation, Article VIII of the Loan Agreement)and Assuming Purchaser shall be a party to the Loan Agreement, the Note, the Security Instntment, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents as"Borrower","Mortgagor",or"Assignor",as the case may be, jointly and severally with Original Borrower and the Other TICs. Assuming Purchaser agrees(i)to repay any and all sums due and owing under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases,the Hazardous Substances Indemnity and the other Loan Documents and(ii)to be bound by all of the terms and conditions of the Loan Agreement,the Note,the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, as If the Assuming Purchasers had executed same, subject to the benefits of the exculpatory provisions set nth therein (including, without limitation, Article VIII of the Loan Agreement). Selling TIC amid Assurnetg Purchaser acknowledge that,but for each of them entering into this Agreement,Lender wouI Ihot coh4nt to the TIC Sale, and accordingly,Selling TIC and Assuming Purchaser further acknowledge that Lerida is relying on the representations and covenants made herein. • r r,, kms) Beck 4411, Page 348, rile l7umbar (Page 5 of 17) 3. Assuming Purchaser acknowledges that, from time to time, one or more other purchasing 'TICS" (as defined in the Security Instrument) may hereafter assume liability,jointly and severally with Original Borrower and/or one or more of the Other TICs, for the obligations of Original Borrower and/or one or more of the Other TICs under the Loan Documents (as defined in the Security Instrument),and that the liability of Assuming Purchaser thereunder shall not be discharged by reason of the assumption by any other purchasing TIC of the obligations under the Loan Documents (or, should Lender do so,by reason of the release of any party from any liability under the Loan Documents or any of them). Assuming Purchaser expressly acknowledges that, pursuant to the Security Instrument, each purchasing TIC is required to assume,jointly and severally with Original Borrower and/or ono or more of the Other TICs and any other purchaser TIC,the obligations under the Loan Documents(subject,in each such case, to the benefit of the exculpatory provisions contained therein (including, without limitation, Article VIII of the Loan Agreement)). 4. Lender hereby consents to the transfer of the Purchased Interest to the Assuming Purchaser and to the assumption of the Loan by the Assuming Purchaser as more fully set forth herein. Lender's consent to the transfer of the TIC Interest to the Assuming Purchasers is not intended to be and shall not be construed as a consent to any subsequent direct or indirect transfer of all or any part of the Property, or the Assuming Purchaser's interest in the Purchased Interest or the Property, or an interest in the Assuming Purchaser, nor a waiver of any provisions of the Loan Documents which limit the transferability of the Property,the interests of the TICs,or an interest in the Assuming Purchaser. 5. Assuming Purchaser hereby expressly agrees as follows: (A) All of the terms, provisions, covenants, representations, warranties, conditions and stipulations contained in the Loan Agreement,the Note,the Security Instrument,the Assignment of Leases,the Hazardous Substances Indemnity and the other Loan Documents,as assumed hereunder,are hereby ratified and confrmed by Assuming Purchasers in all respects, and shall continue to apply with full force and effect to Assuming Purchasers from and after the date hereof; (B) All of the representations and warranties made by Original Borrower with respect to the Property under the Loan Agreement,the Note,the Security Instrument,the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents shall be deemed to be remade by Assuming Purchaser as of the date hereof with reape t to alll metten specified therein and w respect to this Agreement fully as if set forth herein,all of which remain true and correct; (C) As of the date hereof, the obligations of Assuming Purchaser under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and the other Loan Documents, as assumed hereunder, are not subject to any reduction, limitation, impairment or termination for any reason, including,without limitation, any claim of waiver, release,surrender or compromise; (D) As of the date hereof,to the best knowledge of Assuming Purchaser, no Default (as such term is defined in the Security Instrument) and no Event of Default(as such term is defined in the Security Instrument)has occurred and is continuing under any of the Loan Agreement,the Note,the Security Instrument,the Assignment of Leases,the Hazardous Substances Indemnity or any of the other Loan Documents; (E) Assuming Purchaser covenants and agrees to repay any and all sums due and owing under the Loan Agreement, the Note, the Security Instrument, the Assignment of Leasi X the Hazardous Substances Indemnity and the other Loan Documents and to be bound,jointlii and severally with the other makers thereof, by all of the terms and conditions of the Loan Agreement;`the Nom,the -} Security Instrument,the Assignment of Leases,the Hazardous Substances Indemnity an¢tte'othet Loan `' Documents as if Assuming Purchaser had executed same, subject, in each case, to the Fent fi of thq exculpatory provisions contained therein (including, without limitation, Article V `E the Load Agreement); rrt.! Book 4411, Page 348, file Nume t (Page 6 of 17) ej int !3l t. (F) Assuming Purchaser's rights in and to the Property and the Purpled artiest arp' subject and subordinate to the Loan and the provisions.of the Loan Agreement, the Note,the;Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and"the other? Loan Documents until the Loan is satisfied in full; 1 (G) Assuming Purchaser confirms that CORE Sycamore Town Center T, LLC, a Delaware limited liability company("Sponsor")has been appointed by Original Borrower as the"Notice Owner" for all purposes as set forth in the Security Instrument and Assuming Purchaser hereby consents to such appointment and agree that Assuming Purchaser has appointed Sponsor as "Notice Owner' for Assuming Purchaser. 6. Without limiting anything set forth in this Agreement or in the Loan Documents, Assuming Purchaser hereby expressly acknowledges the following: IT SHALL CONSTITUTE AN "EVENT OF DEFAULT" UNDER THE LOAN AGREEMENT IF ANY ASSUMING PURCHASER,ORIGINAL BORROWER,ANY OTHER ITC,ANY FUTURE PURCHASING TIC OR ANY OTHER PERSON OR ENTITY NOW OR I.T REAPT))3R PARTY TO TIS TIC AGREEMENT, FILES AN ACTION TO PARTITION TIE PROPERTY. 7. Nothing herein shall, or shall be deemed to, release or discharge Original Borrower or any Other TIC,from the performance of all obligations,conditions and covenants contained in the Loan Agreement, the Note, the Security Instrument, the Assignment of Leases, the Hazardous Substances Indemnity and/or the other Loan Documents,or to release or discharge Original Borrower or any Other TIC from any liability under the Hazardous Substances Indemnity. 8. Assuming Purchaser hereby represents and warrants to Lender that the execution, delivery and performance of this Agreement has been duly authorized by all necessary and proper action on the part of Assuming Purchaser and,to the extent required,the member(s)thereof,and the execution, delivery and performance by Assuming Purchaser of this Agreement (i) to the best of Assuming Purchaser's knowledge,will not violate any provision of any applicable law or regulation or of any order, writ,judgment, injunction or decree of any governmental authority and(ii)will not violate any provision of,or constitute a default under,or result in the creation or imposition of any lien(other than pursuant to this Agreement and the liens created by the Security Instrument and/or any of the other Loan Documents) on any asset of Assuming Purchaser pursuant to any contract, agreement or other undertakings to which Assuming Purchaser is a party or which is binding upon any Assuming Purchaser,or upon any of assets of Assuming Purchaser. 9. Neither Selling TIC, nor Assuming Purchaser, nor, to the best knowledge of Selling TIC and Assuming Purchaser,any other Original Borrower or Other TIC has any offsets,defenses or counterclaims of any kind whatsoever with respect to the obligations for the repayment of the indebtedness evidenced by the Note or for any other obligation set forth in the Note, the Security Instrument,the Assignment of Leases and Rents,the Hazardous Substances Indemnity or any of the other Loan Documents. Each of Selling TIC and Assuming Purchaser hereby warrant and represent that they have no knowledge of any eminent domain or condemnation proceedings, or similar actions in lieu thereof, threatened or in existence in respect of the Property. Selling TIC represents and warrants to Assuming Purchaser and to Lender that,to the best of Selling TIC'S knowledge,no Default or Event of Default has occurred and is continuing. Selling TIC and Assuming Purchaser,each for themselves and, as applicable to the maximum extent possible,for and on behalf of their respective partners,shareholders, beneficiaries, legal representatives, heirs, successors and assigns, hereby release and forever discharge Lender, its officers, employees, the aervicera of the Loan and the respective affiliates of the foregoing from and against any and all claims end liability relating to the transactions evidenced by the Loan Documents,through and including the date hereof. 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If o3„luaumooQ uso•I„a autl[lauoo Brigs luotuaaay srq.L •i 1 Tonga pun aosoi;11n3 cq pus pagipotoun ulnar u sluatunnoa.treo-I =lo pus Auuaro u soautrysgns moprgzeg oql `sasnn'j jo luatuu8issy aql `3Un I*moos 'atom nip'3uouwai y uno7 nip'Agoxog patjtpour se 3daoxg •p t {Li 3o L abed} (Page 8 of 17) THUS DONE AND PASSED. on the day. month and year first written above. by the undmismW Mortgagor in the presence of the undersigned Notary and the undersigned competent.witnesses,who hereunto sign their names after reacljngsif the whole. SELLING TIC: CORE SYCAMORE TOWN CENTER T,LLC, a Delaware limited liability company By: CORE Sycamore Town Center Mezzanine,LLC, a Delaware limited liability com ,its sole member I By: CORE Realty Ho :'ngs,LLC, a California I'•••..• Iiability company,its sole member By: ! .4��: N: r;`ir A%. "tV:, Title: �t _ _ .�..1• ic.a STATE 0 4. ,. .1,N,k., ) tk ) ss. • COUNTY OF ai,• ) On VI3al J Ike ,2009,be • ,.e, . e . • A. a Notary Public the undersigned,personally appy' f \1Cf iit c.t_j ,personally known to me(or proved to me on the basis of sati., :•dr% "denoe)to be the person(s)whose name(s)is/are subscribed to the within instrume• and :6.4,owledged to me that he/she/they executed the same in his/her/their authorized ca.: (ies),and by his/her/their signature(s)on the instrument the person(s),or the entity •• ' behalf of which •I e person(s)acted,executed the instrument. WITNESS my i•d and • 4.cial seal. • A •-•:•t: '' • blic in = 7for said i ' TM °"�N°E morn. Co u s and State w. �a M• (SEAL) C ii I 1 z .� } z,/ . Q — book 4411, Irmo !q, 4110 Illos6•r (Pegs 9 of '17) ASSUMING TIC: TIC SYCAMORE 13,LLC By:CORE Realty Holdings VP,LLC,a Delaware limited liability company,its Authorized Signatory By: ALLAY ��vi Name: ronf Tale: S c ior)1(cc Presrdtll f STA • OF ) ss. COUNTY . utlQ ) On ,h kke , ►:,before me, ./,a a l 4. a Notary Public the undersigned,personally ared .6i he erolresl, personally known to me(or proved to me on the basis of $sfactory evid to be the persons)whose name(s)is/are subscribed to the within instrume d ac. : ledged to me that he/she/they executed the same in his/her/their authorized capacity(i- c that by his/her/their signature(s)on the instrument the person(s),or the entity upon be i : • ► ich the person(s)acted,executed the instrument. !, WITNESS my hand = o i► •r: seal. • ����pN Y 1967115 �� � `'• wean wd+e-counts r• Q 0R/WGec0LJ '• ,„ypaean.bens 0.2" Notary Pub ' in i d or said County a,, S (SEAL) � N i _1 Ql 6 it n r '-. Boot 4411, Page 348, Wile /amber. (Page 10 of 17) Lender is executing this Tenancy-In-Common Loan Assumption Agreement and Modification of Mortgage,Security Agreement and Financing Statement(Fixture Filing)solely to indicate its consent to the terms hereof.Nothing herein shall,or shall be deemed to,obligate Lender for repayment of any amount evidenced by the Note or secured by the Security Instrument or the other Loan Documents. LENDER: Prudential Mortgage Capital Funding,LLC,a Delaware limited liability company BY: Name: -:r'.. Tide: STATE OF . ):SS COUNTY OF ) Before me, a Notary li in and for said county and state, personally appeared the of Prudential Mortgage Capital Funding, LLC, Delaware limited liability company, d acknowle ed the execution of the foregoing instrument as such officer acting for and on behalf of s d limited liability ompany. Witness my hand and Notarial Seal this day of Signature: d `7:C;$ —f i Q� 17— g � -D ^ts O 1 Bock 4411, Page 348, rile Nwibe= (Page 11 of 17) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT File No: STATE OF California )SS APN No: COUNTY OF Orange ) On 9are me, E.Nanning ,Notary Public,personally appeared (1,07 who proved to on the basis of satisfactory evidence to be the person(s) whose name(s) Ware subscribed to the within instrument and acknowledged to me that he/she/they malted the same In his/her/their authorized capacity(les) and that by his/her/their signature(s)on the Instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the Instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS hand and orridel yy��'�, a rnnrarwo 1 w Ait.`=t � aa4,MISSION01867115 O Signature • {i- ''�(=''e Notary Pubic- Caroni, mom couNT R=o { J This area for official notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY&GPU Though statute does not require the Notary to fill in the date below,doing so may proveinvakrabie to masons rotting on the I f INDIVIDUAL I El CORPORATE OFFICER(S) TITLE(S) • PARTNER(S) ❑ LIMITED ❑ GENERAL w i- - n ATTORNEY-IN-FACT ❑ TRusims) I GUARDIAN/CONSERVATOR Q OTHER SIGNER IS REPRESENTING: Noose of Person or Entity Name of Person or Entity OPTIONAL SECTION Though the data requested here is not required by law,it could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW ITILE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE rteprostnee by r►u Nosrki,Tette balm 112801 Book 4411, Page 348, File ranter (Page 12 of 17) CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT • File No: STATE OF California )SS APN No: COUNTY OF Orange ) 0 .11 L 211, f �'� before me, L Manning ,Notary Pub&,personally appeared ' M r ‘ who proved to me on the bests of satisfactory evidence to be the person(s) whose name(s) is/are subsc bed to the within Instrument and edaxmledged to me that he/she/they executed the same in his/her/their authorized capadty(ies) and that by tri;/her/their signatures) on the fnstnmment the person(s), or the entity upon behalf of which the person(s) acted, executed the Instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. • . WITNESS my ;. _` �, ;;41- ;,... 1C@ s sv,r�uu3 - coanasiowrTEs»rs Signature '' � H ORANGE COUNTY •" MY Cmr�,E.a,keA AAr.!•2010 This area for official notarial seal. OPTIONAL SECTION CAPACITY CLAIMED BY SIGNER Though statute does not require the Notary to tiff!in the data below,doing so may prove invaluable to persons relying on the documents. El INDIVIDUAL 6 N El CORPORATE OFFICER(S) TITLE(S) - e �] PARTNER(S) 0 LIMITED 0 GENERAL — ATTORNEY-IN-FACT n TRUSTERS) ; ] GUARDIAN/CONSERVATOR I. i OTHER -"3 SIGNER IS REPRESENTING: Name of Parson or Entity Name of Person or Entityty OPTIONAL SECTION Though the data requested here is not required by law,E could prevent fraudulent reattachment of this form, THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE *mixed b/ w AITIMCIM TTae rmrrenct u,0o, wisz== ..makes Hook 4411, Bags 348, ri7.o !lumber (Page 13 of 171 STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN FRANCISCO } On March 17,2009,before me, G WFN SCFIIvIITT,Notary Public,personally appeared KIRK SCHAFFER, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal li tV Signature of Notary Publ ie a' . 1. GWEN SCHNi1T ` �. ;� Commialon# 1774867 Z Notary Public-California , 8 V,'.•:0,4:1/ `z.: � Alameda County rm.8griesipv.en 0[1 • • Bosh 4411, Pts 34S, time SISmboy (Page 14 of 17) ;Z.; " Ld EXHIBIT A c. - .. ry LEGAL DESCRIPTION rel LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in PIat Book 9,page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23, Township 79 North, Range 6 West of the 5th Principal Meridien,Iowa.City,Johnson County,Iowa,more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway #6, said point being the POINT OF BEGINNING; thence following the easterly right of way lines of said Sycamore Street, North 0 degrees 26 minutes 00 seconds East, a distance of 225.05 feet;thence North 4 degrees 09 minutes 00 seconds West,a distance of 212.68 feet;thence North 0 degrees 26 minutes 00 seconds East,a distance of 168.98 feet to the southwest corner of LOT 1 in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT 1, a distance of 278.80 feet to the southwest corner of said LOT 2;thence North 42 degrees 06 minutes 03 seconds West, a distance of 194.06 feet to the most westerly corner of said LOT 2;thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet;thence North 0 degrees 49 minutes 15 seconds East along the west line of said LQT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Read; thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of' 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West,a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve,concave to the Southeast,having a radius of 804.00 feet,a central angle of 23 degrees 01 minute 26 seconds,and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West;thence Southwest along said curve, a distance of 323.08 feet to the intersection with the northerly right of way line of said U.S. Highway#6 at a point of curvature of a non-tangent curve,concave to the South,having a radius of 3015.00 feet, a central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West;thence West along said curve, a distance of 893.07 feet;thence North 89 degrees 50 minutes 08 seconds West, a distance of 227.53 feet to the POINT OF BEGINNING. TOGETHER WITH, a non-exclusive easement for ingress, egress and parking over portions of Lot 1 in Mall First Additional to Iowa City,Iowa,as per plat thereof recorded in Plat Book 9,page 41 of records of Johnson County, Iowa, as set forth in that certain"Declaration of Mutual Easements", dated September 4, 2008 and recorded in the records of Johnson County, Iowa. Hook 4411, Page 348, Pile Number Ii m 0 ? n z 8 n x' o y n p O O Igo AQ O a a' rir14. •< c o k7 cie �� AO ZICZ z . 490 �.i i,fid 9-- FCf n (page 16 of 17) SCHEDULE 2 OTHER TICS Nam ADDRESS TIC Sycamore 1, LLC,a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450,Newport Beach,California 92660 TIC Sycamore 2,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450,Newport •Beach,California 92660 TIC Sycamore 3,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, company I600 Dove Street,Suite 450,Newport Beach,California 92660 TIC Sycamore 4,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450,Newport Beach,California 92660 TIC Sycamore 5,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, _company 1600 Dove Street,Suite 450,Newport Beach,California 92660 TIC Sycamore 6,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450,Newport Beach, California 92660 TIC Sycamore 7,LLC,a Delaware limited Iiability do CORE Realty Holdings,LLC, company I600 Dove Street,Suite 450,Newport Beach,California 92660 TIC Sycamore 8,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450,Newport Beach,California 92660 TIC Sycamore 9,LLC, a Delaware limited liability c/o CORE Realty Holdings,LLC, _ company 1600 Dove Street,Suite 450,Newport _ Beach,California 92660 TIC Sycamore 10,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450.Newport • Beach,California 92660 TIC Sycamore 11, LLC,a Delaware limited liability c/o CORE Realty Holdings,LLC, company 1600 Dove Street,Suite 450,Newport Beach,California 92660 11C Sycamore 12,LLC,a Delaware limited liability do CORE Realty Holdings,LLC, _ company 1600 Dove Street,Suite 450,Newport Beach,California 92660 czo p rte; • Book 4411, pups 345, Ilia atimbsr (Page 17 or 17) SCHEDULE3 ASSUMING PURCHASER INTERESTS Assuming Purchaser Vndivided Fractional Tenants-in-Common Interest TIC Sycamore 13,LLC,a Delaware limited liability company 1.975% U - ems utl `tom C I vr. ' c'! c) Molt 4411, rage 341. 113,E!Mine / vv► 1 r • .1 1 1rni&11uii1111111 Doo ID: O2 47z04oO0a TVD.: DEN Exhibit J Rseorded: 0313!2009 at !2:62:10 PH Fes Mot: $82.00 Paas 1 Of a Johnson County Iowa Klm Painter County Recorder 4435 Pa905-910 • TITLE OF DOCUMENT: ASSIGNMENT OF MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING TAXPAYOR: CORE Sycamore Town Center T,LLC c/o CORE Realty Holdings,LLC 1600 Dove Street, Suite 450 Newport Beach,California 92660 ASSIGNOR: PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC INTERIM ASSIGNEE: ROCK 1-CRE CDO 2006,LTD. ASSIGNEE: WELLS FARGO BANK,N.A.,as GRANTOR TRUST TRUSTEE UNDER THE ROCK 1-CRE CDO 2006 TRUST • LEGAL DESCRIPTION: see Exhibit"A"attached hereto on page 6 BOOK AND PAGE: Mortgage recorded in Book 4352,Page 326 DOCUMENT PREPARD BY AND AFTER RECORDING RETURN TO: BRYAN CAVE LLP 2200 Ross Avenue,Suite 3300 Dallas,TX 75201 Attn: Janice Wright • Q Ill r' Cil UZ 1 ra o Prepared by and after Recording Return to: Janice Wright,Paralegal BRYAN CAVE LLP 2200 Ross Avenue,Suite 3300 Dallas,TX 75201 ASSIGNMENT OF MORTGAGE, SECURITY AGREEMENT,ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC, (Assignor) to 3 Q N ROCK 1-CRE CDO 2006,LTD. =" `r t 1 (Interim Assignee) 111 and further assigned to -r'; WELLS FARGO BANK,N.A., ca as GRANTOR TRUST TRUSTEE UNDER THE ROCK 1-CRE CDD 2006 TRUST (Assignee) Dated as of May 6,2009 County of Johnson(the"County") State of Iowa(the"State") ASSIGNMENT OF MORTGAGE,SECURITY AGREEMENT,ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC, a Delaware limited liability company, whose address is 100 Mulberry Street, GC4 Ninth Floor, Newark, New Jersey 07102- 4069 7t02- 4069 (the "Assignor"), as the holder of the instrument hereinafter described and for valuable consideration hereby endorses,assigns, sells,transfers and delivers to ROCK 1-CRE CDO 2006, LTD., a Cayman islands exempted company with limited liability, whose address is c/o Maples Finance Limited, P.O. Box 1093GT, Boundary Hall, Cricket Square, George Town, Grand Cayman, Cayman Islands, Attn: The Directors (the "Interim Assignee"), who for good and valuable consideration hereby further endorses, assigns, transfers and delivers to WELLS FARGO BANK,N.A., a national banking association, as Grantor Trust Trustee under the ROCK 1-CRE CDO 2006 TRUST, whose address is P.O. Box 98, Columbia, Maryland 21046, Attn: CDO Trust Services Group-ROCK 1-CRE CDO 2006 (the "Assignee"), its successors, participants and assigns, all right, title and interest of Assignor and Interim Assignee in and to that certain MORTGAGE, SECURITY AGREEMENT,ASSIGNMENT OF LEASES AND RENTS ANT) FIXTURE FILING given by CORE SYCAMORE TOWN CENTER T, LLC, a Delaware limited liability company .(the `Borrower") to PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC,a Delaware limited liability company(the"Originator") dated as of September 4, 2008 (the "Closing Date") and recorded in the Real Estate Records of the County in Book 4352, Page 326, and assigned to Assignor by that certain Assignment of MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING dated as of the Closing Date and recorded in the Real Estate Records of the County in Book 4352, Page 413 securing the payment of a certain Promissory Note dated as of the Closing Date, in the original principal amount of THIRTEEN MILLION AND NO/100 DOLLARS ($13,000,000.00) made by the Borrower, payable to the order of the Originator, assigned as of the Closing Date to Assignor,and creating a first lien on the property described in Exhibit"A"attached hereto and by this reference made a part hereof; TOGETHER WITH any and all notes and obligations. therein described, the debt and claims secured thereby and all sums of money due and to become due thereon, with interest provided for therein, and Assignor and Interim Assignee hereby irrevocably appoint Assignee hereunder their attorney to collect and receive such debt,and to foreclose,enforce and satisfy the foregoing the same as it might or could have done were these presents not executed, but at the cost and expense of Assignee;and TOGETHER WITH any and all other liens, privileges, security interests, rights, entitlements, equities, claims and demands as to which Assignor and Interim Assignee hereunder possess or to which Assignor and Interim Assignee is otherwise entitled as additional security for the payment of the notes and other obligations described herein. This Assignment shall be governed in all respects by the laws of the State in which the , Property is located and shall be binding upon and shall inure to the benefit of the partieshereto and their respective successors and assigns. C` h • Ca IN WITNESS WHEREOF, Assignor has caused this instrument to be executed by its duly authorized officer as of the (pi'it day of May 2009. ASSIGNOR: PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC,a Delaware limited liability company ‘ 1 t By: 1 Name: Joe E.Greenha1 Title: ''ce Prem.. t STA I h OF TEXAS § § COUNTY OF DALLAS § C3EFORE ME,the undersigned authority,a notary public in and fo the State.of Texas,on this / day of May, 2009,personally appeared.o k €, (ir '► � s VI (k.te 10 oil of PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC, a Delaware limited liability company, whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same in the capacity therein stated as the act and deed of said company. (SEAL) 1 L Notary Public,S f Texas My Commission Expires: — mit" EMILYJ.HDDGES � MY WAIMISS?0K E%PIKES 1Ncvember8,2011 N `j n:3 =a: :" —i Sycamore ToCenEtr Assignment of Dxd of Trust DOC _ CJ Taw. C3 IN WITNESS WHEREOF, Interim Assignee has caused this instrument to be executed by its duly authorized officer as of the (o?1� day of May, 2009. INTERIM ASSIGNEE: ROCK 1-CRE CDO 2006,LTD., a Cayman Islands exempted company with limited liability By: Name: Titlerector Cayman Islands § § Grand Cayman § BEFORE ME, the undersigned authority, a notary public in and for the Cayman Islands on this t}7l} day of May, 2009, personally appeared lt'i4'REEi! /zd9/v-c ,l f , /12-a-Td fZ of ROCK 1-CRE CDO 2006, LTD., a Cayman Islands exempted company with limited liability, whose name is subscribed to the foregoing instrument and she acknowledged to me that she executed the same in the capacity therein stated as the act and decd of said company. Printed Name: 9iczM J ler,E22 �J Notary Public,Cayman Islands My commission expires: 3 Vo c( ; ar d_ NOW SEAL • :>w _ ;, G1 J Du' Sycamore Town Cente•Assignmenl&Deed of Trust CJ • N GU r C)_ ° =; e s -7 EXHIBIT A f ^° (I.egal Description) = c { os LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23, Township 79 North, Range 6 West of the 5th Principal Meridian, Iowa City, Johnson County, Iowa, more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway#6, said point being the POINT OF BEGINNING; thence following the easterly right of way lines of said Sycamore Street,North 0 degrees 26 minutes 00 seconds East,a distance of 225.05 feet; thence North 4 degrees 09 minutes 00 seconds West, a distance of 212.68 feet; thence North 0 degrees 26 minutes 00 seconds East, a distance of 168.98 feet to the southwest corner of LOT 1 in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT I, a distance of 278.80 feet to the southwest corner of said LOT 2; thence North 42 degrees 06 minutes 03 seconds West, a distance of 194.06 feet to the most westerly corner of said LOT 2; thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet; thence North 0 degrees 49 minutes 15 seconds East along the west line of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road;thence following said right of way line, South 42 degrees 33 minutes 45 seconds East,a distance of 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West, a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve, concave to the Southeast, having a radius of 804.00 feet, a central angle of 23 degrees 01 minute 26 seconds, and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West; thence Southwest along said curve,a distance of 323.08 feet to the intersection with the northerly right of way line of said U.S. Highway#6 at a point of curvature of a non-tangent curve, concave to the South,having a radius of 3015.00 feet, a central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a distance of 893.07 feet; thence North 89 degrees 50 minutes 08 seconds West, a distance of 227.53 feet to the POINT OF BEGINNING. TOGETHER WITH, a non-exclusive easement for ingress, egress and parking over portions of Lot 1 in Mall First Additional to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9,page 41 of records of Johnson County, Iowa, as set forth in that certain "Declaration of Mutual Easements", dated September 4, 2008 and to be recorded simultaneously herewith, Sycamore Town Center Assigmnent of Deed of TrustDOC .A-1 U.-1(943 6U Recorded; 0 /28600000 7 tT02:41:58 P?1 Exhibit K Fee Amt: $07,00 Page 1 of 17 Johnson County Iowa Kim Painter County R000rder "4352 P°355-372 ASSIGNMENT OF _EASES AND REM'S Borrower: CORE Sycamore Town Center T, LLC Lender: Prudential Mortgage Capital Company, LLC Document prepared by: David Traitel,Esq. Winston&Strawn LLP 200 Park Avenue New York, NY 10166 G' Phone: 212-294-6898 is Taxpayer: -• CORE Sycamore Town Center T, LLC cJa CORE Realty Holdings, LLC — 1600 Dove Street, Suite 450 Newport Beach,CA 92660 ^� , Legal Description: ? CD See attached Exhibit A, page 17CD Book and Page Reference: N/A Recording requested by and return to: First American Title Insurance Company National Commercial Services 1900 Midwest Plaza 801 Nicollet Mali Minneapolis, MN 55402 Phone: 612-305-2000 1'4 S-304940(RH) a-7 . _1 t • • C) Recording requested by and when] recorded mail to: Winston&Strawn LLP 200 Park Avenue New York,NY 10166 Attention: David Traitel, Esq. nia5 - 3041410 . .m-1 1RErARERINFOR.MA91ON INDIVIDUAL'S NAME STREET ADDRESS Cur' PAONE ASSIGNMENT OF LEASES AND RENTS THIS ASSIGNMENT OF LEASES AND RENTS ("Assignment") made as of September t, 2008 by CORE SYCAMORE TOWN CENTER T, LLC, a Delaware limited liability company ("Borrower'"), as assignor, to PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC,a Delaware limited liability company("Lender"), as assignee. RECITALS A. Borrower owns that certain real property located in Iowa City,County of Johnson, State of Iowa, and more particularly described in Exhibit A attached hereto(the"Lrntn"). B. Lender is making a loan in the maximum amount of$13,000,000.00 to Borrower pursuant to that certain Loan Agreement ("Loan Agreement"), dated of even date herewith between Borrower and Lender,which loan is evidenced by that certain Promissory Note Secured by Mortgage executed by Borrower, as maker, and payable to the order of Lender,as holder, and any other promissory note(s) in full or partial substitution thereof(collectively, and as amended and modified from time to time, the ("Note")), and which Loan (defined in Section 1.2 below) will be secured by, among other things, that certain first priority Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing executed by Borrower for the benefit of Lender(the"Security Inst°-umest"),encumbering the Property(defined in Section L I.1 below) dated of even date herewith. The Loan Agreement, the Note, the Security Instrument, this Assignment and the other documents evidencing, governing or securing the Loan are sometimes referred to herein collectively as the"Loan Documents". C. Borrower shall derive a financial or other benefit or advantage from the Loan. ALR-Omaha 1ASA2\326169.1 313957-36 NY:1130302 S =.0 CD:Cj ( "j„ Fr- ^:J D. Lender is unwilling to make the Loan to Borrower unless Borrower,in the manner hereinafter set forth, assign to Lender as additional security for the payment of the Loan and the observance and performance by Borrower of the terms, covenants and conditions of the Loan Documents on the part of Borrower to be observed and performed, all of Borrower's right, title and interest as to and on the terms described herein. E. All initially capitalized terms used herein and not otherwise defined herein shall have the meanings provided to such terms as are set forth in the Loan Agreement: ARTICLE 1 ASSIGNMENT 1.1 Property Assigned. Borrower hereby absolutely and unconditionally assigns and grants to Lender the following property, rights, interests and estates, now owned, or hereafter acquired by Borrower: 1.1.1 Leases. All existing and future leases affecting the use, enjoyment, or occupancy of all or any part of the Land, together with the buildings, structures, fixtures, additions, enlargements, extensions,modifications, repairs, replacements and improvements now or hereafter located thereon (the"Property") and the right, title and interest of Borrower, their successors and assigns, therein and thereunder, 1.1.2 Other Leases and Agreements. All other leases, subleases, concessions, occupancy agreements and other agreements, whether or not in writing, affecting the use, enjoyment or occupancy of the Property or any portion thereof now or hereafter made, whether made before or after the filing by or against Borrower of any petition for relief under 11 U.S.C. §§ 101 et seq,, as the same may be amended from time to time (the "Bankruptcy Code"), if permitted by applicable law, together with any extension, renewal or replacement of the same, this Assignment of other present and future leases and present and future agreements being effective without further or supplemental assignment. The leases described in Subsection 1.1.1 and the leases and other agreements described in this Subsection 1.1.2, together with all other present and future leases and present and future agreements and any extension or renewal of the same are collectively referred to as the"Leases". 1.1.3 Rents. All rents, additional rents, revenues, income, prepayments, termination payments, royalties, funds, proceeds, receipts, payments in lieu of rent, issues and profits and other benefits arising from the Leases and renewals and replacements thereof and any cash or security deposited in connection therewith and together with all rents, revenues, income, - 2- LoSA21326169,1 31395735 lam':(189302.5 N C) c ::c, ;ID • 1 µ:,' • -0 u a CD issues and profits (including all oil and gas or other mineral royalties and bonuses) from the use, enjoyment and occupancy of the Property, whether paid or accruing before or after the filing by or against Borrower of any petition for relief under the Bankruptcy Code, if permitted by applicable law(collectively,the"Rents"). 1.1.4 Bankruptcy Claims, All of Borrower's claims and rights (the "Bankruptcy CIaissss")to the payment of damages arising from any rejection by a lessee of any Lease under the Bankruptcy Code or otherwise in connection with any bankruptcy or insolvency proceeding involving a lessee under any Lease,if permitted by applicable law. 1.1.5 Lease Guaranties. All of Borrower's right, title and interest in and claims under any and all lease guaranties, letters of credit and any other credit support given by any guarantor in connection with any of the Leases(individually, a"Lease Guarantor",collectively, the "Lease Gua4 antors") to Borrower (individually, a "Lease Guaranty", collectively, the "Lease Guaranties"). 1.1.6 Proceeds, All proceeds from the sale or other disposition of the Leases, the Rents,the Lease Guaranties and the Bankruptcy CIaims. 1.1,7 Other. All rights, powers, privileges, options and other benefits of Borrower as lessor under the Leases and beneficiary under the Lease Guaranties, including without limitation the immediate and continuing right to make claim for, receive, collect and receipt for all Rents payable or receivable under the Leases and all sums payable under the Lease Guaranties or pursuant thereto (and to apply the same to the payment of the Debt or satisfaction of the other obligations under the Loan Documents), and to do all other things which Borrower or any lessor is or may become entitled to do under the Leases or the Lease Guaranties. 1.1.8 Entry. The right, at Lender's option, upon revocation of the license granted herein, to enter upon the Property in person, by agent or by court-appointed receiver, to collect the Rents upon providing Borrower with prior written notice of its intent to do so. 1.1.9 Power of Attorney. Borrower's irrevocable power of attorney, coupled with an interest, to take any and all of the actions set forth in Section 3.1 of this Assignment and any or all other actions designated by Lender for the proper management and preservation of the Property. -3 - LOS A21326169.I 313957-36 NY:11803915 a N ; fi • c`.) L1.10 Other Rights and Agreements. Any and all other rights of Borrower in and to the items set forth in Subsections 1.1.1 through 1.1.9 above, and all amendments, modifications,replacements,renewals and substitutions thereof. 1.2 Consideration. This Assignment is made in consideration of that certain loan ("Loan") made by Lender (or otherwise made available) to Borrower pursuant to the Loan Agreement, evidenced by the Note and secured by, among other things, the Security Instrument. The principal sum, interest and all other sums due and payable under the Loan Agreement, the Note,the Security Instrument,this Assignment and the Loan Documents are collectively referred to as the"Debt". 1.3 Termination of Assignment. Upon payment in full of the Debt and the delivery and recording of a satisfaction or discharge of the Security Instrument duly executed by Lender, this Assignment shall become null and void and shall be of no further force and effect. ARTICLE 2 TERMS OF ASSIGNMENT 2.1 Present Assignment and License Back. It is intended by Borrower that this Assignment constitute a present, absolute assignment of the Leases,Rents, Lease Guaranties and Bankruptcy Claims, and not an assignment for additional security only. Nevertheless, subject to the terms of this Section 2.1, Lender grants to Borrower a revocable license to collect and receive the Rents and other sums due under Leases and the Lease Guaranties. Borrower shall hold the Rents and all sums received pursuant to any Lease or Lease Guaranty, or a portion thereof sufficient to discharge all current sums due on the Debt, in trust for the benefit of Lender for use in the payment of such sums. Notwithstanding the foregoing, Borrower hereby acknowledges that a cash management system has been put in place pursuant to the Loan Agreement, which shall govern the collection and the distribution of Rents during the term hereof 2.2 Notice to Lessees. Borrower hereby agrees to authorize and direct the lessees named in the Leases or any other or future lessees or occupants of the Property and all Lease Guarantors to pay over to Lender or to such other party as Lender directs all Rents and all sums due under any Lease or Lease Guaranties upon receipt from Lender of written notice to the effect that Lender is then the holder of the Security Instrument and that an Event of Default(as defined in the Loan Agreement)exists,and to continue so to do until otherwise notified by Lender. 2.3 Incorporation by Reference. All representations, warranties, covenants, conditions and agreements contained in the Security Instrument as same may be modified, -4- LOSA2t326169.1 313957-36 NY:t180302.5 N P_ Y 0 renewed, substituted or extended are hereby made a part of this Assignment to the same extent and with the same force as if fully set forth herein. ARTICLE 3 COVENANTS 3.1 Affirmative Covenants. Borrower hereby covenants with Lender that Borrower shall (a)perform and observe all material covenants and agreements to be performed and observed by Borrower under the Leases, (b)enforce in a commercially reasonable manner the performance and observance of all material covenants and agreements to be performed or observed by Tenants under the Leases in accordance with commercially reasonable practices for properties similar to the Project, (c) appear in and defend any action or proceeding arising out of or in connection with any of the Leases, and (d) promptly give Lender copies of any notices of any material default given or received by Borrower under any of the Leases. 3.2 Negative Covenants. Borrower hereby covenants with Lender that Borrower shall not (a)except as provided in the Security Instrument or other Loan Documents, assign, transfer, mortgage,pledge or otherwise encumber, or permit to accrue or suffer to exist any lien or other encumbrance on or in, any of the right, title and interest of Borrower in,to and under the Leases and the Rents, except in favor of Lender, (b)except as provided in the Loan Agreement, enter into any Lease, (c)except as provided in the Loan Agreement, amend or modify in any of the terms of any Lease, (d)accept any prepayment of Rents under any Lease earlier than one month in advance of its due date without Lender's prior written consent(provided that a security deposit shall not be deemed rent collection in advance), (e)terminate any Lease or consent to the cancellation or surrender of any Lease, except upon default thereunder by the tenant, (f)give or join in any material waiver, consent or approval with respect to any Lease (other than an extension of the term of a Lease made in accordance with its terms), (g)settle or compromise any claim against any Tenant arising out of or in respect of any Lease, or (h)waive any default under or breach of any Lease, or (i)take any other action in connection with any Lease which would impair the value of the rights or interests of Borrower or Lender thereunder or therein or which would be contrary to reasonable and prudent leasing practices for properties similar to the Property in the market in which the Property exists. The requirement of approval of Leases (or of any other documents or matters) by Lender, pursuant to this Assignment or any other Loan Document, shall be for Lender's protection only and shall not be considered an assumption by Lender of any responsibility to Borrower or any other person with respect to the adequacy, sufficiency, advisability or terms of any of the Leases (or of any of such other documents or matters), and no approvals by Lender of Leases (or such other documents or matters) and no - S - LOSA2`326169.1 313957-36 NY:1 180382.5 C _ U c". (^i • • By4 7.:44r; -} CT n 5 CD waiver by Lender of, or consent or approval by Lender with respect to, any covenant of Borrower contained herein or in any other Loan Document shall give rise to any liability by Lender to Borrower or any other person. 3.3 Event of Default. Any breach of a covenant under this Assignment shall constitute an "Event of Default"under the Loan Agreement. ARTICLE 4 REMEDIES 4.1 Remedies of Lender. Upon or at any time after the occurrence of an Event of Default, the license granted to Borrower in Section 2.1 of this Assignment shall automatically be revoked without notice to Borrower, and Lender shall immediately be entitled to possession of all Rents and sums due under any Lease or Lease Guaranties, whether or not Lender enters upon or takes control of the Property. In addition, Lender may, at its option, without waiving such Event of Default, without notice and without regard to the adequacy of the security for the Debt, either in person or by agent, nominee or attorney, with or without bringing any action or proceeding, or by a receiver appointed by a court, dispossess Borrower and its agents and servants from the Property, without liability for trespass, damages or otherwise and exclude Borrower and its agents or servants wholly therefrom, and take possession of the Property and all books, records and accounts relating thereto and have, hold, manage, lease and operate the Property on such terms and for such period of time as Lender may deem proper and either with or without taking possession of the Property in its own name, demand, sue for or otherwise collect and receive all Rents and sums due under all Leases and Lease Guaranties, including those past due and unpaid with full power to make from time to time all alterations,renovations, repairs or replacements thereto or thereof as may seem reasonably proper to Lender and may apply the Rents and sums received pursuant to any Lease or Lease Guaranties to the payment of the following in such order and proportion as Lender in its sole discretion may determine, any law, custom or use to the contrary notwithstanding: (a) all out-of-pocket expenses of managing and securing the Property, including, without being limited thereto, the salaries, fees and wages of a managing agent and such other employees or agents as Lender may reasonably deem necessary and all out-of-pocket expenses of operating and maintaining the Property, including, without being limited thereto, all taxes, charges, claims, assessments, water charges, sewer rents and any other liens, and premiums for all insurance which Lender may deem necessary or desirable, and the cost of all alterations, renovations, repairs or replacements required for the continued operation or safety of persons at the Property, and all expenses incident to taking and retaining possession of the Property; and (b) the Debt, together with all out-of-pocket costs and -6 - LOSA2',.326169.1 313957-36 NY:11.80302S C; `„ ;::F1 7,. 1 G ter`• reasonable attorneys' fees. In addition, upon the occurrence of an Event of Default, Lender, at its option, may exercise all rights and powers of Borrower, including., without limitation, the right to negotiate, execute, cancel, enforce or modify Leases, obtain and evict tenants, and demand, sue for, collect and receive all Rents from the Property and all sums due under any Lease or Lease Guaranties,all exercisable in a commercially reasonable manner. 4.2 Other Remedies. Nothing contained in this Assignment and no act done or omitted by Lender pursuant to the power and rights granted to Lender hereunder shall be deemed to be a waiver by Lender of its rights and remedies under the Loan Agreement, the Note, the Security Instrument, or the other Loan Documents and this Assignment is made and accepted without prejudice to any of the rights and ienuedies possessed by Lender under the terms thereof. The right of Lender to collect the Debt and to enforce any other security therefor held by it may be exercised by Lender either prior to, simultaneously with, or subsequent to any action taken by it hereunder. Borrower hereby absolutely, unconditionally and irrevocably waives any and all rights to assert any setoff, counterclaim or cross claim of any nature whatsoever with respect to the obligations of Borrower under this Assignment, the Loan Agreement, the Note, the Security Instrument, the other Loan Documents or otherwise with respect to the Loan secured hereby in any action or proceeding brought by Lender to collect same, or any portion thereof,or to enforce and realize upon the lien and security interest created by this Assignment, the Loan Agreement, the Note,the Security Instrument,or any of the other Loan Documents, 4.3 Other Security. Lender may take or release other security for the payment of the Debt, may release any party primarily or secondarily liable therefor and may apply any other security held by it to the reduction or satisfaction of the Debt without prejudice to any of its rights under this Assignment. 4.4 Non-Waiver. The exercise by Lender of the option granted it in Section 4.1 of this Assignment and the collection of the Rents and sums due under any Lease or the Lease Guaranties and the application thereof as herein provided shall not be considered a waiver of an Event of Default. The failure of Lender to insist upon strict performance of any term hereof shall not be deemed to be a waiver of any term of this Assignment. Borrower shall not be relieved of Borrower's obligations hereunder by reason of (a) the failure of Lender to comply with any request of Borrower or any other party to take any action to enforce any of the provisions hereof or of the Security Instrument, the Loan Agreement, the Note or the other Loan Documents, (b) the release regardless of consideration, of the whole or any part of the Property, or (c) any agreement or stipulation by Lender extending the time of payment or otherwise modifying or supplementing the terms of this Assignment, the Loan Agreement, the Note, the Security - 7 - L0SA21326169.1 313957-16 NY:118 3025 ca t M/J Instrument or the other Loan Documents. Lender may resort for the payment of the Debt to any other security held by Lender in such order and manner as Lender, in its discretion, may elect. Lender may take any action to recover the Debt, or any portion thereof, or to enforce any covenant hereof without prejudice to the right of Lender thereafter to enforce its rights under this Assignment. The rights of Lender under this Assignment shall be separate, distinct and cumulative and none shall be given effect to the exclusion of the others, No act of Lender shall be construed as an election to proceed under any one provision herein to the exclusion of any other provision. 4.5 Bankruptcy. (a) Upon or at any time after the occurrence of an Event of Default, Lender shall have the right to proceed in its own name or in the name of Borrower in respect of any claim, suit, action or proceeding relating to the rejection of any Lease, including, without limitation, the right to file and prosecute, to the exclusion of Borrower, any proofs of claim, complaints, motions, applications, notices and other documents, in any case in respect of the lessee under such Lease under the Bankruptcy Code. (b) If there shall be filed by or against Borrower a petition under the Bankruptcy Code,and Borrower, as lessor under any Lease,shall determine to reject such Lease pursuant to Section 365(a) of the Bankruptcy Code, then Borrower shall give Lender not less than ten (10) days' prior notice of the date on which Borrower shall apply to the bankruptcy court for authority to reject the lease. Lender shall have the right, but not the obligation, to serve upon Borrower within such ten-day period a notice stating that (i) Lender demands that Borrower assume and assign the Lease to Lender pursuant to Section 365 of the Bankruptcy Code, and (ii) Lender covenants to cure or provide adequate assurance of future performance under the Lease. If Lender serves upon Borrower the notice described in the preceding sentence, Borrower shall not seek to reject the Lease and shall comply with the demand provided for in clause(i)of the preceding sentence within thirty(30)days after the notice shall have been given, subject to the performance by Lender of the covenant provided for in clause(ii) of the preceding sentence. ARTICLE 5 NO LIABILITY,FURTHER ASSURANCES 5.1 No Liability of Lender. This Assignment shall not be construed to bind Lender to the performance of any of the covenants, conditions or provisions contained in any Lease or Lease Guaranty or otherwise impose any obligation upon Lender. Lender shall not be liable for -8 - LOSA2132 154.1 313957-16 NY:11803023 CD -:•- I r Uv any loss sustained by Borrower resulting from Lender's failure to let the Property after an Event of Default or from any other act or omission of Lender in managing the Property after an Event of Default unless such loss is caused by the willful misconduct, gross negligence, fraud, bad faith, illegal acts, or malfeasance of Lender. Lender shall not be obligated to perform or discharge any obligation, duty or liability under the Leases or any Lease Guaranties or under or by reason of this Assignment and Borrower shall, and hereby agrees, to indemnify Lender for, and to hold Lender harmless from, any and all actual liability, loss or damage which may or might be incurred under the Leases, any Lease Guaranties or under or by reason of this Assignment and from any and all claims and demands whatsoever, including the defense of any such claims or demands which may be asserted against Lender by reason of any alleged obligations and undertakings on its part to perform or discharge any of the terms, covenants or agreements contained in the Leases or any Lease Guaranties, other than any such liability, loss or damage arising from Lender's willful misconduct, gross negligence, fraud,bad faith, illegal acts or malfeasance. Should Lender incur any such liability, the amount thereof, including costs, expenses and reasonable attorneys' fees, shall be secured by this Assignment and by the Security Instrument and the Loan Documents and Borrower shall reimburse Lender therefor promptly upon demand and upon the failure of Borrower so to do Lender may, at its option, declare all sums secured by this Assignment and by the Security Instrument and the Loan Documents immediately due and payable. This Assignment shall not operate to place any obligation or liability for the control, care, management or repair of the Property upon Lender, nor for the carrying out of any of the terms and conditions of the Leases or any Lease Guaranties; nor shall it operate to make Lender responsible or liable for any waste committed on the Property by the tenants or any other parties, or for any dangerous or defective condition of the Property, including without limitation the presence of any Hazardous Materials (as defined in that certain Environmental Indemnity Agreement dated of even date herewith given by Borrower and Guarantor (as defined in the Loan Agreement) in favor of Lender), or for any negligence in the management, upkeep, repair or control of the Property resulting in loss or injury or death to any tenant, licensee,employee or stranger,provided that the foregoing exculpation does not extend to the willful misconduct, gross negligence, fraud, bad faith, illegal acts or malfeasance of Lender or any Indemnified Party. 5.2 No Mortgagee in Possession. Nothing herein contained shall be construed as constituting Lender a"mortgagee in possession"in the absence of the taking of actual possession of the Property by Lender. In the exercise of the powers herein granted Lender, no liability shall be asserted or enforced against Lender, all such liability being expressly waived and released by Borrower. - 9- LOSA21326169.I 313937-36 I'Y:(1e®302,.4 C=D C) — m. — cross.," '<— �' j • 5.3 Further Assurances. Borrower will, at the cost of Borrower, and without expense to Lender, do, execute, acknowledge and deliver all and every such further acts, conveyances, assignments,notices of assignments,transfers and assurances as Lender shall, from time to time, reasonably require for the better assuring,conveying,assigning, transferring and confirming unto Lender the property and rights hereby assigned or intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to convey or assign to Lender, or for carrying out the intention or facilitating the performance of the terms of this Assignment or for filing, registering or recording this Assignment and, on demand, will execute and deliver and hereby authorizes Lender upon the occurrence and during the continuation of an Event of Default and upon prior written notice to Borrower to execute in the name of Borrower to the extent Lender may lawfully do so,one or more financing statements, chattel mortgages or comparable deeds of trust,to evidence more effectively the lien and security interest hereof in and upon the Leases. ARTICLE 6 MISCELLANEOUS PROVISIONS 6.1 Conflict of Terms. In case of any conflict between the terms of this Assignment and the terms of the Security Instrument,the terms of the Security Instrument shall prevail. 6.2 No Oral Change. This Assignment and any provisions hereof may not be modified, amended, waived, extended, changed,discharged or terminated orally,or by any act or failure to act on the part of Borrower or Lender, but only by an agreement in writing signed by the party against whom the enforcement of any modification, amendment, waiver, extension, change,discharge or termination is sought. 6.3 Certain Definitions. Unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, words used in this Assignment may be used interchangeably in singular or plural form and the word"Borrower" shalt mean "each Borrower and any subsequent owner or owners of the Property or any part thereof or interest therein," the word "Lender" shall mean "Lender and any subsequent holder of the Note," the word "Note" shall mean "the Note and any other evidence of indebtedness secured by the Security Instrument," the word "person" shall include an individual, corporation, partnership, limited liability company, trust, unincorporated association, government, governmental authority, and any other entity, the word "Property"shall include any portion of the Property and any interest therein and the phrases "attorneys' fees" and "counsel fees"shall include any and all reasonable attorneys',paralegal and law clerk fees and disbursements,including,but not limited to,fees and disbursements at the pre-trial, trial and appellate levels incurred or paid by Lender in protecting - 1 0- LOS A21326169.1 313957-36 NY:1I803015 ci L 1 N rs=a ca its interest in the Property, the Leases and the Rents and enforcing its rights hereunder; whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice versa. 6.4 Authority. Borrower represents and warrants that it has full power and authority to execute and deliver this Assignment and the execution and delivery of this Assignment has been duly authorized and, to the best of Borrower's knowledge, does not conflict with or constitute a default under any law,judicial order or other agreement affecting Borrower or the Property. 6.5 Inapplicable Provisions. If any term, covenant or condition of this Assignment is held to be invalid, illegal or unenforceable in any respect, this Assignment shall be construed without such provision. 6.6 Duplicate Originals; Counterparts. This Assignment may be executed in any number of duplicate originals and each such duplicate original shall be deemed to be an original. This Assignment may be executed in several counterparts, each of which counterparts shall be deemed an original instrument and all of which together shall constitute a single Assignment. The failure of any party hereto to execute this Assignment, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder. Ally signature page of this Assignment may be detached from any counterpart of this Assignment without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Assignment identical in form hereto but having attached to it one or more additional signature pages. 6.7 Choice of Law. This Assignment shall be governed by, and construed in accordance with, the laws of the State of Iowa applicable to contracts made and intended to be performed in such state, without giving effect to principles of conflicts of laws, and any applicable law of the United States of America. 6.8 Notices. All notices required or permitted hereunder shall be given as provided in the Loan Agreement. 6.9 Incorporation by Reference. All of the terms, covenants and conditions contained in the Loan Agreement, including, without limitation, Section 9.6 thereof,are hereby made a part of this Assignment to the same extent and with the same force as if they were fully set forth herein. All initially capitalized terms used in this Assignment without being defined herein shall II LOSAZ\326169.1 313957-36 NY:1180301,5 t\l Mesa 1r� u�1 --t r r;-' :7J l� M• N) O have the meanings assigned in the Loan Agreement. The Recitals to this Assignment are hereby made a part of this Assignment to the same extent and with the same force as if they were fully set forth herein. 6.10 Liability. If Borrower consists of more than one person, the obligations and liabilities of each such person hereunder shall be joint and several. This Assignment shall be binding upon and inure to the benefit of Borrower and Lender and their respective successors and assigns forever. 6.11 Headings, etc. The headings and captions of various paragraphs of this Assignment are for convenience of reference only and are not to be construed as defining or limiting, in any way,the scope or intent of the provisions hereof. 6.12 Number and Gender. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice versa. 6.13 Discretion of Lender. Wherever pursuant to this Assignment(a)Lender exercises any right given to it to approve or disapprove, (b) any arrangement or term is to be satisfactory to Lender, or (c) any other decision or determination is to be made by Lender, the decision of Lender to approve or disapprove, all decisions that arrangements or terms are satisfactory or not satisfactory and all other decisions and determinations made by Lender, shall be in the discretion of Lender, except as may be otherwise expressly and specifically provided herein. 6.14 Costs and Expenses of l3orrower. Wherever pursuant to this Assignment it is provided that Borrower pay any costs and expenses, such costs and expenses shall include, but not be limited to, reasonable legal fees and out-of-pocket disbursements of bender. 6.15 Successors and Assigns. This Assignment, together with the covenants and warranties therein contained, shall inure to the benefit of Lender and any subsequent holder of the Security Instrument and shall be binding upon Borrower, its heirs, executors, administrators, successors and assigns and any subsequent owner of the Property. 6.16 Non-Recourse. Notwithstanding anything to the contrary herein, this Assignment and all of Borrower's obligations hereunder are limited by and subject to Article VIII of the Loan Agreement, the terms, covenants and conditions of which are incorporated in full into this Assignment. - 12 - LOS A2\326169.1 311957-36 NY:1180102_5 7:7 ij .11TM N12 r.C\`: —6 FIC 12: 09 IOWA CITY, en FILED 20121:0Y -5 Pil 12: 09 o g 1 : 7' Gil 1 kaLc.riik i 0 WA C1 T Y. 10i ./A 4 :12 la Al � ' V li 1 I 1 ' : QC U c 0 ri .1 :; 2 0 3x � if,� El - 5p z © o3x 3 g q 8 'H g;:. u 0 PI WI E g, _........,1 1-- CAWI►-ORWIA ALL-PUR S ACKNOWLEDGEMENT • File No: If . STATE OF Calffomla )SS APN No: COUNTY OF Orange ) On AUQIISt 26,2008 before me, Trade ft`Rugian ,Notary Public,personalty appeared ', fllilam R.Colvin who proved to mem the basis of satisfactory evidence to be the person{s3 whose names) Is/are subsalbed to the within Instrument and actmowledged to me that he/she they executed the same in hIs/hefftheif authorized capacIty0e$ and that by hts/her/ther signature(s)on the instrument the personfs), or the entity upon behalf of which t e person{} acted, executed the ' instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. . WITNESS my hand and official yeal. ��''' ., �Ti C1EUY "i a ten::. COAnI+A. ft r 71;137. = 5 _ �'� i t/otary Publrc a !— • '• a Er".411F' j C.amrt. 'SE Mr • . Y TMs area for official notarial seal. OPTEOPIAL SECTION CAPACITY CAIMED BY SIGNER Though statute does not require th,e Notary to fill in the data below,doing so may prove invaluable to persons relying or the documents. . r i INDIVIDUAL I CORPORATE OFFICERS) TITLES) , 1 PARTNER(S) ❑ LIMIT® ❑ GENERA(. [ } ATTORNEY-IN-FACT h.s I 1 TRUSTEE(s) IT GUARDIAN/CONSERVATOR - z 1OTHER '?M . SIGNER IS REPRESENTING: _? . P+arae of seeraotr or Er*ty Name of Person or Entity • OPTIONAL SECc ION ,,,c, • Though the data requested here is not required by law,It could prevent fraudulent reattachment of this form. THIS CERTIFICATE MUST BE ATTACHED TO TIlE DOCUMENT DESCRIBED BELOW 1TR.E OR TYPE OF DOCUMENT: t NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE _ _ _ kebroa.md M Moran Mir ,Tse marmot ingot Exhibit A Legal Description LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23, Township 79 North, Range 6 West of the 5th Principal Meridian, Iowa City, Johnson County, Iowa, more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and L.S. Highway#6,said point being the POINT OF BEGINNING; thence following the easterly right of way lines of said Sycamore Street,North 0 degrees 26 minutes 00 seconds East, a distance of 225.05 feet; thence North 4 degrees 09 minutes 00 seconds West, a distance of 212.68 feet; thence North 0 degrees 26 minutes 00 seconds East, a distance of 168.98 feet to the southwest corner of LOT 1 in said Mali First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT 1, a distance of 278.80 feet to the southwest corner of said LOT 2; thence North 42 degrees 06 minutes 03 seconds West, a distance of 194.06 feet to the most westerly corner of said LOT 2; thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet; thence North 0 degrees 49 minutes 15 seconds East along the west hoe of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road; thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West, a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve, concave to the Southeast, having a radius of 804.00 feet, a central angle of 23 degrees 01 "'" rte 26 seconds, and a chord of 320.9! feet bearing South 34 degrees 52 minutes 30 seconds West; thence Southwest along said curve, a distance of 323.08 feet to the intersection with the northerly right of way line of said U.S. Highway#6 at a point of curvature of a non-tangent curve, concave to the South,having a radius of 3015.00 feet, a central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a distance of 893.07 feet; thence North 89 degrees 50 minutes 08 seconds West, a distance of 227.53 feet to the POINT OF BEGINNING. TOGETHER WITH, a non-exclusive easement for ingress, egress and parking over portions p Lot 1 in Mall First Additional to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9' page 41 of records of Johnson County, Iowa, as set forth in that certain"Declaration of Mutuie Easements"recorded on or about the date hereof. l. • ••' GsiQ� 01 trri • 626969 5�1(044 111111111111111111111111111111 lluulullI I1I iiiR!I Doc ID: 021286060006 Type: GEN Recorded: 09/24/2008 at 02:48:08 PM Exhibit L Fes Amt: 132.00 Papa 1 of 6 Johnson County Iowa Kim Painter County Recorder 8K4352 P0419-424 ASSIGNMENT OF ASSIGNMENT OF LEASES AND RENTS Assignor: Prudential Mortgage Capital Company, LLC Assignee: Prudential Mortgage Capital Funding, LLC Document prepared by: -c Adam Silver, Esq. ji:j -c mo=w Winston&Strewn LLP c.7-r; a. 200 Park Avenue -4C") New York, NY 10166 -C –� 1 1 Phone: 212-294-6898 Taxpayer: _ e� CORE Sycamore Town Center T, LLC `D c/o CORE Realty Moldings, LLC 1600 Dove Street, Suite 450 Newport Beach,CA 92660 Legal Description: See attached Exhibit A, page 6 Book and Page Reference: Assignment of Leases and Rents recorded in 800kt4?5Q, page 91Z 151' Recording requested by and return to: First American Title Insurance Company National Commercial Services 1900 Midwest Plaza 801 Nicollet Mall Minneapolis, MN 55402 Phone: 612-305-2000 NCS-304940(RH) -C":5 d 2 . _ *� ASSIGNMENT OF ASSIGNMENT OF LEASES AND RENTS PRUDENTIAL MORTGAGE CAPITAL COMPANY,LLC, (Assignor) to PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC, (Assignee) Dated as of September 4, 2008 County of Johnson(the"County") State of Iowa(the"State") 1600 Sycamore Street, 1861 Lower Muscatine Road Iowa City,Iowa Loan No.: 416107997 W& S File No. 81121-690 NY:I 191340.2 ASSIGNMENT OF ASSIGNMENT OF LEASES AND RENTS PRUDENTIAL MORTGAGE CAPITAL COMPANY,LLC, a Delaware limited liability company, whose address is 100 Mulberry Street, GC4 Eighth Floor,Newark,New Jersey 07102- 4069 (the "Assignor"), as the holder of the instrument hereinafter described and for valuable consideration hereby endorses, assigns, sells, transfers and delivers to PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC a Delaware limited liability company whose address is 100 Mulberry Street, GC4 Ninth Floor,Newark,New Jersey 07102-4069 (the"Assignee"), its successors, participants and assigns, all right, title and interest of Assignor in and to an ASSIGNMENT OF LEASES AND RENTS given by CORE SYCAMORE TOWN CENTER T, LLC and TIC Sycamore 1, LLC, TIC Sycamore 2, LLC, TIC Sycamore 3, LLC and TIC Sycamore 4, LLC (the "Borrower"), to Assignor dated as of even date herewith and recorded concurrently herewith in the Official Records of the County securing the payment of a certain Promissory Note dated as of even date therewith, in the original principal amount THIRTEEN MILLION AND 00/100 DOLLARS ($13,000,000.00) made by the Borrower, payable to the order of Assignor, and creating a first lien on the property described in Exhibit "A" attached hereto and by this reference made a part hereof; TOGETHER WITH any and all notes and obligations therein described, the debt and claims secured thereby and all sums of money due and to become due thereon, with interest provided for therein, and Assignor hereby irrevocably appoints Assignee hereunder its attorney to collect and receive such debt, and to foreclose, enforce and satisfy the foregoing the same as it might or could have done were these presents not executed, but at the cost and expense of Assignee; and TOGETHER WITH any and all other liens, privileges, security interests, rights, entitlements,equities,claims and demands as to which Assignor hereunder possesses or to which Assignor is otherwise entitled as additional security for the payment of the notes and other obligations described herein. This Assignment shall be governed in all respects by the laws of the State and shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. [NO FURTHER TEXT ON THIS PAGE] ;.a C 0' ,] Error!Unknown document property name. IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed and delivered as of the day of Sue ,2008. PRUDENTIAL MORTGAGE CAPITAL COMPANY,LLC, elaware limited liability company By: Name: Kirk Schaffer Title: Vice President (=, U C) I r: .r> MY:1191340.1 STATE OF CALIFORNIA } } ss. COUNTY OF SAN FRANCISCO } On July 22,2008,before me, GWEN SCHMITT ,Notary Public, personally appeared KIRK SCHAFFER , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. :-a sa Signature of Notary Public - o, t tea„ GWEN SCHMITT :.a iv Commission#t 1774867 P p Notary PuAlamblic -California § _" MYCon'�rn.!pi Oct_ _2_1.2211_4 C; • EXHIBIT A cry ✓t . you Legal Description of Property - s `v LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23,Township 79 North, Range 6 West of the 5th Principal Meridian, Iowa City, Johnson County, Iowa, more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway#6, said point being the POINT OF BEGINNING;thence following the easterly right of way lines of said Sycamore Street,North 0 degrees 26 minutes 00 seconds East,a distance of 225.05 feet; thence North 4 degrees 09 minutes 00 seconds West, a distance of 212.68 feet; thence North 0 degrees 26 minutes 00 seconds East, a distance of 168.98 feet to the southwest corner of LOT 1 in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south line of said LOT 1, a distance of 278.80 feet to the southwest corner of said LOT 2; thence North 42 degrees 06 minutes 03 seconds West, a distance of 194.06 feet to the most westerly corner of said LOT 2; thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet; thence North 0 degrees 49 minutes 15 seconds East along the west line of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road; thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West,a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve, concave to the Southeast, having a radius of 804.00 feet, a central angle of 23 degrees 01 minute 26 seconds, and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West; thence Southwest along said curve, a distance of 323.08 feet to the intersection with the northerly right of way line of said U.S. Highway#6 at a point of curvature of a non-tangent curve,concave to the South, having a radius of 3015.00 feet,a central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a distance of 893.07 feet; thence North 89 degrees 50 minutes 08 seconds West, a distance of 227.53 feet to the POINT OF BEGINNING. TOGETHER WITH, a non-exclusive easement for ingress, egress and parking over portions of Lot 1 in Mall First Additional to Iowa City, Iowa, as per plat thereof recorded in Nat Book 9, page 41 of records of Johnson County, Iowa, as set forth in that certain "Declaration of Mutual Easements", dated Se�ierrrt1er , 2008 and to be recorded simultaneously herewith. a cg 5 f 2( Errors Unknown document property name. ( 11 11IkJ I I 11M111I111R1WMU Doc ID: 021472050006 Type: GEN Exhibit M Recorded: 05/13/2006 at 12:56:84 PM Fee Amt: $92.00 Pam 1 of 6 Johnson County Iowa Kin Painter County Recorder 4435 P0911-916 TITLE OF DOCUMENT: ASSIGNMENT OF ASSIGNMENT OF LEASES AND RENTS TAXPAYOR: CORE Sycamore Town Center T, LLC d o CORE Realty Holdings, LLC 1600 Dove.Street, Suite 450 Newport Beach,California 92660 ASSIGNOR: PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC INTERIM ASSIGNEE: ROCK 1-CRE CDO 2006,LTD. ASSIGNEE: WELLS FARGO BANK,N.A.,as GRANTOR TRUST TRUSTEE UNDER THE ROCK 1-CRE CDO 2006 TRUST LEGAL DESCRIPTION: see Exhibit"A"attached hereto on page 6 BOOK AND PAGE: Assignment of Leases and Rents recorded in Book 4352, Page 356 DOCUMENT PREPARD BY AND AFTER RECORDING RETURN TO: BRYAN CAVE LLP 2200 Ross Avenue, Suite 3300 • Dallas,TX 75201 Attn: Janice Wright o 17q C•: 0" r ri ry EI1 UD � S Prepared by and after Recording Return to: Janice Wright,Paralegal BRYAN CAVE LLP 2200 Ross Avenue,Suite 3300 Dallas,TX 75201 ASSIGNMENT OF ASSIGNMENT OF LEASES AND RENTS PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC, a (Assignor) 71: to c— ROCK 1-CRE CDO 2006,LTD. rn (Interim Assignee) c3 and further assigned to 1/4r) WELLS FARGO BANK,N.A., as GRANTOR TRUST TRUSTEE UNDER THE ROCK 1-CRE CDO 2006 TRUST (Assignee) Dated as of May 6,2009 County of Johnson(the"County") State of Iowa(the"State") ASSIGNMENT OF ASSIGNMENT OF LEASES AND RENTS PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC, a Delaware limited liability company, whose address is 100 Mulberry Street, GC4 Ninth Floor,Newark,New Jersey 07102- 4069 (the "Assignor"), as the holder of the instrument hereinafter described and for valuable consideration hereby endorses, assigns, sells,transfers and delivers to ROCK I-CRE CDO 2006, LTD., a Cayman Islands exempted company with limited liability, whose address is c/o Maples Finance Limited, P.O. Box I 093GT, Boundary Hall, Cricket Square, George Town, Grand Cayman, Cayman Islands, Attn: The Directors (the "Interim Assignee"), who for good and valuable consideration hereby further endorses, assigns, transfers and delivers to WELLS FARGO BANK,N.A., a national banking association,as Grantor Trust Trustee under the ROCK 1-CRE CDO 2006 TRUST, whose address is P.O. Box 98, Columbia, Maryland 21046, Attn: CDO Trust Services Group-ROCK 1-CRE CDO 2006 (the "Assignee"), its successors, participants and assigns, all right, title and interest of Assignor and Interim Assignee in and to that certain ASSIGNMENT OF LEASES AND RENTS given by CORE SYCAMORE TOWN CENTER T, LLC, a Delaware limited liability company (the "Borrower") to PRUDENTIAL MORTGAGE CAPITAL COMPANY, LLC, a Delaware limited liability company (the "Originator") dated as of September 4, 2008 (the "Closing Date") and recorded in the Real Estate Records of the County in Book 4352, Page 356, and assigned to Assignor by that certain Assignment of ASSIGNMENT OF LEASES AND RENTS dated as of the Closing Date and recorded in the Real Estate Records of the County in Book 4352, Page 419 securing the payment of a certain Promissory Note dated as of the Closing Date, in the original principal amount of THIRTEEN MILLION AND NO/100 DOLLARS ($13,000,000.00) made by the Borrower, payable to the order of the Originator, assigned as of the Closing Date to Assignor, and creating a first lien on the property described in Exhibit"A"attached hereto and by this reference made a part hereof; TOGETHER WITH any and all notes and obligations therein described, the debt and claims secured thereby and all sums of money due and to become due thereon, with interest provided for therein, and Assignor and Interim Assignee hereby irrevocably appoint Assignee hereunder their attorney to collect and receive such debt,and to foreclose, enforce and satisfy the foregoing the same as it might or could have done were these presents not executed, but at the cost and expense of Assignee; and TOGETHER WITH any and all other liens, privileges, security interests, rights, entitlements,equities,claims and demands as to which Assignor and Interim Assignee hereunder possess or to which Assignor and Interim Assignee is otherwise entitled as additional security for the payment of the notes and other obligations described herein. This Assignment shall be governed in all respects by the laws of the State in which the Property is located and shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. CI IN WITNESS WHEREOF, Assignor has caused this instrument to be executed by its duly authorized officer as of the Io1I1 day of May 2009. ASSIGNOR: PRUDENTIAL MORTGAGE CAPITAL FUNDING,LLC,a Delaware limited liability company i 1 _..a1611111rnaft.— By: _ Name: Joe E.Greenh• ' Title: Vice President STATE OF TEXAS § COUNTY OF DALLAS § BEFORE ME,the undersigned authority,a no public in and for the S to of Texas, on this day of May, 2009,personally appearedlot Ct rl31t6NA as of PRUDENTIAL MORTGAGE CAPITAL FUNDING, LLC, a Delaware limited liability company, whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same in the capacity therein stated as the act and deed of saiclrnm a _ r Y A4Y LCCMWEES (SEAL) tdoaamesra2Dtt EE !` Notary Pub ' ,S of Texas My Commission Expires: `sa+ca O Syomnore Town Center Assignment of ALR_DOC • 1111 IN WITNESS WHEREOF, Interim Assignee has caused this instrument to be executed by its duly authorized officer as of the 4-Tp day of May, 2009. INTERIM ASSIGNEE: ROCK 1-CRE CDO 2006,LTD., a Cayman Islands exempted company with limited liability By: Name: t r Titl- ".:tr Cayman Islands § Grand Cayman BEFORE ME, the undersigned authority, a notary public in and for the Cayman Islandl, on this 4--r day of May, 2009, personally appeared /CAREOy 443/aSt AI, pi R E`rO R- of ROCK 1-CRE CDO 2006, LTD,, a Cayman Islands exempted company with limited liability, whose name is subscribed to the foregoing instrument and she acknowledged to me that she executed the same in the capacity therein stated as the act and deed of said company. (SEAL) Printed Name: SK PIE A) Notary Public,Cayman Islands My commission expires: •3/1/4//r}a/d .-NOTANAL SEAL u � Sycamore Town Center Assignment of ALR C) t n, 1 ; LJ •� ;I • — maw= -• -<t- . _': EXHIBIT A _..t. ,� (Legal Description) • LOTS 2, 3, 4, 7 and a part of Lots 5 and 6 of Mall First Addition to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9, page 41 records of Johnson County, Iowa and a part of the Southwest Quarter of the Southeast Quarter Section 14 and part of the North Half of the Northeast Quarter of Section 23, Township 79 North, Range 6 West of the 5th Principal Meridian, Iowa City, Johnson County, Iowa, more particularly described as follows: Commencing at the northeast corner of the intersection of Sycamore Street and U.S. Highway#6,said point being the POINT OF BEGINNING; thence following the easterly right of way lines of said Sycamore Street,North 0 degrees 26 minutes 00 seconds East, a distance of 225.05 feet; thence North 4 degrees 09 minutes 00 seconds West, a distance of 212.68 feet; thence North 0 degrees 26 minutes 00 seconds East, a distance of 168.98 feet to the southwest corner of LOT 1 in said Mall First Addition; thence South 89 degrees 34 minutes 00 second East along the south Iine of said LOT 1, a distance of 278.80 feet to the southwest corner of said LOT 2; thence North 42 degrees 06 minutes 03 seconds West, a distance of 194.06 feet to the most westerly comer of said LOT 2; thence North 47 degrees 27 minutes 49 seconds East along the northwesterly line of said LOT 2, a distance of 413.72 feet; thence North 0 degrees 49 minutes 15 seconds East along the west line of said LOT 2, a distance of 57.31 feet to the intersection with the southwesterly right of way line of Lower Muscatine Road; thence following said right of way line, South 42 degrees 33 minutes 45 seconds East, a distance of 646.92 feet; thence South 42 degrees 43 minutes 30 seconds East, a distance of 608.79 feet; thence South 2 degrees 31 minutes 00 seconds West, a distance of 28.51 feet to the intersection with the northwesterly right of way line of First Avenue at a point of curvature of a non-tangent curve, concave to the Southeast, having a radius of 804.00 feet, a central angle of 23 degrees 01 minute 26 seconds, and a chord of 320.91 feet bearing South 34 degrees 52 minutes 30 seconds West; thence Southwest along said curve, a distance of 323.08 feet to the intersection with the northerly right of way line of said U.S_ Highway#6 at a point of curvature of a non-tangent curve, concave to the South, having a radius of 3015.00 feet, a central angle of 16 degrees 58 minutes 18 seconds, and a chord of 889.81 feet bearing North 81 degrees 36 minutes 44 seconds West; thence West along said curve, a distance of 893.07 feet; thence North 89 degrees 50 minutes 08 seconds West, a distance of 227.53 feet to the POINT OF BEGINNING. TOGETHER WITH, a non-exclusive easement for ingress, egress and parking over portions of Lot 1 in Mall First Additional to Iowa City, Iowa, as per plat thereof recorded in Plat Book 9,page 41 of records of Johnson County, Iowa, as set forth in that certain "Declaration of Mutual Easements", dated September 4, 2008 and to be recorded simultaneously herewith. Sycamore Town Center Aviirgtrnent of Al R.rOC A-1 ALSTON&BIRD LLP Exhibit N One Atlantic Center 1201 West Peachtree Street Atlanta,GA 30309-3424 404-881-7000 Fax:404-881-7777 www.alston.com Steven a Collier Direct Dial:4048814638 13-mall:ateve.aollittrQalston.aom 4 September 6,2012 a; WA OVERNIGHT MAIL ' °""' a c� ' • Cr' CORE Sycamore Town Center T, LLC .{ VI 1600 Dove Street, Suite 450 Newport Beach, California 92660 Each of the TIC entities listed on Schedule 1 attached hereto `n do CORE Sycamore Town Center T, LLC 1600 Dove Street,Suite 450 Newport Beach, California 92660 Re: Mortgage Loan(the"Loan")to CORE Sycamore Town Center T,LLC ("Borrower") in the principal amount of $13,000,000 by Prudential Mortgage Capital Company, LLC, evidenced by that certain Loan Agreement, dated September 4, 2008, and that certain Promissory Note, dated September 4, 2008, (the "Note"), secured, inter alia, by (i) that Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing, dated September 4, 2008, recorded as Document No. 021286020030, in Johnson County, Iowa (the "Mortgage") and (ii) those certain Guaranties and Guaranty Agreements of various dates(collectively the "Guaranties") listed on Schedule 2 attached hereto, made by the guarantors identified on said Schedule 2 (collectively, the "Guarantors") (the Loan Agreement, the Note, the Deed of Trust, the Guaranties and all other documents evidencing or securing the Loan, collectively, the "Loan Documents"). Dear Sir or Madam: We represent Wells Fargo Bank,N.A., as Grantor Trust Trustee for the ROCK- CRE CDO-2006 Trust, the current holder of the referenced Loan and Loan Documents ("Lender"). Pursuant to the terms of the Loan Agreement, the entire outstanding principal balance, together with interest and all other sums owed under the Loan Documents was due and payable in full on September 5, 2012, the Maturity Date (as defined in the Loan Agreement). Borrower failed to pay the Loan in full on the Maturity Date, which failure constitutes an Event of Default (as defined in the Loan Agreement and in the Mortgage). Atlanta•Charlotte•Dallas•Los Angeles•New York•Research Triangle•Silicon Valley•Ventura County•Washington,D.C. September 6,2012 Page 2 FORMAL DEMAND IS HEREBY MADE UPON BORROWER FOR THE IMMEDIATE PAYMENT IN FULL OF THE ENTIRE INDEBTEDNESS EVIDENCED BY THE NOTE AND SECURED BY THE LOAN DOCUMENTS, INCLUDING, WITHOUT LIMITATION,THE ENTIRE OUTSTANDING PRINCIPAL BALANCE, LATE CHARGES AND INTEREST AT THE DEFAULT RATE FROM AND AFTER THE MATURITY DATE AND THE DEFEFRED ORIGINATION FEE. THE EXACT AMOUNT DUE IS AVAILABLE UPON REQUEST. UNTIL THE DATE PAYMENT IS MADE IN FULL, INTEREST SHALL CONTINUE TO ACCRUE AT THE DEFAULT RATE. ANY PAYMENTS ON THE LOAN OF LESS THAN THE ENTIRE BALANCE DUE RECEIVED BY LENDERS ON OR AFTER THE DATE HEREOF, SHALL BE APPLIED TO THE BALANCE DUE IN ACCORDANCE WITH THE LOAN DOCUMENTS, BUT SHALL NOT SERVE TO CURE THE EVENTS OF DEFAULT, EXTEND THE LOAN OR CREATE ANY FORBEARANCE OR INDULGENCE WITH RESPECT TO THE LOAN. PURSUANT TO THE TERMS OF THE GUARANTIES, FORMAL DEMAND IS HEREBY MADE ON GUARANTORS FOR ALL SUMS DUE UNDER THE GUARANTIES. LENDERS' RIGHT TO DEMAND AND COLLECT ANY OTHER SUMS THAT MAY BE DUE UNDER THE GUARANTIES ARE HEREBY RESERVED. Due to the Events of Default, Borrower's license to collect rents set forth in the Loan Documents is hereby revoked and Lenders demand Borrower turn over all rents generated by the property. All other rights of Borrower under the Loan Documents conditioned on the absence of an Event of Default are hereby revoked. Lenders reserve all other rights granted under the Loan Documents as a result of an Event of Default, including, but not limited to, the right to exercise remedies such as the appointment of a receiver and foreclosure. Lender demands strict compliance by Borrower and Guarantors with the terms of the Loan Documents to which they are a party. Compliance by Borrower with its other obligations under the Loan Documents, and acceptance of such performance by Lenders, including, without limitation, payment of monthly installments due under the Note, shall not be deemed to waive any of the existing Events of Default described herein or in prior notices. Lender's right to demand and collect any other sums that may be due under the Guaranties are hereby reserved, including,without limitation, any misapplication of rents following an Event of Default. 6 S7" t c .". � n i . .. September 6,2012 Page 3 Lender reserves all rights and remedies available to it under the terms of the Loan Documents or under applicable law, and this notice shall not be deemed an exclusive election of remedies nor shall it constitute a waiver of any rights or remedies otherwise available to Lender. Lender may exercise any available remedies at any time without further notice. Sincerely, 1i fi*0: Steven D. Collier cc: (by overnight delivery) John Saunders c/o CORE Sycamore Town Center T, LLC t.! 1600 Dove Street, Suite 450 Newport Beach, California 92660 -0 rri Marie L. Crum c/o CORE Sycamore Town Center T, LLC CD ^.? �y „ 1600 Dove Street, Suite 450 ?� Newport Beach, California 92660 0 Robert Rossiter c/o CORE Sycamore Town Center T, LLC f 1600 Dove Street, Suite 450 Newport Beach, California 92660 Miguel Quintela c/o CORE Sycamore Town Center T, LLC 1600 Dove Street, Suite 450 Newport Beach, California 92660 Josefa Quintela c/o CORE Sycamore Town Center T, LLC 1600 Dove Street, Suite 450 Newport Beach, California 92660 James P. Dusenbury 27 Gienvue Drive Cannel,New York 10512 September 6, 2012 Page 4 Gayle M. Lorio 3461 Fox Hollow Court Marietta,Georgia 30068 James G. Schneider Rose M. Schneider 7-7.3 3001 San Joaquin Avenue SE -7:: -, = Albuquerque, New Mexico 87106 ; — =vs." Gisela Rasoe —t' 21692 Kaneohe Lane ►.ii Huntington Beach,California 92646 c=':" . :a Bessie Anastassatos o Vasilis Anastassatos Anastassatos Family, L.L.C. 23 Churchhill Road Cresskill,New Jersey 07626 Charles T. Efremidis 10 Wenlock Circle North Easton, Massachusetts 02356 Clifford W. Lazar 9717 Cisco Street Los Angeles, California 90037 Donald R. Shannahan 16429 W. Oak Street Caldwell, ID 83607-9241 Arent Fox LLP 1050 Connecticut Avenue,N.W. Washington, D.C. 20036 Attention: Deborah Froling, Esq. cc: (by email pdf) Sara Trybus John Reeder Jeffrey Jacobs Dan Childers LEGA L02/33600489v I September 6,2012 Page 5 SCHEDULE 1 (TIC Entities) 1. TIC Sycamore 1, LLC 2. TIC Sycamore 2,LLC 3. TIC Sycamore 3,LLC 4. TIC Sycamore 4,LLC 5. TIC Sycamore 5,LLC 6. TIC Sycamore 6,LLC o . 7-1 71 7. TIC Sycamore 7, LLC 8. TIC Sycamore 8, LLC 2..; 9. TIC Sycamore 9, LLC `''�' 10. TIC Sycamore 10, LLC "��'i rn 11. TIC Sycamore II, LLC37-7-. r:3 12. TIC Sycamore 12, LLC 71 --- 13. TIC Sycamore 13, LLC o September 6, 2012 Page 6 SCHEDULE 2 (GUARANTIES AND GUARANTORS) 1. Guaranty dated as of September 4, 2008,by John Saunders in favor of Prudential Mortgage Capital Company, LLC. 2. Guaranty dated as of September 4, 2008, by Marie L. Crum in favor of Prudential Mortgage Capital Company, LLC. 3, Guaranty dated as of September 4, 2008, by Robert Rossiter in favor of Prudential Mortgage Capital Company, LLC. 4. Guaranty dated as of September 4, 2008, by Miguel Quintela in favor of Prudential Mortgage Capital Company, LLC. 5. Guaranty dated as of September 4, 2008, by Josefa Quintela in favor of Prudential Mortgage Capital Company, LLC. 6. Guaranty Agreement(Assuming TIC)dated as of September 26, 2008, by Bessie Anastassatos and Vasilis Anastassatos in favor of Prudential Mortgage Capital Company, LLC. 7. Guaranty Agreement(Assuming TIC)dated as of September 26,2008, by Charles T. Efremidis favor of Prudential Mortgage Capital Company, LLC. 8. Guaranty Agreement (Assuming TIC) dated as of September 26,2008, by Clifford W. Lazar in favor of Prudential Mortgage Capital Company, LLC. 9. Guaranty executed September 29, 2008, by Joseph P. Dusenbury in favor of Prudential Mortgage Capital Company, LLC. 10. Guaranty executed October 6, 2008, by Gisela Rasoe in favor of Prudential Mortgage Capital Company, LLC. 11. Guaranty dated as of October 16, 2008, by Gayle M. Lorio in favor of Prudential Mortgage Capital Company, LLC. 12. Guaranty executed October 20, 2008, by James G. Schneider and Rose M. Schneider in favor of Prudential Mortgage Capital Company, LLC. 13. Guaranty Agreement(Assuming TIC)dated as of October 24,2008, by Gisela Rasoe in favor of Prudential Mortgage Capital Company, LUC. 14. Guaranty Agreement(Assuming TIC)dated as of October 24,2008, by Gayle M. Lorin in favor of Prudential Mortgage Capital Company, LLC. 15. Guaranty Agreement(Assuming TIC) dated as of October 24,2008, by James G. Schneider and Rose M. Schneider in favor of Prudential Mortgage Capital Company, LLC. 16. Guaranty Agreement(Assuming TIC) dated as of October 24,2008, by'Joseph P. Dusenbury in favor of Prudential Mortgage Capital Company, LLC. maca 17. Guaranty Agreement(Assuming TIC)dated as of March 18, 2009, by Donald R. Shannahan in favor of Prudential Mortgage Capital Company, LLC. ; 1 4 _tea rJ Exhibit 0 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY WELLS FARGO BANK, N.A., as GRANTOR ) TRUST TRUSTEE UNDER THE ROCK 1-CRE ) CDO 2006 TRUST. ) c) Plaintiff. ) Case No. • N - vs. ) - a ) , CORE SYCAMORE TOWN CENTER T, LLC, TIC ) SYCAMORE 1, LLC, TIC SYCAMORE 2, LLC, TIC ) ' rti = END OF CASE FILE CIVIL PROCESS WORKSHEET JOHNSON COUNTY SHERIFFS OFFICE•PO BOX 2540, 511 S CAPITOL ST, IOWA CITY, IA 52244-2540•(319) 356-6030 PLAINTIFF: BOKASSA, JERRY Docket No 12-06094 State IOWA vs. Court No LACV075141 County JOHNSON DEFENDANT: CITY OF IOWA CITY POLICE DEPT Ref No Received 12/13/2012 DEFENDANT: HUMRICHOUSE, GREG DEFENDANT: CITY OF IOWA CITY DEFENDANT: PALMBERG, MARY ry DEFENDANT: LALLA, MIRANDA LEE DEFENDANT: MEESTER,TAMMARA U9 o _L DEFENDANT: JOB SITE C� " DEFENDANT: MAGARACI, LAURIE - - �`h Requestor(s) Phone BOKASSA,JERRY (213)840-2960 PO BOX 1905, IOWA CITY, IA 52244 rn Name CITY OF IOWA CITY Zone Party Type DEFENDANT Phone Fax Address 0/0 MARIAN KARR 410 E WASHINGTON IOWA CITY IA 52240- E-Mail Employer Comments MNI Information Race Sex Birth Date Age Hair Height Weight SSN Eyes Skin Notes Documents Document Serve by Date OE PSR Description/Special Instructions ORIGINAL NOTICE � ❑ ❑ Service Information Date ga � \S "i )- Time LA 00 Type C ,`f1 CO lir c Party MC:fr�':C{(, Jo 1rY/� Relationship C. ( Q(L Race \C/ Sex 1 DOB Location 11 ICI C 4 '951/,i v1 fDn Miles \ Fee Officer r?-1. Printed:Thursday,December 13,2012 Johnson County Sheriffs Office Page 1 of 2 • w Rule 1:1901 Form 1: Form of Original Notice for Personal Service. IN THE IOWA DISIRICT COURT FOR COUNTY Plaintiff(s),PIN Jerry 80(0-5' )4 o_ LAC\{ 0-751 1 4 D, ('�-� 6 W' L( `i.• (INSERT"LAW"OR"EQUITY") Defendant(s),PIN 6- aact Ote,) ORIGINAL NOTICE • TA-a4++� 6In ABOVE-NAMt:ll DB ENDfI(S). / ` n 4<tC �� & 44,4_44,4_ uTkA You are notified that a petition has been filed in the office of the clerk of this court naming you as the defendant in this action. A copy of the petition(and any documents filed with it)is attached to thinotice. The attorney for the plaintiff(s)�, is C Y' r' i2i n(�j�S S A- -1A1 --PMose address is ( e t5'045 �C �4�1 Vowa .. That attorney's telephone number rs Z t7-S0k D ;facsimile number d-96 0 • You must serve a motion or answer within 20 days after service of this original notice upon you and,within a reason- able time thereafter,file your motion or answer with the Clerk of Court for ) ti H S Cyt County, at the county courthouse in ce o-. Ciy 41 ,Iowa. If you do not,judgment default may be rendered against you for the relief demanded in the petition_ If you require the assistance of auxiliary aids or services to participate in court because of a disability,immediately call your district ADA coordinator at 3 f -3R Z--3 2 (If you are hearing impaired,call Relay Iowa TTY at 1-800-735-2942). BEy K Ll, (SEAL) CLERK t41 COURT L • 4 e_ County Courthouse • =.0 < <.}„ ,Iowa 5 2Z.t-i C7 IMPORTANT YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS.. [Report 1976;Report 1978,effective July 1,1979;April 30,1987,effective July 1,1987;October 31,1997,effective January 24,1998;November 9,2001,effective February 15,2002] E C? 1�1 � opo rn ''. cii CA l'L.L2-w.ce� CZ) _ 1 IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON CQ TYc •1 3 (213-840-2960-cell) ---- a ra 4 .. Cn 5 ) VIOLATION OF MY XIV AMENDENT ) RIGHTS,EQUAL PROTECTION OF THE 6 JERRY BOKASSA pro-per ) LAWS.AND CONSPIRACY.damages ) $2,000,000,00 actual damages and 7 Plaintiff, ) $2,000,000,00 punitive damages ) 8 Vs ) <-, 9 IOWA CITY POLICE DEPT,CITY OF ) orrt T '.-' 10 IOWA CITY,OFFICER#26-GREG ) mac: r ) 11 HUMRICHOUSE,MARY PALMBERG, ) aL, — c_ 12 TAMMARA MEESTER,LAURIE ) � ) p cJti 13 MAGARACI,MIRANDA� LALLA. }} - ) 14 �� Y! Si oa,._4-1 .4 • (AY)" ) 15 ) rA_ ce, a 16 THE ABOVE NAME PERSON DID ON SEPT 23,2011 AND SEPT 5,2012 COMBINE TO 17 HAVE ME ARRESTED AND TAKEN TO COURT. FIRST THESE PEOPLE TAMMARA 18 MEESTER,LAURIE MAGARCI AND MIRANDA LALLA CONSPIOR TO HAVE ME 19 ARREST BY ATTACKING ME AT MY RENT ROOM AT 1313-EAST DAVENPORT 20 STREET IN IOWA CITY ON SEPT 23,2011 ONLY TO LIE TO THE IOWA CITY 21 POLICE THAT I CHOKE ONE OF THEM, I WAS CHARGE WITH ASSAULT BY THE 22 IOWA CITY POLICE WHOM IN THE PAST HAVE DONE THE SAME THING BASE ON 23 ON THE FACT THAT PERSON WAS A WHITE FEMALE AND I WAS AFRICAN 24 AMERICAN(BLACK),IN SPITE OF THE JUDGES DECISION THAT NO JAIL 25 TIME WAS WARRENTED THE WHITE PROCECUTOR DECITED TO PUT ME IN JAIL 26 ANY WAY. I WENT TO TRIAL AND WAS FOUND NOT GUILTY. I BELIEVE THE -1- • • 1 WHITE FEMALE PROCECUTOR WAS RACIST.FURTHER MORE THE WHITE FEMALE 2 I WAS SUPPOSE TO HAVE CHOKED IS NOW IN JAIL FOR MURDER,MIRANDA 3 LALLA. 4 SECOND THE WHITE FEMALE NAME MARY PALMBERG CALLED 911 AND WITH 5 OUT ANY PROOF HAD ME ARRESTED FOR THIEF BY OFFCIER#26 GREG 6 HUMRICHOUSE,ONLY TO FIND OUT SHE LIED.I TRIED TO HAVE HER CHARGED 7 WITH FILING A FALSE POLICE REPORT BUT I COULD'NT. I BELIEVE THE IS A 8 EFFORT TO PUT AFRICAN AMERICANS I JAIL IN IOWA AND IOWA CITY BASE ON 9 THE MYTH THAT WHITE FEMALES DON'T LIE. 10 DAMAGES 11 I WANT$2,000,000,00. TWO MILLION DOLLARS ACTUAL DAMAGES AND 12 $2,000,000,00 TWO MILLION DOLLARS IN PUNTIVE DAMAGES.THIS MAKE SURE 13 THIS TYPE OF RACISM STOPS. 14 15 JERRY BOKASSA-PRO-PER or ""'7":. 16 u'�= rn o 17 18 P.O.BOX 1905,IOWA CITY,IOWA.52g$' :J co 19 (213 840-2960-cell) c c 20 21 22 23 ti 24 - o ti 25 -r1 26 c: co t cn -2- END OF CASE FILE