MORTGAGE - ONE HUNDRED EIGHTY DAY REDEMPTION
THIS MORTGAGE, is made this 8th day of September, l998, by XXXX COMPANY,
a Wisconsin corporation, of 000 Xxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxx 00000-
0179,("MORTGAGOR") for a project at 000 X.X. 0xx Xxxxxx, Xxxxxxx, Xxxx Xxxxxx,
Xxxxx Xxxxxx, to the CITY OF MADISON, a political subdivision of the State of
South Dakota, of X.X. Xxx 000, Xxxxxxx, Xxxxx Xxxxxx, 00000, ("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
the Mortgagor at Mortgagee's option, Mortgagor does hereby mortgage, grant,
bargain, release, assign, transfer and convey to Mortgagee the real property
and premises together with all buildings and improvements now or thereafter
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, and all crops raised or placed
thereon in the following described Premises situated in the County of Lake
and State of South Dakota, ("Premises") to-wit:
Lots One (1), Two (2), Three (3), and Four (4), in
Madison Industrial Park, Madison, Lake County, South
Dakota; and the North 334.4 Feet of Lot Nine (9), and
the North 334.4 Feet except the East 177.4 Feet of the
West Half (W1/2) of Lot Ten (10), and the North 334.4
Feet of the East Half (E1/2) of Lot Ten (10), all
in County Auditor's Fourth Addition to Madison, Lake
County, South Dakota
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 with the exception of the mortgage to the
South Dakota Board of Economic Development dated May 26, 1998 and recorded on
June 17, 1998 in Book 334 Page 127 in the office of Register of Deeds, Lake
County, South Dakota. 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
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 Morgagor as security for the following:
A. Payment by Mortgagor to the Mortgagee of the principal
sum of Two Hundred Fifty Five Thousand and no/l00
($255,000.00) Dollars, 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 FURTHER 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 by Mortgagor of all other present or future,
debts and liabilities of Mortgagor to Mortgagee of any
nature whatsoever.
Mortgagor covenants and agrees with the Mortgagee as follows:
A. To pay all taxes, assessments, rents, or governmental
or municipal 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 and 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 the Mortgagee. Each policy must 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 the Mortgagee. In the event of renewal,
replacement or changes in coverage, the Mortgagor will
promptly provide written notice of such changes to the
Mortgagee. 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,
outdated, 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 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 writen 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.
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. That 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 Morrgagee 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 therefore, 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
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 Mortgageee 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 and penalties on the Loan;
third to pay principal due on the 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 Loan, and other amounts not yet
due hereunder, as they become due, such 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 required 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 13 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
By: /s/Xxxxxxx X. Xxxx
It's Vice President
ATTEST
By: X.X. Xxxxxxx (SEAL)
It's Secretary
STATE OF Wisconsin )
: SS
COUNTY OF Washington )
On this the 8th day of September, l998, before me, Xxxxxxxx Xxxxxxxx,
the undersigned officer, personally appeared Xxxxxxx X. Xxxx and Xxxxxxx X.
Xxxxxxx, who acknowledged themselves to be the Vice President and Secretary,
respectively, of Xxxx Company, a Wisconsin corporation, and that they, as such
Vice President and Secretary, being authorized so to do, executed the same for
the purposes therein contained by signing the name of the corporation by
themselves as Vice President and Secretary thereof.
In witness whereof I hereunto set my hand and official seal.
Xxxxxxxx Xxxxxxxx
Notary Public
My commission expires: Permanent
Prepared by:
ERICSSON, ERICSSON & XXXXXX
XX Xxx 000
Xxxxxxx, XX 00000
(000) 000-0000
