REDI Loan Number 00-00-X
XXXXXXX X
XXXXX XX XXXXX XXXXXX
BOARD OF ECONOMIC DEVELOPMENT
MORTGAGE - ONE HUNDRED EIGHTY DAY REDEMPTION
THIS MORTGAGE is made this 26th day of May, 1998, by XXXX COMPANY, of
000 Xxxxx Xxxxxx, Xxxx Xxxx, XX 00000 for a project at 000 X.X. 0xx Xxxxxx,
Xxxxxxx, Xxxx Xxxxxx, Xxxxx Xxxxxx, hereinafter referred to as MORTGAGOR, to
the SOUTH DAKOTA BOARD OF ECONOMIC DEVELOPMENT, of XXXXXX County, State of
SOUTH DAKOTA, whose principal office is at PIERRE, XXXXXX County, State of
South Dakota, hereinafter referred to as MORTGAGEE.
WITNESSETH: That in consideration of the advance of the principal sum as
stated herein plus all future and additional advances together with interest
thereon, and in consideration of any future and additional advances made to
Mortgagor at Mortgagee's option, Mortgagor does hereby mortgage, grant,
bargain, release, assign, transfer and convey to Mortgagee the real property
and premises (the "Premises") described in Exhibit A attached hereto, and by
this reference incorporated herein, together with all buildings and
improvements now or hereafter erected thereon, all hereditaments and
appurtenances, and all rights and interests thereunto belonging or
appertaining, including rights of homestead, and all contingent rights and
estates of the Mortgagor in and to said Premises, it being the intention of
Mortgagor to mortgage an absolute title in fee in and to said Premises in
favor of the Mortgagee, to include all of the right, title and interest of
Mortgagor in said property now owned or hereafter acquired, all easements and
servient estates appurtenant thereto, rents, issues, uses, profits and right
to possession.
Mortgagor warrants that Mortgagor is the owner in fee and is lawfully
seized of said Premises; that the Premises are free and clear from all
encumbrances and liens whatsoever, except for any permitted encumbrances as
attached in Exhibit B. Mortgagor hereby covenants to warrant and defend the
title to said Premises against any and all claims and demands of all persons
whomsoever. Mortgagor hereby relinquishes and waives all rights of homestead
in the Premises.
THE PARTIES AGREE THAT THE PROVISIONS OF THE ONE HUNDRED EIGHTY DAY
REDEMPTION MORTGAGE ACT GOVERN THIS MORTGAGE. In the event Mortgagee elects
to foreclose by action in state court, the holder of the certificate of sale
may apply to the court for a reduction of the 180 day redemption period if the
property has been abandoned by the Mortgagor. If, after notice to the parties
as the court directs, the court finds the property has been abandoned, the
redemption period may be reduced. The redemption period may not be reduced to
less than sixty (60) days from the date of recording the certificate of sale.
There is hereby granted to Mortgagee a power of sale for the purposes of SDCL
Chapter 21-49. The foregoing shall not be deemed to be a waiver of
Mortgagee's right to foreclose this Mortgage in federal court and seek
extinguishment of all rights of redemption.
This Mortgage is given by the Mortgagor as security for the following:
A. Payment by Mortgagor to the Mortgagee of the principal sum of
$255,000.00, together with interest thereon, according to the terms
of a certain Promissory Note dated the date hereof, given by
Mortgagor to Mortgagee, and any other Loan Documents or other
instruments executed in refinancing, extending or renewing said
indebtedness or any part thereof, all payable according to the terms
of said Promissory Note, Loan Documents and other instruments;
B. The repayment in full by Mortgagor of any and all future and
additional advances which may be made by Mortgagee at its option, at
the request of and to or for the account of Mortgagor, for any
purposes, whether or not the obligation created by such future
advances related to the transaction evidenced by the Promissory Note
or Loan Documents and whether or not such an advance is presently
contemplated by the parties; repayment to be made as provided in the
Promissory Note, Loan Documents or in such other instruments;
provided, further, that THIS PARAGRAPH SHALL NOT CONSTITUTE A
COMMITMENT TO MAKE FUTURE OR ADDITIONAL ADVANCES IN ANY AMOUNT;
C. The repayment in full by Mortgagor of all amounts advanced by
Mortgagee, at its option, to or on behalf of Mortgagor as protective
disbursements, as authorized in this Mortgage or in the Loan
Agreement, or any other Loan Document, together with interest on all
such advances, all payable as provided in this Mortgage, the
Promissory Note, or other Loan Document or other instrument which
may be taken to evidence such advance(s) or any part thereof;
D. The payment in full by Mortgagor of any damages, including
liquidated damages, awarded or imposed pursuant to the Loan
Agreement or the Employment Agreement between the parties made in
connection with the Loan secured hereby.
E. The payment by Mortgagor of all other present or future, debts
and liabilities of Mortgagor to Mortgagee of any nature whatsoever.
This Mortgage is made pursuant to and secured by a certain Revolving
Economic Development and Initiative (REDI) Fund Loan Agreement dated the date
hereof (the "Loan Agreement"), by and between the Mortgagor and MORTGAGEE,
pursuant to SDCL Chapters 1-16G and 1-33, as amended, and Rules and
Regulations Article 68:02, Administrative Rules South Dakota (ARSD), the terms
and provisions of which are hereby incorporated by reference. BED has entered
into a Loan Servicing Agreement with BankWest, Inc., a, state chartered
financial institution of Pierre, South Dakota (BankWest), whereby BankWest
will act as BED's agent for purposes of closing, funding, receiving payment
and servicing the BED Loan with the Borrower, and under which BankWest may
take any and all such action on behalf of BED consistent with the terms of the
Loan Servicing Agreement and the Borrower's BED Loan Documents including this
Mortgage.
Mortgagor covenants and agrees with the Mortgagee as follows:
A. To pay all taxes, assessments, rents, or governmental or
municipal charges, fines, rates, fees or charges levied, imposed, or
charged against the Premises or the project, before the same shall
become delinquent, and to pay when due all liens, judgments, or
other assessments which may lawfully be assessed against the
property herein mortgaged, and the rental charges upon any leases
assigned as additional security.
B. To insure and keep insured building and other improvements now
or which may hereafter be placed on said Premises, if any, for the
benefit of the Mortgagee, against loss by fire, wind, and other
hazards, casualties and contingencies, with such insurers licensed
to do business in the State, in such amounts, and against such risks
as are customary in the State for entities of the same or similar
size and type as the Mortgagor, and similarly situated with Premises
and facilities of the Project's type, and provide proof of such
coverage to BED. Each policy shall provide that such insurance will
be payable to Mortgagee as its interest may appear. Each policy
must provide that it cannot be canceled without 30 days prior
written notice of cancellation. In the event of cancellation the
Mortgagor will promptly obtain replacement insurance with the same
or substantially similar coverage and provide proof of such coverage
to BED. In the event of renewal, replacement or changes in
coverage, the Mortgagor will promptly provide written notice of such
changes to BED. In the event of loss, the proceeds received by
Mortgagee may, at Mortgagee's option be used for the reconstruction
of the destroyed or damaged improvements or, if not so applied, may,
at the option of the Mortgagee, be applied to the payment of any
indebtedness matured or unmatured, secured by this Mortgage.
C. To keep the Premises in good condition and repair, as the same
may now, or may hereafter, be placed, ordinary wear and tear
excepted; to permit no mechanic's or other lien or encumbrance
thereon; or to commit or permit no impairment of the value of this
security. Mortgagor shall not commit or suffer waste on the
Premises, and in event of such waste the Mortgagee, in addition to
any other available remedy, shall be entitled immediately to
restrain the same by injunction or other appropriate proceeding.
Mortgagor warrants that the Premises will not be used for any
unlawful purpose or permitted to become a nuisance; not to cut or
remove, or permit to be cut or removed, any wood or timber from said
real property; to continuously practice approved methods of farming
on said Premises, to prevent erosion, and to prevent the spread of
noxious or damaging weeds, and to preserve the fertility of the
soil.
D. That no structure or improvement of any kind whatsoever, now or
hereafter in or on the mortgaged Premises, shall be removed,
replaced, or substantially altered without the Mortgagee's written
consent, except for that property which in the good faith opinion of
the Mortgagor is obsolete, outmoded, worn out, is being replaced, or
otherwise is not needed for the operation of the Project. If at any
time all or any portion of the above described Premises shall be
taken or damaged by condemnation proceedings under the power of
eminent domain, all compensation awarded shall be paid directly to
Mortgagee and, at Mortgagee's option, applied to the indebtedness
hereby secured.
E. That in the event Mortgagor fails to pay when due any taxes,
rental charges upon any leases assigned as additional security for
this Mortgage, liens, judgments, or assessments lawfully assessed
against the Premises hereby mortgaged, or governmental or municipal
charges, fines, rates, fees or charges levied, imposed, or charged
against the Premises before the same become delinquent, or fails to
maintain insurance as hereinabove provided, Mortgagee may do so, at
its sole option, and without the obligation to do so, as a
protective disbursement and the amount so paid, together with
interest at the current rate of the Mortgagee at the time the
Mortgagee makes such payment, shall, from the date of payment be
added to and deemed a part of the indebtedness secured hereby, and
shall be due and payable on demand by the Mortgagee; provided,
however, that the advancement by Mortgagee of any sum pursuant to
this paragraph shall in no manner relieve Mortgagor of any
obligations incurred under this Mortgage nor limit the right of
Mortgagee to declare a default by Mortgagor and to exercise all
rights and remedies as set forth herein in the event of default.
F. In the case of default by the Mortgagor in the payment of the
principal sum, or any part thereof, or interest thereon at the time
or times as specified for the payments hereof, or in the case of
default in the payment of any of said advances, or in the case of
any breach of any covenant or agreement contained in this Mortgage,
the Loan Documents, or the Promissory Note, or related mortgages,
documents and notes, or in the event of the failure of the Mortgagor
to promptly pay, when due, any taxes, charges, liens, assessments,
or encumbrances, or in the event of the insolvency of the Mortgagor,
the Mortgagee may at its option declare this Mortgage to be in
default and shall provide Mortgagor with written notice of such
default. If such default has not been cured within fifteen (15)days
of Mortgagor's receipt of written notice thereof, Mortgagee at its
sole option, may accelerate the payment of the outstanding debt and
may declare the entire unpaid principal sum including interest due
thereon immediately due and payable, and if not paid within 10 days
thereof this Mortgage may be foreclosed by action, or by
advertisement as provided by statute or the rules or powers relating
thereto, including any amendments thereof, and this paragraph shall
be deemed as authorizing and constituting a power of sale as
mentioned in said statutes or rules or any amendments thereof. In
addition, Mortgagee may exercise any remedy set forth in any of the
Loan Documents or other agreements between the parties made in
connection with this Mortgage. If any sum payable hereunder is not
paid when due, then the entire outstanding principal balance shall
thereafter bear interest at a specified fixed rate three (3)
percentage points higher than the prime rate of interest published
weekly in the Wall Street Journal per annum until paid. Mortgagee
may waive any default without waiving any other subsequent or prior
default by Mortgagor.
G. To the extent permitted by law, Mortgagor agrees that in case
of any action, or in any proceedings in any court, to collect any
sums payable under or secured by this Mortgage, or to protect the
lien or title herein of the Mortgagee, or in any other case
permitted by law, including foreclosure by action or by
advertisement, in which attorney fees may be collected from
Mortgagor or charged upon the above described property, to pay
Mortgagee's reasonable attorney fees and actual disbursements
necessarily incurred in the course of said action.
H. In the event the mortgaged Premises or any portion thereof are sold,
divested, transferred, relinquished, or in the event the Mortgagor
should lose their right, title or interest in the security herein
described, or any portion thereof during the term of this Mortgage,
whether voluntarily or by operation of law, without the prior
written consent of the Mortgagee, the entire indebtedness remaining
unpaid and owing together with interest thereon, including advances
for any purpose may at the option of the Mortgagee, be declared
immediately due and payable and this Mortgage may then be foreclosed
by action or by advertisement, as provided by statute or the rules
or powers relating thereto.
I. In the event of default in the payment of any of the obligations
described in this Mortgage, Mortgagor hereby assigns to Mortgagee
all of Mortgagor's interest in and to all rents, issues, uses,
growing crops, profits, royalties, or lease payments due to
Mortgagor from use or occupancy of any part of the Premises secured
by this Mortgage; this assignment shall also pertain to all
royalties, rents, or profits, due to Mortgagor for any oil, gas,
mineral, or other subsurface interest in and to the above described
Premises; all rents profits, lease payments, or royalties received
by Mortgagee hereunder shall be applied to the indebtedness secured
by this Mortgage.
J. In the case of foreclosure of this Mortgage, at any time after the
commencement of an action of foreclosure or at any time after the
commencement of foreclosure by advertisement, or during any period
of redemption, Mortgagee is authorized to appoint a receiver to take
possession of the Premises if the Premises have been abandoned, or
to have a receiver appointed by the court upon other sufficient
proof being established therefor, said receiver to take immediate
possession of the above described property, and of all the rents or
profits accruing therefrom, and to rent or cultivate the same as the
receiver may deem best for the interest of all parties concerned,
and be liable to account to Mortgagor only for the net profits,
after application of rents, issues and profits upon the expenses and
costs of the receivership and foreclosure and upon the indebtedness,
costs and expenses hereby secured or herein mentioned.
K. Further, in the event of any action by Mortgagee to enforce the
collection of the mortgage debt, Mortgagor agrees that any expense
incurred to procure or extend an abstract of title, policy of title
insurance or other lien search, shall, when paid by Mortgagee,
become a part of the debt secured hereby, and shall be paid by
Mortgagor together with all taxable costs of such action
L. In the case of any default the Mortgagee shall have the privilege,
without declaring the whole indebtedness due and payable, to
foreclosure on account of such specific default for such sums as are
in default and such foreclosure proceedings may be had and the
Premises described herein may be sold, subject to the unpaid
indebtedness hereby secured, and this Mortgage shall continue as a
lien for any unpaid balance. If the Mortgagee waives the right to
accelerate, or any other right hereunder, such a waiver shall not
constitute a waiver of the right to rescind, or any other remedy
available to the Mortgagee, nor shall it be construed as a waiver of
such rights in the event of subsequent defaults. No remedy herein
conferred upon or reserved to the Mortgagee is intended to be
exclusive of any other available remedy, but each and every remedy
shall be cumulative and in addition to every other remedy given
under this Mortgage and the Loan Agreement, or now or hereafter
existing at law or in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair
any such right or power or shall be construed as a waiver thereof,
but any such right and power may be exercised from time to time and
as often as may be deemed expedient. In the event that any breach
by the Mortgagor is specifically waived in writing by the Mortgagee,
such waiver shall be limited to the particular breach so waived and
shall not be deemed to waive any other or subsequent breach.
M. Any moneys collected by the Mortgagee pursuant to foreclosure under
this Mortgage shall be applied first to pay Mortgagee's attorney's
fees and other expenses of collection; second to any interest,
liquidated damages, and penalties due on the BED Loan; third to pay
principal due on the BED Loan; fourth to pay any other amounts due
under this Mortgage, the Loan Agreement, the Promissory Notes or the
Loan Documents; and fifth to pay principal and interest on the BED
Loan, and other amounts not yet due hereunder, as they become due,
such payments to be made in the same order as set forth in this
section.
Mortgagor will comply with all statutes, ordinances, and governmental
regulation affecting the Premises, and if Mortgagor neglects or refuses to so
comply, and such failure or refusal has not been corrected within 15 days of
receipt of written notice, the entire balance of the principal sum secured
hereby, together with all accrued interest thereon, will, at Mortgagee's sole
option, immediately become due and payable.
This Mortgage shall be governed by and construed in accordance with the
laws of the State of South Dakota. Terms used herein and defined in the Loan
Agreement shall have the same meaning as set forth in the Loan Agreement
unless the context clearly requires otherwise.
This Mortgage may not be modified or amended except by mutual consent
expressed in writing, which writing shall be expressly identified as a part
hereof, and which writing shall be signed by an authorized representative of
each of the parties hereto.
Any notice provided for herein shall be deemed given when transmitted as
provided in Section 14 of the Loan Agreement.
The covenants in this Mortgage shall be deemed to be severable; in the
event that any portion of this Mortgage is determined to be void or
unenforceable, that determination shall not affect the validity of the
remaining portions of the Mortgage.
IN WITNESS WHEREOF, this instrument has been executed the day and year
first above written.
XXXX COMPANY
__________________________________
(MORTGAGOR)
BY:/s/ Xxxxxxx X.Xxxx
Its Vice President
Title
ATTEST
BY:/s/ X.X. Xxxxxxx
Its Secretary
Title
NOTE: Corporate Borrowers must execute Mortgage, in corporate name, by
duly authorized officer, and seal must be affixed and duly attested;
Limited Liability Company Borrowers must execute Mortgage by duly
authorized Manager or by all members; Partnership Borrowers must execute
Mortgage in firm name, together with signature of an authorized general
partner.
CORPORATE ACKNOWLEDGMENT
OPTION
STATE OF WISCONSIN)
) SS
COUNTY OF Washington )
On this the 26th day of May, 1998, before me, the undersigned, personally
appeared Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxxxxx known to me to be the Vice
President and Secretary respectively, of the corporation that is described in
and that executed the within instrument, having authority to execute such
instrument and acknowledged to me that such corporation executed the same.
In witness whereof I hereunto set my hand and official seal.
/s/ Xxxxxxxx Xxxxxxxx
Notary Public
(SEAL)
Notary Print Name: Xxxxxxxx Xxxxxxxx
My Commission Expires: permanent
This document has been prepared by:
The Office of the Attorney General
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
(000) 000-0000
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Lots 1,. 2, 3, and 4, in Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxx, xxxx Xxxxxx,
Xxxxx Xxxxxx;
AND
The North 334.4 Feet except the East 177.4 Feet Thereof of Lot 9, and the
North 334.4 Feet of the W 1/2 of Lot 10, and the North 334.4 Feet of the E
1/2 of Lot 10, all in County Auditor's Fourth Addition to Madison, Lake
County, South Dakota.
EXHIBIT B
Permitted Encumbrances:
1. Real estate tax for the year 1997 in the amount of $70,141.96 is payable
but not delinquent, and real estate taxes and special assessments for
subsequent years not yet due or payable.
2. Easement to Northwestern Public Service Company, dated December 20, 1972
filed January 2, 1973 at 8:35 A.M. in Book 203 Page 274, over Lot 1 of
County Auditor's Fourth Addition to Madison, South Dakota, (which was
replated as Madison Industrial Park) for a gas line.
3. Easement dated December 17, 1979, given to City of Madison, filed
December 21, 1979 at 10:00 A.M. in book 227 Page 198, over the East 20
Feet of Xxx 0, Xxxxxxx Xxxxxxxxxx Xxxx and the East 20 Feet of the West
760 Feet of the North 334.4 Feet of Lot 10 of County Auditor's Fourth
Addition to Madison, Lake Co., SD, for utilities.
EXHIBIT E
Description of Project:
Construction of 22,400 square foot expansion onto Xxxx Company's skid steer
loader manufacturing facility in Madison, SD.
SOURCES USES
REDI $255,000 Land/Building $809,176
City of Madison $255,000 Equipment $1,428,180
Deutsche Financial
Services $1,744,348 Other Costs $267,475
Equity $250,483
TOTAL $2,504,831 TOTAL $2,504,831
