EXHIBIT 10.11
This instrument prepared by: Xxxx X. Xxxx, Esq., of
Name: Xxxx, Mead, Spielvogel, Xxxxxxx & Xxxx
Address: Attorneys-at-Law
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
XXX THIS IS A BALLOON MORTGAGE AND THE FINAL PRINCIPAL PAYMENT OR THE PRINCIPAL
BALANCE DUE UPON MATURITY IS $2,133,333.20, TOGETHER WITH ACCRUED INTEREST, IF
ANY, AND ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS
MORTGAGE.
MODIFICATION OF
MORTGAGE DEED AND SECURITY AGREEMENT
THIS MODIFICATION OF MORTGAGE DEED AND SECURITY AGREEMENT ("Mortgage")
made, executed and given this 3rd day of November, 1997, by SMART CHOICE
AUTOMOTIVE GROUP, INC., a Florida corporation, formerly having the name XXXXXX
INDUSTRIES, INC., (the "Mortgagor"), to and in favor of THE HUNTINGTON NATIONAL
BANK, a national banking corporation, with its principal place of business at
Melbourne, Brevard County, Florida ("Mortgagee" which reference includes
successors and assigns);
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 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, Mortgagor has requested that Mortgagee modify the Note and Mortgage
and Mortgagee has agreed to such modification upon the following terms and
conditions.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
A. RECITALS. The above recitals are true and correct and are incorporated
by reference herein.
B. MODIFICATION. The existing terms and conditions of the Loan, Note and
Mortgage are modified to incorporate the following provisions which shall
prevail in the event of any inconsistency with the provisions of the Note and
Mortgage.
C. REPAYMENT. As of the date of this Mortgage, Mortgagor agrees and
acknowledges that the outstanding principal balance of the Note is Two Million
Two Hundred Thirty-Nine Thousand Nine Hundred Ninety-Nine and 92/100
($2,239,999.92) Dollars which principal balance, 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, Mortgagor agrees
to repay the Mortgagee as follows:
Monthly principal payments of $13,333.34 plus interest shall be due and
payable on the 30th day of November, 1997, 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.
D. XXXXX X. XXXXXX is hereby released as a Guarantor of the Note.
AND MORTGAGOR DOES HEREBY COVENANT TO AND AGREE WITH MORTGAGEE AS FOLLOWS:
1. To pay all and singular the principal and interest and other sums of
money payable by virtue of the Note and Mortgage, or either, promptly on the
days respectively the same severally come due. To perform, comply with and abide
by each and every of the stipulations, agreements, conditions and covenants set
forth in the Note and this Mortgage.
2. To pay all and singular the taxes, assessments, levies, liabilities,
obligations and encumbrances of every nature on the Property each and every when
due and payable, according to law, before they become delinquent; and, if the
same shall not be promptly paid, the Mortgagee, at any time either before or
after delinquency, may pay the same without waiving or affecting its option to
foreclose or any right hereunder, and every payment so made shall bear interest
from the date thereof at the highest legal rate permitted by the laws of the
State of Florida, payable monthly, until repaid, and each such payment, together
with said interest thereon, shall be secured by the lien of this Mortgage.
3. To keep the buildings and all equipment and personal property now or
hereafter on the Property covered by this Mortgage insured in a sum equal to at
least the balance of the Note and equal to an amount sufficient to comply with
any co-insurance requirements covering the same under the laws of the State of
Florida and the insurance contract, covering loss from both fire and extended
coverage, making the loss under said policies, each and every, payable to
Mortgagee as its interest may appear and naming Mortgagee as additional insured;
and the policy or policies shall be held by Mortgagee and, in the event any sum
of money becomes payable under such policy or policies, the Mortgagee shall have
the option to receive and apply the same on account of the indebtedness hereby
secured or may permit Mortgagor to receive and use it or any part thereof for
other purposes, without thereby waiving or impairing any equity, lien or right
under and by virtue of this Mortgage. Mortgagee may place and pay for such
insurance, or any part thereof, without waiving or affecting its option to
foreclose or any right hereunder; and each and every payment so made shall bear
interest from date thereof at the highest legal rate permitted by the laws of
the State of Florida, payable monthly, until repaid, and each such payment,
together with said interest thereon, shall be secured by the lien of this
Mortgage.
4. To permit, commit or suffer no waste, impairment or deterioration of the
Property, or any part thereof, and, upon the failure of the Mortgagor to keep
the buildings or other improvements on the Property in good condition and
repair, Mortgagee may demand the immediate repair of said buildings or other
improvements or an increase in the amount of security or the immediate repayment
of the debt hereby secured, and the failure of the Mortgagor to comply with said
demand of the Mortgagee, for a period of thirty (30) days, shall constitute a
breach of this Mortgage and, at the option of Mortgagee, immediately mature the
entire amount of principal and interest hereby secured, and Mortgagee
immediately and without notice may institute proceedings to foreclose this
Mortgage and may apply for and have appointed a receiver, as hereinafter
provided.
5. If any sums of money herein and in the Note be not promptly and fully
paid within fifteen (15) days next after same become due and payable, or if each
and every of the stipulations, agreements, conditions and covenants of the Note
and this Mortgage, or either, are not duly performed, complied with and abided
by, the aggregate sum remaining unpaid under the Note shall become due and
payable forthwith or thereafter at the option of the Mortgagee as fully and
completely as if said aggregate sum of money was originally stipulated to be
paid on said date, anything in the Note or herein to the contrary
notwithstanding.
6. To deliver to Mortgagee, on or before March 15 of each year, tax receipts
evidencing the payment of all lawfully imposed taxes for the preceding calendar
year; to deliver to Mortgagee receipts evidencing the payment of all liens for
public improvements within forty-five (45) days after the same shall become due
and payable; and to pay or discharge within ten (10) days after due date any and
all government levies that may be made on the Property, on this Mortgage or
Note, or in any other way resulting from the indebtedness secured by this
Mortgage; and, if this condition be not complied with and performed, Mortgagee
may, without waiving or affecting its option to foreclose, pay such sum or sums
which shall become part of the debt secured by this Mortgage and which shall
bear interest, payable monthly until repaid, at the highest legal rate permitted
by the laws of the State of Florida.
7. That, in the event of a breach by Mortgagor of any covenant contained in
this Mortgage or in the Note or, if applicable, in a Development Loan Agreement
or Construction Loan Agreement between Mortgagor and Mortgagee and covering the
Property, or any part thereof, the terms of such agreement being incorporated
herein by reference, Mortgagee is entitled to receive all rents, issues,
proceeds and profits accruing and to accrue from the Property pursuant to
Florida Statutes 697.07 (1991) and, upon Mortgagor's receipt of a written demand
made by Mortgagee, all future payments shall be paid directly to Mortgagee. If a
receiver is appointed by a court having jurisdiction hereof, pursuant to
Paragraph 8 or other provisions of this Mortgage, the order appointing such a
receiver may direct that said rents, issues, proceeds, profits shall be paid to
the receiver after the date of appointment. Nothing in this paragraph shall
require the appointment of a receiver or excuse Mortgagor from failing to make
payments directly to Mortgagee upon receipt of written demand therefor.
8. That Mortgagee is entitled to the appointment of a receiver even if the
market value of the Property exceeds the amount of the balance owed on the Note
and additional charges due under this Mortgage and the Note.
9. If proceedings under any bankruptcy or insolvency law are commenced by or
against Mortgagor or if a general assignment for the benefit of creditors is
made by Mortgagor, whether under state or federal law, or a trustee or receiver
of all or a substantial part of Mortgagor's property, whether or not covered by
the lien of the Mortgage, is appointed, then, at Mortgagee's option and if
permitted by law, the whole of the unpaid principal sum and accrued interest
remaining unpaid on the Note shall become immediately due and payable.
10. That, if a petition shall be filed for any relief under the provisions
of the federal Bankruptcy Act or any state insolvency statute by or against a
guarantor or if a guarantor shall make a general assignment for the benefit of
creditors or if a receiver shall be appointed for substantially all of the
property of any guarantor, then, and in any of the foregoing events, the Note
shall become immediately due and payable at the option of the Mortgagee.
11. That, if all or any part of the Property or an interest therein is sold
or transferred by Mortgagor, whether voluntary or involuntary, without
Mortgagee's prior written consent, excluding (a) the creation of a lien or
encumbrance subordinate to this Mortgage, or (b) the creation of a purchase
money security interest for household appliances, Mortgagee may, at its option,
declare all the sums secured by this Mortgage to be immediately due and payable.
Mortgagee shall have waived such option to accelerate if, prior to the sale or
transfer for which such waiver of option is requested, the Mortgagee and the
person or entity to whom the Property is to be sold or transferred reach
agreement in writing that the credit of such third party is satisfactory to
Mortgagee and that the interest payable on the Note shall be at such rate as
Mortgagee shall request. If Mortgagee exercises such option to accelerate,
Mortgagee shall mail Mortgagor notice of acceleration and such notice shall
provide a period of not less than thirty (30) days from the date the notice is
mailed within which Mortgagor must pay the sums declared due. If Mortgagor fails
to pay such sums prior to the expiration of such period, Mortgagee may, without
further notice or demand on Mortgagor, invoke any remedies permitted by this
Mortgage and the Note.
12. If the Property or any part thereof shall be condemned and taken for
public use under the power of eminent domain, Mortgagee shall have the right to
require that all damages awarded for the taking of or damages to said Property
shall be paid to Mortgagee up to the aggregate amount then unpaid on the Note
and credited to the payment or payments last payable thereon.
13. That time is of the essence of this Mortgage and of the Note and no
waiver of any obligation hereunder or in the Note shall at any time thereafter
be held to be a waiver of the terms hereof or of the Note or other instruments
secured hereby.
14. To comply with all the terms, provisions and conditions of any superior
mortgage or lien encumbering the Property, including, but not limited to, those
applicable to the payment of principal and interest due under said superior
mortgage or lien. If Mortgagor fails to comply with each and every one of the
terms, provisions and conditions of said encumbrance, the failure to comply or
default on Mortgagor's part shall constitute a default under this Mortgage and
the Note and shall entitle Mortgagee, at its option, to exercise any and all of
its rights and remedies hereunder. If foreclosure proceedings of any superior or
inferior mortgage or any senior or junior lien of any kind should be instituted,
Mortgagee may, at Mortgagee's option, immediately or thereafter, declare this
Mortgage and the entire indebtedness secured hereby due and payable.
15. To the extent of the indebtedness of the Mortgagor to Mortgagee
described herein or secured hereby, Mortgagee is hereby subrogated to the lien
or liens and to the rights of the owners and holders of each and every mortgage,
lien or other encumbrance on the Property which is or has been paid or
satisfied, in whole or in part, out of the proceeds of the Note and the
respective liens of said mortgages, liens or other encumbrances, shall be, and
the same are hereby, preserved and shall pass to and be held by the Mortgagee
herein as security for the indebtedness to Mortgagee herein described or hereby
secured to the same extent that it would have been passed to and held by
Mortgagee, had it been duly and regularly assigned, transferred, set over and
delivered unto Mortgagee by separate assignment, notwithstanding the fact that
the same may be satisfied and cancelled of record.
16. To pay all and singular the costs, charges and expenses, including
reasonable attorney's fees and cost of abstracts of title, incurred or paid at
any time by Mortgagee because or in the event of the failure on the part of the
Mortgagor to duly, promptly and fully perform, discharge, execute, effect,
complete, comply with and abide by each and every the stipulations, agreements,
conditions and covenants of the Note and this Mortgage, any or either, and said
costs, charges and expenses, each and every, shall be immediately due and
payable whether or not there be notice, demand, attempt to collect or suit
pending; then the full amount of each and every such payment shall bear interest
from the date thereof until paid at the highest legal rate permitted by the laws
of the State of Florida; and all said costs, charges and expenses so incurred or
paid, together with such interest, shall be secured by the lien of this
Mortgage. Reference herein to "reasonable attorney's fees" shall include
attorney fees incurred by the Mortgagee for appellate and bankruptcy proceedings
incident to any action brought hereunder or upon the Note.
17. That, if any word, clause, term, phrase or paragraph used in the Note
or this Mortgage should be held to be unenforceable by any court of competent
jurisdiction, the same shall not affect, alter or otherwise impair the meaning
of any other word, clause, term, phrase or paragraph in the Note and Mortgage,
and the same shall stand in full force and effect and shall be obligatory upon
the parties hereto and the assignees, heirs and legal representatives of the
parties hereto.
18. That, except for any notice required under applicable law to be given in
another manner, any notice to Mortgagee provided for or given pursuant to this
Mortgage or the Note shall be given by mailing such notice, postage prepaid, by
United States registered or certified mail, return receipt requested, to
Mortgagee's address as stated herein or in the Note secured hereby or to such
other address as Mortgagee may designate, in writing, by notice to Mortgagor
from time to time.
19. That all remedies provided in this Mortgage or in the Note, or other
instrument secured hereby or incorporated by reference herein, are distinct and
cumulative to any other right or remedy under this Mortgage or such other
instrument or afforded by law or equity and may be exercised concurrently,
independently or successively. The Note shall become due at the option of
Mortgagee if any representation or warranty made or given by Mortgagor or
otherwise made in writing in connection with the transaction evidenced by this
Mortgage shall prove to have been false or incorrect in any material respect as
of date hereof and such defect (if curable) shall not have been cured within
seven (7) days from the date of the mailing of notice thereof to the Mortgagor.
20. To pay to the Mortgagee, after written request therefor, on the day that
monthly installments of principal and interest are payable under the Note a sum
equal to one-twelfth of the yearly taxes and assessments which may attain
priority over this Mortgage, plus one-twelfth of the yearly premium installments
for hazard and flood insurance, all as reasonably estimated initially and from
time to time by Mortgagee on the basis of assessments and bills and estimates
thereof. Said sum shall be held in escrow by the Mortgagee or its designee and
is pledged as additional security for the sums secured by this Mortgage. If the
escrowed funds shall not be sufficient to pay taxes, assessments and insurance
premiums as they fall due, Mortgagor shall pay to Mortgagee any amount necessary
to make up such deficiency within twenty (20) days after notice from Mortgagee
requesting payment thereof. Such escrowed sum shall be held by Mortgagee without
allowance of interest.
21. That, notwithstanding anything to the contrary contained in this
Mortgage or in the Note or in any other instruments securing the Note, Mortgagee
may, at Mortgagee's option, declare the entire indebtedness secured hereby,
together with all interest thereon and all advances made by the Mortgagee
hereunder, immediately due and payable in the event of a breach by Mortgagor of
any covenant contained in this Mortgage or in the Note or, if applicable, in the
Development Loan Agreement or a Construction Loan Agreement referred to in
Paragraph 7. In the event of any conflict between the terms of this Mortgage and
the terms of said loan agreement, the terms of the loan agreement shall prevail.
22. To collaterally assign, coincident herewith or hereafter, to Mortgagee,
any lease or leases of all or of any portions of the Property. If such
assignment is made and accepted by Mortgagee, Mortgagor shall perform promptly
each and every covenant and agreement of any such lease that is to be kept or
performed by the Mortgagor in Mortgagor's capacity as lessor and any violation
on Mortgagor's part of any covenant or agreement in any such lease or in the
assignment of said lease that is to be kept or performed by Mortgagor, or any
violation on Mortgagor's part of any agreement by Mortgagor set out in such
Assignment of Lease, shall constitute a breach of this Mortgage and thereupon
Mortgagee may, at its option, without notice, declare the Note immediately due
and payable. Mortgagor will advise Mortgagee promptly of the execution hereafter
of any lease of all or any part of the Property and shall, upon Mortgagee's
request, submit to Mortgagee for examination and approval any such lease. If
Mortgagee so requests, Mortgagor shall specifically collaterally assign such
lease to Mortgagee (in form acceptable to Mortgagee); and it is agreed that the
provisions of this Mortgage with regard to Mortgagor's obligations and
Mortgagee's rights with respect to leases and collateral assignment of the same
shall apply to all such additional leases and assignments thereof. Mortgagee
may, at its option, perform any covenant or provision of any such lease for and
on behalf of the Mortgagor and at Mortgagor's expense and any amount advanced
for this purpose shall bear interest at the same rate as for other advances and
shall be secured by this Mortgage and shall be payable upon demand. The security
interest created by the following paragraph of this Mortgage is specifically
intended to cover and include all leases of the Property, together with all
amendments and supplements thereto, between Mortgagor as lessor and any tenants
named therein as lessees, including all extended terms and all extensions and
renewals of the terms thereof, as well as any amendments to or replacements of
said leases, together with all the right, title and interest of Mortgagor as
lessor thereunder; including, without limiting the generality of the foregoing,
the present and continuing right to make claim for, collect, receive and receipt
for any and all of the rents, income, revenue, issues, profits and monies
payable as damages or in lieu of the rent, and monies payable as the purchase
price of the Property, or any part thereof, or of awards or claims for money and
other sums of money payable or receivable thereunder, howsoever payable; and to
bring actions and proceedings thereunder or for the enforcement thereof; and to
do any and all things which Mortgagor or any lessor is or may be entitled to do
under the lease; provided that the assignment made by this paragraph and the
collateral assignment of lease, if any, entered into simultaneously herewith or
subsequent hereto shall not impair or diminish any obligations of Mortgagor
under the lease nor shall any obligations be imposed upon the Mortgagee, except
at Mortgagee's option, to perform any duties or obligations imposed by the terms
of the lease upon the Mortgagor as lessor in said lease. Nothing herein
contained, including the acceptance of a Collateral Assignment of Lease by
Mortgagee, shall subordinate the lien of this Mortgage to such lease unless such
subordination is specifically provided for herein or by separate written
instrument executed by Mortgagee.
23. That, in addition to all other right, title and interest of Mortgagor
granted, mortgaged, conveyed, pledged and assigned herein, or in instruments
collateral hereto, Mortgagee shall have, and there is hereby created in favor of
Mortgagee, a security interest in all equipment and fixtures now or hereafter
attached to the Property, as well as any other property of Mortgagor as may be
necessary for operation of the Property, including, but not limited to,
electrical, plumbing, heating and cooling systems, it being the intention of the
parties hereto that, so far as may be permitted by law, all property of the
character hereinabove described, which is now owned or is hereafter acquired by
Mortgagor and is affixed, attached, or annexed to the Property, shall be and
remain or become and constitute a portion of the Property and be subject to the
lien of the security interest created by this Mortgage, together with all rents,
income, revenues, issues and profits thereof and present and continuing right in
the Mortgagee to make claim for, collect, receive and receipt for the same.
Mortgagor will not remove, attempt to remove or permit to be removed any part of
the Property, which includes items described in the security instrument
referenced in Paragraph 22, without first and prior to removal thereof, having
received permission in writing for such removal from Mortgagee. Mortgagor will
immediately execute such Financing Statements and renewals thereof as may be
periodically requested by Mortgagee. If Mortgagor fails or refuses to comply
with such request, Mortgagee is irrevocably authorized to execute such documents
as Mortgagee's attorney-in-fact.
24. To not use, nor knowingly permit the use of, the Property or any part
thereof for any unlawful purpose or for the commission of a nuisance.
25. That neither the provisions of this Mortgage, nor of the Note, shall
have the effect of or be construed as requiring or permitting the Mortgagor to
pay interest in excess of the highest rate per annum allowed by the laws of the
State of Florida on any item or items of indebtedness referred to in the Note or
this Mortgage and, if any such excess interest be charged or paid, written
notification thereof shall be given by Mortgagor to Mortgagee and such excess
interest, together with interest thereon at the legal rate, shall, at
Mortgagor's option, either be credited to the unpaid principal indebtedness
secured hereby or reimbursed to the Mortgagor.
26. That any part of the security herein described and covered by the lien
of this Mortgage may be released with or without consideration and without
regard to the amount of consideration furnished without in anywise altering,
varying or diminishing the force, effect or lien of this Mortgage or any renewal
or extension of it, and the same shall continue as a lien on all Property not
expressly released until all sums, with interest and charges hereby secured, be
fully paid.
27. That the terms "hazardous waste", "hazardous substance", "disposal",
"release", and "threatened release", as used in this Mortgage, shall have the
same meanings as set forth in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et.
seq., ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub.
L. No. 99-499 ("XXXX"), the Hazardous Materials Transportation Act. 49, U.S.C.
Section 1801, et. seq., the Resource Conservation and Recovery Act. 49 U.S. C.
Section 6901, et. seq., or other applicable state or federal laws, rules, or
regulations adopted pursuant to any of the foregoing. Mortgagor represents and
warrants to Mortgagee that: (a) To the best knowledge of Mortgagor, during the
period of Mortgagor's ownership of the Property, there has been no use,
generation, manufacture, storage, treatment, disposal, release or threatened
release of any hazardous waste or substance by any person on, under, or about
the Property; (b) Mortgagor has no knowledge of, or reason to believe that there
has been, except as previously disclosed to and acknowledged by Mortgagee in
writing, (i) any use, generation, manufacture, storage, treatment, disposal,
release or threatened release of any hazardous waste or substance by any prior
owners or occupants of the Property or (ii) any actual or threatened litigation
or claims of any kind by any person relating to such matters; and (c) Except as
previously disclosed to and acknowledged by Mortgagee in writing, (i) Mortgagor
shall not use, generate, manufacture, store, treat, dispose of or release any
hazardous waste or substance on, under or about the Property (and Mortgagor
shall use its best efforts to prohibit any tenant or other user of the Property
from any such use) and (ii) any activity on the Property shall be conducted in
compliance with all applicable federal, state and local laws, regulations and
ordinances, including, without limitation, those laws, regulations and
ordinances described above. Mortgagor authorizes Mortgagee and Mortgagee's
agents to enter upon the Property to make such inspections and tests as
Mortgagee may deem appropriate to determine compliance by Mortgagor and the
Property with the provisions hereof. Any inspections or tests made by Mortgagee
shall be for Mortgagee's purposes and benefit only and shall not be construed to
create any responsibility or liability on the part of Mortgagee to Mortgagor or
to any other person or entity, governmental or otherwise. The representations
and warranties contained herein are based on Mortgagor's due diligence in
investigating the Property for hazardous waste. Mortgagor (a) releases and
waives any present or future claims against Mortgagee for indemnity or
contribution if Mortgagor becomes liable for cleanup or other costs under any
such laws, and (b) agrees to indemnify and hold harmless Mortgagee against any
and all claims, losses, liabilities, damages, penalties and expenses which
Mortgagee may directly sustain or suffer resulting from a breach of this
provision or as a consequence of any use, generation, manufacture, storage,
disposal, release or threatened release occurring prior or subsequent to
Mortgagor's ownership or interest in the Property, whether or not the same was
or should have been known to Mortgagor. The provisions of this paragraph,
including the obligation to indemnify, shall survive the payment of the Note and
the satisfaction and reconveyance of the lien of this Mortgage and shall not be
affected by Mortgagee's acquisition of any interest in the Property, whether by
foreclosure or otherwise.
28. To maintain the Property, at Mortgagor's sole expense, and make such
repairs and renovations as may, during the term of this Mortgage, be required
for compliance with The Americans with Disabilities Act, 42 U.S.C. 12101, et.
seq., and amendments thereto ("ADA"). Any notice or warning of violation or
noncompliance of or with the provisions of ADA received by Mortgagor shall be
sent in accordance with Paragraph 18 to Mortgagee within ten (10) days after
receipt thereof and Mortgagor shall have a period of thirty (30) days thereafter
(unless a shorter term is imposed by the notice or warning) within which to
furnish to Mortgagee a written plan and time schedule for correcting the
deficiency in accordance with the requirements of ADA.
29. This Mortgage shall, at the option of the Mortgagee, secure, in addition
to the debt evidenced by the Note, any other liability or liabilities owed by
the Mortgagor to the Mortgagee, whether direct or indirect, secured or
unsecured, contingent or fixed, now due, or to become due, or which may
hereafter be contracted by virtue of any advances, disbursements, payments,
charges or costs made or incurred by the Mortgagee under the terms of this
Mortgage or any other instrument including, but not by way of limitation,
promissory notes, guaranties, financing statements, security agreements,
endorsements and overdrafts, though the aggregate outstanding amount at any time
may exceed the amount originally secured hereby. Mortgagee shall be entitled to
receive and retain the full amount of the debt evidenced by the Note and the
other liabilities herein described in any action for foreclosure, redemption by
the Mortgagor, accounting for the proceeds of a foreclosure sale, accounting for
insurance proceeds or condemnation award.
30. To waive and renounce to the extent permitted by law any and all
homestead and exemption rights Mortgagor may now or hereafter have as against
the payment of the obligation evidenced or secured hereby, or any portion
thereof, or any other obligation or damage that may accrue to Mortgagee's
benefit under the terms of the Note and this Mortgage.
31. To pay to Mortgagee a transfer fee each time the legal or beneficial
title to the Property is conveyed or assigned. The amount of such fee will be a
specified amount or a percent of the principal balance remaining unpaid on the
Note at the time of the conveyance or assignment, except that such transfer fee
shall not exceed 1% of the then principal balance or $300, whichever is greater.
The collection of a transfer fee shall not be construed as authorizing the
assumption of this Mortgage other than as provided hereinabove.
32. That Mortgagee shall not be responsible or liable to anyone other than
the Mortgagor for Mortgagee's disbursement of or failure to disburse the funds
or any part thereof evidenced by the Note, and no third party, including any
creditor or subrogee of the Mortgagor, shall have any claim or right against the
Mortgagee under this Mortgage or the Note for Mortgagee's administration of
disbursement, nor shall the Mortgagee be liable for the manner in which any
disbursements under this Mortgage or the Note may be applied or misapplied by
the Mortgagor.
33. In this Mortgage and the Note, the singular shall include the plural and
the masculine shall include the feminine and neuter. Whenever the term
"Mortgagor" is used herein, it shall include corporate and individual
mortgagors, their heirs, personal representatives, trustees in dissolution,
assigns and successors in interest in title to the Property.
34. This Mortgage, the Note and other instruments incidental hereto or
referenced herein shall be construed according to the laws of the State of
Florida, and the venue for any litigation brought on account of or incidental to
this Mortgage shall be Brevard County, Florida, except that any foreclosure of
this Mortgage will be filed in the county wherein the Property is located.
35. MORTGAGEE AND MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY
WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE AND
ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTION
OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR MORTGAGEE ENTERING
INTO THIS TRANSACTION WITH MORTGAGOR.
XXX THIS IS A BALLOON MORTGAGE AND THE FINAL PRINCIPAL PAYMENT OR THE
PRINCIPAL BALANCE DUE UPON MATURITY IS $2,133,333.20, TOGETHER WITH ACCRUED
INTEREST, IF ANY, AND ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF
THIS MORTGAGE.
Signed, sealed and delivered in the presence of:
SMART CHOICE AUTOMOTIVE GROUP, INC.,
a Florida corporation
Print Name
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Print Name Xxxxxx X. Xxxxxxxx, Executive Vice President
and Chief Operating Officer
Address: 0000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
