REAL PROPERTY MORTGAGE
(LaGrange County, Indiana)
(Elkhart County, Indiana)
THIS REAL PROPERTY MORTGAGE ("Mortgage"), made as of December 12,
2000, is made and executed by STARCRAFT CORPORATION, an Indiana corporation
("Mortgagor"), f/k/a Rokane Investment Group, Inc., with its chief executive
office and principal place of business at 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx
00000, in favor of Xxxxx X. Xxxx and G. Xxx Xxxxxx (collectively "Lender")
having an address at 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000.
RECITALS
I. Pursuant to the terms of a certain Reimbursement Agreement of even
date herewith (said Reimbursement Agreement together with all amendments,
supplements, modifications and replacements thereof, being hereinafter referred
to as the "Loan Agreement") by and between Imperial Automotive Group, Inc.,
Starcraft Corporation, Starcraft Automotive Group, Inc. and National Mobility
Corporation, as borrowers ("Borrowers"), and Lender, Lender has agreed to extend
financial accommodations to Borrowers as described therein, in an aggregate
principal amount of $2,500,000 (collectively, the "Loans"). The Loans consist of
certain letter of credit financial accommodations and guaranty obligations. To
induce Lender to make the Loans, Mortgagor has executed and delivered to Lender
the Loan Agreement. The terms and provisions of the Loan Agreement are hereby
incorporated by reference in this Mortgage.
II. Among other things, this Mortgage is given to secure not only
present indebtedness but also future advances, whether such future advances are
obligatory or are to be made at the option of Lender, or otherwise. The amount
of indebtedness secured hereby may increase or decrease from time to time,
however the principal amount of such indebtedness shall not at any time exceed
the amount of $3,000,000, plus interest thereon, and other costs, amounts and
disbursements as provided herein and in the Agreement.
GRANTING CLAUSES
To secure the payment of the indebtedness evidenced by the Loan
Agreement the payment and performance of the obligations under the Loan
Agreement and the Guaranty, and the payment of all amounts due under and the
performance and observance of all covenants and conditions contained in this
Mortgage, the Loan Agreement any and all other mortgages, security agreements,
assignments of leases and rents, guaranties, reimbursement agreements in
connection with any letters of credit and any other documents and instruments
now or hereafter executed by Mortgagor or any party related thereto or
affiliated therewith to evidence, secure or guarantee the payment of all or any
portion of the Indebtedness under the Loan Agreement and any and all renewals,
extensions, amendments and replacements of this Mortgage, the Loan Agreement and
any such other documents and instruments (the Loan Agreement, this Mortgage,
such other mortgages, security agreements, assignments of leases and rents,
guaranties, reimbursement agreements in connection with any letters of credit,
and any other documents and instruments now or hereafter executed and delivered
in connection with the Loans, and any and all amendments, renewals, extensions
and replacements hereof and thereof, being sometimes referred to collectively as
the "Loan Instruments" and individually as a "Loan Instrument") (all
indebtedness and liabilities secured hereby being hereinafter sometimes referred
to as "Borrowers' Liabilities"), Mortgagor does hereby convey, mortgage, warrant
assign, transfer, pledge and deliver to Lender and grant to Lender a security
interest in the following described property subject to the terms and conditions
herein:
(A) The lands located in LaGrange County and Elkhart County, Indiana,
legally described in attached Exhibit A ("Land");
(B) All the buildings, structures, improvements and fixtures of every
kind or nature now or hereafter situated on the Land and all machinery,
appliances, equipment, furniture and all other personal property of every kind
or nature which constitute fixtures with respect to the Land, together with all
extensions, additions, improvements, substitutions and replacements of the
foregoing ("Improvements");
(C) All easements, tenements, rights-of-way, vaults, gores of land,
streets, ways, alleys, passages, sewer rights, water courses, water rights and
powers and appurtenances in any way belonging, relating or appertaining to any
of the Land or Improvements, or which hereafter shall in any way belong, relate
or be appurtenant thereto, whether now owned or hereafter acquired
("Appurtenances");
(D) (i) All judgments, insurance proceeds, awards of damages and
settlements which may result from any damage to all or any portion of the Land,
Improvements or Appurtenances or any part thereof or to any rights appurtenant
thereto;
(ii) All compensation, awards, damages, claims, rights of action
and proceeds of or on account of (a) any damage or taking, pursuant to the power
of eminent domain, of the Land, Improvements or Appurtenances or any part
thereof, (b) damage to all or any portion of the Land, Improvements or
Appurtenances by reason of the taking, pursuant to the power of eminent domain,
of all or any portion of the Land, Improvements, Appurtenances or of other
property, or (c) the alteration of the grade of any street or highway on or
about the Land, Improvements, Appurtenances or any part thereof, and, except as
otherwise provided herein, Lender is hereby authorized to collect and receive
said awards and proceeds and to give proper receipts and acquittances therefor
and, except as otherwise provided herein, to apply the same toward the payment
of the indebtedness and other sums secured hereby; and
(iii) All proceeds, products, replacements, additions,
substitutions, renewals and accessions of and to the Land, Improvements or
Appurtenances;
(E) All rents, issues, profits, income and other benefits now or
hereafter arising from or in respect of the Land, Improvements or Appurtenances
(the Rents"); it be intended that this Granting Clause shall constitute an
absolute and present assignment of the Rents, subject, however, to the
conditional permission given to Mortgagor to collect and use the Rents as
provided in this Mortgage;
(F) Any and all leases, licenses and other occupancy agreements now or
hereafter affecting the Land, Improvements or Appurtenances, together with all
security therefor and guaranties thereof and all monies payable thereunder, and
all books and records owned by Mortgagor which contain evidence of payments made
under the leases and all security given therefor (collectively, the "Leases"),
subject however, to the conditional permission given in this Mortgage to
Mortgagor to collect the Rents arising under the Leases as provided in this
Mortgage;
(G) Any and all after-acquired right, title or interest of Mortgagor in
and to any of the property described in the preceding Granting Clauses; and
(H) The proceeds from the sale, transfer, pledge or other disposition
of any or all of the property described in the preceding Granting Clauses;
All of the mortgaged property described in the Granting Clauses,
together with all real and personal, tangible and intangible property pledged
in, or to which a security interest attaches pursuant to, any of the Loan
Instruments is sometimes referred to collectively as the "Mortgaged Property."
The Rents and Leases are pledged on a parity with the Land and Improvements and
not secondarily.
ARTICLE ONE
COVENANTS OF MORTGAGOR
Mortgagor covenants and agrees with Lender as follows:
1.1 Performance under Loan Agreement, the Mortgage and Other Loan
Instruments. Mortgagor shall perform, observe and comply with or cause to be
performed, observed and complied with in a complete and timely manner all
provisions hereof, of the Loan Agreement, every other Loan Instrument and every
instrument evidencing or securing Borrowers' Liabilities.
1.2 General Covenants and Representations. Mortgagor covenants,
represents and warrants that as of the date hereof and at all times thereafter
during the term hereof (a) Mortgagor is seized of an indefeasible estate in fee
simple in that portion of the Mortgaged Property which is real property, and has
good and absolute title to it and the balance of the Mortgaged Property free and
clear of all liens, security interests, charges and encumbrances whatsoever
except those currently of record, if any (such liens, security interests,
charges and encumbrances being hereinafter referred to as the "Permitted
Encumbrances"); (b) Mortgagor has good right, full power and lawful authority to
mortgage and pledge the Mortgaged Property as provided herein; (c) upon the
occurrence of an Event of Default (hereinafter defined), Lender may at all times
peaceably and quietly enter upon, hold, occupy and enjoy the Mortgaged Property
in accordance with the terms hereof, and (d) Mortgagor will maintain and
preserve the lien of this Mortgage as a first and paramount lien on the
Mortgaged Property subject only to the Permitted Encumbrances until Borrowers'
Liabilities have been paid in full and Lender's obligations under the Loan
Agreement have been terminated.
1.3 Compliance with Laws and Other Restrictions. Mortgagor covenants
and represents that the Land and the Improvements and the use thereof presently
comply with, and will continue to comply with, all applicable restrictive
covenants, zoning and subdivision ordinances and building codes, licenses,
health and environmental laws and regulations and all other applicable laws,
ordinances, rules and regulations.
1.4 Taxes and Other Charges.
1.4.1 Taxes and Assessments. Mortgagor shall pay promptly when
due all taxes, assessments, rates, dues, charges, fees, levies, fines,
impositions, liabilities, obligations, liens and encumbrances of every kind and
nature whatsoever now or hereafter imposed, levied or assessed upon or against
the Mortgaged Property or any part thereof, or upon or against this Mortgage or
Borrowers' Liabilities; provided, however, that Mortgagor may in good faith
contest the validity, applicability or amount of any tax, assessment or other
charge, Mortgagor shall obtain an endorsement, in form and substance
satisfactory to Lender, to the loan policy of title insurance issued to Lender
insuring the lien of this Mortgage, insuring over such tax, assessment or other
charge and if Mortgagor otherwise complies with any provisions which may be set
forth in the Loan Agreement regarding the contest of taxes.
1.4.2 Taxes Affecting Lender's Interest. If any state,
federal, municipal or other governmental law, order, rule or regulation, which
becomes effective subsequent to the date hereof, in any manner changes or
modifies existing laws governing the taxation of mortgages or debts secured by
mortgages, or the manner of collecting taxes, so as to impose on Lender a tax by
reason of its ownership of any or all of the Loan Instruments or measured by the
principal amount of Borrowers' Liabilities, requires or has the practical effect
of requiring Lender to pay any portion of the real estate taxes levied in
respect of the Mortgaged Property or to pay any tax levied in whole or in part
in substitution for real estate taxes or otherwise affects materially and
adversely the rights of Lender in respect of Borrowers' Liabilities, this
Mortgage or the other Loan Instruments, Borrowers' Liabilities and all interest
accrued thereon shall, upon thirty (30) days' notice, become due and payable
forthwith at the option of Lender, whether or not there shall have occurred an
Event of Default provided, however, that, if Mortgagor may, without violating or
causing a violation of such law, order, rule or regulation, pay such taxes or
other sums as are necessary to eliminate such adverse effect upon the rights of
Lender and does pay such taxes or other sums when due, Lender may not elect to
declare due Borrowers' Liabilities by reason of the provisions of this Section
1.4.2.
1.5 Mechanic's and Other Liens. Mortgagor shall not permit or suffer
any mechanic's, laborer's, materialman's, statutory or other lien or encumbrance
(other than any lien for taxes and assessments not yet due) to be created upon
or against the Mortgaged Property; provided, however, that Mortgagor may in good
faith, by appropriate proceedings, contest the validity, applicability or amount
of any asserted lien, if Mortgagor shall first obtain an endorsement in form and
substance satisfactory to Lender, to the loan policy of title insurance issued
to Lender insuring the lien of this Mortgage, insuring over such asserted lien
and if Mortgagor otherwise complies with any provisions which may be set forth
in the Loan Agreement regarding the contest of liens.
1.6 Insurance and Condemnation.
1.6.1 Insurance Policies. Mortgagor shall, at its sole
expense, obtain for, deliver to, assign to and maintain for the benefit of
Lender, until Borrowers' Liabilities are paid in full, such policies of
insurance as are required by the Loan Agreement.
1.6.2 Adjustment of Loss. Except as otherwise may be provided
by the Loan Agreement, Lender is hereby authorized and empowered, at its option,
to adjust or compromise any loss under any insurance policies covering the
Mortgaged Property and to collect and receive the proceeds from any such policy
or policies. Mortgagor hereby irrevocably appoints Lender as its
attorney-in-fact for the purposes set forth in the preceding sentence.
1.6.3 Condemnation Awards. Lender shall be entitled to all
compensation, awards, damages, claims, rights of action and proceeds of, or on
account of, (1) any damage or taking, pursuant to the power of eminent domain,
of the Mortgaged Property or any part thereof, (11) damage to the Mortgaged
Property by reason of the taking, pursuant to the power of eminent domain, of
other property, or (111) the alteration of the grade of any street or highway on
or about the Mortgaged Property. Lender is hereby authorized, at its option, to
commence, appear in and prosecute in its own or Mortgagor's name any action or
proceeding relating to any such compensation, awards, damages, claims, rights of
action and proceeds and to settle or compromise any claim in connection
therewith. Mortgagor hereby irrevocably appoints Lender as its attorney-in-fact
for the purposes set forth in the preceding sentence.
1.6.4 Repair; Proceeds of Casualty Insurance and Eminent
Domain. If all or any part of the Mortgaged Property shall be damaged or
destroyed by fire or other casualty or shall be damaged or taken through the
exercise of the power of eminent domain or other cause described in Section
1.6.3, Mortgagor shall promptly and with all due diligence restore and repair
the Mortgaged Property to the extent that the proceeds, award or other
compensation or proceeds of the Loans are made available to Mortgagor for such
restoration or repair. Except as otherwise may be provided by the Loan
Agreement, the entire amount of such proceeds, award or compensation shall be
applied to Borrowers' Liabilities in such order and manner as Lender may elect.
1.7 Lender May Pay. Upon Mortgagor's failure to pay any amount required
to be paid by Mortgagor under Sections 1.4, 1.5 and 1.6, Lender may pay the
same. Mortgagor shall pay to Lender on demand the amount so paid by Lender
together with interest at the highest rate payable under the Loan Agreement
after the occurrence of an "Event of Default" as such term is defined in the
Loan Agreement (the "Default Rate") and the amount so paid by Lender together
with interest, shall be added to Borrowers' Liabilities.
1.8 Care of the Mortgaged Property. Mortgagor shall preserve and
maintain the Mortgaged Property in good and first class condition and repair.
Mortgagor shall not without the prior written consent of Lender, permit commit
or suffer any waste, impairment or deterioration of the Mortgaged Property or of
any part thereof, and will not take any action which will increase the risk of
fire or other hazard to the Mortgaged Property or to any part thereof. Except as
otherwise provided in the Loan Agreement or this Mortgage, no new improvements
shall be constructed on the Mortgaged Property and no part of the Mortgaged
Property shall be removed, demolished or altered in any material manner without
the prior written consent of Lender.
1.9 Transfer or Encumbrance of the Mortgaged Property. Except as
permitted by the Loan Agreement, Mortgagor shall not permit or suffer to occur
any sale, assignment, conveyance, transfer, mortgage, lease (other than leases
made mi accordance with the provisions of this Mortgage) or encumbrance of, or
any contract for any of the foregoing on an installment basis or otherwise
pertaining to, the Mortgaged Property, any part thereof, any interest therein,
the beneficial interest in Mortgagor, any interest in the beneficial interest in
Mortgagor or in any trust holding title to the Mortgaged Property, or any
interest in a corporation, partnership or other entity which owns all or part of
the Mortgaged Property or such beneficial interest, whether by operation of law
or otherwise, without the prior written consent of Lender having been obtained.
1.10 Further Assurances. At any time and from time to time, upon
Lender's request, Mortgagor shall make, execute and deliver, or cause to be
made, executed and delivered, to Lender, and where appropriate shall cause to be
recorded, registered or filed, and from time to time thereafter to be
re-recorded, re-registered and refiled at such time and in such offices and
places as shall be deemed desirable by Lender, any and all such further
mortgages, security agreements, financing statements, instruments of further
assurance, certificates and other documents as Lender may consider necessary or
desirable in order to effectuate or perfect, or to continue and preserve the
obligations under, this Mortgage.
1.11 Assignment of Rents. The assignment of rents, income and other
benefits contained in Section (E) of the Granting Clauses of this Mortgage shall
be fully operative without any further action on the part of either party, and,
specifically, Lender shall be entitled, at its option, upon the occurrence of an
Event of Default hereunder, to all rents, income and other benefits from the
Mortgaged Property, whether or not Lender takes possession of such property.
Such assignment and grant shall continue in effect until Borrowers' Liabilities
are paid in full and the Loan Instruments have been terminated, the execution of
this Mortgage constituting and evidencing the irrevocable consent of Mortgagor
to the entry upon and taking possession of the Mortgaged Property by Lender
pursuant to such grant, whether or not foreclosure proceedings have been
instituted. Notwithstanding the foregoing, so long as no Event of Default has
occurred or is continuing, Mortgagor shall have the right and authority to
continue to collect the rents, income and other benefits from the Mortgaged
Property as they become due and payable but not more than thirty (30) days prior
to the due date thereof
1.12 After-Acquired Property. To the extent permitted by, and subject
to, applicable law, the lien of this Mortgage shall automatically attach,
without further act to all property hereafter acquired by Mortgagor located in
or on, or attached to, or used or intended to be used in connection with, or
with the operation of, the Mortgaged Property or any part thereof
1.13 Leases Affecting Mortgaged Property. Mortgagor shall comply with
and perform i a complete and timely manner all of its obligations as landlord
under all leases affecting the Mortgaged Property or any part thereof The
assignment contained in Section (E) of the Granting Clauses shall not be deemed
to impose upon Lender any of the obligations or duties of the landlord or
Mortgagor provided in any lease.
1.14 Management of Mortgaged Property. Mortgagor shall cause the
Mortgaged Property to be managed at all times in accordance with sound business
practice.
1.15 Execution of Leases. Except as may be otherwise provided in the
Loan Agreement, Mortgagor shall not permit any leases to be made of the
Mortgaged Property or existing leases to be modified, terminated, extended or
renewed without the prior written consent of Lender.
1.16 Expenses; Indemnity. Without limitation of any obligation of
Mortgagor set forth in the Loan Agreement, Mortgagor shall pay when due and
payable, and otherwise on demand made by Lender, all loan fees, appraisal fees,
recording fees, taxes, brokerage fees and commissions, abstract fees, title
insurance fees, escrow fees, attorneys' fees, court costs, documentary and
expert evidence, fees of inspecting architects and engineers, and all other
costs and expenses of every character which have been incurred or which may
hereafter be incurred by Lender in connection with the Loans, including the
preparation, execution, delivery and performance of this Mortgage. If Mortgagor
fails to pay said costs and expenses as above provided, Lender may elect but
shall not be obligated, to pay the costs and expenses described in this Section
1. 16, and if Lender does so elect, then Mortgagor will, upon demand by Lender,
reimburse Lender for all such expenses which have been or shall be paid or
incurred by it. The amounts paid by Lender shall bear interest at the Default
Rate and such amounts, together with interest, shall be added to Borrowers'
Liabilities, shall be immediately due and payable and shall be secured by the
lien of this Mortgage and the other Loan Instruments. To the extent permitted by
law, in the event of foreclosure hereof, Lender shall be entitled to add to the
indebtedness found to be due by the court a reasonable estimate of such expenses
to be incurred after entry of the decree of foreclosure. To the extent permitted
by law, Mortgagor agrees to hold harmless Lender against and from, and reimburse
it for, all claims, demands, liabilities, losses, damages, judgments, penalties,
costs and expenses, including without limitation attorneys' fees, which may be
imposed upon, asserted against, or incurred or paid by it by reason of or in
connection with any bodily injury or death or property damage occurring in or
upon or in the vicinity of the Mortgaged Property through any cause whatsoever,
or asserted against it on account of any act performed or omitted to be
performed hereunder, or on account of any transaction arising out of or in any
way connected with the Mortgaged Property, this Mortgage, the other Loan
Instruments, any of the *indebtedness evidenced by the Guaranty or the Loan
Agreement or any of Borrowers' Liabilities.
1.17 Lender's Performance of Mortgagor's Obligations. If Mortgagor
fails to pay any tax, assessment, encumbrance or other imposition, or to furnish
insurance hereunder, or to perform any other covenant, condition or term in this
Mortgage, the Guaranty, the Loan Agreement or any other Loan Instrument, Lender
may, but shall not be obligated to, pay, obtain or perform the same. All
payments made, whether such payments are regular or accelerated payments, and
costs and expenses incurred or paid by Lender in connection therewith shall be
due and payable immediately. The amounts so incurred or paid by Lender shall
bear interest at the Default Rate and such amounts, together with interest,
shall be added to Borrowers' Liabilities and secured by the lien of this
Mortgage and the other Loan Instruments.
1.18 Payment of Superior Liens. To the extent that Lender, after the
date hereof, pays any sum due under any provision of law or instrument or
document creating any lien superior or equal in priority in whole or in part to
the lien of this Mortgage, such sum advanced by Lender shall be immediately due
and payable, with interest at the Default Rate and shall be deemed to be a part
of Borrowers' Liabilities, and Lender shall have and be entitled to a lien on
the Mortgaged Property equal in parity with that discharged, and Lender shall be
subrogated to and receive and enjoy all rights and liens possessed, held or
enjoyed by, the holder of such lien, which shall remain in existence and benefit
Lender to secure the Guaranty, the Loan Agreement and all obligations and
liabilities secured hereby.
1.19 Environmental Conditions.
(a) Mortgagor covenants, warrants and represents that there
are no, nor will there, for so long as any of Borrowers' Liabilities
remain outstanding, be, any Hazardous Materials (as hereinafter
defined) generated, released, stored, buried or deposited over,
beneath, in or upon the Mortgaged Property except as such Hazardous
Materials may be required to be used, stored or transported in
connection with the permitted uses of the Mortgaged Property and then
only to the extent permitted by law after obtaining all necessary
permits and licenses therefor. For purposes of this Mortgage,
"Hazardous Materials" shall mean and include any pollutants,
flammables, explosives, petroleum, (including crude oil) or any
fraction thereof, radioactive materials, hazardous wastes, toxic
substances or related materials, including, without limitation, any
substances defined as or included in the definition of toxic or
hazardous substances, wastes, or materials under any federal, state or
local laws, ordinances, regulations or guidances which regulate,
govern, prohibit or pertain to the generation, manufacture, use,
transportation, disposal, release, storage, treatment of, or response
or exposure to, toxic or hazardous substances, wastes or materials.
Such laws, ordinances and regulations are hereinafter collectively
referred to as the "Hazardous Materials Laws."
(b) Mortgagor shall, and Mortgagor shall cause all employees,
agents, contractors and subcontractors of Mortgagor and any other
persons from time to time present on or occupying the Mortgaged
Property to, keep and maintain the Mortgaged Property in compliance
with, and not cause or knowingly permit the Mortgaged Property to be in
violation of, any applicable Hazardous Materials Laws. Neither
Mortgagor nor any employees, agents, contractors or subcontractors of
Mortgagor or any other persons occupying or present on the Mortgaged
Property shall use, generate, manufacture, store or dispose of on,
under or about the Mortgaged Property or transport to or from the
Mortgaged Property any Hazardous Materials, except as such Hazardous
Materials may be required to be used, stored or transported in
connection with the permitted uses of the Mortgaged Property and then
only to the extent permitted by law after obtaining all necessary
permits and licenses therefor.
(c) Mortgagor shall immediately advise Lender in writing of
(i) any notices received by Mortgagor (whether such notices are from
the Environmental Protection Agency, or any other federal, state or
local governmental agency or regional office thereof) of the violation
or potential. violation occurring on or about the Mortgaged Property of
any applicable Hazardous Materials Laws; (ii) any and all enforcement,
cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened against Mortgagor pursuant to any
Hazardous Materials Laws; (iii) all claims made or threatened by any
third party against Mortgagor or the Mortgaged Property relating to
damage, contribution, cost recovery compensation, loss or injury
resulting from any Hazardous Materials (the matters set forth in
clauses (i), (ii) and (iii) above are hereinafter referred to as
"Hazardous Materials Claims"); and (iv) Mortgagor's discovery of any
occurrence or condition on any real property adjoining or in the
vicinity of the Mortgaged Property that could cause the Mortgaged
Property or any part thereof to be subject to any Hazardous Materials
Claims. Lender shall have the right but not the obligation to join and
participate in, as a party if it so elects, any legal proceedings or
actions initiated in connection with any Hazardous Materials Claims and
Mortgagor shall pay to Lender, upon demand, all reasonable attorneys'
and consultants' fees incurred by Lender in connection therewith.
(d) Mortgagor shall be solely responsible for, and shall
indemnify and hold harmless Lender, its directors, officers, employees,
agents, successors and assigns from and against any loss, damage, cost,
expense or liability directly or indirectly arising out of or
attributable to the use, generation, storage, release, threatened
release, discharge, disposal or presence (whether prior to or during
the term of the Loans or otherwise and regardless of by whom caused,
whether by Mortgagor or any predecessor in title or any owner of land
adjacent to the Mortgaged Property or any other third party, or any
employee, agent, contractor or subcontractor of Mortgagor or any
predecessor In title or any such adjacent land owner or any third
person) of Hazardous Materials on, under or about the Mortgaged
Property; including, without limitation: (i) claims of third parties
(including governmental agencies) for damages, penalties, losses,
costs, fees, expenses, damages, injunctive or other relief, (ii)
response costs, clean-up costs, costs and expenses of removal and
restoration, including fees of attorneys and experts, and costs of
determining the existence of Hazardous Materials and reporting same to
any governmental agency; and (iii) any and all expenses or obligations,
including attorneys' fees, incurred at, before or after any trial or
appeal therefrom whether or not taxable as costs, including, without
limitation, attorneys' fees, witness fees, deposition costs, copying
and telephone charges and other expenses. The obligations of Mortgagor
under this subsection shall survive any of the foreclosure of this
Mortgage, the repayment of Borrowers' Liabilities, or other
satisfaction of the indebtedness secured by this Mortgage, whether by
deed in lieu of foreclosure or otherwise.
(e) Any loss, damage, cost, expense or liability incurred by
Lender as a result of a breach or misrepresentation by Mortgagor or for
which Mortgagor is responsible or for which Mortgagor has indemnified
Lender shall be paid to Lender on demand, and, failing prompt
reimbursement, such amounts shall, together with interest thereon at
the Default Rate from the date incurred by Lender until paid by
Mortgagor, be added to Borrowers' Liabilities, be immediately due and
payable and be secured by the lien of this Mortgage and the other Loan
Instruments.
(f) If Lender has reason to suspect that Hazardous Materials,
which are not permitted by Hazardous Materials Laws, are present upon
the Mortgaged Property, Lender may, in Its sole discretion, require
Mortgagor, at its sole cost and expense, from time to time to perform
or cause to be performed, such studies or assessments of the Mortgaged
Property, as Lender may deem necessary or appropriate or desirable, to
determine the status of environmental conditions on and about the
Mortgaged Property, which such studies and assessments shall be for the
benefit of, and be prepared in accordance with the specifications
established by, Lender.
(g) Mortgagor hereby grants to Lender, its agents, employees
and contractors, access to the Mortgaged Property, from time to time
upon prior written notice, for the purpose of either (i) taking such
action as Lender shall determine to be appropriate to respond to a
release, threatened release, or the presence of Hazardous Materials, or
any related condition, on or about the Mortgaged Property; or (11)
conducting such studies or assessments of the Mortgaged Property, as
Lender may deem necessary or appropriate or desirable.
ARTICLE TWO
DEFAULTS
2.1 Event of Default. The term "Event of Default," wherever used in
this Mortgage, shall mean any one or more of the following events:
(a) The failure by Mortgagor: (1) to keep, perform, or observe
any covenant, condition or agreement contained in Sections 1.4.1,
1.6.1, 1.9 or 1. 19 hereof, or (11) to keep, perform or observe any
other covenant, condition or agreement on the part of Mortgagor in this
Mortgage.
(b) The occurrence of an "Event of Default" under and as
defined in the Loan Agreement or any of the other Loan Instruments.
ARTICLE THREE
REMEDIES
3.1 Acceleration of Maturity. If an Event of Default shall have
occurred, Lender may declare the outstanding principal amount of the Loans and
the interest accrued thereon and any other of Borrowers' Liabilities to be
immediately due and payable, and upon such declaration such principal and
interest and other Borrowers' Liabilities declared due shall immediately become
and be due and payable without further demand or notice. The foregoing shall not
be in limitation of any provision contained in any other Loan Instrument,
including without limitation any such provision pursuant to which Borrowers'
Liabilities become immediately due and payable without action or election by
Lender.
3.2 Lender's Power of Enforcement. If an Event of Default shall have
occurred, Lender may, either with or without entry or taking possession as
provided in this Mortgage or otherwise, and without regard to whether or not
Borrowers' Liabilities shall have been accelerated, and without prejudice to the
right of Lender thereafter to bring an action of foreclosure or any other action
for any default existing at the time such earlier action was commenced or
arising thereafter, proceed by any appropriate action or proceeding: (a) to
enforce payment of the Loans and/or any other of Borrowers' Liabilities or the
performance of any term hereof or any of the other Loan Instruments; (b) to
foreclose this Mortgage and to have sold, as an entirety or in separate lots or
parcels, the Mortgaged Property; and (c) to pursue any other remedy available to
it. Lender may take action either by such proceedings or by the exercise of its
powers with respect to entry or taking possession, or both, as Lender may
determine.
3.3 Lender's Right to Enter and Take Possession, Operate and Apply
Income.
(a) If an Event of Default shall have occurred, (i) Mortgagor,
upon demand of Lender, shall forthwith surrender to Lender the actual
possession of the Mortgaged Property, and to the extent permitted by
law, Lender itself, or by such officers or agents as it may appoint, is
hereby expressly authorized to enter and take possession of all or any
portion of the Mortgaged Property and may exclude Mortgagor and its
agents and employees wholly therefrom and shall have joint access with
Mortgagor to the books, papers and accounts of Mortgagor; and (ii)
notwithstanding the provisions of any lease or other agreement to the
contrary, Mortgagor shall pay monthly in advance to Lender, on Lender's
entry into possession, or to any receiver appointed to collect the
rents, income and other benefits of the Mortgaged Property, the fair
and reasonable rental value for the use and occupation of such part of
the Mortgaged Property as may be in possession of Mortgagor, or any
entity affiliated with or controlled by Mortgagor, and upon default in
any such payment Mortgagor shall vacate and surrender possession of
such part of the Mortgaged Property to Lender or to such receiver, and
in default thereof Mortgagor may be evicted by summary proceedings or
otherwise.
(b) If Mortgagor shall for any reason fail to surrender or
deliver the Mortgaged Property or any part thereof after Lender's
demand, Lender may obtain a Judgment or decree conferring on Lender the
right to 'immediate possession or requiring Mortgagor to deliver
immediate possession of all or part of the Mortgaged Property to
Lender, to the entry of which Judgment or decree Mortgagor hereby
specifically consents. Mortgagor shall pay to Lender, upon demand, all
costs and expenses of obtaining such judgment or decree and reasonable
compensation to Lender, its attorneys and agents, and all such costs,
expenses and compensation shall, until paid, be secured by the lien of
this Mortgage.
(c) Upon every such entering upon or taking of possession,
Lender, to the extent permitted by law, may hold, store, use, operate,
manage and control the Mortgaged Property and conduct the business
thereof.
3.4 Leases. If Lender so elects, Lender is authorized to foreclose this
Mortgage subject to or prior to the rights, if any, of any or all tenants of the
Mortgaged Property. Lender may elect. to foreclose the rights of some
subordinate tenants while foreclosing subject to the rights of other subordinate
tenants.
3.5 Purchase by Lender. Upon any foreclosure sale, Lender may bid for
and purchase all or any portion of the Mortgaged Property and, upon compliance
with the terms of the sale, may hold, retain and possess and dispose of such
property in its own absolute right without further accountability.
3.6 Application of Foreclosure Sale Proceeds. The proceeds of any
foreclosure sale of the Mortgaged Property or any part thereof received by
Lender shall be applied by Lender to the indebtedness secured hereby in such
order and manner as Lender may elect.
3.7 Application of Indebtedness Toward Purchase Price. Upon any
foreclosure sale, Lender may apply any or all of the indebtedness and other sums
due to Lender under the Guaranty, the Loan Agreement, this Mortgage or any other
Loan Instrument to the price paid by Lender at the foreclosure sale.
3.8 Waiver of Appraisement, Valuation, Stay, Extension and Redemption
Laws. To the extent permitted by law, Mortgagor hereby waives any and all rights
of redemption. Mortgagor further agrees, to the full extent permitted by law,
that in case of an Event of Default, neither Mortgagor nor anyone claiming
through or under it will set up, claim or seek to take advantage of any
reinstatement, appraisement, valuation, stay or extension laws now or hereafter
in force, or take any other action which would prevent or hinder the enforcement
or foreclosure of this Mortgage or the absolute sale of the Mortgaged Property
or the final and absolute putting into possession thereof, immediately after
such sale, of the purchaser thereat. Mortgagor, for itself and all who may at
any time claim through or under it, hereby waives, to the full extent that it
may lawfully so do, the benefit of all such laws, and any and all right to have
the assets comprising the Mortgaged Property marshalled upon any foreclosure of
the lien hereof and agrees that Lender or any court having jurisdiction to
foreclose such lien may sell the Mortgaged Property in part or as an entirety.
3.9 Receiver - Lender in Possession. If an Event of Default shall have
occurred, Lender, to the extent permitted by law and without regard to the value
of the Mortgaged Property or the adequacy of the security for the indebtedness
and other sums secured hereby, shall be entitled as a matter of right and
without any additional showing or proof, at Lender's election, to either the
appointment by the court of a receiver (without the necessity of Lender posting
a bond) to enter upon and take possession of the Mortgaged Property and to
collect all rents, income and other benefits thereof and apply the same as the
court may direct or to be placed by the court into possession of the Mortgaged
Property as mortgagee in possession with the same power herein granted to a
receiver and with all other rights and privileges of a mortgagee in possession
under law. The right to enter and take possession of and to manage and operate
the Mortgaged Property, and to collect all rents, income and other benefits
thereof, whether by a receiver or otherwise, shall be cumulative to any other
right or remedy hereunder or afforded by law and may be exercised concurrently
therewith or independently thereof Lender shall be liable to account only for
such rents, income and other benefits actually received by Lender, whether
received pursuant to this Section 3.9 or Section 3.3. Notwithstanding the
appointment of any receiver or other custodian, Lender shall be entitled as
pledgee to the possession and control of any cash, deposits or instruments at
the time held by, or payable or deliverable under the terms of this Mortgage to
Lender.
3.10 Mortgagor to Pay Borrowers' Liabilities in Event of Default;
Application of Monies by Lender.
(a) Upon occurrence of an Event of Default, Lender shall be
entitled to xxx for and to recover judgment against Mortgagor for
Borrowers' Liabilities due and unpaid together with costs and expenses,
including, without limitation, the reasonable compensation, expenses
and disbursements of Lender's agents, attorneys and other
representatives, either before, after or during the pendency of any
proceedings for the enforcement of this Mortgage; and the right of
Lender to recover such judgment shall not be affected by any taking of
possession or foreclosure sale hereunder, or by the exercise of any
other right, power or remedy for the enforcement of the terms of this
Mortgage, or the foreclosure of the lien hereof.
(b) In case of a foreclosure sale of all or any part of the
Mortgaged Property and of the application of the proceeds of sale to
the payment- of Borrowers' Liabilities, Lender shall be entitled to
enforce all other rights and remedies under the Loan Instruments.
(c) Mortgagor hereby agrees, to the extent permitted by law,
that no recovery of any judgment by Lender under any of the Loan
Instruments, and no attachment or levy of execution upon any of the
Mortgaged Property or any other property of Mortgagor, shall (except as
otherwise provided by law) in any way affect the lien of this Mortgage
upon the Mortgaged Property or any part thereof or any lien, rights,
powers or remedies of Lender hereunder, but such lien, rights, powers
and remedies shall continue unimpaired as before until Borrowers'
Liabilities are paid in full.
(d) Any monies collected or received by Lender under this
Section 3. 10 shall be applied to the payment of compensation, expenses
and disbursements of the agents, attorneys and other representatives of
Lender, and the balance remaining shall be applied to the payment of
Borrowers' Liabilities, in such order and manner as Lender may elect,
and any surplus, after payment of all Borrowers' Liabilities, shall be
paid to Mortgagor.
3.11 Remedies Cumulative. No right power or remedy conferred upon or
reserved to Lender by the Guaranty, the Loan Agreement, this Mortgage or any
other Loan Instrument or any instrument evidencing or securing Borrowers'
Liabilities is exclusive of any other right, power or remedy, but each and every
such right power and remedy shall be cumulative and concurrent and shall be in
addition to any other right power and remedy given hereunder or under the
Guaranty, the Loan Agreement or any other Loan Instrument or any instrument
evidencing or securing Borrowers' Liabilities, or now or hereafter existing at
law, in equity or by statute.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
4.1 Heirs, Successors and Assigns Included in Parties. Whenever
Mortgagor or Lender is named or referred to herein, heirs and successors and
assigns of such person or entity shall be included, and all covenants and
agreements contained in this Mortgage shall bind the successors and assigns of
Mortgagor, including any subsequent owner of all or any part of the Mortgaged
Property and inure to the benefit of the successors and assigns of Lender. This
Section 4.1 shall not be construed to permit an assignment, transfer,
conveyance, encumbrance or other disposition otherwise prohibited by this
Mortgage.
4.2 Notices. All notices, requests, reports, demands or other
instruments required or contemplated to be given or furnished under this
Mortgage to Mortgagor or Lender shall be directed to Mortgagor or Lender, as the
case may be, in the manner and at the addresses for notice in the Loan
Agreement.
4.3 Headings. The headings of the articles, sections, paragraphs and
subdivisions of this Mortgage are for convenience only, are not to be considered
a part hereof, and shall not limit, expand or otherwise affect any of the terms
hereof
4.4 Invalid Provisions. In the event that any of the covenants,
agreements, terms or provisions contained in this Mortgage shall be Invalid,
illegal or unenforceable in any respect, the validity of the remaining
covenants, agreements, terms or provisions contained herein (or the application
of the covenant, agreement, term held to be invalid, illegal or unenforceable,
to persons or circumstances other than those in respect of which it is invalid,
illegal or unenforceable) shall be in no way affected, prejudiced or disturbed
thereby.
4.5 Changes. Neither this Mortgage nor any term hereof may be released,
changed, waived, discharged or terminated orally, or by any action or inaction,
but only by an instrument in writing signed by the party against which
enforcement of the release, change, waiver, discharge or termination is sought.
4.6 Governing Law. Except with respect to the creation, perfection,
priority and enforcement of the lien and security interest created hereunder,
all of which shall be construed, interpreted, enforced and governed by the laws
of the State of Indiana, the validity and interpretation of this Mortgage shall
be governed by and in accordance with the laws of the State of Illinois.
4.7 Limitation of Interest. The provisions of the Loan Agreement
regarding the payment of lawful interest are hereby incorporated herein by
reference.
4.8 Future Advances. This Mortgage is given to secure not only existing
indebtedness, but also future advances (whether such advances are obligatory or
are to be made at the option of Lender, or otherwise) made by Lender under the
Loan Agreement, to the same extent as if such future advances were made on the
date of the execution of this Mortgage. The total amount of indebtedness that
may be so secured may decrease or increase from time to time, but the principal
amount of all indebtedness secured hereby shall, in no event, exceed $3,000,000.
The lien of this Mortgage shall remain in effect until the last dollar of
Borrowers' Liabilities is paid in full and all of Lender's obligations under the
Loan Agreement have been terminated.
4.9 Release. Upon full payment and satisfaction of Borrowers'
Liabilities and the termination of all Lender's obligations under the Loan
Agreement, Lender shall issue to Mortgagor an appropriate release deed in
recordable form.
4.10 Attorneys' Fees. Whenever reference is made herein to the payment
or reimbursement of attorneys' fees, such fees shall be deemed to include
compensation to staff counsel, if any, of Lender in addition to the fees of any
other attorneys engaged by Lender.
4.11 Loan Agreement. The Loans are governed by terms and provisions set
forth in the Loan Agreement and in the event of any conflict between the terms
of this Mortgage and the terms of the Loan Agreement, the terms of the Loan
Agreement shall control; provided, however, in the event there is any apparent
conflict between any particular term or provision which appears in both the Loan
Agreement and this Mortgage and it Is possible for the terms of both the Loan
Agreement and this Mortgage to be performed or compiled with, then,
notwithstanding the foregoing, both the terms of the Loan Agreement and the
Mortgage shall be performed or compiled with.
IN WITNESS WHEREOF, Mortgagor has caused this instrument to be executed
by its duly authorized officers as of the day and year first above written on
this 12 day of December, 2000.
STARCRAFT CORPORATION,
an Indiana corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Print Name: Xxxxxxx X. Xxxxxx
-----------------------
Its: Sr. Vice President
------------------------------
ACKNOWLEDGMENT
STATE OF INDIANA )
) SS
COUNTY OF ELKHART )
I, Xxxxx X. Xxxx, a Notary Public in and for and residing in said County
and State, DO HEREBY CERTIFY THAT Xxxxxxx X. Xxxxxx, the Sr. Vice Pres. of
Starcraft Corporation, an Indiana corporation, personally known to me to be the
same persons whose names are subscribed to the foregoing instrument appeared
before me this day in person and acknowledged that they signed and delivered
said instrument as their own free and voluntary act and as the free and
voluntary act of said corporation for the uses and purposes therein set forth.
GIVEN under my hand and notarial seal this 12th day of December, 2000.
/s/ Xxxxx X. Xxxx
-------------------------------
Notary Public
Xxxxx X. Xxxx
-------------------------------
Printed Name of Notary Public
October 14, 2007
-------------------------------
My Commission Expires:
Xxxxxxxx
-------------------------------
My County of Residence
THIS INSTRUMENT PREPARED BY
AND AFTER RECORDING RETURN TO:
Xxxx X. Xxxxxxx
XXXXXX & XXXXXXXXX
000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
Exhibit A
Legal Description
