Exhibit Number 10.15
MORTGAGE, SECURITY
AGREEMENT AND
FIXTURE FINANCING
STATEMENT
Recording Area
THIS MORTGAGE is given by DECADE COMPANIES INCOME PROPERTIES, A
LIMITED
PARTNERSHIP, which has its principal place of business at 250 Patrick
Boulevard, Suite 140, Brookfield, Wisconsin 53045 ("Borrower"), to ASSOCIATED
BANK MILWAUKEE, which has an office at 401 East Kilbourn Avenue, Milwaukee,
Wisconsin 53202 ("Lender").
RECITALS
A. Borrower has executed and delivered to Lender a Mortgage Note dated the
date of this Mortgage which is made payable to the order of Lender in the
stated principal amount of $9,150,000 and which bears interest until paid (the
"Note").
B. Borrower owns the real estate described on the attached Exhibit A (the
"Premises").
C. THE PREMISES ARE NON-HOMESTEAD PROPERTY.
AGREEMENTS
In consideration for the foregoing recitals, and for other good and valuable
consideration, the receipt and sufficiency of which Borrower acknowledges,
BORROWER AGREES AS FOLLOWS:
1. Obligations. Borrower grants this Mortgage to secure the obligations,
as defined below, which include but are not limited to the following:
(a) Payment of the amounts described in the Note as extended or modified
from time to time;
(b) Payment of all other sums, together with interest, as they become due
and payable to Lender under the "Loan Documents" which, for purposes of this
mortgage, include this Mortgage, the Note and all other documents which, at
any time, secure or provide evidence for Borrower's obligations under the Note
or the Mortgage or which are executed or submitted by Borrower in connection
with the loan for which the Note provides evidence, including all extensions,
modifications and renewals of such documents;
(c) Performance and discharge of each and every of Borrower's obligations,
covenants and agreements described in the Loan Documents; and
(d) All costs and expenses to collect and enforce any and all of the
Obligations, including reasonable attorneys' fees and expenses.
2. Present and Future Advances. "Obligations," as used in this Mortgage,
includes, without limitation, all of the debts, obligations and liabilities of
whatever nature or amount, as extended, renewed or modified, arising out of
credit or other financial accommodations previously granted, contemporaneously
granted or granted in the future by Lender in connection with the Note to or
at the request of Borrower, and all covenants, conditions and agreements
contained in the Loan Documents and in all other documents which provide
evidence for, secure or relate to any of the foregoing and, to the extent not
prohibited by law, costs, and expenses to collect and enforce the Obligations,
including actual attorneys' fees and costs. This Mortgage will continue to be
a lien on the Property, as defined below, while any Obligation remains unpaid,
regardless of when any Obligation arises, until such time as this Mortgage is
released or satisfied of record. Because this mortgage secures all
Obligations of Borrower to Lender, this Mortgage may secure Obligations in a
greater dollar amount than the amount set forth above. The amount set forth
above is not necessarily, at any time, the actual amount of the Obligations
due to Lender and secured by this Mortgage.
3. Grant of Mortgage. Borrower gives, grants, bargains, sells, conveys,
mortgages, warrants, pledges and confirms to Lender, to secure all of the
obligations, all of Borrower's estate, right, title and interest in and to the
following (collectively, the "Property"): (a) the Premises; (b) all
privileges, hereditaments, appurtenances, rents, leases, issues and profits
from and to the Premises; (c) all existing and future buildings, improvements,
personal property, fixtures and equipment located at or on the Premises,
including the Collateral, as defined below; and (d) all awards and payments to
which Borrower is entitled at any time from insurance or the exercise of the
right of eminent domain in connection with the Premises or the Collateral.
4. Security Agreement. This Mortgage constitutes a security agreement as
defined in the Uniform Commercial Code (the "Code"). Borrower grants to Lender
a security interest, as defined in the Code, in the property described on
Exhibit C, and all replacements and substitutions for, additions and
accessions to, and proceeds from such property (collectively, the
"Collateral").
5. Financing Statement. THIS MORTGAGE IS AND WILL BE EFFECTIVE AS A
FINANCING STATEMENT FILED AS A FIXTURE FILING for all of the Collateral that
is, or that becomes, fixtures. The fixture filing will be effective from the
date of the filing of this Mortgage in the real estate records of the county
in which the Premises are situated. Information concerning the security
interest created by this instrument may be obtained from Lender, as secured
party, as that term is used in the Code, at its address set forth in the first
Section of this Mortgage. The address of Borrower, as debtor, as that term is
used in the Code, is also set forth in the first Section of this Mortgage.
6. Representations and Warranties - Property. Borrower represents and
warrants that Borrower has clear and marketable title to the Property except
only for liens and security interests in favor of Lender and the items
described on the attached Exhibit B (collectively, the "Permitted
Encumbrances").
7. Representations and Warranties - Collateral. Borrower represents and
warrants that (a) Borrower is the true and lawful owner of the Collateral, (b)
no lien, charge, security interest or encumbrance, other than the Permitted
Encumbrances, affects or has attached to the Collateral; and (c) no financing
statement, other than financing statements in favor of Lender, which covers
any of the Collateral, is on file in any public office.
8. Covenants Regarding Collateral. Borrower covenants that (a) borrower
will not grant a security interest, or otherwise convey any interest, in any
of the Collateral to any person or entity other than Lender; (b) Borrower will
use the Collateral solely for business purposes, either for Borrower's own use
or as the equipment and furnishings leased or furnished by Borrower, as
landlord, to tenants of the Premises; (c) Borrower will keep the Collateral on
the Premises and will not remove the Collateral from the Premises without the
prior written consent of Lender; (d) Lender's remedies under this Mortgage are
cumulative and separate, and Lender's exercise of any one or more of the
remedies provided for in this Mortgage or under the Code will not be construed
as a waiver of any of Lender's other rights; (e) Lender may have the
Collateral deemed part of the Premises upon any foreclosure of the Premises;
(f) if notice to any party of the intended disposition of the Collateral is
required by law in a particular instance, such notice will be deemed
commercially reasonable if given at least 10 days prior to such intended
disposition, and Lender may give such notice by advertisement in a newspaper
accepted for legal publications either separately or as part of a notice given
to foreclose the Premises or by private notice if Lender knows of such
parties; (g) Borrower will from time to time provide Lender on request with
itemizations of all of the Collateral, and such itemizations will describe the
location of the Collateral; (h) the Collateral will be regarded as part of the
Premises at all times, for all purposes and in all proceedings (both legal and
equitable), irrespective of whether such item is physically attached to the
Premises or any such item is referred to or reflected in a financing
statement; (i) Borrower will, on demand, deliver to Lender all financing
statements and other documents which Lender requires from time to time to
establish, perfect and continue perfection of Lender's security interest in
the Collateral and to protect the priority of Lender's security interest; (j)
Borrower will give advance written notice of any proposed change in Borrower's
name, identity, principal place of business or structure and will execute and
deliver to Lender prior to or concurrently with such change all additional
financing statements and other documents which Lender requires in connection
with such change; and (k) Borrower will pay all expenses of renewing the
financing statements of record if any such financing statement will expire by
reason of statutory law prior to the termination of this Mortgage, except to
the extent caused by Lender's failure to renew any financing statement before
it lapses.
9. Replacement Of Collateral. If Borrower, in Borrower's sound
discretion, determines that any item of the Collateral has become inadequate,
obsolete, worn out, unsuitable, undesirable or unnecessary for the operation
of the Property, Borrower may, at Borrower's expense, remove and dispose of it
and substitute and install other items not necessarily having the same
function, provided that such removal and substitution will not impair the
operating utility and unity of the Premises. All substituted items will
become a part of the Premises and subject to the lien of this mortgage. Any
amounts received or allowed Borrower upon the sale or other disposition of the
removed items of Collateral will be applied first against the cost of
acquisition and installation of the substituted items.
10. Execution of Additional Documents. Borrower will from time to time
execute and deliver to Lender all other conveyances and instruments as Lender
reasonably requests to ensure that the Property is subject to the lien of this
Mortgage on the public record.
11. Taxes and Other Charges. Borrower will pay, before they become due,
all taxes, special and other assessments and other charges which are levied or
assessed at any time by virtue of any law or assessment against (a) the
Property; (b) Lender as a result of this Mortgage; (c) Lender's interest in
the Property; or (d) the Obligations. Borrower will deliver to Lender
receipts showing the timely payment of such taxes, assessments and charges
within 30 days after payment.
12. Insurance. Borrower will keep the Collateral insured against direct
loss or damage occasioned by fire, extended coverage perils and such other
hazards as Lender reasonably requires from time to time by written notice to
Borrower. Such insurance will be issued in an amount without co-insurance at
least equal to the full value of the Property. Further, Borrower will
maintain general public liability insurance with coverages and in amounts
Lender reasonably requires from time to time in writing. Finally, Borrower
will maintain rent loss insurance in an amount without co-insurance at least
equal to one year's rental income from the Property. All insurance will be
issued by insurers reasonably approved by Lender. Borrower will pay all
premiums when due. The policies will contain a mortgagee loss payee clause in
favor of Lender, in form and content reasonably acceptable to Lender, which
will identify Lender as,"mortgagee loss payee." Each insurer is authorized and
directed to make payments for loss directly to Lender unless Lender otherwise
agrees in writing. Copies of all policies covering the Property and original,
binding certificates of insurance will be deposited with Lender. Borrower
will promptly give written notice of loss to all insurers and Lender. Except
as provided in Section 14 below, all proceeds from such insurance will be
applied, at Lender's option, to either the Obligations (without prepayment
penalty or premium) or to the restoration of improvements on the Property. In
the event of foreclosure of this Mortgage or other transfer of title to the
Property, all right, title and interest of Borrower in and to any insurance
then in force will pass to the purchaser or grantee; however, Lender's
interest will not be affected by any such transfer.
13. Due on Sale. For the purpose of protecting Lender's security, and to
keep the Premises free from subordinate financing liens, except for the
Permitted Encumbrances, Borrower will not voluntarily, involuntarily or by
operation of law: (a) in any manner sell, transfer or convey, directly or
indirectly, all or any part of Borrower's rights, title, or interest in and to
the Premises, whether legal or equitable, except leases for tenant space made
in the ordinary course of Borrower's business; (b) in any manner sell,
transfer or convey, or allow any of its general partners to sell, transfer or
convey, any general partnership interests in Borrower; (c) issue any general
partnership interests to any person, persons, entity or entities so as to
change the now existing proportionate ownership and control interests of the
existing general partners of Borrower; or (d) obtain any financing which, or
any part of which, will be secured by all or any part of the Property or by a
lien against or assignment of any general partnership interest of Borrower.
The occurrence of any such event without the prior written consent of Lender
will be an Event of Default, as defined in Section 17. Borrower will
reimburse Lender for all costs and expenses, including, without limitation,
reasonable attorneys' fees, incurred by Lender in connection with the review
of Borrower's request for Lender's consent to a sale or other transfer or to
encumber further all or any part of the Premises, any interest in this
Mortgage or any general partnership interest in Borrower. Without limiting
the generality of the foregoing, the occurrence at any time of any of the
following events without the prior written consent of Lender will be an
unpermitted transfer of title to the Premises and an Event of Default, as
defined in Section 17:
(1) Sale, installment sale, conveyance, assignment or other transfer of,
or the creation of a security interest in or encumbrance of, all or any part
of the legal or equitable title to the Property;
(2) Sale, installment sale, conveyance, assignment, or transfer of, or the
creation of a security interest in or encumbrance of, any general partnership
interest in Borrower.
No consent by Lender to any action described in this Section, or waiver by
Lender of any Event of Default, will constitute a consent to, or a waiver of,
any right, default or power of Lender upon a subsequent default. Except as
set forth in this Mortgage, Lender will not be required to consent to any
transfer of any of the above interests, and Lender may require Borrower to pay
the entire unpaid balance of the Obligations with accrued interest upon the
occurrence of any such transfer.
14. Condemnation and Insurance Proceeds. In Lender's sole discretion,
condemnation and insurance proceeds will be either applied to the outstanding
principal balance of the Obligations or used to repair any damage to the
Property. Notwithstanding the foregoing, if the cost of repairing the damage
to the Property is less than 50% of the cost of replacement of all of the
Property, or if less than one-third of the leasable area of the improvements
on the Property are condemned or taken by eminent domain, Lender agrees to
make the insurance proceeds or condemnation award available to the restoration
or repair of the improvements on the Property, provided:
(a) The improvements can be rebuilt to be substantially similar to those
originally financed and can, with the restoration and repair, continue to be
operated for the purpose utilized prior to such damage or taking;
(b) No Event of Default, as defined below, exists or would exist upon the
giving of notice or the passage of time or both;
(c) The appraised value of the Property after such restoration or repair
will not have been reduced from its appraised value as of the date of this
Mortgage; and
(d) Tenants under leases of the Property are acceptable to Lender and
provide for sufficient gross annual fixed rental income to cover all annual
operating expenses of the Property, including payment of all principal and
interest under the Note, and such tenants are obligated to occupy the Property
without any abatement or adjustment of rental payments (other than temporary
abatements during the period of restoration and repair).
Any restoration or repair will be done under the supervision of an architect,
engineer or contractor reasonably acceptable to Lender and pursuant to
specifications reasonably approved by Lender. Insurance proceeds and
condemnation awards urged to repair or restore the Premises will be held by
Lender for such purposes and will from time to time be disbursed to defray the
costs of such restoration or repair under such safeguards and controls as
Lender reasonably requires to assure completion in accordance with the
approved plans and specifications and free of liens or claims. Borrower will,
upon demand, deposit with Lender any sums necessary to makeup any deficiency
between the actual costs of the work and the amount of proceeds and will
provide such lien waivers as Lender reasonably requires.
15. Hazardous Materials. Any terms used in this Section which
are defined in federal, state or local statutes or regulations will have the
meanings ascribed to such terms in said statutes and regulations.
(a) Representations by Borrower. Except as disclosed in the environmental
assessment report on the Property prepared by RMT, Inc. dated June, 1988,
Borrower represents to Lender that:
(1) to Borrower's actual knowledge, the Property has never been used
either by previous owners or occupants or by Borrower or current occupants to
generate, manufacture, refine, transport, treat, store, handle or dispose of
any toxic material, hazardous substance or hazardous waste and no such
material, substance or waste currently exists on the Property or in its soil
or groundwater in violation of applicable environmental laws;
(2) to Borrower's actual knowledge, no portion of the improvements on the
Property has been constructed with asbestos, asbestos-containing materials,
urea formaldehyde insulation or any other chemical or substance which has been
determined to be a hazard to health or the environment;
(3) to Borrowers actual knowledge, there are no electrical transformers or
other equipment which have dielectric fluid-containing polychlorinated
biphenyls (PCB's) located in, on or under the Property (the materials,
substances and wastes described in Subsections (1), (2) and (3) are sometimes
collectively referred to as "Hazardous Wastes and Substances");
(4) to Borrower's actual knowledge, the Property has never contained
any underground storage tanks; and
(5) Borrower has neither received nor does it have any actual knowledge of
any summons, citation, directive, letter or other communication, written or
oral, from any federal, state or local governmental authority concerning the
existence of Hazardous Wastes and Substances on the Premises or in the
immediate vicinity of the Premises, or any intentional or unintentional action
or omission on the part of Borrower or any occupant of the Property resulting
in the disposal, releasing, spilling, leaking, pumping, pouring, emitting,
emptying or dumping of Hazardous Wastes or Substances onto the Property or
into waters or other lands in violation of applicable environmental laws.
(b) Environmental Covenants. Borrower covenants to Lender that:
(1) Borrower will comply and will cause all occupants of the Property to
comply in all material respects with all federal, state and local laws,
rules, regulations and orders with respect to the use, discharge, generation,
removal, transportation, storage and handling of Hazardous Wastes and
Substances; immediately remove or remediate to the standards required by
applicable environmental laws any Hazardous Wastes and Substances discovered
on the Property in violation of applicable environmental laws; and pay or
cause to be paid all costs associated with such removal;
(2) Borrower will keep the Property free of any lien imposed pursuant to
any federal, state or local law, rule, regulation or order in connection with
the existence of Hazardous Wastes and Substances on the Property;
(3) Borrower will not install or permit to be installed or to exist in
violation of applicable environmental laws in or on the Property any asbestos,
asbestos-containing materials, urea formaldehyde insulation or any other
chemical or substance which has been determined to be a hazard to health or
the environment; and
(4) Borrower will not cause or permit to exist, as a result of an
intentional or unintentional act or omission on the part of Borrower or any
occupant of the Property, a releasing, spilling, leaking, pumping, emitting,
pouring, emptying or dumping of any Hazardous Wastes or Substances onto the
Property or into waters or other lands in violation of applicable
environmental laws.
(c) Events of Default and Remedies. As used in this Mortgage, any one or
more of the following will constitute an "Event of Default" (in addition to
Events of Default defined elsewhere in this Mortgage), and Lender will be
entitled to exercise all remedies available to it under this Mortgage:
(1) Any of Borrower's representations contained in Section 15(a) prove to
be materially false, inaccurate or misleading.
(2) Borrower fails to comply with the covenants contained in Section 15(b)
and Borrower fails to commence and diligently pursue such actions as are
necessary to cure such failure.
(3) Any Hazardous Wastes or Substances are found at any time to exist on
the Property or in its soil or groundwater in violation of applicable
environmental laws, and Borrower fails to commence and diligently pursue such
actions as are necessary to remove or remediate to the standards required by
applicable environmental laws such Hazardous Wastes or Substances from the
Property.
(4) Any summons, citation, directive, letter or other communication,
written or oral, will be issued by any federal, state or local governmental
authority concerning any matter described in Section 15 (a) (5), and Borrower
fails to cure the cause of such communication during the lesser of the period
described in Section 17 (d) or the period described in such communication.
Borrower grants Lender and Lender's employees and agents an irrevocable and
nonexclusive license to enter the Property, subject to rights of tenants, in
order to inspect, test and, if Borrower fails to do so, remove Hazardous
Wastes and Substances. All costs of such inspections, tests and removal will
immediately become due and payable to Lender, will be secured by this Mortgage
and will constitute Obligations secured by this Mortgage.
(d) Indemnification. Borrower will defend, indemnify and hold harmless
Lender and Lender's employees, agents, successors and assigns (the
"Indemnified Parties") from and against any and all claims, losses, damages,
liabilities, judgments, costs and expenses (including, without limitation,
reasonable attorneys' and consultants' fees and costs incurred in the
investigation, defense and settlement of claims) incurred by the Indemnified
Parties as a result of or in connection with the presence or removal of any
Hazardous Wastes or Substances on the Property which are in violation of
applicable environmental laws, or as a result of or in connection with
activities prohibited under this Section. Borrower will bear, pay and
discharge, as and when they become due and payable, any and all judgments or
claims for damages, penalties or other amounts for which the Indemnified
Parties become liable, will hold the Indemnified Parties harmless against all
claims, losses, damages, liabilities, costs and expenses, and will assume the
burden and expense of defending all suits, administrative proceedings, and
negotiations of any description with any and all persons, political
subdivisions or government agencies arising out of any of the events and
occurrences described in this Section. This indemnification is a separate
agreement of Borrower, which will survive any termination, satisfaction or
foreclosure of this Mortgage or the acceptance of a deed in lieu of
foreclosure.
16. Additional Covenants. Borrower covenants:
(a) Payment and Performance. To pay all sums due under the Loan Documents
when and as they become due and payable in accordance with the terms of the
Loan Documents, and to comply with and carry out all of Borrower's covenants
and agreements set forth the Loan Documents.
(b) [Intentionally omitted]
(c) Condition and Repair. To keep the Property in good usable condition
and repair, to restore or replace damaged or destroyed improvements and
fixtures, and to pay all bills for repairs and any and all expenses related to
the Property so that no lien may be created against the Property, and to
exhibit upon demand, at Lender's office, evidence of such payment.
(d) Liens. To keep the Property free from all liens and encumbrances
except the lien of this Mortgage and any exceptions set forth in Exhibit B.
(e) Waste. Not to commit or permit waste upon the Property or do or
permit any act which would weaken, diminish or impair the Property.
(f) Alteration or Removal. Not to remove, demolish, or materially alter
any part of the Property without Lender's prior written consent, which consent
will not be unreasonably withheld or delayed, except Borrower may, without
prior consent, remove a fixture provided the fixture is promptly replaced with
another fixture of at least equal utility and quality. Lender acknowledges
Borrower' s plan to divide the building or buildings on the Premises into
individually leased tenant spaces.
(g) Condemnation. To pay Lender all compensation received for any taking
by condemnation proceedings of (including payments in compromise) and damages
for any injury to all or part of Property. Such compensation will be applied
as Lender determines to rebuild the Property or to reduce Obligations (without
prepayment penalty or premium), except as provided in Section 14.
(h) Ordinances and Inspection. To comply with all laws, ordinances and
regulations that affect the Property. Borrower will permit Lender and
Lender's authorized representatives to enter the Property at reasonable times
to inspect the Property and, at Lender's option, but at Borrower's expense, to
repair or restore the Property if Borrower fails to do so within 30 days after
written notice from Lender, or such shorter period as will be required in the
event of an emergency.
(i) Subrogation. That Lender is subrogated to all rights, remedies,
claims and liens of any person or Obligor satisfied in whole or part from any
portion of the proceeds of any Obligation. Lender is also subrogated to the
lien of any mortgage, other lien or security interest discharged in whole or
in part by any portion of the proceeds of any Obligation.
(j) Financial Reporting. Within 120 days after the end of each of
Borrower's fiscal years during the Loan Term, Borrower, each guarantor of the
Obligations (if any) and, if Borrower is a partnership, each of Borrower's
general partners, will furnish to Lender certified financial statements
(including a balance sheet and income statement) and certified copies of their
federal income tax returns for the preceding year. Within 30 days after the
end of each calendar quarter, Borrower will provide to Lender (a) a certified
rent roll for the improvements on the Premises and (b) certified operating
statements for such improvements which include at least gross income (itemized
as to source), operating expenses (itemized), depreciation charges and net
income before and after federal taxes. Lender may require, in its reasonable
discretion, Borrower to provide such rent rolls, financial statements and
operating statements to Lender more frequently. If the financial statements
and operating statements are not prepared in accordance with generally
accepted accounting principles consistently applied, or if Lender is not
provided with such documents or the rent rolls when required, Lender will have
the right to audit the applicable books and records at Borrower's expense.
Such documents shall be in form reasonably satisfactory to Lender. As used in
this Subsection 16(j), a document is "certified" if Borrower (if Borrower is
one or more individuals), a general partner, member or officer of Borrower (if
Borrower is an entity), a certified public accounting firm engaged by Borrower
or Borrower's property manager executes a statement that states that the
document is true and correct and which is part of or appended to the
document. If such statement is executed by a certified public accounting firm
or Borrower's property manager, it shall be deemed to be made by Borrower.
17. Events of Default. As used in this Mortgage, any one or more of the
following will constitute an "Event of Default" (in addition to Events of
Default defined elsewhere in this Mortgage):
(a) A failure by an Obliger to make any payment Obligation when due which
is not cured after any required notice and before the expiration of any
applicable grace period described in any document which secures or provides
for such Obligation.
(b) An Obligor makes a representation or warranty in the Loan Documents,
or elsewhere, to Lender which is false or misleading in any material respect
when made, or if any such representation or warranty made prior to or
contemporaneously with the execution and delivery of this Mortgage proves
untrue or misleading in any material respect.
(c) Any Obligor or a surety for any Obligation dies or ceases to exist.
(d) Borrower fails to observe or perform or breaches any of the covenants
or agreements contained in this Mortgage and such failure or breach remains
uncured for 30 days after written notice to Borrower, provided that if the
nature of the failure or breach would reasonably take longer than 30 days to
cure, Borrower shall have such additional time as reasonably necessary to cure
the failure or breach, provided Borrower completes the cure with reasonable
diligence.
(e) The breach of any term in any other of the Loan Documents or other
agreement by an Obligor to Lender which is not cured within any applicable
cure period specified in such agreement.
(f) A material default by Borrower, as landlord, under leases of a
material part of the Property which is not cured within 30 days after written
notice from Lender to Borrower, provided that if the nature of the default
would reasonably take longer than 30 days to cure, Borrower shall have such
additional time as reasonably necessary to cure the default, provided Borrower
completes the cure with reasonable diligence.
(g) Any Obligor (1) makes a general assignment for the benefit of
creditors; (2) admits in writing its, his or her inability to pay debts as
they become due; (3) files a petition by which it, he or she becomes the
subject of bankruptcy or insolvency proceedings; (4) is adjudicated bankrupt
or insolvent; (5) files a petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any present or future statute, law or regulation; (6) files an answer
admitting or fails to contest the material allegations of a petition against
it, him or her in any such proceeding; (7) seeks, consents to or acquiesces in
the appointment of any trustee, receiver or liquidator for such Obligor or any
material part of its, his or her properties; (8) discontinues its, his or her
business as a going concern; (9) is charged with a felony or any serious
crime; or (10) suspends its, his or her business.
(h) Any involuntary proceeding is filed against an Obligor which seeks any
reorganization, bankruptcy, arrangement, composition, readjustments,
liquidation, dissolution, receivership or similar relief under any present or
future statute, law or regulation.
(i) Any breach of Section 13 of this Mortgage.
18. Acceleration and Remedies. Upon the occurrence of an Event of Default,
all obligations secured by this Mortgage, including all amounts which may be
or have been advanced by Lender to protect the security of this Mortgage
("Advances") will, at the option of Lender and without notice, which Borrower
expressly waives, be immediately due and payable. Lender may enforce or
collect such Obligations and Advances in any manner and by the exercise of any
remedy available at law or equity now existing or existing at the time of the
Event of Default or enforcement including, without limitation, through a suit
at law or by a foreclosure of this Mortgage. The judgment or decree in any
suit brought to foreclose this Mortgage may include, in the sole discretion of
Lender, all of the Obligations, including default interest at the applicable
default interest rates described in the Note or other documents which provide
evidence for the Obligations.
Further, Lender will, with respect to any part of the Property which
constitutes property of the type governed by the Code, have all rights,
options and remedies of a secured party under the Code including, without
limitation, the right to the possession of all or part of any such property,
and the right to enter, without legal process, any premises where any such
property may be found. Any requirement of the Code for reasonable
notification will be met by mailing written notice to Borrower at Borrower's
last known address at least 10 days prior to the sale or other event for which
such notice is required. The expenses of retaking, selling and otherwise
disposing of such property, including reasonable attorneys' fees and legal
expenses, will constitute Obligations and will be payable upon demand with
interest at the interest rate applicable to the Note at the time the expense
is incurred.
19. Authority of Lender to Perform for Borrower. If Borrower fails to
perform any of the covenants or duties set forth in this Mortgage, Lender may,
after written notice and expiration of the applicable cure period except in
case of emergency, perform or cause them to be performed by, without
limitation, signing Borrower's name; and any amounts paid by Lender pursuant
to this Section will bear interest at the appropriate default interest rate
computed from the date of Lender's expenditure to date of Borrower's repayment
and be secured by this Mortgage. Borrower will repay on demand any such
amounts paid by Lender. Lender has no duty to inquire as to the validity of
any tax, assessment, or other claim or expense against Property, and a receipt
for payment of any such amount will be conclusive of the validity and amount
of such claim or expense, provided Lender acts as a reasonable mortgagee would
act.
20. [Intentionally omitted]
21. Power of Sale. In the event of foreclosure, Lender may cause the
Property to be sold at public sale and cause the execution and delivery to the
purchaser of one or more deed of conveyance pursuant to applicable law.
22. Waiver. Lender may waive any default without waiving any other
subsequent or prior default by Obligor. No failure or delay of Lender to
exercise any right under this Mortgage will operate as a waiver of such
right; and no single or partial exercise by Lender of any such right will
preclude any other or further exercise of such right or the exercise of any
other right. The remedies described in this Mortgage are cumulative and not
exclusive of any remedies provided by law.
23. Receiver. Upon the commencement or during the pendency of an action
to foreclose this Mortgage or enforce any other remedies of Lender, and
without regard to the adequacy or inadequacy of the Property as security for
the Obligations, whether or not waste is being committed or occurring, Lender
may seek and the Court may appoint a receiver of the Property (including any
homestead interest) to serve without bond and take possession of the Property
and collect the Property's rents, issues and profits and all payments required
to be made pursuant to or by virtue of any lease, to hold and apply such funds
received as directed by the court, and to exercise such other powers as may be
granted until the receivership will cease.
24. Assignment of and Entitlement to Rents and Leases. As additional
security for the Obligations, Borrower assigns, sells, transfers, demises and
sets over to Lender all rents, issues and profits arising from the Property
(collectively, "Rents") now or hereafter due under or by virtue of any lease,
whether written or verbal, or any letting of, or any agreement for the use or
occupancy of any part of the Property (collectively, "Leases"). After the
occurrence of an Event of Default, Lender may, at its sole option without any
prior approval of Borrower, notify any or all tenants to pay all Rents
directly to Lender. Lender may apply Rents, in its sole discretion and
without regard to priority of application, to payment of taxes, insurance
premiums, operating expenses, attorneys' and accountant's fees and expenses,
and on the principal and interest of the Obligations, after deduction of a
reasonable fee for services rendered in collection of Rents and management of
the Property. This assignment will continue until all Obligations secured by
this Mortgage have been fully paid and satisfied. The foregoing assignment
will be deemed a present and immediate assignment of Rents and rights under
Leases, provided Borrower will have the right to collect Rents and the benefit
of all rights under Leases until an Event of Default of this Mortgage occurs.
Lender will be entitled to all Rents and Leases pertaining to the Property
immediately upon any Event of Default by Borrower in complying with any term
or requirement of this Mortgage. Lender is not required to take any action to
be entitled to all Rents and Leases pertaining to the Property.
25. Foreclosure without Deficiency Judgment. If the Property is a one to
four family residence that is owner occupied at the commencement of a
foreclosure, a farm, a church, or owned by a tax exempt charitable
organization, Borrower agrees to the provisions of Wisconsin Statutes Section
846.101, as amended or renumbered from time to time, permitting Lender, upon
waiving the right to judgment for deficiency, to hold the foreclosure sale of
such real estate of 20 acres or less six months after a foreclosure judgment
is entered. If the Property is not one of the types described in the
preceding Section, Borrower agrees to the provisions of Wisconsin Statutes
Section 846.103, as amended or renumbered from time to time, permitting
Lender, upon waiving the right to judgment for deficiency, to hold the
foreclosure sale of such real estate three months after the entry of a
foreclosure judgment. Lender is also entitled to all remedies, without
limitation, permitted by law which exists either on the date of this Mortgage
or at the time of the default.
26. Costs, Expenses and Attorneys' Fees. In case of a default, regardless
whether such default is abated or cured, and except as otherwise provided in
any document which provides evidence for any related Obligation, to the extent
not prohibited by law, all of Lender's expenses for purposes of collection,
including reasonable attorney's fees, and all costs and disbursements if legal
action is necessary, and all reasonable expenses of Lender including, without
limitation, title evidence, surveys, appraisals, travel expenses and insurance
will be added to the Obligations, and will become due as incurred and be
included in any judgment. If Lender is challenged in any manner or Lender is
named in any action, proceeding or lawsuit for any reason involving Borrower,
any Obligor or the Property, Borrower and the Obligors will immediately, upon
request of Lender, pay to Lender all reasonable expenses of every kind that
pertain to such matter including, without limitation, Lender's reasonable
attorneys' fees, costs, disbursements and expenses. Such sums will be added
to the Obligations and become due as incurred, and may be included in any
judgment.
27. Consent to Jurisdiction; Waiver of Jury Trial. Borrower, for Borrower
and for all Obligors, to the extent that each may do so, consents to the
jurisdiction of the courts of the State of Wisconsin situated in the county in
which the Premises are located and the United States District Court for the
Eastern District of Wisconsin for the purpose of any suit, action or other
proceeding arising out of any of the Obligations or the terms or provisions of
the Loan Documents, and expressly waives any and all objections that Borrower
or any Obligor may have as to venue in any of such courts. TO THE EXTENT
PERMITTED BY LAW, BORROWER, FOR BORROWER AND FOR ALL OBLIGORS,
WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION BROUGHT WITH RESPECT TO ANY
OR ALL OF
THE LOAN DOCUMENTS, INCLUDING WITHOUT LIMITATION THIS MORTGAGE
AND THE NOTE.
28. Additional Provisions.
(a) Word Form. Wherever the context of their usage permits, words in
singular form will include the plural form and words in plural form will
include the singular form with no distinction between gender.
(b) Severability and Cumulative Remedies. Invalidity or unenforceability
of any provision of this Mortgage will not affect the validity or
enforceability of any other provisions. The rights and remedies granted to
Lender in this Mortgage are cumulative, and are in addition to the remedies
granted by law.
(c) Obligors, Successors and Assigns. This Mortgage benefits Lender and
Lender's successors and assigns, and binds Borrower and all Obligors and their
respective heirs, personal representatives, successors, assigns, trustees and
receivers.
(d) Applicable Law. This Mortgage will be governed and interpreted by the
laws of the State of Wisconsin, except that the substantive law of the state
in which the Property is located will govern the procedural aspects of a
foreclosure of this Mortgage and attachment of the liens granted by this
Mortgage.
(e) Captions. The captions will not be deemed to be fully inclusive of
all provisions in any captioned Section, and are included for reference
purposes only.
(f) Notices. All notices given to Borrower under this Mortgage will be
deemed given upon receipt by Borrower, or any general partner of Borrower, or
if mailed by registered or certified mail, return receipt requested, upon
mailing, or if transmitted by a recognized courier service, upon delivery to
such courier addressed to Borrower at Borrower's address set forth above.
(g) Exhibits. All exhibits attached to this Mortgage are incorporated in
this Mortgage by reference.
(h) Nonrecourse Provisions. Borrower's obligations under this Mortgage
are subject to certain nonrecourse provisions set forth in the Note, which
provisions are incorporated in this Mortgage by reference.
Dated September 30, 1998.
BORROWER:
DECADE COMPANIES INCOME PROPERTIES, A LIMITED PARTNERSHIP
By:Decade Companies, a Wisconsin general partnership, General Partner
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber,
General Partner
By: Decade 80, Inc., a Wisconsin
Corporation, General Partner
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber,
President
ACKNOWLEDGMENT
STATE OF WISCONSIN
ss
COUNTY OF MILWAUKEE
This instrument was acknowledged before me September 30, 1998 by Jeffrey
Keierleber, as a General Partner of Decade Companies, a Wisconsin general
partnership and as President of Decade 80, Inc. as the other General Partner
of Decade Companies, the sole general partner of Decade Companies Income
Properties, a Limited Partnership, on behalf of such limited partnership.
/s/ John C. Hoffman
John C. Hoffman
Notary Public, State of Wisconsin
My commission expires: 7-1-2001
Drafted by Douglas G. French
Mallery & Zimmerman, S.C.
Suite 900
731 North Jackson Street
Milwaukee, Wisconsin 53202
Attachments:
Exhibit A - Legal Description
Exhibit B - Permitted Encumbrances
Exhibit C - Personal Property
EXHIBIT A
LEGAL DESCRIPTION
PARCEL A:
Lot One (1) of Certified Survey Map No. 2982 recorded in the Dane County
Register of Deeds Office in Volume 11 of Certified Survey Maps, page 399, as
Document No. 1593404, in the City of Madison, Dane County, Wisconsin.
PARCEL B:
Lot Two (2) of Certified Survey Map No. 1872 recorded in the Dane County
Register of Deeds Office in Volume 7 of Certified Survey Maps, page 312, as
Document No. 1450832, in the City of Madison, Dane County, Wisconsin.
PARCEL C:
Lots Two (2) and Three (3) of Certified Survey Map No. 2982 recorded in the
Dane County Register of Deeds Office in Volume 11 of Certified Survey maps,
page 399, as Document No. 1593404, in the City of Madison, Dane County,
Wisconsin.
EXHIBIT B
Permitted Encumbrances
1. General and special taxes for the year 1998 and subsequent years, not
yet due or payable.
2. Lack of access to Highway 30 as set forth on Certified Survey Map No.
1872, recorded as Document No. 1450832.
3. Limitation on access across the captioned premises as set forth on
Certified Survey Map No. 1872, recorded as Document No. 1450832.
4. Building setbacks across the captioned premises as shown on Survey
prepared by Arnold and O'Sheridan, Inc., dated October 26, 1989, Job No.
89406-2-1.
5. Recreational easement agreement and conditions contained in instrument
recorded on November 27, 1989, in Volume 13583 of Records, page 64, as
Document No. 2173698.
6. 25 foot private ingress-egress easement as set forth on Certified
Survey Map No. 2982, recorded as Document No. 1593404.
7. 8 foot wide ingress egress easement to city as set forth on Certified
Survey Map No. 2982, recorded as Document No. 1593404.
8.42 foot building setback line across the captioned premises as set forth on
Certified Survey Map No. 2982, recorded as Document No. 1593404.
9. 15 foot public sanitary sewer easement across the captioned premises as
set forth on Certified Survey Map No. 2982, recorded as Document No. l593404.
10. 15 foot private sanitary sewer easement across the captioned premises
as set forth on Certified Survey Map No. 2982, recorded as Document No.
1593404.
11.6 and 12 foot Utility easements across the captioned premises as set forth
on Certified Survey Map No. 2982, recorded as Document No. 1593404.
12. Conditions and Restrictions shown as 'Notes" set forth on Certified
Survey Map No. 2982, recorded as Document No. 1593404.
13. Access restriction as set forth on Certified Survey Map No. 2982,
recorded as Document No. 1593404.
14. Easement Declaration recorded on September 26, 1978, in Volume 997 of
Records, page 299, as Document No. 1593405, and re-recorded on April 14, 1980,
in Volume 1850 of Records, page 4, as Document No. 1662733.
First Amendment to Easement Declaration recorded on November 27, 1989, in
Volume 13583 of Records, page 62, as Document No. 2173697.
15.Right of Way Grant - Underground Electric to Madison Gas and Electric Co.,
recorded on December 19, 1978, in Volume 1024 of Records, page 15, as Document
No. 1604565.
16. Right of Way Grant - Gas Main to Madison Gas and Electric Co.,
recorded on December 19, 1978, in Volume 1024 of Records, page 16, as Document
No. 1604566.
17. Declaration of Covenants, Restrictions and Easements recorded on
October 10, 1977, in volume 870 of Records, page 233, as Document No. 1542750;
Restated Declaration of Covenants, Restrictions and Easements recorded on
November 14, 1979, in Volume 1350 of Records, page 22, as Document No.
1648618.
18. Right of Way Grant - Gas Main to Madison Gas and Electric Co.,
recorded on August 1, 1979, in Volume 1084 of Records, page 31, as Document
No. 1633047.
19. Right of Way Grant - Gas Main to Madison Gas and Electric Co.,
recorded on December 28, 1979, in Volume 1508 of Records, page 51, as Document
No. 1653241.
20. Right of Way Grant - Underground Electric to Madison Gas and Electric
Co., recorded on April 25, 1980, in Volume 1874 of Records, page 83, as
Document No. 1663774.
21. Right of Way Grant - Underground Electric to Madison Gas and Electric
Co., recorded on June 19, 1980, in Volume 1990 of Records, page 89, as
Document No. 1668671.
22. Terms, conditions and provisions contained in Laundry Lease dated
September 1, 1997, as disclosed in Memorandum of Laundry Room Lease by and
between DECADE COMPANIES INCOME PROPERTIES, a Wisconsin Limited Partnership
and COMMERCIAL LAUNDRY CORP., recorded on September 22, 1997, as Document No.
2890797.
23. Encroachment of timber retaining wall onto adjoining property as shown
on Survey prepared by Warzyn Engineering, dated December 12, 1988, Job No.
C13641.
24. Rights of existing tenants under unrecorded leases.
EXHIBIT C
PERSONAL PROPERTY
All of Borrower's equipment, goods, fixtures, improvements, building supplies,
materials and personal property now or hereafter attached to, located in, or
placed in the improvements on the real estate described in Exhibit A,
including, but not limited to, (a) all machinery, fittings, fixtures,
apparatus, equipment and articles used to supply heat, gas, electricity, air
conditioning, water, light, waste disposal, power refrigeration, ventilation
or fire or sprinkler protection, (b) elevators, escalators, overhead cranes,
hoists and assists and similar machinery and equipment, (c) all furniture,
furnishings, supplies, draperies, maintenance and repair equipment, floor
coverings, screens, storm windows, blinds, awnings, appliances, maintenance
equipment and supplies, shrubbery and plants, (d) all appliances, including
refrigerators, stoves, microwave ovens, dishwashers, garbage disposals, trash
compactors and similar appliances, (e) renewals, replacements, proceeds,
additions, accessories, increases, parts, fittings, insurance payments, awards
and substitutes for any of the above-described property, and (f) all interest
of Borrower in any of the above-described property hereafter acquired; but
excluding the trade fixtures, inventory and removable personal property of any
tenant or licensee of the real estate. The enumeration of any specific
articles of property will in no way be held to exclude any items of property
not specifically enumerated. The Collateral also includes all rents, issues
and profits and security deposits arising from the above-described real and
personal property, and all accounts held by Lender including, but not limited
to, all escrow accounts for the payment of: real estate taxes and assessments;
insurance premiums; or repairs, replacements or improvements to the real or
personal property.
Document Number
Name and Return Address
Douglas G. French
Mallery & Zimmerman, S.C.
Suite 900
731 North Jackson Street
Milwaukee, Wisconsin 53202