Exhibit 4.3
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MORTGAGE
(Commercial Property)
(INDIANA)
NAME OF BANK: OLD KENT BANK
ADDRESS: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CITY: South Bend; STATE: MI Zip: 46601
THIS MORTGAGE is made on the 31st day of July 2001 between ▇▇▇▇▇▇ DRIVE
AWAY, INC., an Indiana Corporation of ▇▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Mortgagor"), and the bank named above, a Michigan banking corporation
("Bank").
FOR VALUE RECEIVED, Mortgagor mortgages and warrants to Bank land
located in the ________ of _______________, County of Elkhart, State of Indiana,
described as follows:
SEE ATTACHED SCHEDULE A
Property Address: ▇▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and (a) all buildings, structures and other improvements now or in the future
located an the land and all easements, hereditaments and appurtenances now or in
the future belonging to the land, (b) all fixtures now or in the future attached
to or used in connection with the land, (c) all equipment (including, without
limitation, all machinery, engines, boilers, elevators and plumbing, heating,
air conditioning and ventilating equipment) now or in the future located on the
land, all of which equipment shall be considered to be fixtures and a part of
the really, and (d) all rents, income and profits arising from the land or from
the buildings, structures, other improvements, fixtures and equipment now or in
the future located on the land. In this Mortgage, the above-described land,
buildings, structures, improvements, easements, hereditaments, appurtenances,
fixtures and equipment are collectively called "the premises."
THIS MORTGAGE SECURES PAYMENT AND PERFORMANCE OF ALL INDEBTEDNESS AND
OBLIGATIONS NOW AND IN THE FUTURE OWING TO BANK BY MORTGAGOR, including all
obligations of Mortgagor under this Mortgage. IF ANY PROMISSORY NOTE, GUARANTY
OR OTHER DOCUMENT LISTED BELOW HAS BEEN EXECUTED BY A PARTY OTHER THAN MORTGAGOR
("THIRD-PARTY OBLIGOR"), THEN THIS MORTGAGE ALSO SECURES PAYMENT AND PERFORMANCE
OF ALL INDEBTEDNESS AND OBLIGATIONS NOW AND IN THE FUTURE OWING TO BANK BY THE
THIRD-PARTY OBLIGOR. The indebtedness and obligations now owing to Bank by
Mortgagor and/or by any Third-Party Obligor include, BUT ARE NOT NECESSARILY
LIMITED TO, the indebtedness and obligations evidenced by any promissory notes,
guarantees and documents listed below:
Note, Guaranty or Date Principal Amount Party Who Executed
Document (if Any) (if Other Than Mortgagor)
Promissory Note July 31, 2001 $500,000.00
Mortgagor and any Third-Party Obligor are sometimes referred to in this
Mortgage as "Obligors." If any Obligor is more than one person, this Mortgage
also secures all Indebtedness and obligations now and in the future owing to
Bank by any one or more of those persons, regardless of whether the remaining
person or persons are not liable for any such indebtedness or obligations or
whether one or more persons other than an Obligor are also liable for such
indebtedness and obligations.
The maximum amount of future obligations and advances that may be
secured by this Mortgage to the same extent as if the future obligations and
advances were made on the date of execution of this Mortgage (whether made as an
obligation, made at the option of Lender, made after a reduction to zero or
other balance, or made otherwise) is $500,000.00. The preceding sentence is
included solely to establish the priority of the lien of this Mortgage and does
not create or imply any obligation of Bank to make loans or extend credit to
Mortgagor other than as Bank may have expressly agreed to in writing.
This Mortgage secures all present and future indebtedness and
obligations owing to Bank by each Obligor, regardless of whether any such
indebtedness or obligation is (a) not listed above, (b) not presently intended
or contemplated by Bank or any Obligor, (c) indirect, contingent or secondary,
(d) unrelated to the premises or to any financing of the premises by Bank, (e)
of a kind or class that is different from any indebtedness or obligation now
owing to Bank by any Obligor, or (f) evidenced by a note or other document that
does not refer to this Mortgage.
If Bank assigns this Mortgage and the indebtedness that is secured by
it at the time of assignment, then this Mortgage shall also secure all
indebtedness and obligations then and in the future owing to the assignee by
Mortgagor and any Third-Party Obligor. From and after the assignment, each
reference in this Mortgage to Bank shall be considered to refer to the assignee.
The indebtedness and obligations secured by this Mortgage are
collectively referred to in this Mortgage as the "Indebtedness."
Mortgagor further warrants, represents and agrees as follows:
1. Payment of Indebtedness. Mortgagor agrees to pay or perform all of
the Indebtedness now or in the future owing by Mortgagor, including all interest
on it, in accordance with the terms of the instruments, documents or agreements
evidencing it ("Instruments"), without relief from any valuation or appraisement
laws.
2. Warranties. Mortgagor warrants and represents to Bank that all
financial statements and other information concerning Mortgagor, the premises,
any guarantor of any of the Indebtedness and any person obligated on any of the
Indebtedness, that have been or in the future are furnished to Bank, are and
shall be true and correct in all material respects; that the execution, delivery
and performance of this Mortgage by Mortgagor will not violate any law, rule,
judgment, order, agreement or instrument binding upon Mortgagor and will not
require the approval of any public authority or any third party; and that this
Mortgage is the valid and binding obligation of Mortgagor, enforceable in
accordance with its terms. If Mortgagor is a corporation, partnership, limited
liability company, association, trust or other entity, Mortgagor further
represents and warrants to Bank that Mortgagor is duly organized and validly
existing in good standing in the State of Michigan or other jurisdiction
indicated in the first paragraph of this Mortgage; that Mortgagor has full power
and authority to carry on its business as presently conducted and to enter into
and perform its obligations under this Mortgage; that the execution, delivery
and performance of this Mortgage by Mortgagor have been duly authorized by all
necessary action of its board of directors, trustees, partners, members,
managers or other governing body and will not violate Mortgagor's articles or
certificate of incorporation, bylaws, partnership agreement, articles of
organization, operating agreement. articles of association, trust agreement or
other governing instrument and will not require the approval of its shareholders
or members.
3. Assignment of Interest as Lessee or Purchaser. Mortgagor assigns and
mortgages to Bank, as additional security for the Indebtedness, all of
Mortgagor's right, title and interest in and to any and all leases, land
contracts or other agreements by which any part or all of the premises are being
leased or purchased, including all modifications, renewals and extensions, and
all of Mortgagor's rights in and to any purchase options contained in each lease
or other agreement. Mortgagor will pay or cause to be paid each installment of
rent or of principal or interest required to be paid by the lessee or buyer
under each lease, land contract or other agreement, as and when it shall become
due and payable, whether by acceleration or otherwise. Mortgagor will pay and
perform, or cause to be paid and performed. all other obligations of the lessee
or buyer under each lease, land contract or other agreement. If Mortgagor shall
default in the payment of any installment of rent or of principal or interest or
in the payment or performance of any other obligation under any lease, land
contract or other agreement, then Bank shall have the right, but shall have no
obligation, to pay the installment or installments, to pay or perform the other
obligation on behalf of Mortgagor, and to exercise any rights of Mortgagor under
the lease, land contract or other agreement, including any purchase option. All
sums expended by Bank in doing so shall become part of the Indebtedness, payable
by Mortgagor to Bank upon demand, together with interest at the lesser of (a)
five percent above the rate of interest announced from time to time by Bank as
its "prime" rate of interest, or (b) the highest rate to which Mortgagor could
lawfully agree in writing ("Default Rate"). On receipt by Bank from the lessor
or seller under a lease, land contract or other agreement of any written notice
of default by the lessee or buyer, Bank may rely on the notice and take any
action to cure the default even though the existence or nature of the default is
questioned or denied by Mortgagor.
4. Assignment of Leases and Contracts. Mortgagor assigns and mortgages
to Bank. and grants to Bank a security interest in, as additional security for
the Indebtedness, all of Mortgagor's right, title and interest in and to all
existing and future oral or written leases of all or any part of the premises or
of any interest in them and all existing and future land contracts or other
agreements by which the premises or any interest in them is being or shall be
sold, together with all rents and profits arising from, and all other proceeds
of, those leases, land contracts or other agreements. Without the written
consent of Bank, Mortgagor shall not cancel, accept a surrender of. modify,
consent to an assignment of the lessee's interest under, or make any other
assignment or other disposition of, any lease, land contract or other agreement
or of any interest of Mortgagor in it and shall not collect or accept any
payment of rent or of principal or interest or any other amount more than one
month before it is due and payable. Mortgagor will pay and perform all
obligations and covenants required of it by the terms of each lease, land
contract or other agreement. If Mortgagor shall default in the payment or
performance of any obligation or covenant, then Bank shall have the right. but
shall have no obligation, to pay or perform it on behalf of Mortgagor, and all
sums expended by Bank in doing so shall be payable by Mortgagor to Bank upon
demand, together with interest at the Default Rate. Neither this paragraph nor
Paragraph 11 of this Mortgage implies that Bank consents to the sale, lease or
transfer of the premises or any interest in them.
5. Minerals. Mortgagor assigns and mortgages to Bank, and grants to
Bank a security interest in, as additional security for the Indebtedness, all of
Mortgagor's right, title and interest in and to (a) all oil, gas and other
minerals located in, on or under the premises, (b) all oil, gas or mineral
leases, royalty agreements and other contracts that have been or in the future
are entered into with respect to the premises or with respect to any oil, gas or
other minerals located in, on or under the premises ("Mineral Leases"), and (c)
all rents, profits, royalties and income at any time arising from the Leases or
from the sale of oil, gas or other minerals located in, on or under the
premises. Upon the occurrence of an event of default as defined in Paragraph 15
of this Mortgage, Bank shall be entitled to the present and full possession,
receipt and use of and right to such oil, gas, other minerals, Mineral Leases,
rents, profits, royalties and income, for application to the Indebtedness in any
manner that Bank in its sole discretion shall determine.
6. Taxes and Insurance. Mortgagor shall pay, or cause to be paid,
before they become delinquent, all taxes, assessments and other similar charges
levied upon or with respect to the premises and will promptly deliver to Bank
satisfactory evidence of payment of them. Mortgagor shall cause all buildings,
improvements and other insurable parts of the premises to be insured against
loss or damage by fire, by hazards included within extended coverage and by
other risks that Bank from time to time requires, in amounts and with insurers
that are acceptable to Bank, and Mortgagor shall cause all premiums on the
insurance to be paid when due. Bank shall not, however, require hazard insurance
covering any building or buildings that are part of the premises to be in an
amount greater than the replacement cost of the building or buildings. Within 45
days after Bank notifies Mortgagor that the premises are located in a special
flood hazard area but are not covered by flood insurance in the amount required
by applicable law (including, without limitation, the Federal Flood Insurance
Act of 1968, as amended), Mortgagor shall obtain and at all times maintain in
effect the required insurance. Each policy evidencing insurance required by this
Paragraph shall provide that loss shall be payable to Bank as its interest shall
appear at the time of the loss, shall contain a standard mortgage clause, shall
be in form and substance acceptable to Bank and shall be delivered to Bank. Each
policy shall provide that the insurer shall give Bank at least 10 days' prior
written notice of any cancellation of or any material change in the insurance.
Each renewal of each policy shall be delivered to Bank at least 10 days before
the expiration date of the policy. Upon foreclosure of this Mortgage or other
transfer of the premises in satisfaction of the Indebtedness, all right, title
and interest of Mortgagor in and to any insurance policies then in force,
including the right to any premium refund, shall vast in the purchaser or
grantee. If there shall occur any destruction of or damage to the premises,
Mortgagor shall give immediate notice to Bank, and Bank shall have the right to
make proof of the loss or damage, if Mortgagor does not promptly do so. Bank is
authorized to settle, adjust or compromise any claims for loss or damage under
any insurance policy. Mortgagor shall immediately endorse and deliver to Bank
all proceeds of any policy. Bank may require Mortgagor to pay a reasonable fee
to Bank for determining whether the premises are located in a special flood
hazard area, if either (i) Bank undertook the determination because of a
revision of flood plain areas or (ii) Bank purchased required flood insurance,
under Paragraph 9 of this Mortgage, after Mortgagor failed to purchase the
required insurance following Bank's notification to Mortgagor that Mortgagor was
required to do so.
7. Escrow. Upon request by Bank, Mortgagor shall pay to Bank
periodically, on each date that Bank shall designate, an amount equal to (a) the
amount that Bank from time to time estimates will be sufficient to permit Bank
to pay each annual tax, assessment and any other similar charge levied upon or
with respect to the premises and each premium for flood insurance covering the
premises, at least 30 days before it is due and payable, divided by (b) the
number of regularly- scheduled payments upon the Indebtedness that will occur
between (i) the date of Bank's request, the date of any now estimate by Bank of
the amount of the annual tax, assessment, other charge or flood insurance
premium or the date when Bank last paid the tax, assessment. or other charge or
flood insurance premiums on behalf of Mortgagor (whichever date is applicable),
and (ii) the thirtieth day before the tax, assessment, other charge or flood
insurance premium will be due and payable. Upon demand by Bank, Mortgagor will
pay to Bank any additional sums that are necessary to make up any deficiency in
the amount necessary to enable Bank to pay fully those taxes, assessments, other
similar charges and flood insurance premiums when due. All sums that Mortgagor
pays to Bank under this paragraph may be commingled with general funds of Bank,
and no interest shall be payable to Mortgagor with respect to them. If an event
of default, as defined in Paragraph 15 of this Mortgage, occurs, then Bank may
apply any funds of Mortgagor it then holds under this paragraph against the
Indebtedness, in any manner that Bank shall determine.
8. Maintenance and Repair. Mortgagor shall maintain the premises in
good condition and repair; shall not commit or suffer any waste of the premises;
shall not remove, demolish or substantially alter any building or fixture on the
premises without the prior written consent of Bank; shall cause to be complied
with all laws, ordinances, regulations and requirements of any governmental
authority applicable to the premises or to activities on the premises; shall
promptly repair, restore, replace or rebuild any part of the premises that is
damaged or destroyed by any casualty; and shall promptly pay when due all
charges for utilities and other services to the premises.
9. Bank's Right to Perform; Receiver. If Mortgagor shall default in the
performance of any obligation of Mortgagor under this Mortgage (including,
without limitation, its obligations to keep the premises in good condition and
repair, to pay taxes and assessments and to obtain and maintain insurance), then
Bank shall have the right, but shall have no obligation, to perform, or cause to
be performed, the obligation. and Mortgagor shall reimburse Bank on demand for
all sums expended by Bank in doing so, together with interest at the Default
Rate. Bank and any persons authorized by Bank shall have the right to enter upon
the premises at all reasonable times for the purpose of inspecting the premises
or effecting maintenance or repairs or taking any other action under the
preceding sentence. The failure of Mortgagor to pay any taxes, assessments or
similar charges upon the premises when due or to obtain and maintain required
insurance shall constitute waste and shall entitle Bank, to the extent permitted
by law, to the appointment by a court of competent jurisdiction of a receiver of
the premises for the purpose of preventing the waste. The receiver, subject to
the order of the court, may collect the rents and income from the premises and
exercise control over the premises as the court shall order. Any payment or
performance by Bank, under Paragraph 3 or Paragraph 4 of this Mortgage, of an
obligation that Mortgagor has failed to perform under a lease, land contract or
other agreement, and any exercise by Bank of any right, remedy or option under a
lease, land contract or other agreement, shall not be considered an assumption
by Bank of the lease, land contract or other agreement or of any obligation or
liability under it.
10. Condemnation. It all or any part of the premises are taken, whether
temporarily or permanently, under power of eminent domain or by condemnation,
the entire proceeds of the award or other payment for the taking shall be paid
directly to Bank.
11. Sale or Transfer. If there shall be a sale or transfer, by
operation of law or otherwise, of all or any part of the premises, Bank may deal
with the buyer or transferee with respect to this Mortgage and the Indebtedness
as fully and to the same extent as it might with Mortgagor, without in any way
releasing, discharging or affecting the liability of Mortgagor under this
Mortgage and upon the Indebtedness, and without waiving Bank's right to
accelerate payment of the Indebtedness, under Paragraph 15 of this Mortgage, by
reason of the sale or transfer.
12. Property Information. During any period when any part of the
premises is leased, Mortgagor shall promptly furnish to Bank, upon Bank's
request from time to time, (a) copies of all leases then in effect with respect
to all or any part of the premises, including all amendments, (b) a written
schedule that shows for each tenant the tenant's name, the current rental rate
(including any percentage rent), any rental or leasing concessions, the units or
area leased and the lease expiration date, (c) a description of any parts of the
premises that are not then leased, (d) detailed financial statements relating to
the premises, prepared in accordance with generally accepted accounting
principles, for the periods and as of the dates that Bank shall require, which
statements shall show, without limitation, all income and expenses, capital
expenditures, tenant improvements, leasing commissions, and all indebtedness
secured by mortgages or lions upon the premises, and (e) any additional
information concerning the premises and the leasing of them that Bank shall
request. Bank shall have the right at any reasonable time (whether or not any
part of the premises is then being leased) to inspect and make copies of
Mortgagor's records concerning the premises and any lease of or other
transaction or matter concerning the premises.
13. Environmental and Access Law Warranties and Agreements. Mortgagor
warrants and represents to Bank, and agrees, as follows:
(a) Mortgagor, the premises and all activities of Mortgagor and all
other persons on the premises are and shall continue to be in compliance with
all environmental laws and all access laws. No part of the premises is or shall
in the future be used as a "public accommodation," as defined in the federal
Americans With Disabilities Act, as amended. The premises are not and shall not
become a site or source of environmental contamination. Except as expressly
disclosed by Mortgagor to Bank in writing, (i) nor asbestos or polychlorinated
biphenyls are present on or contained in the premises, and (ii) the premises do
not contain, and have never contained, an underground storage tank.
(b) In this Mortgage, (i) "environmental law" means at any time any
applicable federal, state, local or foreign law (including common law),
ordinance, rule, regulation, permit, order or other legally binding requirement
that then (A) regulates the quality of air, water, soil or other environmental
media, (B) regulates the generation, management. transportation, treatment,
storage, recycling or disposal of any wastes, (C) protects public health,
occupational safety and health, natural resources or the environment, or (D)
establishes liability for the investigation, removal or remediation of, or harm
caused by, environmental contamination; (ii) "hazardous substance" means at any
time any substance of waste that is then subject to or regulated by any
environmental law; (iii) "environmental contamination" means the presence of a
hazardous substance in or on, or the release, discharge or emission of a
hazardous substance from, the premises in excess of any limit or criterion
established or issued under any environmental law, and (iv) "access law" means
at any time any applicable law, ordinance, rule, regulation or order that then
regulates the accessibility of property to disabled persons, including, but not
limited to, the federal Americans With Disabilities Act, as amended.
14. Access to Premises. Bank and any persons authorized by Bank shall
have the right to enter upon the premises at all reasonable times for the
purpose of (i) appraising the premises, (ii) investigating (including, without
limitation, sampling soil, water and air) whether the premises and activities
upon them are in compliance with environmental laws and access laws and whether
the premises are a site or source of environmental contamination or (iii)
removing or remediating any environmental contamination. Without limiting the
foregoing, Bank shall have the right to conduct and submit to appropriate
governmental agencies a "baseline environmental assessment" of the premises
within the meaning of Section 20101 of the Michigan Natural Resources and
Environmental Protection Act, MCL 324.20101, as it shall be amended from time to
time. If, at the time of the appraisal, investigation, assessment, removal or
remediation, there shall have occurred and be continuing an event of default, as
defined in Paragraph 15 of this Mortgage, then Mortgagor shall reimburse Bank on
demand for all costs and expenses of the appraisal, investigation, assessment,
removal or remediation, together with interest at the Default Rate. Mortgagor
shall execute any consultant contract, waste manifest, notice and other
documents that Bank requests to enable Bank to take or conduct any action or
activity contemplated by this paragraph, if Mortgagor is given a reasonable
opportunity to negotiate the terms of the contract. manifest, notice or other
document.
15. Events of Default Acceleration. Upon the occurrence of any of the
following events of default, all or any part of the Indebtedness shall, at the
option of Bank, become immediately due and payable without notice or demand: (a)
If default occurs in the payment or performance of any of the Indebtedness, when
and as It shall be due and payable, whether at Maturity or otherwise.
(b) If default occurs in the performance of any other obligation to
Bank under any instrument or under any other mortgage, security agreement, loan
agreement, assignment, guaranty or other agreement that now or in the future
secures or relates to any of the Indebtedness or that evidences, secures or
relates to any guaranty of any of the Indebtedness ("Security Documents") or if
default occurs in the performance of any obligation to Bank under this Mortgage,
whether or not Bank shall have performed the obligation on Mortgagor's behalf,
under Paragraph 9 of this Mortgage, and whether or not Mortgagor shall have
reimbursed Bank for any payments or expenses it incurred in curing the default.
(c) If any warranty, representation or statement that has been or is
later made to Bank by Mortgagor or by any guarantor of all or part of the
Indebtedness ("Guarantor") in this Mortgage or in any Security Document, credit
application, financial statement or otherwise, shall have been false in any
material respect when made or furnished.
(d) It Mortgagor shall default in payment of the principal of or
interest on any indebtedness for borrowed money now or later owed to any person
other than Bank.
(e) If Mortgagor or any of Mortgagor's partners (if Mortgagor is a
partnership) or any Guarantor or any of the partners of a Guarantor that is a
partnership shall die, dissolve, become insolvent or make an assignment for the
benefit of creditors.
(f) If Mortgagor, without the written consent of Bank, shall sell,
convey or transfer the premises or any interest in the premises or any rents or
profits from the premises or if any mortgage, lien or other encumbrance or any
writ of attachment, garnishment, execution or other legal process shall be
issued against or placed upon the premises or any interest in them or any rents
or profits from them, except in favor of Bank, or it any part of the premises or
any interest in them shall be transferred by operation of law.
(g) If all or any material part of the premises shall be damaged or
destroyed by fire or other casualty, regardless of insurance coverage for the
loss, or shall be taken by condemnation or power of eminent domain.
(h) If any law or government regulation shall impose a tax or
assessment upon mortgages or debts secured by mortgages.
(i) It any guaranty that now or in the future secures payment or
performance of all or any part of the Indebtedness shall be terminated or
limited, for any reason, without the written consent or agreement of Bank.
(j) If at any time Bank in good faith believes that the prospect of
payment or performance of any part or all of the Indebtedness is impaired.
(k) If any lease, land contract, or other agreement by which Mortgagor
is leasing or purchasing any interest in the premises shall be declared by the
lessor or seller to be forfeited or terminated or if any suit or other action
shall be begun to foreclose any land contract or to recover possession of all or
any part of the premises by reason of any default or alleged default under any
lease, land contract or agreement.
If a voluntary or involuntary case of bankruptcy or receivership shall
be started by or against Mortgagor or any of Mortgagor's partners (if Mortgagor
is a partnership) or any Guarantor or any partner of any Guarantor that is a
partnership, then the entire Indebtedness shall automatically become immediately
due and payable, without notice or demand. All or any part of the Indebtedness
also may become, or may be declared to be, immediately due and payable under the
terms and conditions contained in any Security Document, Instrument or other
agreement that at any time evidences, secures or relates to the Indebtedness.
16. Remedies. Bank shall have all rights and remedies given by this
Mortgage or otherwise permitted by law. In addition, if the Indebtedness shall
not be paid at maturity, Bank shall have the right and is authorized:
(a) To collect and receive all rents, profits, and other amounts that
are due or shall in the future become due under the terms of any leases, land
contracts or other agreements, now or in the future in effect. by which the
premises or any interest in them are then being sold or leased or under any
Mineral Lease, and to exercise any other right or remedy of Mortgagor under any
lease, land contract, other agreement or Mineral Lease; but Bank shall have no
obligation to make any demand or inquiry as to the nature or sufficiency of any
payment received or to present or file any claim or take any other action to
collect or enforce the payment of any amounts to which Bank may become entitled,
and Bank shall not be liable for any of Mortgagor's obligations under any lease,
land contract or other agreement.
(b) To obtain or update abstracts of title. title searches, title
insurance and surveys with respect to the premises, and Mortgagor shall
reimburse Bank for all costs of doing so, together with interest at the Default
Rate.
(c) To foreclose this Mortgage by action under applicable law.
(d) To exercise any and all rights and options under any lease, land
contract or other agreement by which any part or all of the premises are then
being leased or purchased, including any option to purchase the premises or to
renew or extend the term of any lease, land contract or other agreement, but
Bank shall have no obligation to exercise any right or option.
All rights and remedies of Bank under this Mortgage, whether or not
exercisable only on default, shall be cumulative and may be exercised from time
to time, and no delay by Bank in the exercise of any right or remedy shall be a
waiver of it, and no single or partial exercise of any right or remedy shall
prevent other or further exercise of it or the exercise of any other right or
remedy, except to the extent otherwise provided by law. In this Mortgage,
"Maturity" means the time when the Indebtedness shall be or shall become due and
payable, whether by the terms of the instruments or under Paragraph 15 of this
Mortgage or otherwise.
17. Security Interest in Fixtures. Mortgagor grants to Bank a security
interest in all fixtures now or in the future located on the premises. If the
Indebtedness is not paid at Maturity, Bank, at its option, may enforce this
security interest in fixtures under the Michigan Uniform Commercial Code or
other applicable law or may include fixtures in any foreclosure of this Mortgage
under Paragraph 16 of this Mortgage. Any requirement of reasonable notice with
respect to any sale or other disposition of fixtures shall be met if Bank sends
the notice at least 5 days before the date of sale or other disposition.
18. Indemnification. Mortgagor shall indemnity and hold harmless Bank
with respect to any and all claims, demands, causes of action, liabilities,
damages, losses, judgments and expenses (including attorney fees) that shall be
asserted against or incurred by Bank by reason of (a) any representation or
warranty by Mortgagor in this Mortgage being inaccurate in any respect, (b) any
failure of Mortgagor to perform any of Mortgagor's obligations under this
Mortgage, or (c) any past, present or future condition or use of the premises
(whether known or unknown), other than excluded condition or use, including, but
not limited to, liabilities arising under any "environmental law," as defined in
Paragraph 13 of this Mortgage. An "excluded condition or use" is one that both
(i) does not exist or occur, to any extent, at any time before Mortgagor has
permanently given up possession and control of the premises by reason of a
foreclosure of this Mortgage or Bank's acceptance of a conveyance of the
premises to Bank in lieu of foreclosure and (ii) was not caused or permitted to
exist, in whole or part, by any act or omission of Mortgagor. Indemnification by
Mortgagor under this paragraph shall not limit any other right or remedy
(including Banks right to accelerate payment of the Indebtedness) that is
available to Bank by reason of the circumstance in respect of which indemnity is
made. Mortgagor's obligations under this paragraph shall survive foreclosure of
this Mortgage and any conveyance of the premises in lieu of foreclosure.
19. Waivers.
(a) Mortgagor and any other person who in the future obtains a mortgage
or lion upon, or any other interest in, the premises waives, with respect to any
foreclosure of this Mortgage, (i) any right to marshaling of the premises and
any right to require a minimum bid or "upset" price, and (ii) the benefit of any
stay, extension, exemption or moratorium law, now existing or enacted in the
future.
(b) Bank may at any time release all or any part of the premises from
the lien of this Mortgage or release the liability of any person for the
Indebtedness, with or without consideration and without giving notice to, or
obtaining the consent of, the holder of any mortgage or lien upon, or other
interest in, the premises. A release shall not impair or affect the validity or
priority of this Mortgage, regardless of the effect of the release upon the
mortgage, lien or other interest or the holder of it. This subparagraph does not
imply that Bank consents to the placing of a mortgage, lien or other encumbrance
on the premises.
(c) Mortgagor (i) waives notice of any advances or other extensions of
credit included in the Indebtedness, (ii) waives any right to require Bank to
▇▇▇ upon or otherwise enforce payment of the Indebtedness or to enforce any
security for it before exercising, its rights and remedies under this Mortgage,
and (iii) agrees that the validity and enforceability of this Mortgage shall not
be impaired or affected by any failure of Bank to obtain or perfect, or to
secure priority of, any other security at any time given, or agreed to be given,
by any person for the Indebtedness.
(d) Bank is authorized, from time to time and without notice to or
consent of Mortgagor and with or without consideration, to give and make any
extensions. renewals, modifications, waivers, settlements and compromises, on
such terms and conditions as Bank may see fit, with regard to any of the
Indebtedness at any time owing by a Third-Party Obligor or with regard to any
security for the Indebtedness that is not owned by Mortgagor. Any of these
actions shall not impair or affect the validity or enforceability of this
Mortgage.
20. Expenses. Mortgagor shall pay to Bank on demand all expenses,
including attorney fees and legal expenses, paid or incurred by Bank in
collecting or attempting to collect the Indebtedness or in protecting and
enforcing the rights of and obligations to Bank under any provision of this
Mortgage, including, without limitation. taking any action in any bankruptcy,
insolvency or reorganization proceeding concerning Mortgagor or foreclosing this
Mortgage by advertisement or by action. The expenses shall bear interest. from
the date paid or incurred by Bank, at the Default Rate.
21. Application of Proceeds. If any rents or profits or any proceeds of
insurance or proceeds of any condemnation or eminent domain award or proceeds
from any sale of the premises at foreclosure are paid to Bank, Bank shall have
the right to apply the rents or profits or proceeds, in amounts and proportions
that Bank shall in its sole discretion determine, to the full or partial
satisfaction of any or all of the indebtedness and obligations secured by this
Mortgage, including any contingent or secondary obligations, whether or not they
shall then be due and payable by the primary obligor.
22. Other. Any notice to Mortgagor or to Bank shall be considered to be
given if and when mailed, with postage prepaid, to the respective address of
Mortgagor or Bank appearing on the first page of this Mortgage, or if and when
delivered personally. The provisions of this Mortgage shall be binding upon and
inure to the benefit of Mortgagor and Bank and their respective successors,
assigns, heirs and personal representatives. Any provision of this Mortgage
prohibited or unenforceable by any applicable law shall be ineffective only to
the extent and for the duration of the prohibition or unenforceability without
invalidating the remaining provisions of this Mortgage. If Mortgagor is more
than one person, their obligations under this Mortgage are joint and several,
and the term "Mortgagor" refers to each of them and all of them.
IN WITNESS WHEREOF, Mortgagor has signed this Mortgage as of the date
stated on the first page of this Mortgage.
BANK AND EACH MORTGAGOR IRREVOCABLY AND UNCONDITIONALLY WAIVES ITS, HIS
OR HER RIGHT TO A TRIAL BY JURY IN ANY ACTION, INCLUDING ANY CLAIM,
COUNTERCLAIM, CROSS-CLAIM OR THIRD-ARTY CLAIM ("CLAIM"), THAT IS BASED UPON,
ARISES OUT OF OR RELATES TO THIS MORTGAGE OR THE INDEBTEDNESS, INCLUDING,
WITHOUT LIMITATION, ANY CLAIM BASED UPON, ARISING OUT OF OR RELATING TO ANY
ACTION OR INACTION OF BANK IN CONNECTION WITH ANY ACCELERATION OF THE
INDEBTEDNESS OR ANY FORECLOSURE OR OTHER ENFORCEMENT OF THIS MORTGAGE.
The undersigned persons executing the
mortgage on behalf of Mortgagor present and
certify that they are duly elected officers
of Mortgagor and have been fully empowered,
by a proper resolution of the Board of
Directors of Mortgagor, to execute and
deliver the mortgage and all necessary
corporate action for the making of such
mortgage has been taken and done.
Witnesses: Non-individual Mortgagor(s):
▇▇▇▇▇▇ DRIVE AWAY, INC.,
---------------------------- an Indiana Corporation
----------------------------
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Exec. V.P. - Finance & Administration
And by:
-------------------------------------
STATE OF INDIANA )
) ss:
COUNTY OF _______ )
This Mortgage was acknowledged before me on ________________, _______
(year), by ___________________________________________.
Notary Public, ________________ County, Indiana.
My commission expires:
-----------------------
STATE OF INDIANA )
) ss:
COUNTY OF St. ▇▇▇▇▇▇ )
This Mortgage was acknowledged before me on July 31, 2001, by ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, the Executive Vice President - Finance & Administration of ▇▇▇▇▇▇ DRIVE
AWAY, INC., an Indiana Corporation, on its behalf.
Notary Public, ________________ County, Indiana.
My commission expires:
------------------------
This instrument prepared by
▇▇▇▇ ▇. ▇▇▇▇▇
Old Kent Bank
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SCHEDULE A
The land is located in the County of Elkhart, State of Indiana described as
follows:
Lot Numbered One (1) and Thirty-three (33) and a part of Lots Numbered Thirty
(30), Thirty-one (31), and Thirty-two (32) as the said Lots are known and
designated on the recorded Plat of BRENTWOOD MANOR, said Plat being recorded in
Plat Book 3, page 77 in the Office of the Recorder of Elkhart County, and part
of the West half (W 1/2) of Section One (1), Township Thirty- seven (37) North,
Range Four (4) East, situated in Cleveland Township, Elkhart County, State of
Indiana, and being more particularly described as follows:
Assuming the East line of the said Plat of BRENTWOOD MANOR to have a bearing of
due North and South: Beginning at the Southeast corner of said Lot One (1);
thence North Eighty-seven (87) degrees Zero (0) minutes West along the South
line of said Lot One (1) a distance of One Hundred and thirteen hundredths
(100.13) feet; thence due North along the West line of said Lot One (1) a
distance of Three Hundred ninety-four and eight-eight hundredths (394.88) feet;
thence ▇▇▇ ▇▇▇▇ along the South line of said Lot Thirty (30), a distance of Two
Hundred six (206) feet to a point that is Ninety-four (94) feet East of the
Southwest corner of said Lot Thirty (30); thence due North a distance of One
Hundred seventy (170) feet to a point that is Thirty (30) feet South of the
North line of said Lot Thirty (30); thence ▇▇▇ ▇▇▇▇ parallel with the North line
of said Lot Thirty (30) a distance of Ninety-four (94) feet to the East line of
▇.▇. Street, as the said Street is known and designated on said recorded plat of
BRENTWOOD MANOR; thence due North along the East line of said ▇.▇. Street, a
distance of Fifty (50) feet to a point that is Twenty (20) feet North of the
Southwest corner of said Lot Thirty-one (31); thence due East parallel with the
South line of said Lot Thirty-one (31) a distance of Eighty-seven and five
tenths (87.5) feet; thence due North a distance of One Hundred seventy (170)
feet to a point that is Ten (10) feet South of the North line of said Lot
Thirty-one (31); thence due East parallel with the North line of said Lot
Thirty-one (31) a distance of Eighty-seven and five tenths (87.5) feet; thence
due North a distance of One Hundred forty-three and thirty-two hundredths
(143.32) feet to a point that is Sixty-six and sixty-eight hundredths (66.68)
feet South of the North line of said Lot Thirty-two (32); thence ▇▇▇ ▇▇▇▇
parallel with the North line of said Lot Thirty-two a distance of One Hundred
seventy-five (175) feet to the East line of said ▇.▇. Street; thence North along
the East line of said ▇.▇. Street a distance of Two Hundred sixty-six and
sixty-eight hundredths (266.68) feet to the Northwest ▇▇▇▇▇ of said Lot
Thirty-three (33); thence due East along the North line of said Lot Thirty-three
(33) a distance of Four Hundred (400) feet to the East line of the said plat of
BRENTWOOD MANOR; thence due North along the East line of said Plat a distance of
Eight Hundred fifty-nine and thirty-three hundredths (859.33) feet to the
Northwest corner thereof, said point also being on the South line of
Consolidated Rail Corporation, Sixty-six (66) foot wide right-of-way (formerly
Elkhart and Western Railroad); thence North Eighty-nine (89) degrees Fifty-three
(53) minutes East along said right-of- way line a distance of Six Hundred sixty
(660) feet to the Northeast corner of land described in deed to ▇▇▇▇▇▇ Drive
Away, Inc. (Deed Record 238, page 261); thence due South along the East line of
said ▇▇▇▇▇▇ Drive Away, Inc. land, a distance of Two Thousand fifty-six and
eighty-three hundredths (2056.83) feet to the North right-of-way line of US
Highway 20; thence South Eighty- nine (89) degrees Forty (40) minutes West along
said right-of-way line a distance of Six Hundred sixty and one hundredth
(660.01) feet to the place of beginning of this description.
EXCEPTING THEREFROM:
A part of the Northwest Quarter (NW 1/4) of Section One (1), Township
Thirty-seven (37) North, Range Four (4) East, in Cleveland Township, Elkhart
County, Indiana, being more particularly described as follows:
Assuming the East line of the recorded Plat of BRENTWOOD MANOR to have a bearing
of due North and South beginning at the Northeast corner of Lot Numbered
Thirty-seven (37) in said recorded Plat; said corner being the point of
intersection of the East line of said recorded Plat with the South right-of-way
line of the Consolidated Rail Corporation; thence North Eighty-nine (89) degrees
Fifty-three (53) minutes East. along the South right-of-way line of said Rail
Corporation, a distance of Six Hundred sixty (660) feet; thence due South
parallel with the East line of said BRENTWOOD MANOR, a distance of Eight Hundred
eighty and sixty-eight hundredths (880.68) feet; thence ▇▇▇ ▇▇▇▇, a distance of
Six Hundred sixty (660) feet to a point located on the East line of said
BRENTWOOD MANOR; thence due North along the East line of said recorded Plat, a
distance of Eight Hundred seventy-nine and thirty-three hundredths (879.33) feet
to the place of beginning of this description.
RIGHTS AND BENEFITS of Ingress & Egress Easement as set out in Contract dated
January 20, 1992 and recorded January 22, 1992 as Document number 92001365 in
the Office of the Recorder of Elkhart County, Indiana.
▇▇▇▇▇▇ DRIVE AWAY, INC.,
Date: July 31, 2001 an Indiana Corporation
By
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its Exec. V.P. - Finance & Administration
