HomeMy WebLinkAboutCrystal Distribution Services, Inc. - Mortgage & Security Interest - 6/20/2022Prepared by / Return to: Swisher & Cohrt, P.L.C., 528 West 4th Street, P.O. Box 1200, Waterloo, IA 50704-1200, (319) 232-6555
MORTGAGE
THIS MORTGAGE is made between City of Waterloo, Iowa, an Iowa municipality ("Mortgagor") and Crystal Distribution
Services, Inc., an Iowa corporation ("Mortgagee").
[ ] If this box is checked, this Mortgage is a Purchase Money Mortgage as defined in the Iowa Code.
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 Black Hawk County, Iowa (the "Land");
See Exhibit "A" attached hereto,
and all buildings, structures and improvements now standing or at any time hereafter constructed or placed upon the
Land (the "Buildings"), including all hereditaments, easements, 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 promises of Mortgagor to Mortgagee in that certain Development Agreement between the same parties dated
May 17, 2021, with regard to the payment of the installment purchase price in the amount of $2,175,000.00 provided
for in paragraph 5(B) of said Development Agreement, and any renewals, extensions, modifications or refinancing
thereof and any promissory notes issued in substitution therefor;
b. All other obligations 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.
3. Representations and Warranties of Mortgagor. 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; and (ii) Mortgagor has the right, power
and authority to execute this Mortgage and to mortgage, and grant a security interest in the Mortgaged Property.
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
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the Obligations. The provisions of the Obligations are hereby incorporated by reference into this Mortgage as if fully set forth
herein.
5. Taxes. Pursuant to separate agreement between the parties, Mortgagee 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 upon request shall deliver to Mortgagor 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 to be equal or prior to the lien of this Mortgage, other than
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
therefor, 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 or occupancy of the Mortgaged Property or any
part thereof. Mortgagors 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 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.
10. Insurance.
Mortgagee, its sole cost and expense, shall maintain or cause to be maintained 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 provided for in the Business Property Lease between
the parties. Mortgagor shall provide no insurance for the benefit of Mortgagee.
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 Mortgagors
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. 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, whether due or not, or to
the restoration or repair of the Mortgaged Property, the choice of application to be solely at the discretion of Mortgagee.
14. 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
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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 its agreement contained in paragraph 4
hereof or shall default in the due observance or performance of or breach any other covenant, condition or agreement
on its part to be observed or performed pursuant to the terms of this Mortgage.
b. Mortgagor shall make an assignment for the benefits of its 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 its 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 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 part thereof.
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, after such notice as may be required by law, 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 or demand. After such declaration, Mortgagee's
remedy shall be to foreclose this Mortgage pursuant to paragraph 16.c below, and Mortgagee shall have no other
recourse against Mortgagor.
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 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. 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 statues 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
successors in interest in such action. If the redemption period is so reduced, Mortgagor or his 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 Mortgagors 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.
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.
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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 therefor 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: 715 Mulberry Street, Waterloo, IA 50703
b. If to Mortgagee, to: 1656 Sycamore Street, P.O. Box 1744, Waterloo, IA 50704
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 acknowledgment 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.
24. Governing Law. This Mortgage shall be govemed 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. Acknowledgment 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.
Dated: Vfte 2-0 ,2022
CITY OF WATERLOO, IOWA
By:
By:
n _
Quentin M. Hart, Mayor
Kelley Felc
City Clerk
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STATE OF IOWA, COUNTY OF BLACK HAWK) ss. \
This record was acknowledged before me on Asr-Q , 2022, by Quentin M. Hart and Kelley Felchle
as Mayor and City Clerk, respectively, of the City of Waterloo, Iowa.
P
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NANCY HIGBY
COMMISSION NO.788229
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Notary blic in a . . the St
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EXHIBIT "A"
Legal Description
Parcel "I" of Plat of Survey Doc. #2022-4295, being a part of: Lot 2, "Cowin's Subdivision in Riverside Addition to
Waterloo, Iowa"; AND vacated Elm Street and Block 5, Riverside Addition to the City of Waterloo, Black Hawk
County, Iowa; AND the Beltline R.R. Switch lying between Blocks 5 and 9, Riverside Addition to the City of
Waterloo, Black Hawk County, Iowa; AND vacated Division Street and Block 2, "Morning Side Addition" in
Waterloo, Iowa.
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