Exhibit 10.13.1
THIS IS A BALLOON MORTGAGE AND THE FINAL PAYMENT OF THE BALANCE DUE UPON
MATURITY IS $1,889,204.50, 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
is entered into this 29th day of July, 1998, by and between THE HUNTINGTON
NATIONAL BANK, a national banking association, whose address is 685 S. Babcock
Street, Melbourne, Florida 32901, hereinafter referred to as `Mortgagee"; and
SMART CHOICE AUTOMOTIVE GROUP, INC., a Florida corporation, whose address is
5200 S. Washington Avenue, Titusville, FL 32780, hereinafter referred to as
"Mortgagor".
W I T N E S S E T H :
WHEREAS, BARNETT 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 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; UCC-1 Financing Statement
recorded in Official Records Book 3609, Page 0743, Public Records of Brevard
County, Florida; and
WHEREAS, the Loan, Note and Mortgage were modified by a Mortgage
Modification Agreement dated October 25, 1996, recorded in Official Records Book
3617, Page 1805, Public Records of Brevard County, Florida; and
WHEREAS, the Loan, Note and Mortgage were modified by a Second
Modification to Mortgage and Security Agreement and Partial Release of Personal
Property Agreement dated September 15, 1997 and recorded in Official Records
Book 3711, Page 4702 , Public Records of Brevard County, Florida; and
WHEREAS, the Loan, Note and Mortgage were assigned by Barnett Bank,
N.A. to Mortgagee by Assignment of Loan Documents dated November 4, 1997,
recorded in Official Records Book 3725, Page 3827, 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 in Official Records Book 3725, Page 3830; Collateral Assignment of
Leases or Leases recorded in Official Records Book 3725, Page 3837; UCC-1
Financing Statement recorded in Official Records Book 3725, Page 3847; UCC-3
recorded in Official Records Book 3725, Page 3853, Public Records of Brevard
County, Florida; and
WHEREAS, the Loan, Note and Mortgage were further modified by
Modification of Mortgage and Mortgage Note and Extension Agreement dated
December 30, 1997, recorded in Official Records Book 3760, Page 1333, and
re-recorded in Official Records Book 3776, Page 0133, 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 in official Records
Book 3617, Page 1805, 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 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
$2,393,333.28.
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, assignment of
rents, leases, guarantees, and all other documents executed
and/or delivered by Mortgagor to Mortgagee.
3. The total principal indebtedness of $2,393,333.28 plus
interest at the rate of three-quarters (.75%) 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 $14,405.00 PLUS interest shall be due and
payable on the first day of AUGUST, 1998, and the first day of each
consecutive month thereafter until the 1st day of JULY, 2001, 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 form 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 in 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.
4. The parties agree that interest at the rate of three-quarters
(.75%) 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 July 1, 1998.
5. Nothing herein is intended to nor shall it constitute a
novation of the indebtedness evidenced by the Existing Note
or of the other obligations secured by the Mortgage,
and such indebtedness and obligations remain in full force
and effect, and shall be evidenced by the Renewal Note.
6. The Commitment Letter of May 28, 1998, by and between
Mortgagor and Mortgagee is incorporated herein and made a
part hereof. Any default in the provisions of the Commitment
Letter by Mortgagor shall be a default herein.
7. This instrument shall be binding upon the successors and
assigns to the parties hereto.
8. Should any provision of this instrument be invalid or
unenforceable, the remainder of this instrument shall not be
affected thereby and shall be enforceable to the greatest
extent permitted by law.
9. Except as expressly modified herein, the Mortgage is hereby
ratified and confirmed and shall remain in full force and
effect.
10. Mortgagor further covenants and agrees that Mortgagor has no
defenses or set-offs to the enforcement of the Note and
Mortgage, as modified, or any counterclaims against the
holder of the Note and Mortgage and by the execution of this
Agreement, they hereby waive all defenses, setoffs or
counterclaims they may have as of the date hereof.
IN WITNESS WHEREOF the undersigned have executed this instrument.
SMART CHOICE AUTOMOTIVE GROUP, INC., a Florida
corporation
By: /s/ JOSEPH E. MOHR
-----------------------------------------
JOSEPH E. MOHR, Executive Vice President and
Chief Financial Officer
THE HUNTINGTON NATIONAL BANK,
a national banking association
By:
-----------------------------------------
Print Name:
Title:
STATE OF FLORIDA )
) ss:
COUNTY OF BREVARD )
The foregoing instrument was acknowledged before me this 29th day of
July, 1998 by JOSEPH E. MOHR, as EXECUTIVE VICE PRESIDENT and CHIEF FINANCIAL
OFFICER of SMART CHOICE AUTOMOTIVE GROUP, INC., a Florida corporation. He is
personally known to me or has produced ______________ as identification..
/S/ LILLIAN CLOVER
----------------------------------
My Commission Expires: Notary Public,
[SEAL]
STATE OF FLORIDA )
) ss:
COUNTY OF BREVARD )
The foregoing instrument was acknowledged before me this __________day
of July, 1998 by ________________________ , as Vice President of THE HUNTINGTON
NATIONAL BANK, a national banking association.
He is personally known to me or has produced ______________ _____ as
identification.
----------------------------------
My Commission Expires: Notary Public,
ACKNOWLEDGEMENT AND CONSENT OF GUARANTOR
The undersigned hereby acknowledges and consents to the foregoing
Modification of Mortgage and Mortgage Note and Extension Agreement.
Dated this 29th day of July, 1998
ECKLER INDUSTRIES, INC., a Florida
corporation
By: /s/ DONNA SIEBEL
------------------------------
DONNA SIEBEL, Vice President
STATE OF FLORIDA )
) ss:
COUNTY OF BREVARD )
The foregoing instrument was acknowledged before me this 29th day of
July, 1998 by DONNA SIEBEL, as VICE PRESIDENT of ECKLER INDUSTRIES, INC., a
Florida corporation. She is personally known to me or has produced
______________a as identification.
/s/ LILLIAN CLOVER
----------------------------------
Notary Public,
[SEAL]
My Commission Expires: