EXHIBIT 10.13
This instrument prepared by:
Xxxx X. Xxxx, Esq.
XXXX, MEAD, SPIELVOGEL, XXXXXXX
& XXXX
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx 00000
THIS IS A BALLOON MORTGAGE AND THE FINAL PAYMENT OF THE BALANCE DUE UPON
MATURITY IS $2,406,666.62, TOGETHER WITH ACCRUED INTEREST, IF ANY, AND ALL
ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE.
MODIFICATION OF MORTGAGE AND MORTGAGE NOTE
AND EXTENSION AGREEMENT
THIS MODIFICATION OF MORTGAGE AND MORTGAGE NOTE AND EXTENSION AGREEMENT,
entered into this 30th day of December, 1997 by and between THE HUNTINGTON
NATIONAL BANK, a national banking corporation, whose address is 000 X. Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx 00000, hereinafter referred to as "Mortgagee"; and
SMART CHOICE AUTOMOTIVE GROUP, INC., a Florida corporation, whose address is
0000 X. Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, hereinafter referred to as
"Mortgagor".
W I T N E S S E T H:
WHEREAS, XXXXXXX BANK, N.A., on September 30, 1996, made a loan to
Mortgagor in the original principal amount of Two Million Four Hundred Thousand
and No/100 ($2,400,000.00) Dollars ("Loan"); and
WHEREAS, in connection with the Loan, Mortgagor executed that certain
promissory note dated September 30, 1996, in the original principal amount of
Two Million Four Hundred Thousand and No/100 ($2,400,000.00) Dollars evidencing
the Loan ("Note"); and
WHEREAS, the Note is secured by that certain Mortgage and Security
Agreement dated September 30, 1996, and recorded on October 1, 1996, in Official
Records Book 3609, Page 0715, of the Public Records of Brevard County, Florida,
("Mortgage"), encumbering that certain real property described therein, and
further secured by that certain Assignment of Leases, Rents and Profits dated
September 30, 1996 and recorded in Official Records Book 3609, Page 0737, Public
Records of Brevard County, Florida; and
WHEREAS, the Loan, Note and Mortgage were modified by a Mortgage
Modification Agreement dated October 25, 1996, and recorded on October 31, 1996,
in Official Records Book 3617, Page 1805, of the Public Records of Brevard
County, Florida; and
WHEREAS, the Loan, Note and Mortgage were further modified by a Second
Modification to Mortgage and Security Agreement and Partial Release of Personal
Property Agreement dated September 15, 1997, and recorded on September 25, 1997,
in Official Records Book 3711, Page 4702, of the Public Records of Brevard
County, Florida; and
WHEREAS, the Loan, Note and Mortgage were assigned to Mortgagor by
Assignment of Loan Documents dated November 4, 1997, and recorded on November
10, 1997, in Official Records Book 3725, Page 3827, of the Public Records of
Brevard County, Florida; and
WHEREAS, the Loan, Note and Mortgage were further modified by Modification
of Mortgage Deed and Security Agreement dated November 3, 1997, and recorded on
November 10, 1997, in Official Records Book 3725, Page 3830, of the Public
Records of Brevard County, Florida; and
WHEREAS, the property currently encumbered by the Mortgage is the real
property set forth on Exhibit "A" and Exhibit "B" to that certain Mortgage
Modification Agreement dated October 25, 1996, and recorded on October 31, 1996,
in Official Records Book 3617, Page 1805, of the Public Records of Brevard
County, Florida; and
WHEREAS, the parties hereto are desirous of further modifying said Mortgage
and Mortgage Note.
NOW, THEREFORE, in consideration of the sum of $10.00 this day paid by each
party to the other, receipt whereof being hereby acknowledged, and other good
and valuable considerations, the parties do hereby amend said Note and Mortgage
as follows:
1. The present outstanding principal balance of said Mortgage is
$2,226,666.58.
2. The Note and Mortgage are hereby deemed to be modified to incorporate
the following provisions which shall prevail to the extent of any inconsistency
with the provisions of the Note and Mortgage. Failure to comply with any or all
of the following provisions shall constitute a default under the Note, Mortgage,
UCC-1 Financing Statements, assignments of rents and leases, guarantees, and all
other documents executed and/or delivered by Mortgagor to Mortgagee.
3. Mortgagor hereby acknowledges receipt from Mortgagee of the Future
Advance in the sum of Two Hundred Sixty Thousand and 08/100 Dollars
($260,000.08). The Future Advance is evidenced by a Future Advance Note of even
date herewith in the principal sum of Two Hundred Sixty Thousand and 08/100
Dollars ($260,000.08), which Future Advance Note, by this reference, is made a
part hereof to the same extent as if set forth herein verbatim.
4. The Future Advance in the principal sum of Two Hundred Sixty Thousand
and 08/100 Dollars ($260,000.08) evidenced by the Future Advance Note is secured
by the Mortgage to the same extent as though advanced on the date of the
Mortgage. Accordingly, on the date hereof, the total principal indebtedness
secured by the Mortgage is $2,486,666.66.
5. The total principal indebtedness of $2,486,666.66 plus interest at the
rate of one and one-half (1.50%) percent per annum in excess of The Huntington
National Bank's Prime Commercial Lending Rate ("Rate"), with the amount of
interest payable to be adjusted from time to time as the Rate changes] shall be
paid as follows:
Monthly principal payments of $13,333.34 plus interest shall be due and
payable on the day 30th of January, 1998, and the 30th day of each consecutive
month thereafter until the 1st day of July, 1998 when the entire outstanding
principal balance plus all accrued interest shall be due and payable.
Interest shall be calculated on the basis of a three hundred sixty (360)
day year and charged for the actual number of days elapsed in an interest
period. In no event shall the amount of interest due or payments in the nature
of interest payable hereunder exceed the maximum rate of interest allowed by
applicable law, as amended from time to time, and in the event any such payment
is paid by Borrower or received by the Lender, then such excess sum shall be
credited as a payment of principal, unless Borrower shall notify the Lender, in
writing, that Borrower elects to have such excess returned to it for its worth.
Each payment when made shall be applied first to the payment of interest,
second to the payment of sums due hereunder other than interest or principal
(i.e., late payment and similar charges), and then to the payment of principal.
Mortgagor shall have the right to prepay this loan, in full or part,
without penalty through the application of normal operating cash flow of the
Mortgagor. Should prepayment be funded from any other source, a prepayment fee
of one-half (.50%) percent of the then outstanding balance shall be due and
payable.
6. The parties agree that interest at the rate of one and one-half (1.50%)
percent per annum in excess of The Huntington National Bank's Prime Commercial
Lending Rate ("Rate"), with the amount of interest payable to be adjusted from
time to time as the Rate changes, shall begin accruing on December 30, 1997.
Mortgagor, in consideration of the above and foregoing and in consideration
of other valuable considerations running to it do hereby agree to pay the
Mortgage indebtedness according to the terms, covenants and conditions contained
therein and the Note secured thereby and as amended herein.
In all other respects, said Mortgage and Mortgage Note heretofore described
are ratified and confirmed with the terms of the original Mortgage and Mortgage
Note.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed the day and year first above written.
Signed, sealed and delivered THE HUNTINGTON NATIONAL BANK OF
in the presence of: FLORIDA, a national banking corporation
/s/ X. Xxxxx Xxxxx By: /s Xxxxx X. Xxxxxx
------------------ -----------------------
X. Xxxxx Xxxxx Xxxxx X. Xxxxxx, Vice President
(Print Name) (Printed Name and Title)
/s/ Xxxxxxx X. Xxxx (Corporate Seal)
-------------------
Xxxxxxx X. Xxxx
(Print Name) "Mortgagee"
THIS IS A BALLOON MORTGAGE AND THE FINAL PAYMENT OF THE BALANCE DUE UPON
MATURITY IS $2,406,666.62, TOGETHER WITH ACCRUED INTEREST, IF ANY, AND ALL
ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE.
Signed, sealed and delivered SMART CHOICE AUTOMOTIVE GROUP,
in the presence of: INC., a Florida corporation
By: /s/ Xxxxxx X. Xxxx
----------------------
Xxxxxx X. Xxxx, Chief Financial Officer
(Print Name)
(Corporate Seal)
(Print Name) "Mortgagor"
ACKNOWLEDGMENT AND CONSENT OF GUARANTOR
The undersigned hereby acknowledges and consents to the foregoing
Modification of Mortgage and Mortgage Note and Extension Agreement.
Dated this day of , 1997.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------
Xxxxxx X. Xxxx, Chief Financial Officer
0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
