EXHIBIT
4.7


MORTGAGE,
LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS,
 SECURITY
AGREEMENT AND FIXTURE FINANCING STATEMENT
 Recorder’s
Cover Sheet
 
 
 Preparer Information:(name,
address and phone number)
 Elaine
Wang, Esq.
 Latham
& Watkins LLP
 885 Third
Avenue
 New York,
NY  10022
 (212)
906-1200
 
 Taxpayer Information:(name
and complete address)
 Diamond
Jo Worth, LLC
 600 Star
Brewery Dr., Ste 110
 Dubuque,
IA 52001
 
 
 Return Document To:(name and
complete address)
 Elaine
Wang, Esq.
 Latham
& Watkins LLP
 885 Third
Avenue
 New York,
NY  10022
 
 Grantors:
 Diamond
Jo Worth, LLC
 
 Grantees:
 U.S. Bank
National Association, as Collateral Agent
 
 Legal Description:See
Attached
 
 Document or instrument number of
previously recorded documents:N/A
 
 
 
 
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  MORTGAGE,
 LEASEHOLD
MORTGAGE,
 ASSIGNMENT
OF RENTS,
 SECURITY
AGREEMENT
 AND
 FIXTURE
FINANCING STATEMENT
 
 FROM
 DIAMOND
JO WORTH, LLC
 TO
 U.S. BANK
NATIONAL ASSOCIATION, AS COLLATERAL AGENT
 
 
 
 
 
 NOTICE:  This
Mortgage secures credit in the amount of $240,000,000. Loans and advances up to
this amount, together with interest, are senior to indebtedness to other
creditors under subsequently recorded and filed mortgages and
liens.
  This
Mortgage contains an after-acquired property clause.
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  This
Mortgage (the “Mortgage”) is made as of
August 6, 2009, by Diamond Jo Worth, LLC, a Delaware limited liability company
(the “Company”), in
favor of U.S. Bank National Association, as collateral agent (the “Collateral Agent”) under the
Indenture dated as of the date hereof (the “Indenture”) among Peninsula
Gaming, LLC, a Delaware limited liability company (“PGL”), Peninsula Gaming Corp.,
a Delaware corporation (“PGC” and, together with PGL,
the “Issuers”), the
Company, as guarantor, and each other Subsidiary Guarantor (as defined therein)
party thereto, and U.S. Bank National Association, as Trustee and Collateral
Agent.
  RECITALS
  WHEREAS,
the Company is the sole owner of (i) a fee simple interest (the “Fee Simple Interest”) for
certain premises located in Worth County, Iowa and more particularly described
on Exhibit A
attached hereto, and (ii) leasehold interest (the “Leasehold Interest”) created
under the lease with respect to certain premises located in Worth County, Iowa
and more particularly described on Exhibit B attached
hereto (the “Lease”)
(such Leasehold Interest and Fee Simple Interest are hereinafter referred to as
the “Real Property”);
and
  WHEREAS,
pursuant to the Indenture the Issuers have issued their 8.375% Senior Secured
Notes due 2015 (together with any replacements thereof as provided in the
Indenture and as the same may be amended or supplemented from time to time
hereafter, the “Notes”)
in the initial aggregate principal amount of $240,000,000, subject to increase
as provided in the Indenture and maturing on August 15, 2015.  The
Indenture provides that to secure performance by the Company of its obligations
under the Indenture, including the guarantee of payment of the Notes, the
Company will execute and deliver this Mortgage to the Collateral
Agent.  The Indenture, this Mortgage, the Security Documents and any
other document referred to in or made with reference to the Notes are hereby
incorporated by reference, and are sometimes collectively referred to as “Transaction
Documents.”  Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Indenture.
  GRANTING
CLAUSES
  NOW,
THEREFORE, in consideration of ten dollars and other good and valuable
consideration, the receipt of and sufficiency of which are hereby acknowledged,
and to secure the Obligations, including, without limitation, the
following:
  (i)        the
Company’s guarantee of payment when due of indebtedness evidenced by the Notes
in the maximum principal sum of $240,000,000 payable to the order of the
Holders, bearing interest as set forth in the Indenture and maturing on August
15, 2015, such date being the “Maturity Date,” and any notes
exchanged for the Notes or issued in replacement of the Notes (in each case
pursuant to the terms of the Indenture), including, without limitation, all
accrued and unpaid interest thereon, and premiums and penalties, if any,
thereon, including late payment charges and Additional Interest (as defined in
Section 5.2 hereof),
  (ii)        the
Company’s guarantee of payment if and when due of (a) the Change of Control
Payment (as defined in Section 4.15 of the Indenture), in an amount not to
exceed such amount calculated in accordance with Section 4.15 of the Indenture,
and (b) amounts due in connection with an Excess Proceeds Offer (as defined in
Section 4.13 of the Indenture) in an amount not to exceed such amount calculated
in accordance with Section 4.13 of the Indenture, in either case together with
interest thereon as set forth in the Indenture, and premiums and penalties, if
any, thereon,
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  (iii)        all
other sums that may or shall become due hereunder, in connection with the Notes
or under the other Transaction Documents, including the costs and expenses of
enforcing any provision of any of the foregoing documents or any extensions or
modifications of the Notes or any substitutions therefor,
  (iv)        the
reimbursement to the Collateral Agent of all monies which may be advanced as
herein provided and of any and all costs and expenses (including reasonable
attorneys’ fees and expenses) incurred or paid on account of any litigation at
law or in equity that may arise in respect of this Mortgage or the obligations
secured hereby or the lands and premises and other property herein mentioned or
in obtaining possession of said lands and premises and other property after any
sale that may be made as hereinafter provided,
  (v)        the
payment by the Company to the Collateral Agent of all sums, if any, as may be
duly expended or advanced by the Collateral Agent in the performance of any
obligation of the Company as provided hereunder,
  (vi)        the
payment of any and all other indebtedness that this Mortgage by its terms
secures and
  (vii)        the
performance and observance of the covenants, agreements and obligations of the
Company contained herein and in the other Transaction Documents
  (all
obligations and sums included in the foregoing clauses (i), (ii), (iii), (iv),
(v), (vi) and (vii) being hereinafter collectively referred to as the “Secured Obligations”), and in
order to charge with such performance and with such payments said lands and
premises and other property hereinafter described and the rents, revenues,
issues, income and profits thereof, the Company does hereby mortgage, affect,
hypothecate, to inure to the use and benefit of the Collateral Agent (as
collateral agent under the Indenture), and its successors and assigns, all
right, title and interest of the Company now or hereafter owned or leased, in,
to or under, or derived from each and all of the following properties, estates,
rights, titles and interests (collectively, the “Mortgaged
Property”):
  (a)           the
Real Property and all tenements, hereditaments, appurtenances, estates and
rights in and to any of the Real Property and all component parts of the Real
Property, including without limitation all of the Company’s right, title and
interest as tenant under the Lease;
  (b)           all
buildings, improvements and other structures now or hereafter located on any of
the Real Property (the “Improvements”);
  (c)           all
of the Company’s right, title and interest in and to all servitudes, easements,
rights-of-way, gores of land, streets, ways, alleys,
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  passages,
sewer rights, waters, water courses, water rights and powers, and all estates,
rights, title, interests, privileges, liberties, prescriptions, advantages and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to any of the Real Property or the Improvements;
  (d)           all
of the Company’s right, title and interest in and to any right to purchase, or
to use and occupy, any land adjacent to any of the Real Property and any land
lying in the bed of any street, road or avenue, opened or proposed, in front of
or adjoining any of the Real Property;
  (e)           all
of the Company’s right, title and interest, to all machinery, apparatus,
equipment, fittings, fixtures and other property of every kind and nature
whatsoever now or hereafter located upon any of the Real Property or the
Improvements, and all component parts of any building or other construction
located on any of the Real Property or appurtenances thereto, and used in
connection with the operation and occupancy of any of the Real Property or the
Improvements, and all building equipment, material and supplies of any nature
whatsoever now or hereafter located in or upon any of the Real Property or the
Improvements, including, without limitation, all metals, lumber and lumber
products, bricks, stones, building blocks, sand, cement, roofing materials,
paint, doors, windows, hardware, wires, wiring and other building materials and
any building equipment, materials and supplies obtained for use in connection
with any of the Real Property or the Improvements and all additions,
replacements, modifications and alterations of any of the foregoing, including,
but without limiting the generality of the foregoing, all heating, lighting
incinerating and power equipment, engines, pipes, tanks, motors, conduits,
switchboards, plumbing, lifting, cleaning, fire prevention, fire extinguishing,
refrigerating, ventilating and communications apparatus, air cooling and air
conditioning apparatus, elevators, ducts and compressors and all other equipment
and fixtures (collectively, the “Fixtures”).  The
Company acknowledges that all Fixtures are part and parcel of the real estate
and appropriated to the use of the real estate and, whether or not affixed or
annexed to the Improvements, shall for the purpose of this Mortgage be deemed
conclusively to be real estate and mortgaged hereby;
  (f)           all
of the Company’s right, title and interest to all plans and specifications for
the Real Property and the Improvements, all contracts with architects and
engineers responsible for the design of the Improvements, the preparation or
evaluation of any of such plans and specifications or the supervision of the
construction of any of the Improvements, all contracts to which the Company is
now or hereafter a party providing for the connection therewith or the
furnishing or installation of any Fixtures or other personal property in
connection therewith, all contracts to which the Company is now or hereafter a
party providing for the management of the construction of any of the
Improvements, all rights of the Company as a third party beneficiary under all
contracts and subcontracts pertaining to the Real Property or the Improvements
as to which the Company is not a party, all payment and performance bonds
relating to the Real Property or the Improvements and all other contracts and
agreements related
to the design, management, construction, equipping and development of the Real
Property or the Improvements (collectively, the “Construction
Documents”);
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 3
   (g)           all
of the Company’s right, title and interest to all awards or payments, and any
interest paid or payable with respect thereto, that may be made with respect to
all or any portion of the Real Property, the Improvements or the Fixtures,
whether from the exercise of right of condemnation, eminent domain or similar
proceedings (including any transfer made in lieu of the exercise of said right),
or from any taking for public use, or for any other injury to or decrease in the
value of all or any portion of the Real Property, the Improvements or the
Fixtures, or as a result of the exercise by any governmental authority of any
right or option to purchase any of the Real Property, all of the foregoing to be
held, applied and paid in accordance with the provisions of this Mortgage
(collectively, the “Eminent
Domain Awards”);
  (h)           all
of the Company’s right, title and interest to all proceeds of, and any unearned
premiums on, any insurance policies covering all or any portion of the Real
Property, the Improvements or the Rents (as hereinafter defined), including,
without limitation, the right to receive and apply the proceeds of any
insurance, judgments, or settlements made in lieu thereof, for damage to all or
any portion of the Real Property or the Improvements and any interest actually
paid with respect thereto, all of the foregoing to be held, applied and paid in
accordance with the provisions of this Mortgage (collectively, the “Insurance
Proceeds”);
  (i)           all
of the Company’s right, title and interest as lessor or landlord to all leases
and other agreements affecting the use or occupancy of any of the Real Property
or the Improvements now in effect or hereafter entered into (including, without
limitation, subleases (including subleases of the Lease, licenses, concessions,
tenancies and other occupancy agreements covering or encumbering all or any
portion of the Real Property or the Improvements), but excluding any licenses
and permits to the extent not assignable under applicable law, including without
limitation, liquor and gaming licenses, together with any modifications,
extensions or renewals of the same (collectively, excluding the Lease, the
“Space Leases”) and the
rents, revenues, issues, income, products and profits of the Real Property and
the Improvements, including, without limitation, any security deposits or other
funds deposited with the Company pursuant to the Space Leases (collectively, the
“Rents”), together with
any guarantees of the Space Leases or Rents delivered to the Company from time
to time, and any modifications, extensions and renewals of any such guarantees,
together with the right, but not the obligation, to exercise options, to give
consents and to collect, receive and receipt for the Rents and apply the Rents
to the payment of the Secured Obligations and to demand, sue for and recover the
Rents (when due and payable), subject to a license in favor of the Company in
respect thereof prior to the occurrence of an Event of Default (as defined in
Section 5.1 hereof); and
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  (j)           any
and all other, further or additional rights, title, estates and interests of the
Company in and to any of the Real Property or the Improvements or the Fixtures,
and all renewals, substitutions and replacements of and all additions and
appurtenances to any of the Real Property or the Improvements or the Fixtures or
constructed, assembled or placed on any of the Real Property or the
Improvements, and all conversions of the assemblage, placement or conversion, as
the case may be, and in each such case without any further mortgage, conveyance,
assignment or other act by the Company, shall become subject to the lien of this
Mortgage as fully and completely, and with the same effect, as though now owned
by the Company, the Company expressly agreeing that if the Company shall at any
time acquire any other right, title, estate or interest in and to any of the
Real Property, the Improvements or the Fixtures, the lien of this Mortgage shall
automatically attach to and encumber such other right, title, estate or interest
as a lien thereon.
  AND, as
additional security, the Company hereby grants to the Collateral Agent a
continuing security interest in (a) the Fixtures, (b) the Construction
Documents, (c) the Insurance Proceeds, (d) the Eminent Domain Awards, (e) the
Space Leases, (f) the Rents, (g) all proceeds of the foregoing, (h) all proceeds
of any of the Real Property and the Improvements, and (i) the rights described
in clauses “c” and “d” of the definition of Mortgaged Property herein ((a)-(i),
collectively, the “Security
Interests Property”) and this Mortgage shall be effective as a security
agreement pursuant to the Uniform Commercial Code as enacted and in effect in
the state in which any of the Real Property is located (the “Code”).
  HABENDUM
  TO HAVE
AND TO HOLD the Mortgaged Property, the rights and privileges hereby conveyed or
assigned, or intended so to be, unto the Collateral Agent (as collateral agent
under the Indenture), its successors and assigns, forever for the uses and
purposes and subject to the terms and conditions herein set forth.
  SUBJECT,
HOWEVER, to Permitted Liens.
  PROVIDED
NEVERTHELESS, should the Company pay and perform all the Secured Obligations in
accordance with the Indenture and the Security Documents, then these presents
will be of no further force and effect, and this Mortgage shall be satisfied by
the Collateral Agent, at the expense of the Company.
  The
Company FURTHER agrees as follows:
  
  ARTICLE
I
 COVENANTS
  Section
1.1                      Performance of
Obligations .  The
Company shall pay and perform the Secured Obligations.  Time is of the
essence hereof.
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 5
  Section
1.2                      Further
Assurances .  If
the Collateral Agent requests, the Company shall sign and deliver and cause to
be recorded as the Collateral Agent shall reasonably direct any further
mortgages, instruments of further assurance, certificates and other documents as
the Collateral Agent may consider reasonably necessary or desirable in order to
perform, perfect, continue, and preserve the obligations of the Company under
the Transaction Documents.  The Company further agrees to pay to the
Collateral Agent, upon demand, all costs and expenses incurred by the Collateral
Agent in connection with the preparation, execution, recording, filing and
refiling of any such documents, including attorneys’ fees and title opinion or
title insurance costs.
  Section
1.3                      Operation and Maintenance;
Compliance with Laws .  The
Company shall cause the Mortgaged Property to be maintained in normal working
order and condition, reasonable wear and tear excepted, and the Company shall
make all necessary repairs, renewals, replacements, additions, betterments and
improvements thereto, as shall be reasonably necessary for the proper conduct of
the business of the Company.  The Company shall comply or cause
compliance with all laws, ordinances and regulations of any governmental
authority with reference to the Mortgaged Property and the manner of using or
operating the same, including any Environmental Laws or Regulations and
Accessibility Regulations, as hereafter defined, and with any restrictive
covenants affecting the title to the Mortgaged Property, and with the terms of
all insurance policies relating to the Mortgaged Property.
  Section
1.4                      Payment of Utilities,
Impositions, Liens .  The
Company shall pay or cause to be paid when due all charges or fees for utilities
and services supplied to the Mortgaged Property.  The Company, at
least five (5) days before any penalty attaches thereto, shall pay and
discharge, or cause to be paid and discharged, all taxes, assessments and
governmental charges or levies (collectively, “Impositions”) imposed upon or
against it, its income or profits, the Mortgaged Property or rents therefrom, or
upon or against the Secured Obligations, or upon or against the interest of the
Collateral Agent in the Mortgaged Property or the Secured Obligations, except
Impositions measured by the income of the Collateral Agent.  The
Company shall provide evidence of such payment at the Collateral Agent’s
request.  This Mortgage is and shall be maintained by the Company as a
valid mortgage lien and security interest in the Mortgaged Property, subject
only to the Permitted Liens and such other matters as may be expressly permitted
under the Indenture.  Except as otherwise provided in the Indenture,
the Company shall not, directly or indirectly, create or suffer, or permit to be
created or suffered, against the Mortgaged Property or any part thereof, and the
Company will promptly discharge any Lien or other Imposition that may affect the
Mortgaged Property or any part thereof, or any interest therein, except the
Permitted Liens.  If any Lien not permitted hereunder is filed, the
Company will cause the same to be discharged pursuant to the terms of the
Indenture.
  Section
1.5                      Insurance.
  (a)           The
Company shall maintain insurance on the Mortgaged Property as specified in
Section 4.18 of the Indenture.
  (b)           In
the event that the Company fails to keep the Real Property and the Improvements
insured in compliance with this Section, the Collateral Agent may, but shall not
be obligated to, obtain insurance and pay the premiums therefor, and the Company
shall, on demand, reimburse the Collateral Agent for all sums
advanced and expenses incurred in connection therewith.  Such sums and
expenses, together with interest thereon at the Additional Interest Rate, shall
be deemed part of the Secured Obligations and secured by the lien of this
Mortgage.
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 6
   (c)           Subject
to the provisions of Section 3.1 hereof, nothing contained in this Section or
elsewhere in this Mortgage shall relieve the Company of its duty to maintain,
repair, replace or restore the Improvements or the Fixtures or rebuild the
Improvements, from time to time, in accordance with the applicable provisions of
the Transaction Documents, and nothing in this Section or elsewhere in this
Mortgage shall relieve the Company of its duty to pay the Secured Obligations,
which shall be absolute, regardless of the occurrence of damage to, destruction
of or condemnation of all or any portion of the Mortgaged Property.
  Section
1.6                      Books and Records: Financial
Information .  The
Company shall (i) keep complete and accurate books and records with respect to
the Mortgaged Property; (ii) permit the Collateral Agent to inspect such books
and records during normal business hours and make copies thereof at the
Collateral Agent’s expense; and (iii) provide the Collateral Agent such
information as the Collateral Agent may from time to time reasonably request
concerning the operations and financial affairs of the Company and the Mortgaged
Property, including, if requested, audited annual financial statements and
quarterly operating statements.
  Section
1.7                      Mortgage, Sale, Lease of the
Mortgaged Property.
  (a)           Except
as otherwise expressly permitted under the Transaction Documents or as otherwise
expressly permitted hereunder, the Company will not, now or in the future,
mortgage, pledge or encumber or place any Lien or encumbrance (or permit the
same to exist) on the Mortgaged Property, or any part thereof, without the prior
written consent of the Collateral Agent, except for Permitted
Liens.
  (b)           Except
as otherwise expressly permitted under the Transaction Documents or as otherwise
expressly permitted hereunder, the Company shall not sell, convey, transfer or
otherwise alienate in any manner, whether directly or indirectly, any right,
title or interest in the Mortgaged Property, or any part thereof except as
expressly permitted under the Indenture, without obtaining in each such instance
the prior written consent of the Collateral Agent.
  (c)           Except
as otherwise expressly permitted under the Transaction Documents or as otherwise
expressly permitted hereunder, the Company shall not, without the Collateral
Agent’s prior consent, which consent will not be unreasonably withheld, enter
into any agreement with or conveyance to any other person or entity permitting
the use of any excess development rights that might otherwise be used by the
Company in expanding, altering, reconstructing, replacing or otherwise improving
the Improvements or making any other improvements on the Mortgaged Property, or
otherwise permit or suffer any
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 7
  change of
the zoning of the Mortgaged Property or the use that may be made
thereof.
  Section
1.8                      Environmental -
ADA .  The
Company agrees:
  (a)           Except
for reasonable quantities of substances normally used for maintenance or
operation of the Mortgaged Property which are used, stored and disposed of in
compliance with all applicable Environmental Laws or Regulations (as defined
below), the Company shall not, nor shall it permit others to, place, store,
locate, generate, produce, create, process, treat, handle, transport,
incorporate, discharge, emit, spill, release, deposit or dispose of any
Hazardous Substance (as defined below) in, upon, under, over or from the
Mortgaged Property.  The Company shall cause all Hazardous Substances
found on or under the Mortgaged Property, which are not permitted under the
foregoing sentence, and which exist in quantities or locations which violate, or
require notification, investigation or remedial action pursuant to, applicable
Environmental Laws or Regulations, to be properly removed therefrom and properly
disposed of at another location at the Company’s cost and
expense.  The Company shall not install or permit to be installed any
underground storage tanks on or under the Mortgaged Property.  If the
Collateral Agent shall reasonably request, the Company shall at its cost obtain
and deliver to the Collateral Agent an environmental review, audit, assessment
and/or report relating to the Mortgaged Property or shall have any previously
delivered materials updated and/or amplified, by an engineer or scientist
acceptable to the Collateral Agent.
  (b)           If
the Collateral Agent shall reasonably request, the Company shall at its cost and
expense obtain and deliver to the Collateral Agent an environmental review,
audit, assessment and/or report relating to the Mortgaged Property or shall have
any previously delivered materials updated and/or amplified, by an engineer or
scientist acceptable to the Collateral Agent.
  (c)           The
Company shall comply with all Accessibility Regulations (as defined below) which
are applicable to the Mortgaged Property.  If the Collateral Agent
shall reasonably request, the Company shall at its cost obtain and deliver to
the Collateral Agent an Accessibility Regulation compliance report relating to
the Mortgaged Property or shall have any previously delivered materials updated
and/or amplified, by a qualified consultant acceptable to the Collateral
Agent.
  (d)           The
Company shall, promptly after obtaining actual knowledge thereof, give notice to
the Collateral Agent of: (i) any activity in violation of any applicable
Environmental Laws or Regulations on or relating to the Mortgaged Property, (ii)
any governmental or regulatory actions instituted or threatened under any
Environmental Laws or Regulations or any Accessibility Regulations affecting the
Mortgaged Property, (iii) all claims made or threatened by any third party
against the Mortgaged Property relating to any Hazardous Substance or a
violation of any Environmental Laws or Regulations or any Accessibility
Regulations, (iv) discovery by any the Company of any occurrence or
condition
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 8
  on or
under the Mortgaged Property or on or under any real property adjoining or in
the vicinity of the Mortgaged Property which could subject the Company, the
Collateral Agent or the Mortgaged Property to a claim under any Environmental
Laws or Regulations or Accessibility Regulations, and (v) discovery by the
Company of any presence of Hazardous Substances of a type or in a quantity or
location that could require notification, investigation or remedial action
pursuant to applicable Environmental Laws or Regulations.  Any such
notice shall include copies of any written materials received by the
Company.
  (e)           Any
investigation, remedial or corrective action taken with respect to the Mortgaged
Property shall be done under the supervision of a qualified consultant, engineer
or scientist acceptable to the Collateral Agent who shall, at the Company’s cost
and expense and at the completion of such investigation or action, provide a
written report of such investigation or action to the Collateral
Agent.
  (f)           If
the Mortgaged Property has, or is suspected to have, asbestos or asbestos
containing materials (“ACM”) which, due to its
condition, location and/or planned building renovation or demolition, is
recommended to be abated by repair, encapsulation, removal or other action, the
Company shall at its cost and expense promptly carry out the recommended
abatement action.  If the recommended abatement includes removal of
ACM, the Company shall cause the same to be removed and disposed of offsite by a
licensed and experienced asbestos removal contractor, all in accordance with
Environmental Laws or Regulations.  Upon completion of the recommended
abatement action, the Company shall deliver to the Collateral Agent a
certificate, signed by an officer of the Company and the consultant overseeing
the abatement action, certifying to the Collateral Agent that the work has been
completed in compliance with all applicable laws, ordinances, codes and
regulations (including without limitation those regarding notification, removal
and disposal) and that no airborne fibers beyond permissible exposure limits
remain on site.  The Company shall develop and implement an Operations
and Maintenance Program (as contemplated by Environmental Protection Agency
guidance document entitled “Managing Asbestos In Place: A Building Owner’s Guide
to Operations and Maintenance Programs for Asbestos—Containing Materials”) for
managing in place any ACM in the Mortgaged Property.  The Company
shall deliver a complete copy of such Operations and Maintenance Program to the
Collateral Agent and certify to the Collateral Agent that such Program has been
implemented.
  (g)           After
an Event of Default, or if at any time there is a reasonable basis to believe
that a violation of Environmental Laws or Regulations may have occurred on the
Mortgaged Property or pursuant to Section 1.8(a), the Collateral Agent shall
have the right, after ten (10) days’ prior written notice to the Company, to
have an environmental review, audit, assessment, testing program and/or report
with respect to the Mortgaged Property performed or prepared by an environmental
engineering firm selected by the Collateral Agent.  The Company shall
reimburse the Collateral Agent for the cost incurred for each such action within
ten (10) days following demand therefor by the Collateral
Agent.  The
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 9
  amount
shall accrue interest at the Additional Interest Rate (as defined in Section
5.2) from and including the date of disbursement by the Collateral Agent through
the date of payment by the Company.
  For
purposes of this Mortgage, the following definitions shall apply:
  “Environmental Laws or
Regulations” means and includes the Federal Comprehensive Environmental
Response, Compensation and Liability Act as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. Sec.Sec. 9601 et seq.; the Federal
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sec.Sec. 6901 et seq.;
Chapter 455B of the Iowa Code; the Clean Water Act, 33 U.S.C. Sec.Sec. 1321 et
seq.; and the Clean Air Act, 42 U.S.C. Sec.Sec. 7401 et seq., all as the same
may be from time to time amended, and any other federal, state, county,
municipal, local or other statute, code, law, ordinance, regulation, requirement
or rule which may relate to or protect human health or the environment,
including, without limitation, all regulations promulgated by a regulatory body
pursuant to any such statute, code, law or ordinance, and all as previously and
in the future to be amended.
  “Hazardous Substances” means
asbestos, asbestos containing materials, urea formaldehyde, polychlorinated
biphenyls, nuclear fuel or materials, mold, chemical waste, radioactive
materials, explosives, known carcinogens, petroleum products including but not
limited to crude oil or any fraction thereof, natural gas, natural gas liquids,
gasoline or synthetic gas, and any other waste, material, substance, pollutant
or contaminant regulated pursuant to any applicable Environmental Laws or
Regulations or which could pose a hazard to the health and safety of the owners,
occupants or any persons in the vicinity of the Mortgaged Property.
  “Accessibility Regulations”
means any law ordinance or regulation relating to accessibility of a facility or
property for disabled, handicapped and/or physically challenged persons,
including, without limitation, the Americans With Disabilities Act of 1991, as
amended.
  Section
1.9                      The Lease .  With
respect to the Lease, the Company hereby covenants and agrees that:
  (a)           The
Company will promptly pay when due and payable the rentals, additional rents and
other charges mentioned in and payable under the Lease within the grace and cure
periods provided in the Lease.
  (b)           The
Company will promptly perform and observe all of the terms, covenants and
conditions required to be performed and observed by the Company, as lessee under
the Lease, within the grace and cure periods provided in the Lease, and will do
all things reasonably necessary to preserve and to keep unimpaired its rights
under the Lease.  The Company will enforce or cause to be enforced the
obligations of the lessor under the Lease, to the end that the Company may enjoy
all of the material rights granted to it as lessee under the Lease.
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 10
 
  (d)           The
Company will (i) promptly notify the Collateral Agent of the receipt by the
Company of any notice from the lessor under the Lease of a default by the
Company in the performance or observance of any of the terms, covenants or
conditions on the part of the Company to be performed or observed under the
Lease, (ii) promptly notify the Collateral Agent of the receipt by the Company
of any notice from the lessor under the Lease to the Company of termination of
the Lease pursuant to the provisions thereof and (iii) promptly cause a copy of
each such notice received by the Company from the lessor under the Lease to be
delivered to the Collateral Agent.
  (e)           Except
as otherwise expressly permitted under the Transaction Documents or as otherwise
expressly permitted hereunder, the Company will not, without the prior consent
of the Collateral Agent (i) terminate, cancel, modify, supplement or surrender
or suffer or permit any termination, modification or surrender of the Lease,
(ii) fail or refuse to take timely and appropriate action to renew the Lease
pursuant to the applicable provisions thereof, (iii) consent or refuse to
consent to any action taken or to be taken by the lessor or anyone else under
the Lease, the result of which would materially diminish or impair the security
of this Mortgage (as determined by the Collateral Agent), (iv) further encumber
the Leasehold Interest, notwithstanding any such right given to the Company
under the Lease, or (v) subordinate or consent to the subordination of the Lease
to any mortgage on the lessor’s interest in the premises demised by the
Lease.
  (f)           Supplementing
the provisions of subparagraph (e) above, if the Lease is rejected or
disaffirmed by the lessor thereunder (or by any receiver, Collateral Agent,
custodian or other party who succeeds to the rights of such lessor, such
receiver, Collateral Agent, custodian or other party being collectively, the
“acting lessor”) pursuant to any bankruptcy, insolvency, reorganization,
moratorium or similar law (any such law hereinafter collectively referred to as
a “Bankruptcy Law”), the Company covenants that it will not elect to treat the
Lease as terminated under 11 U.S.C. Sec.365(h) or any similar or successor law
or right, and hereby assigns to the Collateral Agent the sole and exclusive
right to make or refrain from making any such election, and the Company agrees
that any such election, if made by the Company, shall be void and of no force or
effect.
  (g)           If
the lessor or acting lessor under the Lease rejects or disaffirms the Lease
pursuant to any Bankruptcy Law and the Collateral Agent elects to have the
Company remain in possession under any legal right the Company may have to
occupy the premises leased pursuant to the Lease, then (i) the Company shall
remain in such possession and shall perform all acts necessary for the Company
to retain its right to remain in such possession for the unexpired term of the
Lease (including all renewals thereof) whether such acts are required under the
then
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 11
  existing
terms and provisions of the Lease or otherwise, and (ii) all of the terms and
provisions of this Mortgage and the lien created hereby shall remain in full
force and effect and shall be extended automatically to such possession,
occupancy and interest of the Company.
  (h)           The
Company will from time to time, after demand of the Company, use reasonable
efforts to obtain and deliver to the Collateral Agent a written statement from
the lessor under the Lease, duly acknowledged, and certifying to the Company and
the Holders (i) that the Lease is then in full force and effect and has not been
modified (or, if modified, setting forth all modifications), (ii) the date to
which the rent, additional rent and other charges thereunder have been paid,
(iii) whether or not, to the best knowledge of lessor under the Lease, the
Company is in default under the Lease, and, if the Company is in default, the
specific nature of all such defaults and (iv) as to any other matters reasonably
requested by the Collateral Agent and reasonably related to the
Lease.
  (i)           The
Company shall deliver to the Collateral Agent an original Non Disturbance and
Attornment Agreement from the holder of any mortgage encumbering the fee
interest in the real property affected by the Leasehold Interest, in a form
previously agreed to by the Collateral Agent.
  ARTICLE
II
 REPRESENTATIONS AND
WARRANTIES
  The
Company makes the following representations and warranties:
  Section
2.1                      Existence and
Powers .  The
Company is a limited liability company duly created and validly existing and in
good standing under the laws of the State of Delaware.  The Company
has the power to own its property, to carry on its business and to execute and
perform the Transaction Documents.  The Company has obtained all
licenses and permits necessary to conduct its business in the manner presently
conducted.
  Section
2.2                      Ownership, Liens, Compliance
with Laws .  The
Company owns the Mortgaged Property free from all Liens and encumbrances except
for the Permitted Liens.  All applicable zoning and environmental,
land use, subdivision, building, fire, safety or health laws, ordinances and
regulations affecting the Mortgaged Property permit the current use and
occupancy thereof, and the Company has obtained all consents, permits and
licenses required for such use.  The Company will comply with and
satisfy all applicable formalities and provisions of the laws and regulations of
the United States of America and the laws of the State of Iowa in order to
perfect, establish and maintain this Mortgage, and any supplement or amendment
hereto.
  Section
2.3                      Authority,
Consents .  The
execution, delivery and performance of the Transaction Documents have been duly
authorized by all necessary action of the Company.  Except for
consents and approvals previously obtained, no consent or approval of, or
exemption by, any person or entity, governmental or private, is required to
authorize the execution, delivery and performance of the Transaction Documents
or the validity thereof.
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 12
  Section
2.4                      Binding
Agreement .  The
Transaction Documents are the valid and legally binding obligations of the
Company enforceable against the Company in accordance with their respective
terms, except to the extent limited by bankruptcy, insolvency or similar laws
affecting the rights of creditors generally.
  Section
2.5                      No Conflict,
Default .  The
execution, delivery and performance by the Company of the Transaction Documents
will not violate or cause default under or permit acceleration of any agreement
to which the Company is a party or by which it or the Mortgaged Property is
bound.  To the Company’s knowledge, it is not in default (beyond any
applicable grace period) in the performance of any agreement, order, writ,
injunction, decree or demand to which it is a party or by which it is
bound.
  Section
2.6                      Litigation .  There
is no litigation, arbitration or other proceeding in process or to the Company’s
knowledge pending or threatened against the Mortgaged Property or the Company
which is reasonably likely to have a materially adverse effect on the ability of
the Company to fulfill its obligations under the Transaction Documents or on the
condition, financial or otherwise, of the Company’s business, properties or
assets.
  Section
2.7                      Use .  The
Mortgaged Property is not homestead property nor is it agricultural property in
agricultural use.
  Section
2.8                      Utilities .  The
Mortgaged Property is serviced by all necessary public utilities, and all such
utilities are operational and have sufficient capacity.
  Section
2.9                      Environmental .  To
the Company’s knowledge:
  (a)           There
is not located on, in, about, or under the Mortgaged Property any Hazardous
Substances except for Hazardous Substances of the type and in quantities
ordinarily used, stored, or manufactured in connection with the ownership or
operation of the Mortgaged Property as it is presently operated and such
existing Hazardous Substances have been used, stored and manufactured in
compliance with all Environmental Laws or Regulations and will not require any
notification, investigation or remedial action pursuant to any Environmental
Laws or Regulations.
  (b)           The
Mortgaged Property is not presently used, and has not in the past been used as a
landfill, dump, disposal facility, gasoline station or for the storage,
generation, production, manufacture, processing, treatment, disposal, handling,
transportation, or deposit of any Hazardous Substances.
  (c)           There
has not in the past been, and no present threat now exists of, a spill,
discharge, emission or release of a Hazardous Substance in, upon, under, over or
from the Mortgaged Property or from any other property which would have an
impact on the Mortgaged Property or require notification, investigation or
remedial action pursuant to any Environmental Laws or Regulations.
  (d)           There
are no past or present investigations, administrative proceedings, litigation,
regulatory hearings or other action completed, proposed,
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 13
  threatened
or pending, alleging noncompliance with or violation of any Environmental Laws
or Regulations respecting the Mortgaged Property, relating to Hazardous
Materials on, in, about or under the Mortgaged Property, or relating to any
required environmental permits covering the Mortgaged Property.
  (e)           The
Company has disclosed to the Collateral Agent all reports and investigations
commissioned by, or in the possession or control of, the Company and relating to
Hazardous Substances and the Real Property and the Improvements.
  (f)           There
are not now, nor have there ever been, any above ground or underground storage
tanks located in or under the Mortgaged Property.  There are no wells
on or under the Mortgaged Property.
  Section
2.10                      Mortgage
Lien .  This
Mortgage constitutes a valid mortgage and, upon proper recording hereof, will
constitute a valid and perfected mortgage lien, and security interest in the
Mortgaged Property (subject only to the Permitted Liens), and there are no
defenses or offsets to the Company’s obligations pursuant to this Mortgage or
the other Transaction Documents, including without limitation, the Company’s
applicable obligations to pay and perform the Secured Obligations.
  Section
2.11                      Tax Liens;
Bankruptcy .  There
are no federal, state or local tax claims or liens assessed or filed against the
Company or the Mortgaged Property for taxes which are due and payable,
unsatisfied of record or docketed in any court of the state in which the Real
Property is located or in any other court located in the United States, and no
petition in bankruptcy has ever been filed by the Company, or, to the Company’s
knowledge, against the Company, and the Company has never made any assignment
for the benefit of creditors or taken advantage of any insolvency act or any act
for the benefit of debtors.
  Section
2.12                      Damage; Eminent Domain
Proceedings .  The
Mortgaged Property has not been damaged or destroyed by fire or other casualty,
and no condemnation or eminent domain proceedings have been commenced and none
are pending with respect to the Mortgaged Property, and, to the Company’s
knowledge, no such condemnation or eminent domain proceedings are about to be
commenced or threatened.
  Section
2.13                      Lease .  The
Lease is now a valid and subsisting lease and is in full force and effect in
accordance with the terms thereof and has not been modified, and all of the
rental, additional rental and other charges payable under the Lease prior to the
execution hereof have been paid, and all of the material terms, conditions and
agreements contained in the Lease have been performed by the Company, and no
material default exists under the Lease.  This Mortgage is lawfully
executed and delivered in conformity with the Lease and is and will be kept a
valid lien on and collateral assignment of the interest of the Company
therein.
  ARTICLE
III
 CASUALTY —
CONDEMNATION
  Section
3.1                      Damage or
Destruction .  During
the period the Secured Obligations remain outstanding, in the event that the
Real Property, the Improvements, or the Fixtures shall be
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 14
  damaged
or destroyed in whole or in part, by fire or other casualty covered by
insurance, the Company shall give prompt written notice thereof to the
Collateral Agent.  At such time as such damage, destruction or
casualty shall occur, the Insurance Proceeds shall be treated as an Event of
Loss and shall be payable to the Collateral Agent and shall be released, applied
and/or distributed in accordance with Sections 4.13 and 10.4 of the
Indenture.  Upon the occurrence of an Event of Default which has not
been waived in writing by the Holders in accordance with Section 9.2 of the
Indenture, the Collateral Agent shall have the right to apply such Insurance
Proceeds in accordance with Section 6.10 of the Indenture.  The
Collateral Agent shall have the right to participate in any insurance proceeding
at the Company’s expense, including reasonable attorneys’ fees and
disbursements.
  Section
3.2                      Condemnation.
  (a)           During
the period the Secured Obligations remain outstanding, in the event that the
Mortgaged Property, or any part thereof, shall be taken in condemnation
proceedings or by exercise of the right of eminent domain, or by conveyance in
lieu of condemnation, or as a result of the exercise by any governmental
authority of any right or option to purchase (hereinafter collectively called
“Proceedings”), the
Collateral Agent shall have the right to participate in any such Proceedings at
the Company’s expense, including reasonable attorneys’ fees and disbursements,
and any Eminent Domain Awards that may be made or any proceeds thereof shall be
released, applied and/or distributed in accordance with the terms of the
Indenture.  The parties agree to execute any and all further documents
that may be required in order to facilitate collection of any Eminent Domain
Award and the making of any such deposit.
  (b)           During
the period the Secured Obligations remain outstanding, if there occurs a
Proceeding, any Eminent Domain Awards payable in connection therewith shall be
considered an Asset Sale and shall be released, applied and/or distributed in
accordance with Sections 4.13 and 10.4 of the Indenture.
  (c)           Upon
the occurrence of an Event of Default which has not been waived in writing by
the Holders in accordance with Section 9.2 of the Indenture, the Collateral
Agent shall have the right to apply such Eminent Domain Awards in accordance
with Section 6.10 of the Indenture.
  ARTICLE
IV
 LEASES AND
RENTS
  Section
4.1                      Space Leases, Rents and Cash
Collateral.
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 15
 (a)           As
additional collateral security for payment of the Secured Obligations, and
cumulative of any and all rights and remedies herein provided, the Company
hereby bargains, sells, transfers, assigns and sets over to the Collateral Agent
for the benefit of the Holders, any and all Space Leases and Rents and any and
all cash collateral to be derived from the Mortgaged Property, or the use and
occupation thereof, or under any contract or bond relating to the construction
or reconstruction of the Mortgaged Property, including all Rents, royalties,
revenues rights, deposits (including security deposits) and benefits accruing to
the Company under all Space Leases, and the right to receive the same and apply
them against the Secured Obligations or against the Company’s other obligations
hereunder or the Company’s obligations under the Transaction Documents, together
with all Space Leases, contracts, bonds, leases and other documents evidencing
the same now or hereafter in effect and all right of the Company
thereunder.  Nothing contained in the preceding sentence shall be
construed to bind the Collateral Agent to the performance of any of the
provisions of any such Space Lease, contract, bond, lease or other documents or
otherwise impose any obligation upon the Collateral Agent, except that the
Collateral Agent shall be accountable for any money actually received pursuant
to such assignment to the extent of its disposition thereof in a manner
inconsistent with this Mortgage or the Transaction Documents.  The
Company shall deliver to the Collateral Agent upon the Collateral Agent’s
request an executed counterpart of each such Space Lease, contract, bond or
other documents.  The assignment of said Space Leases, Rents, income
profits, proceeds and cash collateral, and any of the aforesaid rights with
respect thereto and to the contracts, bonds, leases and other documents
evidencing the same, is intended to be and is an absolute present assignment
from the Company to the Collateral Agent and not merely the passing of a
security interest.
  (b)           So
long as there shall exist no Event of Default hereunder which has not been
waived in writing by the Holders in accordance with the Indenture, the Company
shall have the right and license to exercise all rights, options and privileges
extended to the lessor under the terms of the Space Leases, including, without
limitation, the right to collect all Rents.  The Company agrees to
hold the same in trust and to use the same, first, in payment of the Secured
Obligations, second, the Taxes and insurance premiums payable hereunder and all
other charges on or against the Mortgaged Property and, third, to the expenses
of the Company’s business in or on the Mortgaged Property.
  (c)           In
the event of any such Event of Default which has not been so waived, the right
and license set forth in subparagraph (b) of this Section shall be automatically
revoked, and, thereafter, the Collateral Agent shall have the right and
authority to exercise any of the rights or remedies referred to or set forth
herein.  In addition, upon such an Event of Default, the Company shall
promptly pay to the Collateral Agent (i) all rent prepayments and security or
other deposits paid to the Company pursuant to any Space Leases and (ii) all
charges for services or facilities or for escalations which were paid pursuant
to any Space Leases to the extent allocable to any period from and after such
Event of Default and any such sums received by the Collateral Agent shall be
applied by the Collateral Agent in accordance with Section 6.10 of the
Indenture.
  (d)           If
the Company is not required to surrender possession of the Mortgaged Property
hereunder in the event of any such Event of Default which has not been so
waived, the Company will pay monthly in advance to the Collateral Agent, or to
any receiver appointed to collect the same, the income, profits or proceeds
received by the Company under any of the Space Leases.
 
 (e)           The
Company will, upon the Collateral Agent’s request, execute, acknowledge and
deliver to the Collateral Agent, in form approved by the Collateral Agent, one
or more general or specific assignments of the lessor’s interest under any Space
Lease (which are consistent with the foregoing provisions).  The
Company will, on demand, pay to the Collateral Agent, or reimburse the
Collateral Agent for the payment of, all costs or expenses incurred in
connection with the preparation or recording of any such
assignment.
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 16
  
 (f)           The
Company will (i) perform or cause to be performed the lessor’s obligations under
any Space Lease, (ii) enforce the performance by the lessee under its respective
Space Lease of all of said lessee’s material obligations thereunder and (iii)
give the Collateral Agent prompt notice and a copy of any notice of default,
event of default, termination or cancellation sent or received by the
Company.
  (g)           Except
to the extent expressly permitted herein or under the other Transaction
Documents, the Company will not, without the Collateral Agent’s written consent,
(i) assign, mortgage, pledge or otherwise transfer, dispose of or encumber,
whether by operation of law or otherwise, any Space Lease or the Rents or other
income thereunder or therefrom, (ii) accept or permit the acceptance of a
prepayment of any Rents for more than one month in advance of the due dates
therefor, (iii) amend, modify or otherwise alter any Space Lease or (iv) cancel,
terminate or accept a surrender of any Space Lease.
  (h)           The
Company will from time to time, promptly upon the Collateral Agent’s request,
prepare and deliver to the Collateral Agent such information concerning the
Space Leases as the Collateral Agent shall request.
  ARTICLE
V
 DEFAULTS AND
REMEDIES
  Section
5.1                      Events of
Default .  Each
of the following shall constitute an Event of Default hereunder:
  (a)           the
occurrence of an “Event of Default” as defined in Section 6.1 of the Indenture;
or
  (b)           the
failure of the Company to observe and perform any covenant, condition or
agreement on its part to be observed or performed in this Mortgage (other than
an occurrence which may sooner constitute an “Event of Default” under the
Indenture) including, without limitation, the covenants contained in Article I
herein for a period of thirty (30) days after written notice specifying such
failure and requesting that it be remedied, given to the Company by the
Collateral Agent, unless the Collateral Agent agrees in writing to an extension
of such time prior to its expiration.
  
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 17
  Section
5.2                      Remedies .  Upon
the occurrence of an Event of Default, all Secured Obligations, at the option of
the Collateral Agent, shall be accelerated and become immediately due and
payable upon notice to the Company.  The outstanding principal amount
and the interest accrued
  In the
event of any Event of Default, whether or not an acceleration shall occur, the
Collateral Agent shall have the right to proceed to protect and enforce its
rights by one or more of the following remedies:
  (a)           THE
COLLATERAL AGENT SHALL HAVE THE RIGHT TO BRING SUIT either for damages, specific
performance of any agreement contained in any Transaction Document, or for the
foreclosure of this Mortgage, or for the enforcement of any other appropriate
legal or equitable remedy.
  (b)           THE
COLLATERAL AGENT SHALL HAVE THE RIGHT TO OBTAIN A RECEIVER at any time after an
Event of Default, whether or not an action for foreclosure has been
commenced.  Any court having jurisdiction shall at the request of the
Collateral Agent following an Event of Default appoint a receiver to take
immediate possession of the Mortgaged Property and to rent or operate the same
as he may deem best for the interest of all parties concerned, and such receiver
shall be liable to account to the Company only for the net profits, after
application of rents, issues and profits upon the costs and expenses of the
receivership and upon the Secured Obligations.
  The
Collateral Agent shall have the right, at any time to advance money to the
receiver to pay any part or all of the items which the receiver should otherwise
pay if cash were available from the Mortgaged Property and sums so advanced,
with interest (“Additional
Interest’) at the per annum rate equal to the interest rate then borne by
the Notes (the “Additional
Interest Rate”), shall be secured hereby, or if advanced during the
period of redemption shall be a part of the sum required to be paid to redeem
from the sale.
  (c)           THE
COLLATERAL AGENT SHALL HAVE THE RIGHT TO COLLECT THE RENTS from the Mortgaged
Property and apply the same in the manner hereinbefore provided with respect to
a receiver.  For that purpose, the Collateral Agent may enter and take
possession of the Mortgaged Property and manage and operate the same and take
any action which, in the Collateral Agent’s judgment, is necessary or proper to
collect the Rents and to conserve the value of the Mortgaged
Property.  The Collateral Agent may also take possession of, and for
these purposes use, any and all of the Security Interests
Property.  The expense (including any receiver’s fees, attorneys’
fees, costs and agent’s compensation) incurred pursuant to the powers herein
contained shall be secured by this Mortgage.  The Collateral Agent
shall not be liable to account to the Company for any action taken pursuant
hereto other than to account for any Rents actually received by the Collateral
Agent.  Enforcement hereof shall not cause the
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 18
  Collateral
Agent to be deemed a Collateral Agent in possession unless the Collateral Agent
elects in writing to be a Collateral Agent in possession.
  (d)           THE
COLLATERAL AGENT SHALL HAVE THE RIGHT TO ENTER AND TAKE POSSESSION of the
Mortgaged Property and manage and operate the same in conformity with all
applicable laws and take any action which, in the Collateral Agent’s judgment,
is necessary or proper to conserve the value of the Mortgaged
Property.
  (e)           THE
COLLATERAL AGENT SHALL HAVE ALL OF THE RIGHTS AND REMEDIES PROVIDED IN THE CODE,
including Iowa Code Chapter 554, including the right to proceed under the Code
provisions governing default as to any Security Interests Property separately
from the real estate included within the Mortgaged Property, or to proceed as to
all of the Mortgaged Property in accordance with its rights and remedies in
respect of said real estate.  If the Collateral Agent should elect to
proceed separately as to such Security Interests Property, the Company agrees to
make such Security Interests Property available to the Collateral Agent at a
place or places acceptable to the Collateral Agent, and if any notification of
intended disposition of any of such Security Interests Property is required by
law, such notification shall be deemed reasonably and properly given if given at
least ten (10) days before such disposition in the manner hereinafter
provided.
  (f)           THE
COLLATERAL AGENT SHALL HAVE THE RIGHT TO FILE PROOF OF CLAIM and other documents
as may be necessary or advisable in order to have its claims allowed in any
receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceedings affecting the Company, its creditors
or its property, for the entire amount due and payable by the Company under the
Secured Obligations, this Mortgage and any other instrument securing the Secured
Obligations, at the date of the institution of such proceedings, and for any
additional amounts which may become due and payable by the Company after such
date.
  Each
remedy herein specifically given shall be in addition to every other right now
or hereafter given or existing at law or in equity, and each and every right may
be exercised from time to time and as often and in such order as may be deemed
expedient by the Collateral Agent and the exercise or the beginning of the
exercise of one right shall not be deemed a waiver of the right to exercise at
the same time or thereafter any other right.  The Collateral Agent
shall have all rights and remedies available under the law in effect now and/or
at the time such rights and remedies are sought to be enforced, whether or not
they are available under the law in effect on the date hereof.
  Section
5.3                      Expenses of Exercising
Rights, Powers and Remedies .  The
expense (including any receiver’s fees, reasonable attorneys’ fees, appraisers’
fees, environmental engineers’ and/or consultants’ fees, costs incurred for
documentary and expert evidence, stenographers’ charges, publication costs,
costs (which may be estimated as to items to be expended after entry of the
decree of foreclosure) of procuring all abstracts of title, continuations of
abstracts of title, title
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 19
  searches
and examinations, title insurance policies and commitments and extensions
therefor, Torrens duplicate certificates of title, UCC and chattel lien
searches, and similar data and assurances with respect to title as the
Collateral Agent may deem necessary either to prosecute any foreclosure action
or to evidence to bidders at any sale which may be had pursuant to any
foreclosure decree the true condition of the title to or the value of the
Mortgaged Property, and agent’s compensation) incurred by the Collateral Agent
after the occurrence of any Event of Default under this Mortgage and/or in
pursuing the rights, powers and remedies contained in this Mortgage shall be
immediately due and payable by the Company, with interest thereon at the
Additional Interest Rate, and shall be added to the indebtedness secured by this
Mortgage.
  Section
5.4                      Restoration of
Position .  In
case the Collateral Agent shall have proceeded to enforce any right under this
Mortgage by foreclosure, sale, entry or otherwise, and such proceedings shall
have been discontinued or abandoned for any reason or shall have been determined
adversely, then, and in every such case, the Company and the Collateral Agent
shall be restored to their former positions and rights hereunder with respect to
the Mortgaged Property subject to the lien hereof.
  Section
5.5                      Marshalling .  The
Company, for itself and on behalf of all persons, parties and entities which may
claim under the Company, hereby waives all requirements of law relating to the
marshalling of assets, if any, which would be applicable in connection with the
enforcement by the Collateral Agent of its remedies for an Event of Default
hereunder, absent this waiver.  The Collateral Agent shall not be
required to sell or realize upon any portion of the Mortgaged Property before
selling or realizing upon any other portion thereof.
  Section
5.6                      Waivers
  .  No
waiver of any provision hereof shall be implied from the conduct of the
parties.  Any such waiver must be in writing and must be signed by the
party against which such waiver is sought to be enforced.  The waiver
or release of any breach of the provisions set forth herein to be kept and
performed shall not be a waiver or release of any preceding or subsequent breach
of the same or any other provision.  No receipt of partial payment
after acceleration of any of the Secured Obligations shall waive the
acceleration.  No payment by the Company or receipt by the Collateral
Agent of a lesser amount than the full amount secured hereby shall be deemed to
be other than on account of the sums due and payable hereunder, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment be deemed an accord and satisfaction, and the Collateral Agent may
accept any check or payment without prejudice to the Collateral Agent’s right to
recover the balance of such sums or to pursue any other remedy provided in this
Mortgage.  The consent by the Collateral Agent to any matter or event
requiring such consent shall not constitute a waiver of the necessity for such
consent to any subsequent matter or event.
  Section
5.7                      The Collateral Agent’s Right
to Cure Defaults .  If
the Company shall fail to comply with any of the terms hereof with respect to
the procuring of insurance, the payment of taxes, assessments and other charges,
the keeping of the Mortgaged Property in repair, the payment and satisfaction of
Liens and encumbrances against the Mortgaged Property, the payment or
performance of the Lease, the payment of any other sum or deposit required under
this Mortgage, or any other term herein contained, the Collateral Agent may make
advances or take other actions to perform the same without releasing the Company
from any Secured
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 20
  Obligations
and may enter upon the Mortgaged Property for any such purpose and take all such
action thereon as the Collateral Agent or any of its duly appointed agents may
deem necessary or appropriate therefor.  The Company agrees to repay
upon demand all sums so advanced and all sums expended by the Collateral Agent
in connection with such performance, including without limitation attorneys’
fees, with Additional Interest at the Additional Interest Rate from the dates
such advances are made, and all sums so advanced and/or expenses incurred, with
Additional Interest at the Additional Interest Rate, shall be secured hereby as
Secured Obligations, but no such advance and/or incurring of expense by the
Collateral Agent, shall be deemed to relieve the Company from any default
hereunder, or to release the Company from any Secured
Obligations.  The Collateral Agent shall not be bound to inquire into
the validity of any Imposition or Lien which the Company fails to pay as and
when required by this Mortgage and which the Company does not contest in strict
accordance with the terms of this Mortgage.
  Section
5.8                      Suits and
Proceedings .  The
Collateral Agent shall have the power and authority, upon prior notice to the
Company to institute and maintain any suits and proceedings as the Collateral
Agent may deem advisable to (i) prevent any impairment of the Mortgaged Property
by any acts which may be unlawful or any violation of this Mortgage, (ii)
preserve or protect its interest in the Mortgaged Property, or (iii) restrain
the enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid, if,
in the sole opinion of the Collateral Agent, the enforcement of or compliance
with such enactment, rule or order might impair the security hereunder or be
prejudicial to the Collateral Agent’s interest.
  Section
5.9                      Waiver of Redemption Rights;
Alternative Foreclosure Procedures .  It
is agreed that if this Mortgage covers any parcel of 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 (1)
year for redemption from said sale provided by the statutes of the State of Iowa
with respect to such parcel shall be reduced to six (6) months provided the
Collateral Agent in such action files an election to waive any deficiency
judgment against the Company which may arise out of the foreclosure proceedings;
all to be consistent with the provisions of Chapter 628 of the Iowa
Code.
  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 with respect to any parcel of real estate included in the
Mortgaged Property: (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) the Collateral Agent in such action files an
election to waive any deficiency judgment against the Company or its successor
in interest in such action.  Entry of appearance by pleading or docket
entry by or on behalf of the Company shall create 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
Section shall not be construed to limit or otherwise affect any other redemption
provisions contained in Chapter 628 of the Iowa Code.  This Section
also shall not be construed to limit the Collateral Agent’s right to elect
foreclosure without redemption or to elect foreclosure by nonjudicial procedure
as set forth in Chapters 654 and 655A of the Iowa Code.
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 21
  The
Company agrees that, in the event of a foreclosure of the Mortgage, under any
provision of Iowa law, the Collateral Agent shall be entitled to sole possession
and use of the Mortgaged Property during any redemption period.
  Section
5.10                      Application of
Proceeds .  The
proceeds from the foreclosure, sale or lease or any recovery pursuant to Chapter
554 of the Iowa Code or hereunder shall be applied to the payment of the Secured
Obligations in accordance with the Indenture if such Secured Obligations have
been deemed due and payable upon the Event of Default.  Any surplus of
the proceeds shall be paid to the Company.
  ARTICLE
VI
 MISCELLANEOUS
  Section
6.1                      Binding Effect; Survival;
Number; Gender .  This
Mortgage shall be binding on and inure to the benefit of the parties hereto,
their successors and assigns.  All representations and warranties
contained herein or otherwise heretofore made by the Company to the Collateral
Agent shall survive the execution, delivery and foreclosure
hereof.  The singular of all terms used herein shall include the
plural, the plural shall include the singular, and the use of any gender herein
shall include all other genders, where the context so requires or
permits.
  Section
6.2                      Severability .  The
unenforceability or invalidity of any provision of this Mortgage as to any
persons or circumstances shall not render that provision unenforceable or
invalid as to any other persons or circumstances and shall not affect the
enforceability of the remaining provisions hereof.
  Section
6.3                      Notices .  All
notices and demands required or permitted to be given to or made upon any party
hereto under any Transaction Document shall be in writing and shall be
personally delivered or sent by certified mail, postage prepaid, return receipt
requested or by a nationally recognized courier, or by telecopier, and shall be
deemed to be given for purposes of this Mortgage on the day that such writing is
delivered or sent to the intended recipient thereof in accordance with the
provisions of this Section.  Notices shall be given to or made upon
the respective parties hereto at their respective addresses set forth
below:
  If to the
Company:
 
 Peninsula
Gaming, LLC
 Peninsula
Gaming Corp.
 600 Star
Brewery Drive, Suite 110
 Dubuque,
IA 52001
 Attention:  Natalie
Schramm
 Fax:  (563)
690-1394
  With a
copy to:
  White
& Case LLP
 1155
Avenue of the Americas
 New York,
NY 10036
 Attention:  Nazim
Zilkha, Esq.
 Fax:  (212)
354-8113
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 22
   
  If to the
Collateral Agent:
  U.S. Bank
National Association
 60
Livingston Avenue
 St. Paul,
Minnesota  55107
 Attention:  Corporate
Trust Department
  Either
party may change the address for notices by a notice given not less than five
(5) business days prior to the effective date of the change.
  Section
6.4                      Survival of Warranties,
Etc. All
agreements, representations and warranties made herein shall survive the
execution and delivery of this Mortgage.
  Section
6.5                      Applicable
Law .  THIS
MORTGAGE AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN THE STATE OF NEW YORK AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA, PROVIDED, HOWEVER, THAT THE
PROVISIONS FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS AND
SECURITY INTERESTS CREATED HEREUNDER WITH RESPECT TO THE MORTGAGED PROPERTY
SHALL BE GOVERNED BY IOWA LAW TO THE EXTENT NECESSARY FOR THE VALIDITY AND
ENFORCEMENT THEREOF.
  Section
6.6                      Waiver of Jury
Trial .  EACH
OF THE COMPANY AND THE COLLATERAL AGENT, BY ITS ACCEPTANCE OF THIS MORTGAGE,
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS MORTGAGE AND ANY OF THE OTHER SECURITY
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
  Section
6.7                      Effect .  This
Mortgage is in addition to and not in substitution for any other guaranties,
covenants, obligations or other rights now or hereafter held by the Collateral
Agent from any other person or entity in connection with the Secured
Obligations.
  Section
6.8                      Assignability .  The
Collateral Agent shall have the right to assign this Mortgage, in whole or in
part or sell participation interests herein, to any person obtaining an interest
in the Secured Obligations.
  Section
6.9                      Headings .  Headings
of the Sections of this Mortgage are inserted for convenience only and shall not
be deemed to constitute a part hereof.
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 23
  Section
6.10                      Security
Interest.
  (a)           An
express security interest is hereby granted to the Collateral Agent in respect
to any part of the Mortgaged Property which under Iowa law might now or
hereafter be construed or considered as personal property or fixtures, or
otherwise be considered collateral subject to the Code, including without
limitation the collateral described in granting clauses (e) hereof, and this
Mortgage shall constitute a security agreement in respect thereto.
  (b)           Upon
the occurrence of an Event of Default hereunder in addition to the other rights
and remedies available to it, the Collateral Agent may exercise all other rights
and remedies with respect to such property that are available to a secured party
under the Code.  The Company agrees to pay any reasonable attorney
fees and legal expenses incurred by the Collateral Agent in enforcing or
protecting its rights under the security interest created
hereunder.  In the event notice of intended disposition of such
property is required by law in any particular instance, the Company agrees that
notice given in the manner and place provided in Section 6.3 hereunder and sent
ten (10) days prior to a disposition of collateral is commercially reasonable
notification within the meaning of the Code.  Information concerning
the security interests may be obtained from the Collateral Agent (the “Secured Party”) at the address
set forth in Section 6.3 hereof.
  (c)           The
Company warrants and agrees that no financing statement or security agreement
covering any of the Mortgaged Property is or will be placed on file in any
public office or delivered to any secured party except pursuant hereto, except
for Permitted Liens.
  Section
6.11                      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 collateral described in
the Granting Clauses hereof which are fixtures within the meaning of the Code,
and for this purpose the name and address of the Company (the “Debtor”) is the name and
address set out for the Company in Section 6.3 herein, and the name and address
of the Secured Party is the name and address of the Collateral Agent, as set out
in Section 6.3 hereof.  Pursuant to the provisions of Section 554.9403
subparagraph 6 of the Code, such fixture filing remains in effect until this
Mortgage is released or satisfied of record or its effectiveness otherwise
terminates as to the Real Property.  The name of the record fee owner
of the property subject to the Leasehold Interest is: Truman and Lorraine
Julseth.
  Section
6.12                      Defined
Terms .  All
capitalized terms used in this Mortgage and not defined herein shall have the
meanings ascribed to them in the Indenture.
  Section
6.13                      Discharge of
Lien .  In
accordance with Section 10.4 of the Indenture and upon the observance and
performance of each and every covenant and condition set forth herein and in the
Indenture and the Notes, then and in that case all property, rights and interest
hereby conveyed or assigned or pledged shall revert to the Company, and the
estate, right, title and interest of the Collateral Agent therein shall
thereupon cease, terminate and become void; and this Mortgage, and the covenants
of the Company contained herein, shall be discharged and the Collateral
Agent
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 24
  in such
case on demand of the Company and at the Company’s cost and expense, shall
execute and deliver to the Company a proper instrument or proper instruments
acknowledging the satisfaction and termination of this Mortgage, and shall
convey, assign and transfer or cause to be conveyed, assigned or transferred,
and shall deliver or cause to be delivered, to the Mortgagor, all property,
including money, then held by the Collateral Agent hereunder.
  Section
6.14                      Conflicts with Security
Agreement .  In
the event of a conflict between the provisions of the Security Agreement and the
provisions of this Mortgage, the Mortgage shall govern in all matters relating
to the validity and enforceability of the Lien created hereby on the Real
Property, the Improvements, the Fixtures, the Lease and the Rents and (except as
expressly set forth to the contrary herein or in the Security Agreement), the
Security Agreement shall govern in all other respects.
  Section
6.15                      Mortgage
Absolute .  The
obligations of the Company under this Mortgage are independent of the
obligations of Company under the other Transaction Documents, and a separate
action or actions may be brought and prosecuted against Company to enforce this
Mortgage, irrespective of whether any action is brought against Company under
such other Transaction Documents.  All rights of Collateral Agent and
the mortgage, assignment and security interest hereunder, and all obligations of
Company hereunder, shall be absolute and unconditional, irrespective
of:
  (a)           any
lack of validity or enforceability of any other Transaction Document or any
other agreement or instrument relating thereto;
  (b)           any
change in the time, manner or place of payment of, or in any other term of, all
or any of the obligations of the Company under the other Transaction Documents
or any other amendment or waiver of or any consent to any departure from the
other Transaction Documents, including, without limitation, any increase in such
obligations resulting from the extension of additional credit to the Company or
otherwise;
  (c)           any
taking, exchange, release or non-perfection of any other collateral, or any
taking, release or amendment or waiver of or consent to departure from any
guaranty, for all or any other of the obligations of the Company under the other
Transaction Documents;
  (d)           any
manner of application of collateral, or proceeds thereof, to all or any of the
obligations of the Company under the other Transaction Documents, or any manner
of sale or other disposition of any collateral for all or any of such
obligations or any other assets of the Company;
  (e)           any
change, restructuring or termination of the corporate restructure or existence
of the Company; or
  (f)           any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, the Company or a third party of a security interest or
mortgage.
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 25
  Section
6.16                      Interaction
with Indenture .  All
terms, covenants, conditions, provisions and requirements of the Indenture are
incorporated by reference in this Mortgage.  Notwithstanding any other
provision of this Mortgage, the terms and provisions of this Mortgage shall be
subject and subordinate to the terms of the Indenture.  To the extent
that the Indenture provides the Company with a particular cure or notice period,
or establishes any limitations or conditions on the Collateral Agent’s actions
with regard to a particular set of facts, the Company shall be entitled to the
same cure periods and notice periods, and Collateral Agent shall be subject to
the same limitations and conditions, under this Mortgage, as under the
Indenture, in place of the cure periods, notice periods, limitations and
conditions provided for under this Mortgage; provided, however, that such cure
periods, notice periods, limitations and conditions shall not be cumulative as
between the Indenture and this Mortgage.  In the event of any conflict
or inconsistency between the provisions of this Mortgage and those of the
Indenture, including, without limitation, any conflicts or inconsistencies in
any definitions herein or therein, the provisions or definitions of the
Indenture shall govern.
  Section
6.17                      Excluded
Assets .  Notwithstanding
anything to the contrary contained herein, if a portion of the Mortgaged
Property becomes an Excluded Asset after the Issue Date, the Collateral Agent
shall, simultaneous with the granting of the applicable Permitted Lien, without
the payment of any partial release for, or any other prepayment with respect to,
the Notes, release the Lien in favor of the Collateral Agent in such Excluded
Asset in accordance with the provisions of Section 10.4 of the
Indenture.  Once any Excluded Asset is released, such Excluded Asset
shall be expressly excluded from and shall no longer be deemed Mortgaged
Property under this Mortgage and shall not be subject to any of the
representations, covenants or obligations under this Mortgage.
  Section
6.18                      Indemnity .  The
Company hereby agrees to indemnify, defend and hold the Collateral Agent (and
its directors, officers, agents and employees) and each Holder harmless from and
against any and all loss, liability, damage, claim, judgment or expense
(including reasonable attorneys’ fees and expenses, bond expenses, printing and
automated document preparation and retention expenses and other ordinary
litigation expenses) incurred by it (or such director, officer, agent or
employee) in connection with the acceptance or administration of the Collateral
Agent’s duties under this Mortgage, any action or proceeding to foreclose this
Mortgage or in or to which the Collateral Agent or any Holder may be made a
party due to the existence of this Mortgage or the other Transaction Documents
or to which action or proceeding the Collateral Agent or any Holder may become a
party for the purpose of protecting the lien of this Mortgage.  All
sums paid by the Collateral Agent or any Holder to prosecute or defend the
rights herein set forth shall be deemed a part of the Secured Obligations and
shall be paid by the Company to the Collateral Agent or such Holder within ten
(10) days after written demand, and if not paid within that period, shall accrue
interest from and including the date of disbursement or advance by the
Collateral Agent or such Holder to and including the date of payment by the
Company at the Additional Interest Rate.
  [Signature Page
Follows.]
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 26
  IN
WITNESS WHEREOF, the Company has executed this Mortgage as of the date first
written above.
  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.  THIS NOTICE APPLIES TO ALL AGREEMENTS
ENTERED INTO TO WHICH THE COMPANY AND THE COLLATERAL AGENT ARE
PARTIES.
   DIAMOND JO WORTH,
      LLCBy:
                /s/Natalie
      SchrammNatalie
      Schramm
 
 
 
 ATTEST/s/Dustin
      ManternachDustin
      Manternach
  |
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  STATE
OF IOWA                                          )
 )ss:
 COUNTY
OF DUBUQUE   
                           )
  On this
6th day of August, A.D., 2009, before me, a Notary Public in and for the State
of Iowa, personally appeared Natalie Schramm, to me personally known, who being
by me duly sworn did say that the person is the Chief Executive Officer of
Diamond Jo Worth, LLC, a Delaware limited liability company, executing the
foregoing instrument, that the instrument was signed on behalf of the said
limited liability company by authority of the limited liability company and the
said Chief Executive Officer acknowledged the execution of said instrument to be
the voluntary act and deed of said limited liability company by it voluntarily
executed.
 /s/ Karen
      M. BeetemNotary
      Public for the State of Iowa
 
   |
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  EXHIBIT
A
  Legal Description of Fee
Simple Interests
  
   |
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  EXHIBIT
B
  The Lease and the Real
Property
  Subject to Leasehold
Interest
  Real
Estate Ground Lease dated June 13, 2006, by and between Truman and Lorraine
Julseth, Landlord, and Diamond Jo Worth, LLC, an Iowa limited liability company,
as Tenants, as evidenced by that certain Memorandum of Lease and Purchase Option
dated June 13, 2006, recorded July 14, 2009, as Document Number 20091550,
Official Records of Worth County, Iowa.
  
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