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HomeMy WebLinkAbout545 High Avenue ~ ::\i Ir",' \'1 SECOND LIEN REAL ESTATE MORTGAGE " I',.!,....) ',,- -_....~ Hiwisca LLC, a Wisconsin limited liability company ("Mortgagor") mortgages, conveys, assigns, grants a security interest in and warrants to the City of Oshkosh, a Wisconsin municipal corporation ("Mortgagee") in consideration of the obligations of the Mortgagor as set forth in the Development Agreement dated of even date herewith (the "Development Agreement").andthe Promissory Note (the "Note") bearing an even date executed by Mortgagor '(),Mortgagee, and any amendments and modifications. of tlw.Development Agreement or Note and the payment of all other sums, with interest, advanced to protect the security of this Mortgage, the real estate described below, together with all privileges, hereditaments, easements and appurtenances, all rents, leases, issues and profits, all claims, awards and payments made as a result of the exercise of the right of eminent domain, and all existing and future improvements and fixtures (all called the "Property") to secure the Obligations described in paragraph 2 below, including, but not limited to, repayment of the Note plus certain other debts, obligations and liabilities arising out of past, present,and future credit granted by Mortgagee. Le~al Description of Development Area Lots Three (3), Four (4), Sixteen (16), Seventeen (17) and Eighteen (18), all in Block "K" in the Plat of the Western Addition to Oshkosh, in the First Ward, City of Oshkosh, Winnebago County, Wisconsin. 1. This is not homestead property. 14:18487 'REGISTER'S OFFICE WINNEBAGO COUNTY, WI RECORDED ON 11/29/2006 09:08AM JULIE PAGEL R.EGISTER OF nEEDS RECORDING FEE 13.00 TRANSFER FEE # OF PAGES 2 R'''''' th;, d,,"m,'" w;th~'!::::~~ City of Oshkosh Attn: Gitt' Clcrl.( ~~~ Jr\\-o\" tl ~ 215 Church Street I Oshkosh,WI54903-1130 L- ~t./S- ?lry'-- A--t1'-- 901-0333-000 (Parcel Identification Number) 2. This Mortgage secures prompt payment to Mortgagee of (a) the obligations of Mortgagor under the Note, plus interest and charges, according to the terms of the Note identified above, and any extensions, renewals or modifications of such Note; plus (b) all obligations of Mortgagor under the Development Agreement; plus (c) all costs and expenses of collection or enforcement (all c(llledthe "Obligations"). This Mortgage also secures the performance of all covenants, conditions and agreements contained in this Mortgage. 3. MORTGAGOR'S COVENANTS. (a) COVENANT OF TITLE. Mortgagor warrants title to the Property, except restrictions and easements of record, if any and except a first mortgage to State Bank of Cross Plains in the amount stated on the face of said Mortgage recorded in the Winnebago County Register of Deeds Office prior to the date of recording of this Second Lien Real Estate Mortgage (the "First Mortgagee"). In addition, Mortgager has granted a second mortgage to State Bank of Cross Plains in the stated amount of $463,000 (the "Interim Second Mortgage") which Interim Second Mortgage shall be permitted by the Mortgagee provided the Interim Second Mortgage is satisfied prior to the Mo~tgagee's funding of any moniesund8,r the Development Agreement. (b) TAXES. Mortgagor promises to pay when due all taxes and assessments lev~ed on the Property or upon Mortgagee's interest in it and to deliver to Mortgagee on demand receipts showing such payment. (c) INSURANCE. Mortgagor shall keep the improvements on the Property insured against a loss or damage occasioned by fire, extended coverage perils and such other hazards as Mortgagee may require, through insurers approved by Mortgagee in such amounts as Mortgagee shall require, but Mortgagee shall not require coverage in an amount more than the balance of the debt without co-insurance, and Mortgagor shall pay the premiums when due. The policies shall contain the standard mortgage clause in favor of Mortgagee. Mortgagor shall promptly give notice of loss to insurance companies and Mortgagee. Subject to the rights of the First Mortgagee, all insurance proceeds shall be payable to Mortgagee. Insurance proceeds shall be applied to restoration or repair of the Property' damages, provided no default or event of default exists under the Development Agreement or the Note and the Mortgagee deems the restoration or repair to be economically feasible. Mortgagee's rights hereunder are subject and subordinate to the rights of the First Mortgagee. (d) OTHER COVENANTS. Mortgagor covenants not to commit waste nor suffer waste to be committed on the Property, to keep the Property in good condition and repair, to comply with all laws ordinances and regulations affecting the Property, and to keep the Property from liens and encumbrances superior to the lien of -r~ !":'C~_, '.. . this Mortgage and the Mortgage described in paragraph 3(a) above. 4. DEFAULT; ACCELERATION; REMEDIES. If (a) there is a default under any Obligation secured by this Mortgage, or (b) Mortgagor fails to timely observe or perform any of Mortgagor's covenants or duties contained in this Mortgage, then, at the option of Lender each Obligation will become immediately due and payable unless notice to Mortgagor or Borrower and an opportunity to cure are required by ~ 425.105, Wis. Stats., if applicable, or the document evidencing the Obligation and, in that event, the Obligation will become due and payable if the default is not cured as provided in that statute or the document evidencing the Obligation or as otherwise provided by law. If Lender exercises its option to accelerate, the unpaid principal and interest owed on the Obligation, together with all sums paid by Lender as authorized or required under this Mortgage or any Obligation, shall be collectible in a suit at law or by foreclosure of this Mortgage by action, or both, or by the exercise of any other remedy available at law or equity. 5. WAIVER. Lender may waive any default without waiving any other subsequent or prior default by Mortgagor. 6. POWER OF SALE. In the event of foreclosure, Lender may sell the Property at public sale and execute and deliver to the purchasers deeds of conveyance pursuant to statute. 7. FORECLOSURE WITHOUT DEFICIENCY. Mortgagor agrees to the provisions of Section 846.101 and 846.103(2) of the Wisconsin Statutes, as may apply to the property and as may. be amenoed, permitting Mortgagee inthe eventofforeclosuretp waive the right to judgment for deficiency and to hold the foreclosure sale within the time provioed in such applicable Section. 8. RECEiVl;R. Upon default or during the pendency of any action to foreclose this Mortgage, Mortgagor consents to the appointment of a receiver of the Property, to collect the rents, issues, and profits of the Property, during the pendency of suchan action, and such rents, issues, and profits when so collected, shall be held and applied as the court shall direct. 9. MORTGAGEE MAY CURE DEFAULTS. In the event of any default by Mortgagor of any kind under this Mortgage, the Note or the Development Agreement, Mortgagee may cure the default and all sums paid by Mortgagee for such purpose shall immediately be repaid by Mortgagor with interest at the rate then in effect under either the Note or the Development Agreement. Any amounts advanced by Mortgagee pursuant to this paragraph 10 shall be secured by this Mortgage. 10. CONSENT REQUIRED FOR TRANSFER. Mortgagor shall not transfer, sell or convey any legal or equitable interest in the Property (by deed, land contract, option, long-term lease or in any other way) without the prior written consent of Mortgagee, unless either the indebtedness secured by this Mortgage (including, without limitation, all amounts due under the Note and the Development Agreement) is first paid in full. The entire indebtedness due under the Note and the Development Agreement shall become due and payable in full, at the option of Mortgagee without notice, upon any transfer, sale or conveyance made in violation of this paragraph, or in violation of the Development Agreement. The terms and conditions of the Development Agreement shall control with respect to any refinance of the First Mortgage. 11. ASSIGNMENT OF RENTS. Mortgagor hereby transfers and assigns absolutely to Mortgagee, as additional security, all rents, issues and profits which become or remain due (under any form of agreement for use or occupancy of the Property or any portion thereof), or which were previously collected and remain subject to Mortgagor's control, following any default under this Mortgage, the Note or the Development Agreement secured hereby and delivery of notice of exercise of this assignment by Mortgagee to the tenant or other user(s) of the Property. This assignrr,entsha\\ be enforceable v....ith or without appointment of a receiver and regardiess of Mortgagee's lack of possession of the Property. ACKNOWLEDGMENT Dated this 31st day of July, 2006. STATE OF WISCONSIN DANE COUNTY , Member n THIS INSTRUMENT WAS DRAFTED BY John W. Van Note Mohs, MacDonald, Widder & Paradise , JOHN W. VAN NOTE NOTARY PUBLIC STATE OF WISCONSIN ublic Dane County, Wisconsin mission is permanent.