EXHIBIT 10.5
THIS INSTRUMENT PREPARED BY AND TO BE
RETURNED TO:
SEAN P. KENNEDY, ESQ.
PORTES, SHARP, HERBST, KRAVETS & FOX, LTD.
333 West Wacker Drive, Suite 500
Chicago, Illinois 60606
(312) 372-1555
MORTGAGE FOR ADJUSTABLE INTEREST RATE LOAN
THIS MORTGAGE FOR ADJUSTABLE INTEREST RATE LOAN ("Mortgage")
is made this 22nd day of November, 1989, between DECADE COMPANIES
INCOME PROPERTIES - A LIMITED PARTNERSHIP, a Wisconsin limited
partnership, whose address is Brookfield Lakes Corporate Center,
18000 West Sarah Lane, Brookfield, Wisconsin 53005 ("Mortgagor"),
and HOME SAVINGS OF AMERICA, F.A., a federally chartered savings
and loan association, whose address is P.O. Box 7075, Pasadena,
California, 91109-7075 ("Lender").
WITNESSETH: Mortgagor hereby grants, conveys and mortgages
to Lender the real property legally described on the legal
description rider attached hereto as Exhibit A, which real
property is located in Madison, Dane County, Wisconsin; together
with all interest which Mortgagor now has or may hereafter
acquire in or to said real property, and in and to: (a) all
easements and rights of way appurtenant thereto, and all
heretofore or hereafter vacated alleys and streets abutting said
real property; (b) all buildings, structures, tenements,
improvements, fixtures and appurtenances now or hereafter placed
thereon, including, but not limited to, all fixtures, apparatus,
machinery, equipment, engines, boilers, incinerators, building
materials, appliances and goods of every nature whatsoever now or
hereafter located in, or on, or used, or intended to be used in
connection with said real property, including, but not limited
to, those for the purposes of supplying or distributing air
cooling, air conditioning, gas, electricity, water, air,
refrigeration, ventilation, laundry, drying, dishwashing, garbage
disposal and other services; and all related machinery and
equipment, fire prevention and extinguishing apparatus, security
and access control apparatus, plumbing, bathtubs, water heaters,
water closets, sinks, ranges, stoves, refrigerators, dishwashers,
disposals, washers, dryers, awnings, storm windows, storm doors,
screens, blinds, shades, curtains and curtain rods, mirrors,
PROPERTY STREET ADDRESS: 237-293 and 301-417 North Thompson
Drive, Madison, Wisconsin
PERMANENT TAX PARCEL NUMBER(S): 0710-032-1503-7
0710-032-1502-9
cabinets, panelling, rugs, attached floor coverings, furniture,
pictures, antennae, trees and plants, and pool equipment, it
being intended and agreed that such items, including replacements
and additions thereto be conclusively deemed to be affixed to and
be part of the real property that is conveyed hereby; (c) all
cabinets, shelving, furniture, displays, lights, machinery and
other trade fixtures attached or otherwise installed on said real
property used for a trade or business, it being intended and
agreed that such items, including replacements and additions
thereto, be conclusively deemed to be affixed to and be part of
the real property that is conveyed hereby; (d) all royalties,
minerals, oil and gas rights and profits, water and water rights
(whether or not appurtenant) owned by Mortgagor and shares of
stock pertaining to such water or water rights, ownership of
which affects said real property; (e) the rents, income, issues,
and profits of all properties covered by this Mortgage; and (f)
all accounts, accounts receivable, chattel paper, insurance
claims, condemnation awards, general intangibles, contract
rights, instruments, documents and other rights of Mortgagor
arising out of or related to Mortgagor's ownership of such
property, all of which is collectively referred to herein as the
"Property." Mortgagor agrees to execute and deliver, from time
to time, such further instruments as may be requested by Lender
to confirm the lien of this Mortgage on any such Property.
Mortgagor absolutely and irrevocably grants, transfers and
assigns to Lender the rents, income, issues, and profits of all
Property covered bs this Mortgage.
FOR THE PURPOSE OF SECURING:
(1) The payment of the sum of FOUR MILLION ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($4,100,000.00), together
with interest thereon, according to the terms of a
certain Promissory Note Adjustable Interest Rate
("Note") of even date herewith made by Mortgagor
payable to Lender or order, and all modifications,
extensions or renewals thereof:
(2) The payment of such sums as may be incurred, paid out,
or advanced by Lender, or may otherwise be due to
Lender, under any provision of this Mortgage or said
Note and all modifications, extensions or renewals
hereof or thereof;
(3) The performance of each agreement of Mortgagor
contained herein or incorporated herein by reference or
contained in any papers executed by Mortgagor relating
to the loan secured hereby;
(4) The performance, if the loan secured hereby or any part
thereof is for the purpose of constructing improvements
on the Property, of each provision or agreement of
Mortgagor contained in any construction loan agreement
or other agreement between Mortgagor and Lender
relating to such Property;
(5) The performance and keeping by Mortgagor of each of the
covenants and agreements required to be kept and
performed by Mortgagor pursuant to the terms of any
lease and any and all other instruments creating
Mortgagor's interest in or defining Mortgagor's right
in respect to the Property:
(6) Compliance by Mortgagor with each and every monetary
provision to be performed by Mortgagor under any
Declaration of Covenants, Conditions and Restrictions
pertaining to the Property or any Declaration of
Condominium Ownership and upon written request of
Lender, the enforcement by Mortgagor of any covenant to
pay maintenance or other charges:
(7) The performance of all agreements of Mortgagor to pay
fees and charges to Lender whether or not herein set
forth; and
(8) The payment of charges, as allowed by law when such
charges are made, for any statement regarding the
obligation secured hereby.
It is expressly understood that there are no agreements for any
future advances under this Mortgage.
TO PROTECT THE SECURITY OF THIS MORTGAGE, MORTGAGOR AGREES:
(1) Construction of Improvements. To complete in good and
workmanlike manner any building or improvement or
repair relating thereto which may be begun on such
Property or contemplated by the loan secured hereby, to
pay when due all costs and liabilities incurred
therefor, and not to permit any mechanic's lien against
the Property, nor any stop notice against any loan
proceeds. Mortgagor also agrees, anything in this
Mortgage to the contrary notwithstanding: (a) to
commence work promptly and to complete any proposed
improvements promptly; (b) to complete same in
accordance with plans and specifications as approved by
Lender; (c) to allow Lender to inspect such Property at
all times during construction; (d) to replace any work
or materials unsatisfactory to Lender, within fifteen
(15) days after written notice from Lender of such
fact, which notice may be given to Mortgagor by
certified mail, as herein provided.
(2) Repair and Maintenance of Property. To keep the
Property in good condition and repair, not to
substantially alter, remove or demolish any buildings
thereon, to restore promptly and in good workmanlike
manner any buildings which may be damaged or destroyed
including, without restricting the generality of the
foregoing, damage from termites and earth movement,
fire or other casualty, to pay when due all claims for
labor performed and materials furnished in connection
with such Property and not to permit any mechanic's
lien against such Property, to comply with all laws
affecting such Property or requiring any alterations or
improvements to be made thereon; not to commit or
permit waste thereon; not to commit, suffer or permit
any act upon such Property in violation of law; to
cultivate, irrigate, fertilize, fumigate and prune and
to do all other acts that from the character or use of
such Property may be reasonably necessary to keep such
Property in the same condition (reasonable wear and
tear excepted) as of the date of this Mortgage.
(3) Fire and Casualty Insurance. To provide and maintain
in force, at all times, fire and extended coverage
insurance with respect to such Property in an amount
equivalent to the full replacement cost of the
improvements but not less than the face amount of this
Mortgage. Each policy of such insurance shall be in
form and content and by such companies, as may be
reasonably satisfactory to Lender, with loss payable in
favor of Lender, and shall be delivered to, and remain
in the possession of Lender. Mortgagor shall furnish
Lender with written evidence showing payment of all
premiums therefor. At least thirty (30) days prior to
the expiration of any insurance policy, a policy
renewing or extending such expiring insurance shall be
delivered to Lender with written evidence showing
payment of the premium therefor, and, in the event that
any such insurance policy and evidence of payment of
the premium are not so delivered to Lender, Mortgagor
by executing this Mortgage specifically authorizes
Lender in Lender's sole discretion to obtain such
insurance from time to time at Mortgagor's cost.
Lender may, from time to time, require insurance
appraisals or other evidence that the insurance is
equivalent to the full replacement cost of the
improvements and may require increased insurance to
provide full replacement cost coverage or to cover any
increased loan amount due to negative amortization.
Lender shall not be chargeable with obtaining or
maintaining such insurance or for any insolvency of any
insurer or insurance underwriter. Lender, from time to
time, may furnish to any insurance agency or company,
or any other person, any information contained in or
extracted from any insurance policy theretofore
delivered to Lender pursuant hereto, and any
information concerning the loan secured hereby.
Mortgagor hereby assigns to Lender all unearned
premiums on any such policy, and agrees that any and
all unexpired insurance shall inure to the benefit of,
and pass to, the purchaser of the property conveyed at
any sale held hereunder pursuant to the foreclosure of
this Mortgage.
(4) Rent Insurance and Additional Insurance. Mortgagor
shall also maintain, at its sole cost and expense, rent
insurance from loss of income from the improvements by
reason of any hazard covered by the insurance covered
by Paragraph 3 above in an amount sufficient to avoid
any co-insurance penalties and in any case, for one
year's gross rental from said improvements,
comprehensive liability including property damage
insurance in the face amount of at least One Million
Dollars ($1,000,000.00), which insurance shall name
Lender as an additional insured. Evidence that such
insurance is in full force and effect shall be provided
to Lender and all such policies shall provide that
Lender is to receive at least thirty (30) days written
notice of any cancellation. Mortgagor shall also
provide Lender with evidence that workmen's
compensation insurance is maintained for all persons
employed in the operation of the Property.
(5) Taxes and Other Sums Due. To pay, satisfy and
discharge: (a) at least ten (10) days before
delinquency, all general and special taxes affecting
such Property; (b) when due, all special assessments
for public improvements; and (c) on demand of Lender
but in no event later than the date such amounts become
due (i) all encumbrances, charges and liens, with
interest, on such Property, or any part thereof, which
are, or appear to Lender to be prior to or superior
hereto, (ii) all costs, fees and expenses of making
such demand or removing such liens whether or not
described herein, (iii) such other charges as the
Lender may deem reasonable for services rendered by
Lender and furnished at the request of Mortgagor or any
successor in interest to Mortgagor, (iv) if the
Property includes a leasehold estate, all payments and
obligations required of the Mortgagor or its successor
in interest under the terms of the instrument or
instruments creating such leasehold, and (v) all
payments and monetary obligations required of the owner
of the Property under any declaration of covenants or
conditions or restrictions pertaining to the Property
or any modification thereof. Should Mortgagor fail to
make any such payment, Lender without contesting the
validity or amount may elect to make or advance such
payment together with any costs, expenses, fees, or
charges relating thereto and to add such amounts to the
amounts due under this Mortgage and said Note.
Mortgagor agrees to notify Lender immediately upon
receipt by Mortgagor of notice of any increase in the
assessed value of such Property. Mortgagor agrees to
notify Lender and, if required by law, appropriate
taxing authorities, immediately upon the happening of
any event which does or may affect the value of the
Property, the amount or basis of the Property, or the
availability of any exemption to which Mortgagor is or
may be entitled.
In the event of the passage of any law deducting
from the value of real property for the purposes of
taxation any lien thereon, or changing in any way the
laws for the taxation of mortgages or debts secured by
mortgages for state or local purposes, or the manner of
the collection of any such taxes including, but not
limited to, the postponement of the payment of all or
any part of any real or personal property taxes, so as
to affect this Mortgage, the holder of the Note shall
have the right to declare the entire principal sum and
the interest due on a date to be specified by not less
than sixty (60) days written notice to be given to
Mortgagor by Lender; provided, however, that such
election shall be ineffective if Mortgagor is permitted
by law to pay the whole of such tax in addition to all
other payments required hereunder and if, prior to such
specified date, does pay such tax and agrees to pay any
such tax when hereafter levied or assessed against such
property, and such agreement shall constitute a
modification of this Mortgage.
(6) Impounds. In the event of a default hereunder, and if
Lender shall so request, to pay to Lender in addition
to any other payments required hereunder, monthly
advance installments, as estimated by Lender, for
taxes, assessments, insurance premiums, ground rents or
other obligations secured by this Mortgage (hereinafter
in this paragraph referred to as "such obligations")
for the purpose of establishing a fund to insure
payment when due, or before delinquency, of any or all
of such obligations required to be paid as to the
Property. If the amounts paid to Lender under the
provisions of this paragraph are insufficient to
discharge the obligations of Mortgagor to pay such
obligations as the same become due or delinquent,
Mortgagor shall pay to Lender, upon Lenders demand,
such additional sums as are necessary to pay such
obligations. All monies paid to Lender under this
paragraph may be intermingled with other monies of
Lender and shall not bear interest, except as required
by law. Lender may pay such obligations whether before
or after they become due and payable. In the event of
a default in the payment of any monies due on the
indebtedness secured hereby, default of any obligation
secured hereby, or default in the performance of any of
the covenants and obligations of this Mortgage, then
any balance remaining from monies paid Lender under the
provisions of this paragraph may, at the option of
Lender, be applied to the payment of principal,
interest or other obligations secured hereby in lieu of
being applied to any of the purposes for which the
impound account is established. Lender will make such
reports of impounds as are required by law.
(7) Assignment of Awards and Damages to Lender. All sums
due, paid, or payable to Mortgagor or any successor in
interest to Mortgagor of such Property whether by way
of judgment, settlement or otherwise: (a) for injury
or damage to such Property; (b) in connection with the
transaction financed by the loan secured hereby; or (c)
in connection with any condemnation for public use of
or injury to such Property, or any part thereof, is
hereby assigned and shall be paid to Lender. Lender
shall be entitled, at its option, to commence,
intervene in, appear in and prosecute in its own name,
any action or proceeding or to make any compromise or
settlement, in connection with any such taking or
damage. Mortgagor agrees to execute such further
assignments of any compensation, award, damage, rights
of action and proceeds as Lender may require.
(8) Disposition of the Proceeds of any Insurance Policy,
Condemnation or other Recovery.
(a) Proceeds of Insurance. The Mortgagor will give
the Lender prompt notice of any damage to or
destruction of the Property, and:
(i) In the case of loss covered by policies of
insurance, the Lender (or, after entry of
decree of foreclosure, the purchaser at
foreclosure sale or creditor, as the case may
be) is hereby authorized at its option
either: (a) to settle and adjust any claim
under such policies without the consent of
the Mortgagor; or (b) allow the Mortgagor to
agree with the insurance company or companies
on the amount to be paid upon the loss;
provided, that the Mortgagor may itself
adjust losses aggregating not in excess of
Fifty Thousand Dollars ($50,000.00), and
further that in any case the Lender shall,
and is hereby authorized to, collect and
receipt for any insurance proceeds; and the
expenses incurred by the Lender in the
adjustment and collection of insurance
proceeds shall be so much additional
indebtedness hereby secured, and shall be
reimbursed to the Lender upon demand;
(ii) In the event of any insured damage to or
destruction of the Property or any part
thereof (herein called an "insured casualty")
and if, in the reasonable judgment of the
Lender, the Property can be restored to an
architectural and economic unit of the same
character and value as the same was prior to
the insured casualty, and adequately securing
the outstanding balance of the indebtedness
hereby secured and the insurers do not deny
liability to the insured, then, if no events
of default as hereinafter defined shall have
occurred and be then continuing, the proceeds
of insurance shall be applied to reimburse
the Mortgagor for the cost of restoring,
repairing, replacing or rebuilding (herein
generally called "restoring") the Property or
any part thereof subject to an insured
casualty, as provided for in Section 8(c)
hereof;
(iii) If in the reasonable judgment of the Lender
the Property cannot be restored to an
architectural and economic unit as provided
for in Subsection (a)(ii) above, then at any
time from and after the insured casualty,
upon sixty (60) days' written notice to
Mortgagor, Lender may declare the entire
balance of the indebtedness hereby secured to
be due and payable at the expiration of such
sixty (60) day period;
(iv) Except as provided for in Subsection (a) (ii)
of this Paragraph 8, Lender shall apply the
proceeds of insurance (including amounts not
required for the restoring effected in
accordance with Subsection (a) (ii) above)
consequent upon any insured casualty upon the
indebtedness hereby secured, in such order or
manner as the Lender may elect;
(v) In the event that proceeds of insurance, if
any, shall be made available to the Mortgagor
for the restoring of the Property, Mortgagor
hereby covenants to restore the same to be of
at least equal value and of substantially the
same character as prior to such damage or
destruction; all to be effected in accordance
with plans and specifications to be first
submitted to and approved bs the Lender; and
(vi) Any portion of the insurance proceeds
remaining after payment in full of the
indebtedness hereby secured shall be paid to
Mortgagor or as ordered by a court of
competent jurisdiction.
(b) Condemnation. The Mortgagor will give Lender
prompt notice of any proceeding instituted or
threatened, seeking condemnation or taking by
eminent domain or any like process (hereby
generally called a "taking") of all or any part of
the Property including damages to grade, and;
(i) Mortgagor hereby assigns, transfers and sets
over unto Lender the entire proceeds of any
award received from any taking;
(ii) If in the reasonable judgment of the Lender
the Property can be restored to an
architectural and economic unit of the same
character and not less valuable than the
Property prior to such taking and adequately
securing the outstanding balance of the
indebtedness hereby secured, then if no event
of default, as hereinafter defined, shall
have occurred and be then continuing, the
award shall be applied to reimburse the
Mortgagor for the cost of restoring the
portion of the Property remaining after such
taking, as provided for in Section 8(c)
hereof;
(iii) If in the reasonable judgment of the Lender
the Property cannot be restored to an
architectural and economic unit as provided
for in Subsection (b) (ii) above, then at any
time from and after the taking, upon sixty
(60) days' written notice to Mortgagor,
Lender may declare the entire balance of the
indebtedness hereby secured to be due and
payable at the expiration of such sixty (60)
day period;
(iv) Except as provided for in Subsection (b) (ii)
of this Paragraph 8, Lender shall apply any
award (including the amount not required for
restoration effected in accordance with
Subsection (b) (ii) above) upon the
indebtedness hereby secured in such order or
manner as Lender may elect;
(v) In the event that any award shall be made
available to the Mortgagor for restoring the
portion of the Property remaining after a
taking, Mortgagor hereby covenants to restore
the remaining portion of the Property to be
of at least equal value and of substantially
the same character as prior to such taking;
all to be effected in accordance with plans
and specification to be first submitted to
and approved by Lender; and
(vi) Any portion of any award remaining after
payment in full of the indebtedness hereby
secured shall be paid to Mortgagor or as
ordered by a court of competent jurisdiction.
(c) Disbursement of Insurance Proceeds and
Condemnation Award. In the event the Mortgagor is
entitled to reimbursement out of insurance
proceeds or any award held by the Lender, such
proceeds shall be disbursed from time to time upon
the Lender being furnished with satisfactory
evidence of the estimated cost of completion of
the restoration (with funds or assurances
satisfactory to the Lender that such funds are
available sufficient in addition to the proceeds
of insurance or award, to complete the proposed
restoration) and with such architect's
certificates, waivers of lien, contractor's sworn
statements and such other evidence of costs and of
payment as the Lender may reasonably require and
approve; and the Lender may, in any event, require
that all plans and specifications for such
restoration be submitted to and approved by Lender
prior to commencement of work. No payment made
prior to the final completion of the restoration
shall exceed ninety percent (90%) of the value of
the work performed from time to time; funds other
than proceeds of insurance or the award shall be
disbursed prior to disbursement of such proceeds;
and at all times the undisbursed balance of such
proceeds remaining in the hands of Lender,
together with funds deposited for the purpose or
irrevocably committed to the satisfaction of the
Lender by or on behalf of the Mortgagor for the
purpose of restoring the Property, shall be at
least sufficient in the reasonable judgment of the
Lender to pay for the cost of completion of the
restoration, free and clear of all liens or claims
for lien. Lender may require that all funds
disbursed under this Paragraph 8(c) shall be
disbursed through an escrow of a title insurance
company selected by Lender which shall pass on the
sufficiency of all lien waivers. The escrow costs
of any such title insurance company shall be
included in the cost of reconstruction and paid
from such funds.
(d) Awards for Injury or Damages in Connection with
the Transaction Financed by the Loans Secured
Hereby. The amount received by Lender respecting
the Property for injury or damage in connection
with the transaction financed by the loan secured
hereby may, at the sole option of the Lender, be
applied by Lender upon the indebtedness secured
hereby and in such order as Lender may determine
or, without reducing the indebtedness secured
hereby, may be released to Mortgagor, or may be
partially applied by Lender as aforesaid and
partially released to Mortgagor. No application,
use or release shall cure or waive any default or
notice of default hereunder or invalidate any act
done Pursuant to such notice of default.
(e) Interest on Proceeds of Insurance, Condemnation
Award or Other Recovery. So long as no event of
default shall have occurred and be continuing, any
proceeds of insurance or any award or other
recovery, as the case may be, or funds of
Mortgagor held in the hands of Lender for the
purpose of restoration as specified in this
Paragraph 8, shall be placed in an interest
bearing account bearing the highest rate of
interest available, giving consideration to the
amount of deposit and the requirement that funds
on deposit be available upon demand (herein called
the "disbursement account") under the control of
the Lender, or its designated agent, at such bank
or savings and loan association including the
Lender, or other depository satisfactory to
Lender, and in connection therewith:
(i) Withdrawal from the disbursement account
shall be made only by the Lender, or its
designated servicing or escrow agent as the
case may be;
(ii) Subject to the provisions of Subsection 8(e)
(iii), funds in the disbursement account from
time to time shall be applied solely for the
purpose of paying or reimbursing Mortgagor
for the cost of restoring as provided for in
this Paragraph 8;
(iii) Funds in the disbursement account shall be
and hereby are pledged as additional
collateral and security for the indebtedness
hereby secured, and, upon the occurrence of
any event of default, such funds may be
applied by Lender upon the indebtedness
hereby secured in such order and manner as
the Lender may elect; and
(iv) Prior to the occurrence of any event of
default, interest earned upon the
disbursement account shall accrue to
Mortgagor and to the extent not required to
pay for the cost of restoring in accordance
with the provisions of this Paragraph 8,
shall be paid to Mortgagor upon completion of
the restoring; provided, that upon the
occurrence of any event of default the Lender
may in its discretion withdraw all or any
funds in the disbursement account and apply
the same upon the indebtedness hereby secured
in such order and manner as Lender may in its
sole discretion determine.
(9) Litigation. Mortgagor shall defend this Mortgage in
any action or proceeding purporting to affect the
Property whether or not it affects the security hereof
and file and prosecute all necessary claims and actions
to prevent or recover for any damage to or destruction
of the Property; and Lender is hereby authorized,
without obligation so to do, to commence, appear in, or
defend any such action, whether brought by or against
Mortgagor or Lender, or with or without suit, to
exercise or enforce any other right, remedy, or power
available or conferred hereunder, whether or not
judgment be entered in any action or proceeding, and
retain counsel therein, and take such action therein,
as either may be advised, and may, upon ten (10) days
written notice to Mortgagor, settle, compromise or pay
the same or any other claims and, in that regard and
for any of such purposes, may expend and advance such
sums of money as either may deem necessary. Whether or
not Mortgagor so appears or defends, all costs and
expenses of Lender, including without limitation costs
of evidence of title, reasonable attorneys' fees,
transcript costs and expenses of preparing for or
appearing in any such action or proceeding, in which
Lender may appear as in this paragraph; provided,
irrespective of whether the interest of Lender in the
Property is directly questioned by such action,
including but not limited to any action for the
condemnation or partition of the Property and any suit
brought by Lender to foreclose this Mortgage, shall be
additional indebtedness secured hereby due and payable
on Lender's demand.
(10) Lender's Right to Make Advances Etc. Should Mortgagor
fail to make any payment, or to do any act as provided
in this Mortgage, or fail to perform any obligation
secured by this Mortgage, after notice and applicable
grace period provided in Paragraph 17 hereof, or do any
act Mortgagor agreed not to do, Mortgagor shall be in
default under this Mortgage. Lender may, but without
obligation so to do and without notice or demand upon
Mortgagor and without releasing Mortgagor from any
obligation hereof, and without contesting the validity
or amount of the same: (a) make or do the same in such
manner and to such extent as it may deem necessary to
protect the security hereof, Lender being authorized to
enter upon the property for such purposes; (b) pay,
purchase, contest or compromise any encumbrance,
charge, or lien, which in Lender's judgment is or
appears to be prior or superior hereto; and (c) in
exercising any such power, pay necessary expenses.
(11) Sums Advanced to Bear Interest and To Be Added to
Indebtedness. Mortgagor agrees to pay immediately upon
demand any sums advanced or paid by Lender under any
clause or provision of this Mortgage or any other loan
document executed in connection with the indebtedness
evidenced by the Note and secured hereby. Any such
sum, until so repaid, shall be added to the
indebtedness secured hereby and bear interest from the
date it was advanced or paid at the same interest rate
as the Note compounded monthly and shall be secured by
this Mortgage. Mortgagor further agrees that Lender
shall be subrogated to the lien of any mortgage or
other encumbrance, satisfied in whole or in part by any
advances made by Lender hereunder.
(12) Application of Funds. Lender shall have the right at
its sole discretion to direct the manner in which
payments or proceeds (other than principal and interest
payments under the Note) shall be applied upon or
allocated among the various items comprising
Mortgagor's indebtedness or obligations under this
Mortgage or any other loan document.
(13) Right of Lender to Declare All Sums Due on Any
Transfer, Etc. Lender shall have the right, at its
option, to declare any indebtedness and obligations
secured hereby, irrespective of the maturity date
specified in any note or agreement evidencing the same,
due and payable within thirty (30) days after such
declaration if: (a) Mortgagor or any successor in
interest to Mortgagor of the Property sells, enters
into a contract to sell on a land or installment basis,
conveys, alienates or mortgages the Property or any
part thereof, or suffers its title or any interest
therein to be divested, whether voluntary or
involuntarily, or leases the Property, or any part
thereof, for a term of three (3) years or more, or
changes or permits to be changed the character or use
of the Property, or drills or extracts or enters into a
lease for the drilling for or extracting of oil, gas or
other hydrocarbon substance or any mineral of any kind
or character on the Property; (b) Mortgagor is a
partnership and the interest of a general partner is
assigned or transferred; (c) Mortgagor or the
beneficial owners of Mortgagor is a corporation or
partnership, the managing general partner of which is a
corporation and more than twenty-five percent (25%) of
the stock of such corporation is sold, transferred or
assigned during a twelve (12) month period; (d)
Mortgagor is a trust and there is a change of
beneficial interest with respect to more than
twenty-five percent (25%) of such beneficial interest
or said beneficial interest is assigned to another
party; (e) Mortgagor has made any material
misrepresentation or failed to disclose any material
fact in those certain financial and other written
representations and disclosures made by Mortgagor in
order to induce Lender to enter into the transaction
evidenced by the Note or notes or agreements which this
Mortgage secures; (f) Decade Companies Income
Properties, a Wisconsin limited partnership ("DCIP")
either (i) causes or permits the transfer of a general
partnership interest in DCIP or (ii) sells, enters into
a contract of sale, conveys or otherwise causes or
permits, whether voluntarily or involuntarily, a
transfer of title in or to the real property described
in Exhibit B hereto ("Phase IV Property"), or any part
thereof or interest therein; (g) Decade's Monthly
Income and Appreciation Fund, a Wisconsin limited
partnership ("DMIAF") either (i) causes or permits the
transfer or assignment of a general partnership
interest in DMIAF or (ii) sells, enters into a contract
of sale, conveys or otherwise causes or permits,
whether voluntarily or involuntarily, a transfer of
title in or to the real property described in Exhibit C
hereto ("Phase I Property"), or any part thereof or
interest therein; (h) either the Phase I Property or
Phase IV Property ceases to be managed and operated by
Decades Properties, Inc., a Wisconsin corporation; or
(i) Jeffrey Keierleber sells, enters into an agreement
to sell, conveys, alienates, mortgages or otherwise
encumbers his general partnership interest in and to
Decade Companies, a Wisconsin general partnership.
(14) No Waivers by Lender. No waiver by Lender of any right
under this Mortgage shall be effective unless in
writing. Waiver by Lender of any right granted to
Lender under this Mortgage or of any provision of this
Mortgage as to any transaction or occurrence shall not
be deemed a waiver as to any future transaction or
occurrence. By accepting payment of any sum secured
hereby after its due date or by making any payment or
performing any act on behalf of Mortgagor, or by adding
any payment so made by Lender to the indebtedness
secured hereby, Lender does not waive its right to
require prompt payment when due of all other sums so
secured or to require prompt performance of all other
acts required hereunder, or to declare a default for
failure so to pay.
(15) Modification in Writing. This Mortgage cannot be
changed or modified except as otherwise provided in
this Mortgage or by agreement in writing signed by
Mortgagor, or any successor in interest to Mortgagor,
and Lender.
(16) Remedies. No remedy herein provided shall be exclusive
of any other remedy herein or now or hereafter existing
by law, but shall be cumulative. Every power or remedy
hereby given to Lender or to which it may be otherwise
entitled, may be exercised from time to time and as
often as may be deemed expedient, and Lender may pursue
inconsistent remedies. If Lender holds any additional
security for any obligation secured hereby, it may
enforce the sale thereof at its option, either before,
contemporaneously with, or after the order of
foreclosure is entered or sale is made hereunder, and
on any event of default of Mortgagor. Lender may, at
its option, offset against any indebtedness owing by it
to Mortgagor, the whole or any part of the indebtedness
secured hereby. Lender is hereby authorized and
empowered at its option, without any obligation to do
so, and without affecting the obligations hereof, to
apply toward the payment of any indebtedness secured
hereby and of the Mortgagor to the Lender, any and all
sums or money which the Lender may have in its
possession or under its control, including without
limiting the generality of the foregoing, the
indebtedness evidenced by an escrow or trust funds. In
order to assure the definiteness and certainty of the
rights and obligations herein provided, Mortgagor
waives any and all rights of offset of claims, and no
offset shall relieve Mortgagor from paying installments
on the obligations secured hereby as they become due.
(17) Events of Default. In the event that Mortgagor shall
fail to pay the monthly installments due under the Note
within ten (10) days of the due date, or in the event
that Mortgagor shall fail to pay any monetary amounts
demanded, in writing, by Lender, pursuant to the
provisions of this Mortgage or other loan documents
within thirty (30) days of such demand, or in the event
that Mortgagor shall fail to perform any obligations or
conditions required of it, pursuant to this Mortgage,
after thirty (30) days prior written notice of such
failure, Lender may treat any such failure as an event
of default entitling Lender to declare all indebtedness
due under this Mortgage and the Note secured hereby
immediately due and payable without further notice or
demand. Provided that if a non-monetary default cannot
with reasonable diligence be cured within said thirty
(30) day period and Mortgagor has commenced the cure
and is proceeding diligently, the time before the right
of acceleration accrues shall be extended to the time
that with reasonable diligence such cure can be
effected.
(18) Foreclosure of Mortgage. When the indebtedness hereby
secured shall become due whether by acceleration or
otherwise, the Lender shall have the right to foreclose
the lien hereof. In any suit to foreclose the lien
hereof, there shall be allowed and included as
additional indebtedness in the order of foreclosure or
sale all expenditures and expenses which may be paid or
incurred by or on behalf of Lender for reasonable
attorneys' fees, appraisers' fees, outlays for
documentary and expert evidence, stenographer's
charges, publication cost and costs of procuring all
abstracts of title or commitments for title insurance.
Such fees, charges and costs may be estimated as to
items to be expended after entry of the order of
foreclosure or sale as Lender may deem reasonably
necessary either to prosecute such suit or to evidence
to bidders at any sale which may be had pursuant to
such decree the true condition of the title to or the
value of such property. All expenditures and expenses
of the nature mentioned in this paragraph shall become
so much additional indebtedness secured hereby and
shall be immediately due and payable with interest
thereon at the rate specified in the Note secured
hereby. Such expenditures and expenses shall include
expenditures made in connection with: (a) any
proceeding to which Lender shall be a party, either as
plaintiff, claimant or defendant, by reason of this
Mortgage or any indebtedness hereby secured; (b)
preparation for the commencement of any suit for
foreclosure hereof after accrual of such right to
foreclose whether or not actually commenced; (c)
preparations for the defense of any threatened suit or
proceeding which might affect the Property or the
security hereof, whether or not actually commenced; (d)
any efforts for collection of any past due indebtedness
secured hereby. The proceeds of any foreclosure sale
of the Property shall be distributed and applied in the
following order of priority: first on account of all
costs and expenses incident to the foreclosure
proceedings, including all such items as are mentioned
in this paragraph; second, all other items which under
the terms hereof constitute indebtedness secured by
this Mortgage; third, any surplus to Mortgagor, its
successors or assigns, as their rights may appear.
(19) Appointment of Mortgagee in Possession or Receiver.
Upon or at any time after the filing of a complaint to
foreclose this Mortgage, the court in which such
complaint is filed may appoint Lender as mortgagee in
possession or may appoint a receiver of the Property.
Such appointment may be made either before or after
sale, without notice, without regard to the solvency or
insolvency at the time of application of the person or
persons, if any, liable for the payment of the
indebtedness secured hereby and without regard to the
then value of the Property or whether the same shall be
then occupied as a homestead or not. Such receiver or
mortgagee in possession shall have power to collect the
rents, issues and profits of the Property during the
pendency of such foreclosure suit, as well as during
any further times when Mortgagor, its successors or
assigns, except for the intervention of such receiver,
would be entitled to collect such rents, issues and
profits, and all other powers which may be necessary or
are usual in such cases for the protection, possession,
control, management and operation of the Property
during the whole of said period. The court from time
to time may authorize the receiver or Mortgagee in
possession to apply the net income held by either of
them in payment in whole or in part of the indebtedness
and other sums secured hereby, or in payment of any
tax, special assessment or other lien which may be or
become superior to the lien hereof or superior to an
order foreclosing this Mortgage, provided such
application is made prior to foreclosure sale. In case
of a judicial sale, the Property, or so much thereof as
may then be affected by this Mortgage, may be sold in
one parcel.
(20) Sale by Lender. Upon the happening of an event of
default, as defined in Paragraph 17 hereof, then and in
every such case Lender, in its discretion, may, to the
extent permitted by law, with or without entry,
personally or by attorney, sell to the highest bidder
all or any part of the Property, and all right, title,
interest, claim, and demand therein, and the right of
redemption thereof, in one lot as an entirety, or in
separate lots, as Lender may elect, and in one sale or
in any number of separate sales, held at one time or at
any number of times, which said sale or sales shall be
made at public auction at such place in the county in
which the Property to be sold is situated and at such
time and upon such terms as may be fixed by Lender and
briefly specified in the notice of such sale or sales.
Any sale by Lender may, nevertheless, at its option, be
made at such other place or places, and in such other
manner, as may now or hereafter be authorized by law.
Any such sale may, at the option of Lender, be made
subject to the rights of any tenant or tenants of the
Property. Notice of any sale by Lender pursuant to the
provisions hereof shall state the time and place when
and where the same is to be made and shall contain a
brief general description of the Property to be sold
and shall be sufficiently given if given in a manner
provided by law. Upon completion of any sale or sales,
as specified above, Lender shall transfer and deliver,
or cause to be transferred and delivered, to the
accepted purchaser or purchasers, the Property so sold,
and, to the extent permitted by law, Lender is hereby
irrevocably appointed the true and lawful
attorney-in-fact of Mortgagor, in its name and stead,
to make all necessary transfers of property thus sold,
and, for that purpose, Lender may execute and deliver,
for and in the name of Mortgagor, all necessary
instruments of assignment and transfer, Mortgagor
hereby ratifying and confirming all that its said
attorney-in-fact shall lawfully do by virtue hereof.
(21) Waiver of Statute of Limitations. Time is of the
essence in all Mortgagor's obligations hereunder; and
to the extent permitted by law, Mortgagor waives all
present or future statutes of limitation with respect
to any debt, demand or obligation secured hereunder in
any action or proceeding for the purpose of enforcing
this Mortgage or any rights or remedies hereunder
including the right to assert any claim barred by a
statute of limitations as an offset or counterclaim in
an action to enforce this Mortgage or the indebtedness
secured hereby.
(22) Inspection and Business Records. Lender at any time
during the term of this Mortgage or any extension or
renewal thereof may, upon prior notice, enter and
inspect the Property at any reasonable time. Mortgagor
agrees that it will keep and maintain at all times at
the business address provided in the Note or at such
other address as Lender may approve, complete and
accurate books of account and records and will provide
annual operating statements for the property within one
hundred twenty (120) days of the end of each calendar
year. Annual operating statements will include current
rent rolls and the status of security deposits for each
tenancy and will be in form and content prepared
according to usual and acceptable accounting principles
and practices. Mortgagor further agrees when requested
by Lender to promptly deliver in writing at Mortgagor's
cost and expense such further additional information as
reasonably required by Lender relating to any financial
statements of the Property or to provide financial
statements and information concerning the beneficiary
of Mortgagor.
(23) Governing Law; Severability. The loan secured by this
Mortgage is made pursuant to, and shall be construed
and governed by, the laws of the United States of
America and the rules and regulations promulgated
thereunder, including the federal laws, rules and
regulations for federal savings and loan associations.
If any paragraph, clause or provisions of this Mortgage
or the Note or any other notes or obligations secured
by this Mortgage is construed or interpreted by a court
of competent jurisdiction to be void, invalid or
unenforceable, such decision shall affect only those
paragraphs, clauses or provisions so construed or
interpreted and shall not affect the remaining
paragraphs, clauses and provisions of this Mortgage or
the Note or other notes or obligations secured by this
Mortgage.
(24) Injury to Property. All causes of action of Mortgagor,
whether accrued before or after the date of this
Mortgage, for damage or injury to the Property or any
part thereof, or in connection with the transaction
financed in whole or in part by the funds loaned
hereunder by Lender, or in connection with or affecting
the Property or any part thereof, including causes of
action arising in tort or contract and causes of action
for fraud or concealment of a material fact, are, at
Lender's option, assigned to Lender, and, subject to
Paragraph 8 hereof, the proceeds thereof shall be paid
to Lender, which, after deducting therefrom all its
expenses, including reasonable attorneys' fees, Lender
may apply such proceeds to the sums secured by this
Mortgage or to any deficiency under this Mortgage or
may release any monies so received by it or any part
thereof, as Lender may elect. Lender may at its option
appear in and prosecute in its own name any action or
proceeding to enforce any such cause of action and may
make any compromise or settlement thereof. Mortgagor
agrees to execute any further assignments and other
instruments as from time to time may be necessary to
effectuate the foregoing provisions as Lender shall
request.
(25) Misrepresentation or Non-Disclosure. Mortgagor or its
beneficiaries have made certain written representations
and disclosures in order to induce Lender to make the
loan evidenced by the Note or notes which this Mortgage
secures. In the event that there has been any material
misrepresentation or failure to disclose any material
information in connection with the loan application and
the supporting loan documentation then, irrespective of
the maturity date specified in the Note or notes, such
misrepresentations or non-disclosure shall permit
Lender to declare all indebtedness secured hereby
immediately due and payable.
(26) Waiver of Homestead. Mortgagor hereby waives all right
of homestead exemption in or relating to such Property.
(27) Notice to Mortgagor. Any notice to the Mortgagor
provided for in this Mortgage or Note or notes secured
hereby shall be deemed given when it is deposited
certified or registered return receipt requested in the
United States mail, postage prepaid, addressed to
Mortgagor at the address of the Mortgagor as it appears
in Lender's records pertaining to the loan at the time
notice is given. If no other address is given, the
address for service provided in the Note shall be
sufficient.
(28) General Provision. (a) This Mortgage applies to,
inures to the benefit of, and binds, all parties hereto
and their successors and assigns; (b) the term "Lender"
shall mean the owner and holder (including a pledgee)
of any note secured hereby, whether or not named as
Lender herein; (c) wherever the context so requires,
the masculine, feminine, and neuter genders each
include the others, the singular number includes the
plural, and vice versa; and (d) captions and paragraph
headings used herein are for convenience only, are not
a part of this Mortgage and shall not be used in
construing it.
(29) Adjustable Mortgage Loan Provisions and Due Date. The
Note which this Mortgage secures is an adjustable
mortgage loan on which the interest rate may be
adjusted from time to time in accordance with a monthly
increase or decrease in an index all as provided in
said Note. From time to time the monthly installment
payments due under said Note may not be sufficient to
pay all interest due in which case unpaid interest will
be added to principal. In no case shall the unpaid
interest added to the principal exceed two hundred
percent (200%) of the original principal indebtedness.
If not sooner paid, all indebtedness due under the
Note, the Mortgage and all loan documents securing said
Note shall be due and payable on December 10, 2004.
(30) Acceleration in Case of Insolvency. Notwithstanding
anything contained in this Mortgage or the Note to the
contrary, if Mortgagor or the owner of the beneficial
interest of Mortgagor shall voluntarily file a petition
under the Federal Bankruptcy Act, as such Act may from
time to time be amended, or under any similar or
successor Federal statute relating to bankruptcy,
insolvency, arrangements or reorganizations, or under
any state bankruptcy or insolvency act, or file an
answer in an involuntary proceeding admitting
insolvency or inability to pay debts, or if said
Mortgagor or owner shall fail to obtain a vacation or
stay of involuntary proceedings brought for the
reorganization, dissolution or liquidation under a
bankruptcy or insolvency act within a reasonably prompt
time after such filing or if said Mortgagor or owner
shall be adjudged a bankrupt, or if a trustee or
receiver shall be appointed for either of them or their
property, or if the Property shall become subject to
the jurisdiction of a Federal bankruptcy court or
similar state court, or if a Mortgagor or owner shall
make an assignment for the benefit of their respective
creditors, or if there is an attachment, execution or
other judicial seizure of any portion of their
respective assets and such seizure is not discharged
within ten (10) days, then Lender may, at Lender's
option, declare all indebtedness due under this
Mortgage and the Note secured hereby to be immediately
due and payable without prior notice, and Lender may
invoke any remedies permitted by Paragraph 18 of this
Mortgage. Any attorneys' fees and other expenses
incurred by Lender in connection with such bankruptcy
or any of the other aforesaid events shall be
additional indebtedness of Mortgagor secured by this
Mortgage and payable on demand.
(31) Waiver of Certain Rights. Mortgagor hereby waives any
and all rights of redemption from sale under any order
of foreclosure of this Mortgage on its own behalf and
on behalf of each and every person, to the full extent
permitted by law. Mortgagor hereby acknowledges and
agrees to the provisions of Section 846.101 and
846.103(2) of the Wisconsin Statutes, as they may apply
to the Property and as may be amended, permitting
Lender in the event of foreclosure to waive the right
to judgment for deficiency and to hold the foreclosure
sale within the time provided in such applicable
Section.
(32) Management of Property. The Property, Phase I Property
and Phase IV Property shall be managed at all times by
an entity ("Manager") acceptable to Lender. Lender
hereby approves of the management of the Property by
Decade Properties, Inc., a Wisconsin corporation. Such
Manager shall operate and manage the Property, Phase I
Property and Phase IV Property under a management
agreement or agreements which shall be satisfactory in
form and substance to and approved in writing by
Lender; and the Manager shall execute such agreement
with Lender as Lender shall require with respect to
said management agreement or agreements and Lender's
rights with respect thereto. Any and all payments due
under any agreement to manage the Property shall be
subordinate to all payments due under the Note and this
Mortgage. All laws, regulations and ordinances
regarding the employment and payment of persons engaged
in the operation and management of the Property, Phase
I Property and Phase IV Property shall be complied
with. Any failure to so comply, or in the event the
Property, Phase I Property and Phase IV Property is
managed by an entity that has not been approved in
writing by Lender as aforesaid, shall constitute an
event of default under this Mortgage entitling Lender
to declare the entire indebtedness evidenced by the
Note immediately due and payable.
(33) Status Certificate. Mortgagor shall within ten days of
a written request from Lender furnish Lender with a
written statement duly acknowledged, setting forth the
sums secured by this Mortgage and any right of setoff,
counterclaim or other defense which exists against such
sums and the obligations of this Instrument.
(34) Nonrecourse Letter. Lender's rights under this
Mortgage are subject to the terms and provisions of
that certain Nonrecourse Agreement entered into by and
between Lender and Mortgagor dated November 22, 1989.
(35) Release. Upon the payment in full to Lender of all
sums due and payable under the Note and this Mortgage,
Lender shall prepare and deliver to Mortgagor a release
sufficient to cause the release of Lender's rights
hereunder. Mortgagor shall pay to Lender a reasonable
sum to cover Lender's costs in connection with the
preparation of such release.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage on
the day and year first above written.
DECADE COMPANIES INCOME PROPERTIES
- - A LIMITED PARTNERSHIP, a
Wisconsin limited partnership, by
Decade Companies, a Wisconsin
general partnership, its sole
general partner
By: /s/ Jeffrey Keierleber
Jeffrey Keierleber, a general
partner
STATE OF WISCONSIN )
) SS:
COUNTY OF MILWAUKEE )
I, Mary Neese Fertl, a Notary Public, in and for and
residing in Milwaukee County, in the State aforesaid, DO HEREBY
CERTIFY that JEFFREY KEIERLEBER, the general partner, of Decade
Companies, a Wisconsin general partnership and sole general
partner of Decade Companies Income Properties - A Limited
Partnership ("DCIP"), personally known to me to be the same
person whose name is subscribed in the foregoing instrument as
such general partner, appeared before me this day in person and
being first duly sworn by me acknowledged that he signed and
delivered the said instrument as his free and voluntary act and
as the free and voluntary act of both Decade Companies and DCIP,
for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial
Seal this 22 day of November, 1989.
/s/ Mary Neese Fertl
Notary Public
MARY NEESE FERTL
My commission is permanent
EXHIBIT A
Legal Description
Parcel 1:
Lot 2, Certified Survey Map 1872, recorded in Vol. 7 of
Certified Survey Maps, page 312, #1450832, in the City of
Madison, Dane County, Wisconsin
Parcel 2:
Lot 1, Certified Survey May 2982, recorded in Vol. 11 of
Certified Survey Maps, page 399, #1593409, in the City of
Madison, Dane County, Wisconsin
Parcel 3:
That certain Easement Declaration recorded in Vol. 997 of
Records, page 299, #1593405; re-recorded in Vol. 1850 of Records,
page 4, #1662733, as amended by that certain First Amendment to
Easement Declaration dated ________________ 1989, recorded in
Vol. ___ of Records, page ___, #______________________;
Parcel 4:
That certain Recreational Easement Agreement dated ________,
1989, recorded in Vol. ____ of Records, page ____ , #____________
EXHIBIT B
Legal Description
Parcel 1:
Lot 1, Certified Survey Map, 1872, recorded in Vol. 7 of
Certified Survey Maps, page 312, #1450832, in the City of
Madison, Dane County, Wisconsin
Together with that part of vacated Thompson Blvd. conveyed in
Vol. 1411 of Records, page 15, #1650385
EXHIBIT C
Legal Description
Parcel 1:
Lots 2 and 3, Certified Survey Map 2982, recorded in Vol. 11 of
Certified Survey Maps, page 399, #1593404, in the City of
Madison, Dane County, Wisconsin
GUARANTY
GUARANTY. For value received and to induce
______________________________________________ (the "Lender"), to
extend credit to ______________________________________, a
_______________ [corporation, partnership, other entity] (the
"Borrower"), STEELCASE INC., a Michigan corporation (the
"Guarantor"), hereby guarantees[, subject to the limitations
contained in the next paragraph,] payment of the Guaranteed
Obligations when due or, to the extent not prohibited by law, at
the time the Borrower becomes the subject of bankruptcy or other
insolvency proceedings. As used herein, the term "Guaranteed
Obligations" shall mean: (a) the indebtedness of the Dealer to
the Lender arising under that certain [name of primary loan
agreement] dated as of [date of agreement], between the Dealer
and the Lender, and (b) the principal of, all interest on, and
other amounts due under or in respect of that certain [promissory
note dated as of _____________] (the "Note") in the original
principal amount of $____________ issued by the Dealer payable to
the Lender, including without limitation the amount of any
payments made to the Lender or another by or on behalf of the
Dealer that are recovered from the Lender by a trustee, receiver,
creditor or other party pursuant to applicable federal or state
law. The Guaranteed Obligations shall also include any of the
Note, provided that such renewal, refinancing, extension or
modification shall not increase the principal amount of, or
interest rate payable on, the Note. This Guaranty shall be
enforceable as to all Guaranteed Obligations, despite any
discharge of the Borrower in bankruptcy, or any adjustment of the
debts, liabilities and obligations of Borrower in bankruptcy,
reorganization or insolvency proceedings or pursuant to any other
compromise with creditors. This is a guaranty of payment.
[LIMITATION. The liability of the Guarantor under this
Guaranty is limited to $__________________________, plus fees and
expenses payable by the Guarantor under this Guaranty.]
WAIVER. To the extent not prohibited by law, the
Guarantor expressly waives: (i) notice of the acceptance of this
Guaranty, the creation of any Guaranteed Obligation, default
under any Guaranteed Obligation, or proceedings to collect from
the Borrower or any other party; provided, however, that the
Guarantor does not waive notice, and the Lender shall provide
prior written notice to the Guarantor, of any acceleration of the
maturity of the Guaranteed Obligations and the commencement of
any action by the Lender to enforce its remedies against the
Borrower or any collateral for the Guaranteed Obligations; (ii)
all diligence of collection, (iii) presentment, demand, notice
and protest in respect of any Guaranteed Obligation, and (iv) any
right to disclosures from the Lender regarding the financial
condition of the Borrower or regarding the collectibility or
enforceability of any Guaranteed Obligation.
SUBROGATION. No claim for contribution or subrogation
that the Guarantor may have against a co-guarantor or the
Borrower arising out of any payment made by the Guarantor in
respect of the Guaranteed Obligations shall be enforced, nor any
payment in respect of such a contribution or subrogation claim
accepted by the Guarantor, until the Guaranteed Obligations are
paid in full and all payments to the Lender in respect of the
Guaranteed Obligations are not subject to any right of recovery.
GOVERNING LAW. This Guaranty shall be governed by, and
construed and interpreted in accordance with, the laws of the
State of Michigan applicable to agreements made and wholly
performed within such state.
NOTICES. All communications or notices required or
permitted by this Guaranty shall be in writing (including without
limitation facsimile transmission promptly confirmed by mail or
courier) and shall be deemed to have been given upon delivery if
hand delivered, or upon deposit in the United States mail,
postage prepaid, or upon deposit with a nationally recognized
overnight commercial carrier, airbill prepaid, and addressed as
follows, unless and until any of such parties notifies the others
in accordance with this paragraph of a change of address:
If to the Guarantor: Steelcase Inc.
901 - 44th Street SE
Grand Rapids, Michigan 49508
Attention: ________________________
If to the Lender: ___________________________________
___________________________________
___________________________________
Attention: ________________________
EXPENSES AND ATTORNEYS' FEES. The Guarantor shall pay
all fees and expenses incurred by the Lender, including the
reasonable fees of counsel, in connection with the protection and
enforcement of the Lender's rights under this Guaranty.
REVOCATION. This is a continuing guaranty and shall
remain in full force and effect until the Lender receives written
notice of its revocation signed by the Guarantor. Upon
revocation, this Guaranty shall continue in full force and effect
as to all Guaranteed Obligations contracted for or incurred
before revocation, and as to them the Lender shall have the
rights provided by this Guaranty as if no revocation had
occurred. Any renewal or extension of any Guaranteed Obligation,
whether made before or after revocation, shall constitute an
Guaranteed Obligation contracted for or incurred before
revocation, provided that such renewal or extension does not
increase the amount of the Guaranteed Obligations. Obligations
contracted or incurred before revocation shall also include
credit extended after revocation pursuant to commitments made
before revocation.
PERSONS BOUND. This Guaranty benefits the Lender, its
successors and assigns, and binds the Guarantor, its successors
and assigns.
Dated as of _______________________.
STEELCASE INC.
By: _______________________________
Its:_______________________________