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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended September 30, 1995 Commission File No. 0-1748
MAJOR REALTY CORPORATION
------------------------
(Exact name of small business issuer as specified in its charter)
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DELAWARE 59-0898509
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(State or other jurisdiction of incorporation or organization (I.R.S. Employer Identification No.)
5728 MAJOR BOULEVARD, ORLANDO, FLORIDA 32819
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(Address of principal executive offices) (Zip Code)
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Registrant's Telephone Number, Including Area Code: 407/351-1111
Check whether the issuer (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act of 1934 during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
YES X NO
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At November 10, 1995, 6,893,378 shares of common stock of the issuer were
outstanding.
Transitional Small Business Disclosure Format (Check One): Yes No X
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INDEX
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Page No.
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PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements
Consolidated Balance Sheets at September 30, 1995 and
December 31, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Consolidated Statements of Income for the
Nine Months Ended September 30, 1995 and 1994 . . . . . . . . . . . . . . . 2
Consolidated Statements of Cash Flows for the
Nine Months Ended September 30, 1995 and 1994 . . . . . . . . . . . . . . . 3
Notes to Consolidated Financial Statements . . . . . . . . . . . . . . . . . . 4
Item 2 - Management's Discussion and Analysis of Financial
Condition and Results of Operations . . . . . . . . . . . . . . . . . . . . . 10
PART II - OTHER INFORMATION
Item 5. - Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Item 6. - Exhibits and Reports on Form 8-K . . . . . . . . . . . . . . . . . . . . . . . 13
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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ITEM I - FINANCIAL INFORMATION
MAJOR REALTY CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
September 30, 1995 and December 31, 1994
(in thousands)
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September 30, December 31,
1995 1994
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ASSETS (unaudited) (audited)
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Cash and cash equivalents $ 765 $ 244
Restricted cash 252 36
Mortgage note receivable 7,640 2,750
Land held for sale or development 4,474 7,038
Land under lease 171 171
Other assets 647 513
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$ 13,949 $ 10,752
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LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable - trade $ 84 $ 101
Accrued expenses 1,056 1,311
Deferred income - 50
Mortgage notes payable 5,463 8,038
Deferred income taxes 104 149
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6,707 9,649
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Stockholders' equity:
Series A Junior participating preferred stock -
$1.00 par value; authorized, 80,000 shares,
none outstanding - -
Common stock - $.01 par value; authorized,
12,000,000 shares; issued and outstanding,
6,893,378 shares 69 69
Capital in excess of par value 7,822 7,822
Accumulated deficit (649) (6,788)
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Total stockholders' equity 7,242 1,103
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TOTAL $ 13,949 $ 10,752
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See Notes to Consolidated Financial Statements.
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MAJOR REALTY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited)
(in thousands; except per share data)
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FOR THE THREE FOR THE NINE
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MONTHS ENDED: MONTHS ENDED:
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Sept. 30, Sept. 30, Sept. 30, Sept. 30,
1995 1994 1995 1994
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REVENUES:
Sales of real estate $ 8,380 $ - $ 10,390 $ 3,618
Lease income 38 40 115 135
Interest income 100 68 235 201
Other income 3 11 11 20
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Total revenues 8,521 119 10,751 3,974
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COSTS AND EXPENSES:
Cost of real estate sold:
Improved and unimproved land 2,095 11 2,656 771
Commissions & other expenses 357 - 437 266
Selling, general and administrative 241 197 717 664
Interest cost 200 218 802 631
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Total costs and expenses 2,893 426 4,612 2,332
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INCOME (LOSS) BEFORE PROVISION FOR
INCOME TAXES 5,628 (307) 6,139 1,642
PROVISION FOR INCOME TAXES - - - -
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NET INCOME (LOSS) $ 5,628 $ (307) $ 6,139 $ 1,642
========= ========== ======== =========
NET INCOME (LOSS) PER COMMON SHARE $ .82 $ (.04) $ .89 $ .24
========= =========== ======== ==========
WEIGHTED AVERAGE NUMBER OF
SHARES OUTSTANDING 6,893 6,893 6,893 6,893
========= ========== ======== ========
</TABLE>
See Notes to Consolidated Financial Statements
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MAJOR REALTY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the nine months ended September 30, 1995 and 1994
(unaudited)
(in thousands)
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1995 1994
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Cash flows from operating activities:
Net income $ 6,139 $ 1,642
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Adjustments to reconcile net income (loss) to net
cash used for operating activities:
Depreciation and amortization 118 71
Net gain on sales of real estate (7,297) (2,592)
Increase in other assets and other receivables (252) (247)
(Decrease) increase in accounts payable
and accrued liabilities (321) 214
Change in deferred income taxes (45) (305)
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Total adjustments (7,797) (2,859)
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Net cash used for operating activities (1,658) (1,217)
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Cash flows from investing activities:
Additions to land held for sale or development (92) (255)
Proceeds from the sale of real estate, net 5,063 3,238
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Net cash (used for) provided by
investing activities 4,971 2,983
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Cash flows from financing activities:
Proceeds from mortgage notes payable 1,707 -
Principal payments of mortgage
notes payable (4,283) (1,399)
Decrease in land sales deposits - (100)
Increase in restricted cash (216) (251)
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Net cash used for
financing activities (2,792) (1,750)
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Net (decrease) increase in cash and cash equivalents 521 16
Cash and cash equivalents at beginning
of period 244 297
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Cash and cash equivalents at end of period $ 765 $ 313
======== =========
</TABLE>
See Note 3 for non-cash activities.
See Notes to Consolidated Financial Statements
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MAJOR REALTY CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
Note 1 - Consolidated Financial Statements
The interim consolidated financial statements for Major Realty
Corporation and its subsidiaries (the "Company") are unaudited and should be
read in conjunction with the financial statements and notes thereto contained
in the Company's Form 10-KSB Annual Report for the year ended December 31,
1994.
In the opinion of management, all adjustments (which include only
normal recurring adjustments except as otherwise disclosed) necessary to
present fairly the financial position, results of operations and cash flows for
the interim periods reported herein have been made. Interim financial
statements are not necessarily indicative of the results which may be reported
for the year ended December 31, 1995.
Note 2 - Per Share Data
Per share data is computed by dividing net income (loss) by the
weighted average number of shares of common stock and common stock equivalents
outstanding during each period. Common stock equivalents include shares
issuable on the exercise of stock options net of shares assumed to have been
purchased from the proceeds. For the nine months ended September 30, 1995 and
1994, common stock equivalents have been excluded from the computation since
their effect would be antidilutive.
Note 3 - Land Held for Sale or Development
During February, 1994 the Company sold 4.84 acres of commercial land
located at the intersection of Kirkman Road and Vineland Road near the entrance
to Universal Studios Florida to Bara Investments for $3,618,000. The sales
transaction consisted of $2,125,000 cash plus a 30-day $1,493,000 mortgage
which was paid in full during March, 1994. The net proceeds from the sale were
used for company operations and for the payment of company debt.
(Continued)
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MAJOR REALTY CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
Note 3 - Land Held for Sale or Development (continued)
During October, 1994, the Company signed a $240,000 contract for the
sale of 30,000 square feet of vacant land near the corner of Conroy Road and
Vineland Road in Orlando, Florida. The contract was canceled in September
1995. The Buyer was unable to obtain financing.
During November, 1994, the Company signed a $2,100,000 contract for the
sale of approximately five acres of vacant land at the northwest intersection
of Major Boulevard and Vineland Road in Orlando, Florida. The Buyer made a
$50,000 deposit which became non-refundable during December, 1994, and the
transaction closed on May 5, 1995. Additional cash in the amount of $650,000
was received at closing and was used to retire company debt and for opera-
tions. The balance of the purchase price, $1,310,000, was represented by a
promissory note originally due in May, 1996. The note was satisfied at a
discount on October 18, 1995 for $1,234,000.
During November, 1994, the Company signed a $925,000 contract for the
sale of 2.26 acres of commercial land located at the northwest corner of the
intersection of Conroy Road and Vineland Road in Orlando. The contract
subsequently was modified to provide for the sale of 1.38 acres of land for a
purchase price of $750,000. The sale closed on September 8, 1995. The sales
price was paid in cash at closing. Proceeds from the sale were used to retire
company debt and for company operations.
During December, 1994, the Company signed a contract for $2,040,000,
subsequently adjusted to $1,800,000, for approximately 55 acres gross (17 acres
net) of multi-family land located on Vineland Road at the Florida Turnpike in
Orlando. The contract was cancelled in April, 1995 when the Buyer informed
the Company that it was unable to satisfy the conventional financing
contingency.
During January, 1995, the Company signed a $6,280,000 contract for sale
of 10.36 acres of commercial land located at the northeast intersection of
Interstate 4 and Kirkman Road in Orlando. The Buyer made an additional escrow
deposit on April 30, 1995 and the six months "free look" period expired on July
31, 1995. The Company received $3,640,000 cash at closing on September 1,
1995, plus a $3,580,000 mortgage which will be due in two equal payments, one
in April 1996 and the other in April 1997. Approximately $2,000,000 of the net
proceeds was used to repay company debt and the remainder has been and will be
used for company operations.
(Continued)
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MAJOR REALTY CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
Note 3 - Land Held for Sale or Development (continued)
During April, 1995, the Company signed a $1,000,000 contract for sale
of 12.95 acres of multi-family land located at the northeast corner of Cason
Cove Road and Mission Road in Orlando. The transaction was closed on August
18, 1995, and the sales price was paid in cash at closing. Proceeds from the
sale were used to retire company debt and for company operations.
During June, 1995, the Company executed an agreement for the purchase
of 1.06 acres located at the southeast corner of Vineland Road and Major
Boulevard in Orlando for $350,000. The transaction closed on September 25,
1995, and the sales price was paid in cash at closing.
Note 4 - Related Party Transactions
On March 25, 1992, the Company entered into a loan agreement (the "Loan
Agreement") with Valassis Enterprises, L.P. ("Enterprises"), a Delaware limited
partnership controlled by George F. Valassis, a 9.7% shareholder, pursuant to
which Enterprises made a loan in the amount of $3 million, a substantial
portion of which was used by the Company to pay 1991 real estate taxes due on
March 31, 1992. During 1994, the Company made payments on this obligation
aggregating $665,000 including accrued interest of $63,000. Charlotte Drake
Apartments, Inc. ("Apartments"), a Maryland corporation and affiliate of Allied
Domecq Pension Funds, a 6.46% shareholder of the Company, participated in
Enterprises' loan to the Company pursuant to arrangements between it and
Enterprises. There was no contractual relationship between the Company and
Apartments.
On September 1, 1990, the Company entered into a Management and
Advisory Agreement (the "Agreement") with The Major Group, Inc. ("Major Group")
at that time a 51% owned subsidiary of Acceptance Insurance Companies Inc.
("Accep- tance"), f/k/a Stoneridge Resources, Inc., the Company's principal
shareholder, pursuant to which Major Group provided real estate advisory
services, as well as day-to-day managerial and administrative services and
personnel, to the Company.
(Continued)
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MAJOR REALTY CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
Note 4 - Related Party Transactions continued:
The Company entered into an agreement for settlement and termination
of the Agreement with Major Group in March, 1992 pursuant to which Major Group
accepted two promissory notes from the Company in the aggregate amount of
$1,515,000 ("Notes"). Interest costs on the Notes were $17,000 for 1994.
During 1994, the Company made payments aggregating $335,000 on the Notes
including accrued interest of $25,000. On September 25, 1992, Major Group
assigned the Notes to Acceptance in connection with the settlement of certain
mortgage notes payable to Acceptance by Major Group and the merger of Major
Group and a wholly-owned subsidiary of Acceptance.
The Company's obligations to Enterprises and Acceptance, as assignee
of Major Group, were collateralized by a second mortgage on the Core Area
Commercial property, the International/Republic Drive Area property, and the
Cypress Creek and Lakes Residential Area property, located in Orlando, Florida
(collectively the "Property"). Acceptance also held a third mortgage on the
Property.
During February, 1995, the Company entered into a loan arrangement
with Acceptance whereby Acceptance acquired the Company's promissory note and
mortgage to Enterprises of $282,000, including accrued interest, and provided
additional funds which were used to repay two promissory notes in the aggregate
amount of $103,000, including accrued interest, held by Acceptance, fund the
$770,000 interest reserve required by PNC Bank, Kentucky Inc. ("PNC"), the
Company's primary lender, pay real estate taxes in the amount of $327,000, pay
loan closing and extension costs of $75,000 and provide working capital of
approximately $43,000. The aggregate indebtedness to Acceptance in connection
with these transactions was $1,600,000, represented by a single promissory note
due in January, 1996, which provided for interest, at the rate of twelve
percent (12%) per annum, to accrue monthly and be paid at maturity. Subject to
the Company's right to repay the note, the outstanding principal amount of the
note (or any portion thereof), plus accrued but unpaid interest, was
convertible into the Company's common stock at the option of Acceptance at any
time upon 20 days prior notice, based upon a price per share equal to the
average closing price of the common stock during the 30-day period immediately
preceding the date of Acceptance's notice of its election to convert. The note
to Acceptance was collateralized by a second mortgage on substantially all of
the Company's property.
(Continued)
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MAJOR REALTY CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
Note 4 - Related Party Transactions continued:
During October, 1995, Acceptance acquired from PNC a note made by the
Company with an outstanding balance of approximately $4,316,831, the first
mortgage securing the note and other associated loan documents. The
indebtedness to PNC was due on January 31, 1996. On October 18, 1995, the
Company entered into a debt restructuring agreement with Acceptance, for the
Company's $5,064,144 debt to Acceptance ($747,313 due from the February 1995
loan plus the PNC Note).
The interest rate on the restructured loan is prime plus 1.5%, and
interest is payable quarterly in arrears. The maturity of the loan, which
prior to the restructuring was January 31, 1996, was extended to May 1, 1998,
unless there is a change in control prior to such time, in which event the
maturity of the loan will be accelerated. The Company's indebtedness to
Acceptance is secured by a first mortgage on substantially all of the Company's
property, including certain notes and mortgages payable to the Company from
third parties. The restructured loan extended the maturity and improved the
Company's cash flow through the elimination of the PNC interest reserve.
On March 26, 1992, the Board of Directors elected David L. Treadwell
to the Board of Directors and appointed him as Chairman of the Board and Chief
Executive Officer of the Company. The Company entered into an agreement (the
"Employee Lease Agreement") with Heritage Network, Incorporated ("Heritage"),
Mr. Treadwell's primary employer, pursuant to which the Company agreed to pay
Heritage $100,000 per year for Mr. Treadwell's services as Chief Executive
Officer ("the Annual Fee"). The Employee Lease Agreement was subsequently
amended to defer 75% of the Annual Fee incurred from April 1, 1994 through
March 31, 1995, and Heritage has agreed informally to continue the deferral
until December, 1995. Interest accrues on the deferred amount at 12% per
annum, beginning December 31, 1994. At September 30, 1995, the Company owed
Heritage $120,400 under the Employee Lease Agreement, including $7,900 in
interest. In addition, the Company reimburses Mr. Treadwell for all reasonable
travel expenses including transportation to and from his home city of
Southgate, Michigan. The Company has also granted Mr. Treadwell options to
purchase 200,000 shares of common stock.
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MAJOR REALTY CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
Note 5 - Other
During October, 1995, the Company settled litigation relating to a
condominium project in Orlando, Florida, The Townes of Southgate, developed by
Major Development Company ("MDC"), a wholly-owned, now dissolved, subsidiary of
the Company.
The condominium association sought damages in excess of $1.5 million
relating to defects in the construction of the project, together with interest,
costs and attorneys fees, against the Company, MDC, and the individual members
of MDC's last board of directors. Under the terms of the settlement agreement
approved by the Circuit Court for Orange County, Florida, the Company agreed,
without acknowledging any liability, to make installment payments totalling
$596,000 to the plaintiff. The Company previously had accrued reserves for a
substantial portion of the settlement amount, and the net financial impact on
the Company is expected to be less than $100,000.
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Item 2. - Management's Discussion and Analysis of
Financial Condition and Results of Operations
RESULTS OF OPERATIONS
NET INCOME
The Company recorded a net income of $5,628,000, or $.82 per share,
for the three months ended September 30, 1995, as compared to a net loss of
$307,000, or ($.04) per share, for the same three month period in 1994. The
1995 net income was derived from four property sales comprised of 12.77 acres
of commercial land and 12.95 acres of multifamily land, for an aggregate of
$8,380,000 in sales. The cost basis of such real property was $2,095,000,
resulting in a net gain to the Company of $6,285,000. The 1994 net loss was
due to the fact the Company had no land sales during the period.
REVENUES
Substantially all of the Company's revenues for the three months ended
September 30, 1995, were generated by land sales, as described above.
COSTS AND EXPENSES
For the three months ended September 30, 1995, selling, general and
administrative costs were $241,000, as compared to $197,000 during the
comparable period of the prior year. The increase was primarily due to
professional fees incurred in connection with the consideration of a potential
transaction, expenses of a Board of Directors meeting held during the quarter
and engineering and permitting pertaining to land held by the Company.
Interest costs for the three months ended September 30, 1995 and
September 30, 1994 were $200,000 and $218,000, respectively. For the nine
months periods ended September 30, 1995 and September 30, 1994, interest costs
were $802,000 and $631,000, respectively. The decrease for the three months is
due to the reduction in debt as a result of the four land sales during the
period. The increase for the nine months is due primarily to an increase in
the prime rate and the average outstanding balance of the debt due to the
additional monies advanced to the Company by Acceptance. See "Note 4 - Related
Party Transactions" to Notes to Consolidated Financial Statements.
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FINANCIAL CONDITION AND LIQUIDITY
The Company relies on internal sources of capital to meet its
operating and debt service requirements. Current internal sources of funds are
cash on hand, proceeds from land sales and lease payments. Due to adverse
economic conditions prevalent in the real estate and financial markets,
development activities with respect to the Company's properties have been
significantly reduced, with none of the Company's properties currently
designated for any significant above-ground development activity.
On September 30, 1995, the Company was indebted to Citizens Fidelity
Bank and Trust Company, now known as PNC Bank, Kentucky, Inc. ("PNC"), in the
amount of $4,717,000, under a revolving credit facility. Loan modification
agreements with PNC were executed on January 31, 1995, extending the maturity
of this credit facility until January 31, 1996. A $38,500 fee was paid to the
lender in connection with the extension of the loan facility. The interest
rate on outstanding loans under the facility is prime plus 1.5%. The agreement
also requires the maintenance of adequate reserves to assure that interest
obligations under the extended facility can be met. Under the agreement,
reductions in the outstanding loan balance were deferred pending the
consummation of certain land sales. The Company's indebtedness to PNC is
secured by a first mortgage on substantially all of the Company's property,
including the Chavez and the Cracker Barrel Mortgages.
The Company is indebted to Acceptance, a 33% shareholder of the
Company, pursuant to a loan restructure arrangement entered into on October 18,
1995, in the amount of $5,064,144, comprised of $747,313 due to Acceptance
under the terms of a February 1995 restructuring and $4,316,831 previously owed
to PNC, which indebtedness was acquired by Acceptance immediately prior to the
restructuring. See "Note 4 - Related Party Transactions" to Notes to
Consolidated Financial Statements.
The interest rate on the restructured loan is prime plus 1.5%, and
interest is payable quarterly in arrears. The maturity of the loan is May 1,
1998, unless there is a change in control prior to such time, in which event
the maturity of the loan will be accelerated. The Company's indebtedness to
Acceptance is secured by a first mortgage on substantially all of the Company's
property, including certain notes and mortgages payable to the Company from
third parties. The restructured loan extended the maturity of the prior PNC
and Accceptance loans, and improved the Company's cash flow through the
elimination of the PNC interest reserve, thereby allowing the Company greater
flexibility in its operations.
David L. Treadwell, the Company's Chairman of the Board and Chief
Executive Officer, performs services pursuant to an Employee Lease Agreement
with Heritage Network, Incorporated, Mr. Treadwell's primary employer.
Currently, payment of 75% of the $100,000 Annual Fee is being deferred through
December 31, 1995, with interest at 12% on the deferred amounts from December
31, 1994. At September 30, 1995, the Company owed Heritage $120,400 under the
Employee Lease Agreement. See "Note 4 - Related Party Transactions" to Notes
to Consolidated Financial Statements.
The Company's operations are dependent upon its ability to generate
sufficient cash flow to meet its obligations and operating costs on a timely
basis. Management believes the Company has sufficient capital to allow it to
11
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continue to meet its obligations at least through the second quarter of 1996
from the property sales that occurred during the quarter ended September 30,
1995 and restructuring of Company debt. Thereafter, operations and the ability
to make the quarterly interest payments due under the Company's $5.1 million
loan from Acceptance will depend upon the Company's ability to obtain
additional capital through a merger, sales of additional securities or
additional properties, or some combination of the foregoing. There can be no
assurance that the Company will be successful in any of such endeavors.
In October 1995, the Company announced that its Board of Directors had
determined that it was in the best interests of the shareholders to seek a
merger partner or otherwise seek a transaction for the sale of the Company.
David L. Treadwell, Chairman of the Company, cited capital constraints limiting
the feasibility of independently developing the Company's existing properties
as a primary factor in the Board's decision to seek a merger or sale
transaction.
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PART II - OTHER INFORMATION
Item 5. - Other
Item 6. - Exhibits and Reports on Form 8-K
(a) Exhibits
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Exhibit
Number Exhibit Description
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3.1 Certificate of Incorporation of the Company, as amended (previously filed as an exhibit to
the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1987 and as
Exhibit 3.1 to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1987).
3.2 Bylaws of the Company, as amended (previously filed as an exhibit to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1990).
4 Other instruments, notes or extracts from agreements defining the rights of holders of
long-term debt of the Company or its subsidiaries have not been filed because (i) in each
case the total amount of long-term debt permitted thereunder does not exceed 10% of the
Company's consolidated assets, and (ii) the Company hereby agrees that it will furnish such
instruments, notes and extracts to the Securities and Exchange Commission upon its request.
10.1 Indemnity Agreement dated December 12, 1988, between the Company and James R. Heistand
(previously filed as an exhibit to the Company's Annual Report on Form 10-K for the year
ended December 31, 1988).
10.2 Indemnity Agreements between the Company and Marilyn M. Barnett, Harold J. Bresnan, Warren
M. Cason, Charles L. Knight, Alvin L. Lawing, Jr., Francis E. Sawyer, George A. Smathers,
Joseph H. Thomas, Edward W. Turville, Thomas E. Weaver and Stanley Weintraub. The
Agreements between the Company and Harold J. Bresnan, Warren M. Cason, Charles L. Knight,
Alvin L. Lawing, Jr., Francis E. Sawyer, George A. Smathers, Joseph H. Thomas, Edward W.
Turville, Thomas E. Weaver and Stanley Weintraub are substantially identical in all material
respects to the Agreement between the Company and Marilyn M. Barnett (previously filed as an
exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1987).
</TABLE>
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<TABLE>
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10.3 Form of Indemnity Agreement between the Company and its directors and certain officers, as
utilized since December 12, 1988, (previously filed as an exhibit to the Company's Annual
Report on Form 10-K for the year ended December 31, 1988).
10.4* Salary Continuation Agreement dated November 19, 1986, between the Company and Alvin L.
Lawing, Jr. (previously filed as an exhibit to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1987).
10.5 Agreements dated July 8, 1982, between the Company and Oxford Development Enterprises, Inc.,
as amended (previously filed as an exhibit to Registration Statement Number 2-84680).
10.6 Agreement dated June 16, 1978, between the Company, American Television and Communications
Corporation and others (previously filed as an exhibit to Registration Statement Number
2-84680).
10.7* 1990 Stock Option Plan (previously filed as an exhibit to the Company's Proxy Statement
dated November 6, 1990, relating to the Annual Meeting held on November 30, 1990).
10.8 Promissory Note dated April 30, 1991, given by Major Center, a Joint Venture, a Florida
general partnership (formerly known as The Major-Pru Development Joint Venture), as Maker,
to and in favor of The Prudential Insurance Company of America, as Payee, in the original
principal sum of $31,000,000.00 (previously filed as an exhibit to the Company's Current
Report on Form 8-K dated April 30, 1990).
10.9 Mortgage and Security Agreement securing the Promissory Note, dated April 30, 1990, given by
Major Center, a Joint Venture, a Florida general partnership, as Mortgagor, to and in favor
of The Prudential Insurance Company of America, as Mortgagee, said Mortgage and Security
Agreement being filed in Orange County and Hillsborough County, Florida (previously filed as
an exhibit to the Company's Current Report on Form 8-K dated April 30, 1990).
10.10 Assignment of Leases and Rents dated April 30, 1990, given by Major Center, a Joint Venture,
a Florida general partnership, to and in favor of The Prudential Insurance Company of
America, said Assignment of Leases and Rents being filed in Orange County and Hillsborough
County, Florida (previously filed as an exhibit to the Company's Current Report on Form 8-K
dated April 30, 1990).
10.11 Assumption and Indemnification Agreement dated April 30, 1990, by and between the Company,
MPJV Corporation, a Florida corporation for the benefit of The Prudential Insurance Company
of America, a New Jersey corporation (previously filed as an exhibit to the Company's
Current Report on Form 8-K dated April 30, 1990).
</TABLE>
14
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<TABLE>
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10.12 Loan Agreement dated as of October 11, 1989, between the Company and Citizens Fidelity Bank
and Trust Company (now known as PNC Bank, Kentucky, Inc.), Louisville, Kentucky (previously
filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December
31, 1989).
10.13 Indemnification Agreement dated April 30, 1990, by and between Major Center, a Joint
Venture, a Florida general partnership, MPJV Corporation, a Florida corporation, and The
Prudential Insurance Company of America, a New Jersey corporation (previously filed as an
exhibit to the Company's Current Report on Form 8-K dated April 30, 1990).
10.14 Mortgage Deed and Security Agreement granted October 11, 1989, by the Company in favor of
Citizens Fidelity Bank and Trust Company, Louisville, Kentucky (previously filed as an
exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1989).
10.15 Security Agreement dated November 30, 1990, granted by the Company in favor of Citizens
Fidelity Bank and Trust Company, Louisville, Kentucky (previously filed as an exhibit to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1990).
10.16 Amendment to Loan Agreement, dated as of November 30, 1990, between the Company and Citizens
Fidelity Bank and Trust Company, Louisville, Kentucky (previously filed as an exhibit to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1990).
10.17 Second Amendment to Loan Agreement, dated as of August 29, 1991, between the Company and
Citizens Fidelity Bank and Trust Company, Louisville, Kentucky (previously filed as an
exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1991).
10.18 Amendment to Mortgage Deed and Security Agreement, dated August 29, 1991, granted by the
Company in favor of Citizens Fidelity Bank and Trust Company, Louisville, Kentucky
(previously filed as an exhibit to the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1991).
10.19 Loan Agreement, dated as of March 25, 1992, between the Company and Valassis Enterprises,
L.P. (previously filed as an exhibit to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1991).
10.20 Agreement for Settlement and Termination of Management and Advisory Agreement, dated as of
March 25, 1992, between the Company and The Major Group, Inc. (previously filed as an
exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1991).
10.21 Note, dated March 25, 1992, given by the Company to Valassis Enterprises, L.P., in the
original principal sum of $3,000,000.00 (previously filed as an exhibit to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1991).
</TABLE>
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10.22 Note, dated March 25, 1992, given by the Company to The Major Group, Inc. in the original
principal sum of $1,000,000.00 (previously filed as an exhibit to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1991).
10.23 Note, dated March 25, 1992, given by the Company to The Major Group, Inc. in the original
principal sum of $514,581.00 (previously filed as an exhibit to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1991).
10.24 Second Mortgage and Security Agreement, dated as of March 25, 1992, given by the Company to
The Major Group, Inc. and Valassis Enterprises, L.P. (previously filed as an exhibit to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1991).
10.25 Third Mortgage and Security Agreement, dated as of March 25, 1992, given by the Company to
The Major Group, Inc. (previously filed as an exhibit to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1991).
10.26 Hazardous Materials Indemnification Agreement, dated as of March 25, 1992, between the
Company and Valassis Enterprises, L.P. (previously filed as an exhibit to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1991).
10.27 Hazardous Materials Indemnification Agreement, dated as of March 25, 1992, between the
Company and The Major Group, Inc. (previously filed as an exhibit to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1991).
10.28 Citizens Agreement, dated as of March 25, 1992, among the Company, Valassis Enterprises,
L.P., The Major Group, Inc., and Citizens Fidelity Bank and Trust Company (previously filed
as an exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1991).
10.29 Lenders Agreement for Administration of and Joint Action with Respect to Mortgages from
Major Realty Corporation, dated March 25, 1992, among the Company, Valassis Enterprises,
L.P. and The Major Group, Inc (previously filed as an exhibit to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 1991).
10.30 Agreement Regarding Extension and Modification of Promissory Note dated April 21, 1992, by
and between Major Centre, A Joint Venture, a Florida general partnership, and Prudential
Insurance Company of America (previously filed as an exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1992).
</TABLE>
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10.31 Agreement Regarding Renewal, Extension and Modification of Mortgage and Security Agreement
dated April 21, 1992, by and between Major Centre, A Joint Venture, a Florida general
partnership, and Prudential Insurance Company of America (previously filed as an exhibit to
the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1992).
10.32 Agreement for Sale and Purchase between Major Centre, a Florida general partnership, the
Company, MPJV Corporation, a Florida corporation, and Universal City Development Partners, a
Florida general partnership (previously filed as an exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1992).
10.33 Second Mortgage and Security Agreement dated June 30, 1992, by Major Centre, a Florida
general partnership, and the Company, in favor of Universal City Development Partners, a
Florida general partnership (previously filed as an exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1992).
10.34* Employee Lease Agreement executed as of the 26th day of March, 1992, between the Company,
Heritage Network Incorporated and David L. Treadwell (previously filed as an exhibit to the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1992).
10.35* Employment Agreement between the Company and Gary E. Jahraus dated January 20, 1993
(previously filed as an exhibit to the Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1992).
10.36 Contract for Sale and Purchase between Major Center, A Joint Venture, formerly known as The
Major-Pru Development Joint Venture, a Florida General Partnership, and Chavez Properties, a
Georgia general partnership, dated February 2, 1993 (previously filed as an exhibit to the
Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1992).
10.37 Nonrecourse Purchase Money Mortgage by Chavez Properties-Garrison Channel, Limited
Partnership, a Georgia limited partnership, in favor of Major Center, A Joint Venture, dated
April 26, 1993 (previously filed as an exhibit to the Company's Annual Report on Form 10-KSB
for the fiscal year ended December 31, 1993).
10.38 Nonrecourse Purchase Money Promissory Note for $2,750,000 from Chavez Properties-Garrison
Channel, Limited Partnership, a Georgia limited partnership, in favor of Major Center, A
Joint Venture, dated April 26, 1993 (previously filed as an exhibit to the Company's Annual
Report on Form 10-KSB for the fiscal year ended December 31, 1993).
</TABLE>
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10.39 Amendment to Mortgage Deed and Security Agreement, dated January 31, 1994, granted by the
Company in favor of PNC Bank, Kentucky, Inc., formerly Citizens Fidelity Bank and Trust
Company, Louisville, Kentucky (previously filed as an exhibit to the Company's Annual Report
on Form 10-KSB for the fiscal year ended December 31, 1993)
10.40 Second Amendment to Mortgage Note, dated January 31, 1994, by the Company and PNC Bank,
Kentucky, Inc., formerly Citizens Fidelity Bank and Trust Company, Louisville, Kentucky
(previously filed as an exhibit to the Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1993).
10.41 Third Amendment to Loan Agreement, dated as of January 31, 1994, by the Company and PNC
Bank, Kentucky, Inc., formerly Citizens Fidelity Bank and Trust Company, Louisville,
Kentucky (previously filed as an exhibit to the Company's Amendment No. 1 to Annual Report
on Form 10-KSB for the fiscal year ended December 31, 1993).
10.42 Collateral Assignment of Nonrecourse Purchase Money Promissory Note and Mortgage, dated as
of January 31, 1994, by Major Center, a Florida joint venture partnership, the Company and
PNC Bank, Kentucky, Inc. (previously filed as an exhibit to the Company's Amendment No. 1 to
Annual Report on Form 10-KSB for the fiscal year ended December 31, 1993).
10.43* Consultant Services Agreement, effective April 1, 1994, between the Company and Development
Consultants, Inc. of Orlando (previously filed as Exhibit 10.43 to the Company's Annual
Report on Form 10-KSB for the fiscal year ended December 31, 1994).
10.44* Amendment No. 1 to Employee Lease Agreement, as of the first day of April, 1994, between the
Company and David L. Treadwell (previously filed as Exhibit 10.44 to the Company's Annual
Report on Form 10-KSB for the fiscal year ended December 31, 1994).
10.45* Option Agreement, dated as of June 14, 1994, by and between the Company and David L.
Treadwell (previously filed as Exhibit 10.45 to the Company's Annual Report on Form 10-KSB
for the fiscal year ended December 31, 1994).
10.46* Amendment No. 2 to Employee Lease Agreement, as of January 1, 1995, between the Company and
David L. Treadwell (previously filed as Exhibit 10.46 to the Company's Annual Report on Form
10-KSB for the fiscal year ended December 31, 1994).
10.47 Amendment to Citizens Agreement, dated as of the first day of February, 1995, among Valassis
Enterprises, L.P., Acceptance Insurance Companies Inc., the Company and PNC Bank, Kentucky,
Inc., formerly known as Citizens Fidelity Bank and Trust Company (previously filed as
Exhibit 10.47 to the Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1994).
</TABLE>
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10.48 Mortgage Modification and Future Advance Agreement, dated February 1, 1995, between
Acceptance Insurance Companies Inc. and the Company (previously filed as Exhibit 10.48 to
the Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1994).
10.49 Assignment of Mortgage and Other Security Documents, dated January 25, 1995, from Valassis
Enterprises, L.P. to Acceptance Insurance Companies Inc. (previously filed as Exhibit 10.49
to the Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1994).
10.50 Renewal and Consolidation Promissory Note, dated February 1, 1995, made by the Company in
favor of Acceptance Insurance Companies Inc. in the original principal sum of $1,600,000.00
(previously filed as Exhibit 10.50 to the Company's Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1994).
10.51 Third Amendment to Mortgage Note, dated January 31, 1995, by the Company and PNC Bank,
Kentucky, Inc., formerly Citizens Fidelity Bank and Trust Company, Louisville, Kentucky
(previously filed as Exhibit 10.51 to the Company's Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1994).
10.52 Fourth Amendment to Loan Agreement, dated as of January 31, 1995, by the Company and PNC
Bank, Kentucky, Inc., formerly Citizens Fidelity Bank and Trust Company, Louisville,
Kentucky (previously filed as Exhibit 10.52 to the Company's Annual Report on Form 10-KSB
for the fiscal year ended December 31, 1994).
10.53 Amendment to Mortgage Deed and Security Agreement, dated January 31, 1995, granted by the
Company in favor of PNC Bank, Kentucky, Inc., formerly Citizens Fidelity Bank and Trust
Company, Louisville, Kentucky (previously filed as Exhibit 10.53 to the Company's Annual
Report on Form 10-KSB for the fiscal year ended December 31, 1994).
10.54 Purchase Money Mortgage and Promissory Note for $1,310,000 from Bara Vineland, Inc., a
Florida corporation, in favor of Major Realty Corporation, dated May 5, 1995 (previously
filed as Exhibit 10.54 to the Company's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 1995).
10.55 Collateral Assignment of Nonrecourse Purchase Money Promissory Note and Mortgage for
$1,310,000 from Bara Vineland, Inc., a Florida corporation, in favor of Major Realty
Corporation, dated May 5, 1995, to PNC Bank, Kentucky, Inc. (previously filed as
Exhibit 10.55 to the Company's Quarterly Report on Form 10-QSB for the quarter ended
June 30, 1995).
10.56 Fifth Amendment to Loan Agreement, dated as of September 1, 1995, by the Company and PNC
Bank, Kentucky, Inc., formerly Citizens Fidelity Bank and Trust Company, Louisville,
Kentucky.
</TABLE>
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10.57 Purchase Money Mortgage and Promissory Note for $3,580,000 from Cracker Barrel Old County
Store, Inc., a Kentucky corporation, in favor of Major Realty Corporation, dated September
1, 1995.
10.58 Restated and Consolidated Promissory Note, dated October 18, 1995, made by the Company in
favor of Acceptance Insurance Companies Inc. in the original principal sum of $5,064,144.
10.59 Sixth Amendment to Loan Agreement, dated as of October 18, 1995, by the Company and
Acceptance Insurance Companies Inc.
10.60 Mortgage and Note Modification Agreement, dated as of October 18, 1995, by the Company and
Acceptance Insurance Companies Inc.
27 Financial Data Schedules (for SEC use only)
---------------------------------------------------
* MANAGEMENT CONTRACT OR COMPENSATORY PLAN OR ARRANGEMENT.
</TABLE>
20
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(b) Reports on Form 8-K
Report on Form 8-K dated August 30, 1995, announcing the sale
of 12.95 acres of multi-family land in Orlando, Florida, to
National HealthCare L.P. for $1,000,000. The sales
transaction was paid in cash at closing. The receipts from
the sale will be used to reduce company debt and for company
operations.
Report on Form 8-K dated September 8, 1995, announcing (i) the
sale of 10.36 acres of commercial land in Orlando, Florida, to
Cracker Barrel Old Country Store for $6,280,000, and (2) the
sale of 1.38 acres of commercial land in Orlando, Florida, to
Aseel, Inc. for $750,000.
Report on Form 8-K dated October 20, 1995, announcing that (1)
the Company's Board of Directors had determined that it was in
the best interests of the shareholders to seek a merger
partner or otherwise seek a transaction for the sale of the
Company; (2) the Company had entered into a debt restructuring
agreement with Acceptance Insurance Companies Inc. for the
Company's $5,064,144 debt to such lender; and (3) settlement
of The Townes of Southgate litigation for $596.000.
21
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Exchange Act, the registrant caused this
report to be signed on its behalf by the undersigned thereunto duly authorized.
MAJOR REALTY CORPORATION
(Registrant)
November 13, 1995 By: /s/ David L. Treadwell
- ------------------------------ -------------------------
Date David L. Treadwell, Chairman
(Chief Executive Officer and
Principal Financial Officer)
22
<PAGE> 1
EXHIBIT 10.56
FIFTH AMENDMENT TO LOAN AGREEMENT
(AND LOAN DOCUMENTS)
THIS FIFTH AMENDMENT TO LOAN AGREEMENT (AND LOAN DOCUMENTS) (the
"Amendment"), is made and entered into as of the first day of September, 1995
by (i) MAJOR REALTY CORPORATION (hereinafter referred to as "Borrower") and
(ii) PNC BANK, KENTUCKY, INC., a Kentucky corporation, formerly known as
Citizens Fidelity Bank and Trust Company (hereinafter referred to as "Lender");
W I T N E S S E T H:
WHEREAS, Lender and Borrower entered into that certain Loan Agreement
dated as of October 11, 1989, as modified by that certain Amendment to Loan
Agreement dated as of November 30, 1990, as further modified by that certain
Second Amendment to Loan Agreement dated as of August 29, 1991, as further
modified by that certain Third Amendment to Loan Agreement dated as of January
31, 1994, and as further modified by that certain Fourth Amendment to Loan
Agreement dated as of January 31, 1995, (hereinafter together referred to as
the "Loan Agreement") for the purpose of evidencing the terms and conditions
subject to which Lender made a loan to Borrower in the original principal sum
of SIXTEEN MILLION AND NO/100 DOLLARS ($16,000,000.00) (hereinafter referred to
as the "Loan"); and
WHEREAS, the Loan is evidenced by that certain Mortgage Note executed
by Borrower to and in favor of PNC dated October 11, 1989, as modified by that
certain Amendment to Mortgage Note dated as of August 29, 1991, as further
modified by that certain Second Amendment to Mortgage Note dated as of January
31, 1994, as further modified by that certain Third Amendment to Mortgage Note
dated as of January 31, 1995 (hereinafter together referred to as the "Note")
and is secured by that certain Mortgage Deed and Security Agreement executed by
Borrower to and in favor of Lender dated October 11, 1989, and recorded on
October 12, 1989, in Official Records Book 4123, Page 1379, as modified by that
certain Amendment to Mortgage Deed and Security Agreement dated August 29,
1991, and recorded August 30, 1991, in Official Records Book 4321, Page 983, as
further modified by that certain Notice of Limitation of Future Advances
recorded on March 30, 1992, in Official Records Book 4391, Page 3509, as
further modified by that certain Modification of Mortgage and Security
Agreement dated October 5, 1992, and recorded on October 7, 1992, in Official
Records Book 4471, Page 2237, as further modified by that certain Amendment to
Mortgage Deed and Security Agreement dated as of January 31, 1994, and recorded
March 1, 1994, in Official Records Book 4705, Page 657, as further modified by
that certain Amendment to Mortgage Deed and Security Agreement dated as of
January 31, 1995, and recorded on February 2, 1995, in Official Records Book
4851, Page 969, as further modified by that certain Notice of Limitation of
Future Advances dated as of January 31, 1995, and recorded on February 3, 1995,
in Official Records Book 4851, Page 3487,
<PAGE> 2
all of the Public Records of Orange County, Florida (hereinafter together
referred to as the "Mortgage"); and
WHEREAS, Borrower and Lender have agreed to modify the Loan in order
to consent to teh sale of certain property by the Borrower to Cracker Barrel
Old Country Store, Inc., and to accomplish certain other changes, amendments
and modifications thereto, all as provided herein.
NOW THEREFORE, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
change, amend and modify the Loan Agreement and Loan Documents as follows:
1. Definitions. All capitalized terms not otherwise defined
herein shall have their same respective meanings as contained in the Loan
Agreement.
2. Consent To Cracker Barrel Transaction. Subject to the terms
and conditions contained herein, the Lender hereby consents to the sale by the
Borrower to Cracker Barrel Old Country Store, Inc. ("Cracker Barrel") of the
10.36 acre portion of Site #7C now subject to the Mortgage, and the Lender
hereby agrees to release the lien of the Mortgage on such property in exchange
for:
(i) the sum of $1,518,336.60 to be delivered to the
Lender in good and collected funds and to be applied by the Lender to
reduce the principal balance of the Loan; and
(ii) a collateral assignment of the Borrower's interests
in the non-interest bearing, non-recourse, purchase money promissory
note, purchase money mortgage, estoppel letter, consents and other
related documents reflecting or evidencing the sale to Cracker Barrel,
all as acceptable to Lender in its discretion and as provided in
Section 3 of this Amendment.
3. Amendment of Paragraph 3.2(c). Paragraph 3.2(c) of the Loan
Agreement, added in connection with the Third Amendment To Loan Agreement dated
January 31, 1994, is hereby amended and restated in its entirety as follows:
"(c) Additional Security. As additional security for the
repayment of the Loan:
(1) Chavez Note And Mortgage. Borrower shall
cause Major Center, a Florida joint venture partnership in
which Borrower has a controlling interest,
2
<PAGE> 3
to collaterally assign to Lender the following documents evidencing
and securing an indebtedness in the principal amount of $2,750,000.00,
to wit:
(i) that certain Nonrecourse Purchase
Money Promissory Note executed by Chavez
PropertiesGarrison Channel, Limited
Partnership ("Chavez") to and in favor of
Major Center dated April 26, 1993 in the
original principal amount of $2,750,000 (the
"Chavez Note");
(ii) That certain Nonrecourse Purchase
Money Promissory Mortgage executed by Chavez
to and in favor of Major Center dated April
26, 1993 and recorded on April 29, 1993 in
Official Records Book 6958, Page 1618 of the
Public Records of Hillsborough County,
Florida (the "Chavez Mortgage");
(iii) That certain Partial Release Agreement
executed by Chavez and Major Center dated
April 26, 1993 (the "Chavez Partial Release
Agreement"); and
(iv) the immediate and continuing right
to collect and receive all of the proceeds
income, receipts, revenues, issue and profits
now due or which may hereafter become due or
to which Major Center may now or hereafter
become entitled or may demand or claim
arising or issuing from the Chavez Note, the
Chavez Mortgage, the Chavez Partial Release
Agreement, and any other documents executed
in connection therewith or evidencing, and
securing such indebtedness (collectively, the
"Chavez Loan Documents").
The collateral assignment of the Chavez Loan
Documents to Lender shall be evidenced by a
Collateral Assignment of Non-Recourse Purchase Money
Promissory Note and Mortgage (the "Collateral
Assignment - Chavez") in form and content acceptable
to Lender. In connection with such Collateral
Assignment, Borrower shall cause Chavez to execute
and deliver to Lender an estoppel letter evidencing
that (i) the Chavez Loan Documents have not been
changed, amended or modified, are currently in full
force and effect, with no defaults thereunder on the
part of Chavez or Major Center, and no event has
occurred which, with the passage of time, with the
giving of notice or both, would constitute a default,
and (ii) Chavez acknowledges that Major Center has no
authority to change, amend or modify the Chavez Loan
Documents without the prior written consent of the
Lender and Chavez will pay to the Lender, or in such
manner as the Lender may direct, all sums hereafter
due, owing or payable under the
3
<PAGE> 4
Chavez Loan Documents so long as the Collateral
Assignment-Chavez remains in effect. Such estoppel
letter shall provide such other assurances as Lender
may require. In addition, Borrower shall cause First
American Title Insurance Company to issue to Lender
an Endorsement to its Mortgagee Title insurance
Policy No. FA-M912367, insuring the lien of the
Chavez Mortgage reflecting the Collateral
Assignment-Chavez thereof to Lender and otherwise
being acceptable to Lender, in its own discretion.
Borrower shall pay all costs and expenses associated
with the Collateral Assignment of the Chavez Loan
Documents to Lender, including without limitation,
the cost of recording the Collateral
Assignment-Chavez and the premium for issuance of the
Endorsement described herein. Lender agrees that the
Collateral Assignment shall terminate and Lender
shall execute and deliver to Major Center a written
instrument in recordable form accomplishing and
evidencing the termination of the Collateral
Assignment-Chavez upon the earlier of (i) the
payment, performance and discharge in full of the
Loan; or (ii) such time as Lender shall have received
the aggregate sum of $700,000 from Chavez in payments
made under the Chavez Note, whether by prepayments,
payments for partial releases of the Chavez Mortgage,
or payment at maturity; or (iii) such time as Lender
shall have received the aggregate sum of $700,000
from Borrower in principal payments made under,the
Loan without requiring the release of any of the real
property encumbered by the Mortgage.
(2) Bara Note (Intram Property).
Borrower shall collaterally assign to Lender the
following documents evidencing and securing an
indebtedness in the principal amount of $1,310,000,
to wit:
(i) that certain Purchase Money
Promissory Note executed by Bara Vineland,
Inc., a Florida corporation ("Bara") to and
in favor of Borrower dated May 5, 1995 in the
original principal amount of $1,310,000 (the
"Bara Note");
(ii) That certain Purchase Money Mortgage
executed by Bara to and in favor of Borrower
dated May 5, 1995 and recorded on May 5, 1995
in Official Records Book 4888, Page 3778 of
the Public Records of Orange County, Florida
(the "Bara Mortgage");
(iii) the immediate and continuing right to
collect and receive all of the proceeds,
income, receipts, revenues, issue and profits
now due or which may hereafter become due or
to which Borrower may now or hereafter become
entitled or may demand or claim arising or
issuing from the Bara Note, the Bara
Mortgage, and any other
4
<PAGE> 5
documents executed in connection therewith or
evidencing and securing such indebtedness
(collectively, the "Bara Loan Documents").
The collateral assignment of the Bara Loan Documents
to Lender shall be evidenced by a Collateral
Assignment of Nonrecourse Purchase Money Promissory
Note and Mortgage (the "Collateral Assignment-Bara")
in form and content acceptable to Lender. In
connection with such Collateral Assignment-Bara,
Borrower shall by December 31, 1995, cause Bara to
execute and deliver to Lender an estoppel letter
evidencing that (i) the Bara Loan Documents have not
been changed, amended or modified, are currently in
full force and effect, with no defaults thereunder on
the part of Bara or Borrower, and no event has
occurred which, with the passage of time, with the
giving of notice or both, would constitute a default,
and (ii) Bara acknowledges that Borrower has no
authority to change, amend or modify the Bara Loan
Documents without the prior written consent of the
Lender and Bara after being notified of an Event of
Default, will pay to the Lender, or in such manner as
the Lender may direct, all sums hereafter due, owing
or payable under the Bara Loan Documents so long as
the Collateral Assignment remains in effect. Such
estoppel letter shall provide such other assurances
as Lender may require. In addition, Borrower shall
cause First American Title Insurance Company to issue
to Lender an Endorsement to its Mortgagee Title
Insurance Policy No. FA-S-268611, insuring the lien
of the Bara Mortgage , reflecting the Collateral
Assignment-Bara thereof to Lender and otherwise being
acceptable to Lender, in its own discretion.
Borrower shall pay all costs and expenses associated
with the Collateral Assignment of the Bara Loan
Documents to Lender, including without limitation,
the cost of recording the Collateral Assignment-Bara
and the premium for issuance of the Endorsement
described herein. Lender agrees that the Collateral
Assignment-Bara shall terminate and Lender shall
execute and deliver to Borrower a written instrument
in recordable form accomplishing and evidencing the
termination of the Collateral Assignment-Bara upon
the earlier of (i) the payment, performance and
discharge in full of the Loan; or (ii) provided that
no Event of Default shall then exist, such time as
Lender shall have received the aggregate sum of
$400,000 from Bara in payments made under the Bara
Note, whether by prepayments, payments for partial
releases of the Bara Mortgage, or payment at
maturity; or (iii) provided that no Event Of Default
shall then exist, such time as Lender shall have
received the aggregate sum of $400,000 from Borrower
in principal payments made under the Loan without
requiring the release of any of the real property
encumbered by the Mortgage.
5
<PAGE> 6
(3) Cracker Barrel Note. Borrower shall
collaterally assign to Lender the following documents
evidencing and securing an indebtedness in the
principal amount of $3,580,000, to wit:
(i) that certain Purchase Money
Promissory Note executed by Cracker Barrel
Old Country Store, Inc a. Tennessee
corporation ("Cracker Barrel") to and in
favor of Borrower dated August 23, 1995 in
the original principal amount of $3,580,000
(the "Cracker Barrel Note");
(ii) that certain Purchase Money Mortgage
executed by Cracker Barrel to and in favor of
Borrower dated August 23, 1995 and to be
promptly recorded in the Public Records of
Orange County, Florida (the "Cracker Barrel
Mortgage");
(iii) the immediate and continuing right to
collect and receive all of the proceeds
income, receipts, revenues, issue and profits
now due or which may hereafter become due or
to which Borrower may now or hereafter become
entitled or may demand or claim arising or
issuing from the Cracker Barrel Note, the
Cracker Barrel Mortgage, and any other
documents executed in connection therewith or
evidencing and securing such indebtedness
(collectively, the "Cracker Barrel Loan
Documents").
The collateral assignment of the Cracker Barrel Loan
Documents to Lender shall be evidenced by a
Collateral Assignment of Nonrecourse Purchase Money
Promissory Note and Mortgage (the "Collateral
Assignment-CB") in form and content acceptable to
Lender. In connection with such Collateral
Assignment-CB, Borrower shall cause Cracker Barrel to
execute and deliver to Lender an estoppel letter
evidencing that (i) the Cracker Barrel Loan Documents
have not been changed, amended or modified, are
currently in full force and effect, with no defaults
thereunder on the part of Cracker Barrel or Borrower,
and no event has occurred which, with the passage of
time, with the giving of notice or both, would
constitute a default, and (ii) Cracker Barrel
acknowledges that Borrower has no authority to
change, amend or modify the Cracker Barrel Loan
Documents without the prior written consent of the
Lender and Cracker Barrel, after being notified of an
Event of Default, will pay to the Lender, or in such
manner as the Lender may direct, all sums hereafter
due, owing or payable under the Cracker Barrel Loan
Documents so long as the Collateral Assignment
remains in effect. Such estoppel letter shall
provide such other assurances as Lender may require.
In addition, Borrower shall cause
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<PAGE> 7
Chicago Title Insurance Company to issue to Lender an
Endorsement to its Mortgagee Title Insurance Policy
acceptable to Lender, insuring the lien of the
Cracker Barrel Mortgage , reflecting the Collateral
Assignment-CB thereof to Lender and otherwise being
acceptable to Lender, in its own discretion.
Borrower shall pay all costs and expenses associated
with the Collateral Assignment of the Cracker Barrel
Loan Documents to Lender, including without
limitation, the cost of recording the Collateral
Assignment-CB and the premium for issuance of the
Endorsement described herein. Lender agrees that the
Collateral Assignment-CB shall terminate and Lender
shall execute and deliver to Borrower a written
instrument in recordable form accomplishing and
evidencing the termination of the Collateral
Assignment-CB upon the earlier of (i) the payment,
performance and discharge in full of the Loan; or
(ii) provided that no Event Of Default shall then
exist, such time as Lender shall have received the
aggregate sum of $2,148,000 from Cracker Barrel in
payments made under the Cracker Barrel Note, whether
by prepayments, payments for partial releases of the
Cracker Barrel Mortgage, or payment at maturity; or
(iii) provided that no Event of Default shall then
exist, such time as Lender shall have received the
aggregate sum of $2,148,000 from Borrower in
principal payments made under the Loan without
requiring the release of any of the real property
encumbered by the mortgage.
(4) Payments on Pledged Notes.
(i) Bara Note. In the event that the maker of the Bara
Note makes any payments on the Bara Note to the Borrower:
(a) if prior to the occurrence of an
Event of Default, then the Borrower shall promptly
deliver to the Lender the first $400,000 of such
payments, to be applied by the Lender to the Loan;
and
(b) if after to the occurrence of an
Event of Default, then the Borrower shall promptly
deliver to the Lender the full amount of such
payments, to be applied by the Lender to the Loan.
(ii) Cracker Barrel Note. In the event that the maker of
the Cracker Barrel Note makes any payments on the Cracker
Barrel Note to the Borrower:
(a) if prior to the occurrence of an
Event of Default then the Borrower shall promptly
deliver to the Lender 60% of each such payment, to be
applied by the Lender to the Loan; and
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<PAGE> 8
(b) if after to the occurrence of an
Event of Default, then the Borrower shall promptly
deliver to the Lender the full amount of such
payments, to be applied by the Lender to the Loan.
(iii) Clarification. As a clarification,
(a) if the maker of the Bara Note has
properly paid the Bara Note in full, and is entitled
to a release of the Bara Mortgage, the Lender shall
execute and deliver an appropriate release of the
Bara Mortgage.
(b) if the maker of the Cracker Barrel
Note has properly:
(1) paid the Cracker Barrel Note in full
and is entitled to a release of the Cracker
Barrel Mortgage, then the Lender shall
execute and deliver an appropriate release of
the Cracker Barrel Mortgage; or
(2) paid the partial release price of
$1,790,000 provided in Paragraph 26 of the
Cracker Barrel mortgage, and is entitled to a
partial release of the Cracker Barrel
Mortgage described therein, then the Lender,
upon delivery of the appropriate release
amount to the Lender, shall execute and
deliver an appropriate partial release of the
Cracker Barrel Mortgage.
4. Fees - Escrow. At the closing of the Cracker Barrel
transaction, the Borrower shall place in an escrow arrangement (satisfactory in
all respects to the Lender) a contingent amendment fee in the amount of $10,740
(computed as .5% of the amount of deferred proceeds due the Lender in
connection with the property transaction). In the event that the Borrower
reduces the principal balance of the Loan to below $5,000,000 on or before
September 30, 1995, then the fee (together with any interest thereon) shall be
refundable to the Borrower. In the event that the principal balance of the
Loan on September 30, 1995 is $5,000,000 or more, then the fee (together with
any interest thereon) shall be promptly paid to the Lender.
5. Amendment To Loan Documents.
(a) The Lender and the Borrower hereby acknowledge that the
term "Loan Documents", as used in the Loan Agreement (and in each of the Loan
Documents), shall include, without limitation, the Loan Agreement, the
Mortgage, the Note, the Collateral Assignment Chavez, the Collateral
Assignment-Bara, the Collateral Assignment-CB, the Chavez Loan Documents, the
Bara Loan Documents, the Cracker Barrel Loan Documents, and all other documents
instruments or agreements in any way pertaining to, or executed in connection
with, the Loan, whether now existing or hereafter obtained or executed.
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<PAGE> 9
(b) The Lender and the Borrower hereby amend paragraph 5
of the Collateral Assignment-Chavez and paragraph 5 of the Collateral
Assignment-Bara to add new subsection (h):
"or (h) the Borrower defaults in any of its
covenants, obligations or agreements hereunder."
(c) The Lender and the Borrower hereby amend paragraph 11
of the Collateral Assignment-Bara to add the following to the end of the first
sentence of paragraph 11: "provided no Event of Default shall then exist".
(d) Any and all references in the Note, the Mortgage or
any of the other Loan Documents, to the term "Loan Agreement" (or to any of the
other Loan Documents), shall hereafter mean and refer to the Loan Agreement
(and/or such Loan Document), as amended by this Amendment.
(e) NotWithstaNding anything to the contrary contained in
any of the Loan Documents (including, without limitation, the Collateral
Assignment-Chavez, Collateral Assignment-Bara, Collateral Assignment-CB):
(1) Upon the occurrence of a default or Event Of
Default under the Loan Agreement, under any of the Security
Documents or under any of the Loan Documents, and provided
that such default is not cured within any applicable cure
period, if any, then the Lender (in addition to such other
rights and remedies that the lender may have) shall have the
specific right to foreclose the Security Mortgage (as such
term is defined in Section I of the Collateral
Assignment-Chavez, Collateral Assignment-Bara, Collateral
Assignment-CB), and the Borrower shall cooperate with the
Lender in this regard, executing whatever, documents or
instruments as may be necessary or appropriate; and
(2) In all events, the Borrower shall not enter
into any settlement agreement, deed in lieu transaction or
other arrangement or stipulation with respect to the Chavez
Loan Documents, the Bara Loan Documents or the Cracker Barrel
Loan Documents, without the prior written approval of the
Lender, in its sole discretion, unless both (i) no Event Of
Default then exists and (ii) such settlement (or other
arrangement) provides for the immediate payment to the Lender
of the amount set forth in Section 11 of each of the
Collateral Assignment Chavez, Collateral Assignment-Bara, and
Collateral Assignment-Cracker Barrel.
(f) Section 3.5 of the Loan Agreement, amended pursuant
to the Fourth Amendment To Loan Agreement dated as of January 31, 1995, is
hereby amended to add the following at the beginning of the first paragraph:
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<PAGE> 10
"Provided that no Event of Default then exists,"
6. Conditions Precedent. Prior to or contemporaneously with the
execution of this Agreement, the Borrower shall have furnished to the Bank the
following, duly executed and dated the date hereof or such other date as shall
be satisfactory to the Bank, and in form and substance satisfactory to the
Bank:
(a) Opinion Letter. An opinion letter of counsel for the
Borrower, which is in form and substance acceptable to the Lender.
(b) Resolutions. Certified copies of the resolutions of
the Board of Directors of the Borrower, evidencing approval of the execution of
this Agreement, related Loan Documents and other instruments as referred to
herein.
(c) Certificate of Borrower. A Certificate of the
Borrower as to such matters as the Lender may elect.
(d) Cracker Barrel Closing. Evidence satisfactory to the
Lender that the Cracker Barrel Closing has occurred contemporaneous with the
execution and delivery of this Amendment, on September 1, 1995, together with
appropriate funds being delivered to Lender and such related documents or
instruments as the Lender may reasonably require, duly executed, delivered and
recorded, as appropriate (including, without limitation, an appropriate consent
from Acceptance Insurance Companies, Inc.).
(e) Amendment Documents/Miscellaneous. All the Loan
Documents and such other documents, instruments certificates or affidavits as
the Lender may reasonably require, duly executed delivered and recorded, as
appropriate.
7. Miscellaneous.
(a) In consideration of the agreements of Lender
contained herein, and the benefits received by Borrower pursuant thereto,
Borrower hereby releases, relinquishes and forever discharges Lender and its
successors, assigns, agents, officers, directors, employees, attorneys and
representatives of and from any and all claims, demands, actions and causes of
action of any and every kind of character, whether known or unknown, which
Borrower may have arising out of or with respect to any and all transactions
relating to the Loan and occurring prior to the date hereof.
(b) Borrower hereby ratifies, confirms and reaffirms for
the benefit of Lender all of the covenants, representations, warranties and
agreements of Borrower set forth in the Loan Agreement and in each of the Loan
Documents, all of which are true, correct and effective as of the date hereof.
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<PAGE> 11
(c) Except as hereby changed, amended and modified, the
Loan Agreement and each of the Loan Documents shall remain unchanged and in
full force and effect in strict accordance with its terms.
(d) This Amendment shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.
(e) This Amendment may be executed in several
counterparts, each of which shall be treated for all purposes as an original,
and all of which shall be treated as one and the same instrument. This
Amendment will not be binding upon or constitute evidence of an agreement
between the parties hereto until such time as each party has fully executed
this Amendment (or a counterpart hereto) and delivered the same to the other
party to this Amendment.
IN WITNESS WHEREOF, Borrower and Lender have caused these presents to
be executed in manner and form sufficient to bind them as of the day and year
first above written.
Signed, sealed and delivered
in the presence of:
MAJOR REALTY CORPORATION,
a Delaware corporation
/s/ Cheryl Dolan By: /s/ David L. Treadwell
- ------------------------------------ ---------------------------------
Print Name: Cheryl Dolan David L. Treadwell, Chairman and
-----------------------
Chief Executive Officer
/s/ Dolores E. Koenig
- ------------------------------------
Print Name: Dolores E. Koenig (CORPORATE SEAL)
-----------------------
PNC BANK, KENTUCKY, INC.
/s/ Diane S. Tyre By: /s/ Jeffrey S. Horsey, VP
- ------------------------------------ ---------------------------------
Print Name: Diane S. Tyre Jeffrey S. Horsey
-----------------------
Vice President
/s/ Barry J. Soberino
- ------------------------------------
Print Name: Barry J. Soberino (CORPORATE SEAL)
-----------------------
11
<PAGE> 1
EXHIBIT 10.57
Prepared By and Return To:
IGAL KNOBLER, P. A.
Broad and Cassel
Barnett Bank Center
P.O. Box 4961
Orlando, Florida 32802-4961
PURCHASE MONEY MORTGAGE
THIS MORTGAGE is executed this first day of September, 1995, by
CRACKER BARREL OLD COUNTRY STORE, INC., A TENNESSEE CORPORATION (the
"Mortgagor"), whose mailing address is 305 Hartmann Drive, Lebanon, Tennessee
37088, to and in favor of MAJOR REALTY CORPORATION, A DELAWARE CORPORATION (the
"Mortgagee"), whose mailing address is 5728 Major Boulevard, Suite 306,
Orlando, Florida 32819.
IN CONSIDERATION of the aggregate sum set forth in that certain
promissory note of even date herewith, hereinafter described, Mortgagor does
hereby grant, bargain, sell, alien, remise, release, convey and confirm to the
Mortgagee, in fee simple, all that certain property in Orange County, Florida,
described as follows:
SEE EXHIBIT "A"
ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE.
TOGETHER WITH all structures and improvements now and hereafter on
said land, appurtenances, servitudes, rights, ways, privileges, prescriptions,
accretions and advantages which in any was belong to or pertain to the land;
and
TOGETHER WITH all rents, issues, proceeds and profits accruing to and
from said premises; and
TOGETHER WITH all fixtures and accession, equipment, and personal
property contained in or appurtenant to the premises, or which may hereafter
from time to time be placed therein, and any substitutions or replacements
thereof; and
TOGETHER WITH all right, title and interest of the Mortgagor, if any,
now owned or hereafter acquired, in and to any land lying in the bed of any
street, road, or avenue, open or proposed , in front of or adjoining said
premises; and
TOGETHER WITH all other interest of every kind and character which
Mortgagor now has or at any time hereinafter acquires, in, to or concerning the
property described above and,
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in and to all property, tangible or intangible, which is used in connection
with the operation of the premises including, but not limited to, maintenance,
service or sales contracts, licenses, permits, consents or approvals issued by
governmental authorities, if any.
All property and interests described or referred to above will
hereinafter be referred to collectively as the "Mortgaged Premises" or the
"Mortgaged Property."
TO HAVE AND TO HOLD the Mortgage Premises unto the Mortgagee and its
successors and assigns forever.
AND Mortgagor covenants with the Mortgagee that Mortgagor is
indefeasibly seized of the Mortgaged Premises in fee simple, that the Mortgagor
has full power and lawful right to convey the Mortgaged Premises in fee simple,
that the Mortgagor will make such further assurances to perfect the fee simple
title to the Mortgaged Premises in Mortgagee as may reasonably be required, and
that Mortgagor does hereby fully warrant the title to the Mortgaged Premises
except the permitted exceptions as shown on Exhibit "B" attached hereto and
made a part hereof (the "Permitted Exceptions"), and will defend the same
against the lawful claims of all persons whomsoever.
PROVIDED, ALWAYS, that if the Mortgagor shall pay unto the Mortgagee,
its successors or assigns the sum of money mentioned in that certain
Nonrecourse Purchase Money Promissory Note of even date, in the original
principal amount of Three Million Five Hundred Eighty Thousand and No/100
Dollars ($3,580,000.00), maturing on March 31, 1997, and secured hereby, a copy
of which is attached hereto as Exhibit "C" and incorporated herein by reference
(the "Note"), and shall pay all other sums provided to be paid by this
Mortgage, and shall perform, comply with and abide by each and every one of the
stipulation, agreements, conditions and covenants of the Note and of this
Mortgage, then this Mortgage and the estate created hereby shall cease and be
null and void and this instrument shall be released by the Mortgagee, the
release preparation and recording costs being the expense of the Mortgagor.
AND MORTGAGOR COVENANTS AND AGREES AS FOLLOWS:
1. Performance of Obligations. Mortgagor will pay the principal
of the Note as and when the same shall become due and payable, and shall duly
pay, perform and discharge all of its other obligations created hereunder or
secured hereby.
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<PAGE> 3
2. Legal Requirements. Mortgagor shall promptly and faithfully
comply with, conform to, and obey all present and future law, ordinances,
rules, regulations, and requirements of every duly constituted governmental
authority or agent and every Board of Fire Underwriters having jurisdiction, or
similar body exercising similar functions, which may be applicable to the
Mortgaged Premises, or any part thereof, or the use or manner of use,
occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of the Mortgaged Premises, or any part thereof, whether or not
such law, ordinance, rule, order, regulation or requirement shall necessitate
structural changes or improvements or interfere with the use and enjoyment of
the Mortgaged Premises. Notwithstanding the foregoing, Mortgagor may, at its
own expense, contest by appropriate proceeding any governmental order so long
as Mortgagor shall have furnished such security and in such form as may be
required in the proceedings or as may be reasonably requested by Mortgagee.
3. Impositions. Mortgagor shall pay and discharge, or cause to
be paid and discharged, prior to delinquency, all taxes, assessments, fees, and
other governmental charges (and any interest or costs with respect thereto) and
all charges for any easement or agreement maintained for the benefit of the
Mortgaged Premises, general and special, ordinary and extraordinary, foreseen
and unforeseen, of any kind and nature whatsoever, that at any time prior to or
after the execution of the Mortgage may be assessed, levied, or imposed upon
the Mortgaged Premises or the rent or income received therefrom or any use or
occupancy thereof (hereinafter the "Impositions"). Mortgagor shall, upon
request, furnish receipted bills to Mortgagee upon receipt by Mortgagor from
the appropriate taxing or other authority, or other evidence reasonably
satisfactory to Mortgagee, evidencing the payment of all Impositions. If any
tax or assessment levied or assessed against the Mortgaged Premises may legally
be paid in installments, Mortgagor shall have the option to pay such tax or
assessments in installments. Notwithstanding the foregoing, Mortgagor may, at
its own expense, after prior written notice to Mortgagee, contest by
appropriate proceedings, promptly initiated and conducted in good faith and
with due diligence, the amount, validity or application, in whole or in part,
of any Imposition if:
A. such proceeding shall suspend the collection thereof
from Mortgagor and from the Mortgaged Premises; and
B. Mortgagor shall have furnished such security and in
such form as may be required in the proceedings or as may be reasonably
requested by Mortgagee.
4. Insurance. Mortgagor shall maintain general liability
insurance upon the Mortgaged Premises in an amount not less than the unpaid
principal balance of the Note, issued by a company or companies licensed to
write insurance in the State of Florida, and satisfactory
3
<PAGE> 4
to Mortgagee. Each insurance policy shall provide, and the insurer issuing
such a policy shall certify to Mortgagee, that:
A. loss payments will be payable to Mortgagee as its
interest may appear;
B. the interest of Mortgagee shall be insured regardless of
any breach or violation by Mortgagor or any warranties, declarations or
conditions contained is such policy; and
C. if such insurance be canceled or materially changed for
any reason whatsoever, such insurer will promptly notify Mortgagee and such
cancellation or change shall not be effective as to Mortgagee for thirty (30)
days after receipt by Mortgagee of such notice. Mortgagor shall furnish to
Mortgagee copies of each such policy and copies of each renewal policy, not
less than thirty (30) days prior to the expiration of the original policy or
preceding renewal policy (as the case may be). Mortgagor shall furnish
Mortgagee with receipts or other evidence that premiums on the policies have
been paid, if requested by Mortgagee.
5. Care of Premises. Mortgagor shall maintain, preserve, protect
and keep in good order and condition, the Mortgaged Premises and from time to
time shall make all necessary or appropriate repairs, replacements and
improvements thereto. In the event that the Mortgaged Premises or any part
thereof shall be damaged or destroyed by fire or other casualty, Mortgagor
shall immediately notify Mortgagee in writing of such damage or destruction.
Upon the request of Mortgagee, Mortgagor shall, at its sole cost and expense,
commence and diligently continue to restore, repair, replace, rebuild or alter
the Mortgaged Premises as nearly as possible to its value, conditions and
character immediately prior to such damage or destruction.
6. Environmental Hazards. In addition to Mortgagor's covenants
and agreements under Paragraph 5 hereinabove, Mortgagor further covenants and
agrees with Mortgagee that Mortgagor shall not (a) cause or permit the
presence, use, generation, manufacture, production, processing, installation,
release, discharge, emission, storage (including above- and under-ground
storage tanks for petroleum or petroleum products, but excluding small
containers of gasoline used for maintenance equipment or similar purposes which
are not in violation of any Hazardous Materials Laws), treatment, handling, or
disposal of any Hazardous Materials on, under, in or about the Mortgaged
Premises, or in any way affecting or impairing the Mortgaged Premises or which
may form the basis for any present or future claim, demand or action seeking
cleanup of the Mortgaged Premises, or the transportation of any Hazardous
Materials to or from the Mortgaged Premises or (b) cause or exacerbate any
occurrence or condition on the Mortgaged Premises that is in violation of
Hazardous Materials Law.
Mortgagor further agrees at all time to comply fully and in a timely
manner with, and to cause all employees, agents, contractors, and
subcontractors of Mortgagor and any other
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<PAGE> 5
persons occupying or present on the Mortgaged Premises to so comply with all
applicable federal, state, and local laws, regulations, guidelines, codes, and
other legal requirements relating to the generation, use, handling, storage,
treatment, transport, and disposal of any Hazardous Materials now or hereafter
located or present on or under the Mortgaged Premises.
Mortgagor shall promptly notify Mortgagee in writing of: (i) any
enforcement, cleanup, removal or other governmental or regulatory action,
investigation, or any other proceeding instituted, completed or threatened in
connection with any Hazardous Materials; (ii) any suit, cause of action, or any
other claim made or threatened by any third party against Mortgagor or the
Mortgaged Premises relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials; and (iii)
Mortgagor's discovery of any occurrence or condition on any real property
adjoining or in the vicinity of the Mortgaged Premises that could cause all or
any portion of the Mortgaged Premises to be subject to any restrictions on the
ownership, occupancy, transferability or use of the Mortgaged Premises under
Hazardous Materials Law. The provisions of the preceding sentence shall be in
addition to any and all other obligations and liabilities that Mortgagor may
have to Mortgagee under applicable law.
The term "Hazardous Materials," for purposes of this paragraph 6,
includes petroleum and petroleum products (excluding small quantity of gasoline
used in maintenance equipment on the Mortgaged Premises), flammable explosives,
radioactive materials (excluding radioactive materials in smoke detectors),
polychlorinated biphenyls, asbestos in any form that is or could become
friable, hazardous waste, toxic or hazardous substances or other related
materials whether in the form of a chemical, element, compound, solution,
mixture or otherwise including, but not limited to, those materials defined as
"hazardous substances," "extremely hazardous substances," "hazardous
chemicals," "hazardous materials," "toxic chemicals," "air pollutants," "toxic
pollutants," "hazardous wastes," "extremely hazardous waste," or "restricted
hazardous waste" by Hazardous Materials Law. The storage and ordinary use, by
the Mortgagor, its agents and tenants, of cleaning agents, household
pesticides, cooking oils, and other household products that are readily
available for retail sale shall not be deemed a violation of this Paragraph,
provided such storage and use is in compliance with law and all manufacturer
requirements.
The term "Hazardous Materials Law," for the purpose of this paragraph
6, means any federal, state, or local law, ordinance or regulation or any court
judgment applicable to Mortgagor or to the Mortgaged Premises relating to
industrial hygiene or to environmental or unsafe conditions including, but not
limited to, those relating to the generation, manufacture, storage, handling,
transportation, disposal, release, emission or discharge of Hazardous
Materials, those in connection with the construction, fuel supply, power
generation and transmission, waste disposal or any other operations or
processes relating to the Mortgaged
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<PAGE> 6
Premises, and those relating to the atmosphere, soil, surface and ground water,
wetlands, stream sediments and vegetation on, under, in or about the Mortgaged
Premises. "Hazardous Materials Law" also shall include, but not be limited to,
the Comprehensive Environmental Response, Compensation and Liability Act, the
Emergency Planning and Community Right-to-Know Act of 1986, the Hazardous
Materials Transportation Act, the Resource Conservation and Recovery Act, the
Solid Waste Disposal Act, the Clean Water Act, the Toxic Substance Control Act,
the Safe Drinking Water Act and the Occupational Safety and Health act, and all
regulations adopted in respect to the foregoing laws.
7. Conveyances and Other Liens. Except as otherwise set forth
herein, upon the sale, exchange or other transfer of title of the Mortgaged
Premises or any part thereof or any interest therein, without the written
approval of Mortgagee, the full amount of the debt secured hereby shall
immediately become due and payable. Mortgagor shall not create, incur, or
permit to exist any mortgage, pledge, lien, encumbrance, or charge on, or
adverse claim with respect to the Mortgaged Premises, or any part thereof, or
income therefrom other than:
A. liens being contested in good faith and by appropriate
proceedings in the manner permitted by this Mortgage;
B. liens or taxes or assessments not yet delinquent;
C. this Mortgage; and
D. the Permitted Exceptions.
8. Condemnation. Upon obtaining knowledge of the institution, or
the proposed, contemplated or threatened institution, of any proceedings for
the taking of the Mortgaged Premises, or any part thereof, by condemnation or
eminent domain, Mortgagor shall notify Mortgagee of the pendency of such
proceedings. Mortgagor agrees to provide Mortgagee with periodic updates of
the proceedings. Furthermore, it is specifically acknowledged and agreed that
Mortgagor shall not, without the prior written consent of Mortgagee, settle the
proceedings and accept an award which will result in the Mortgagee receiving an
amount of money which is less than the sum payable to Mortgagee under the
Partial Release Agreement (as hereinafter defined) for the portion or portions
of the Mortgaged Premises being condemned.
As additional collateral and further security for the payment of the
indebtedness secured hereby, Mortgagor hereby assigns to Mortgagee all awards
hereafter made by virtue of any exercise of the right of condemnation or
eminent domain by any authority, including any award for damage to or taking of
title to the Mortgaged Premises, or any part thereof, or the possession
thereof, or any right to any easement affecting the Mortgaged Premises or
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<PAGE> 7
appurtenant thereto (including any award for any change of grade of streets),
and the proceeds of all sales in lieu of condemnation. At its option,
Mortgagee may collect and receive all such awards and apply the proceeds in any
one or more of the following ways:
A. for the payment of all costs and expenses (including
reasonable attorney's fees and other legal expenses) incurred by Mortgagor or
Mortgagee in connection with collecting such proceeds;
B. to the payment of all accrued and unpaid interest on the
Note; or
C. to the fulfillment of any of the covenants and agreements
of Mortgagor hereunder.
Mortgagor agrees to execute and deliver such other instruments as
Mortgagee may require to evidence the assignment of all such awards and
proceeds to Mortgagee.
9. Legal Action. If the Mortgagee is made a party to or appears,
either voluntarily or involuntarily, in any action or proceeding affecting the
Mortgaged Premises, the Note, or the validity or the priority of this Mortgage,
then Mortgagor shall, upon demand, reimburse Mortgagee for all costs, expenses
and liabilities incurred by Mortgagee by reason of any such action or
proceeding including reasonable attorneys' fees, whether incurred before,
during, or after such litigation, upon any appellate level, or in any
bankruptcy or insolvency proceedings, and the same shall be secured by this
Mortgage.
10. Events of Default. The occurrence of any of the following
shall constitute an Event of Default hereunder:
A. Default in Payment. Mortgagor shall fail to pay the
principal balance as and when the same shall become due and payable.
B. Breach of Covenant. Mortgagor shall fail to observe
or perform any covenant or agreement made by Mortgagor in or pursuant to this
Mortgage, the note, or any other document evidencing or securing the
indebtedness secured hereby and shall fail to cure such default within thirty
(30) days after written notice thereof from Mortgagee specifying the nature of
the default; provided, however, that if the default cannot be cured within said
thirty (30) day period, then Mortgagor shall have such additional time as
Mortgagor reasonably requires to cure the default if Mortgagor has commenced to
cure the default within said thirty (30) day period and is diligently,
continuously and expeditiously proceeding with said cure.
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<PAGE> 8
C. Breach of Warranty. Any representation or warranty made
by the Mortgagor in connection with the loan secured hereby shall be reasonably
determined by the Mortgagee to have been false or misleading in any material
respect as of the date on which the same was made or given.
D. Bankruptcy, Receivership, Insolvency, Etc. If Mortgagor,
or any endorser or guarantor of the Note, makes any assignment for the benefit
of creditors, or a receiver, liquidator, or trustee or Mortgagor, or of such
endorser's or guarantor's property is appointed, or any voluntary or
involuntary petition for bankruptcy, reorganization or arrangement of Mortgagor
or such endorser or guarantor pursuant to the Federal Bankruptcy Act, or any
similar statute is filed, or Mortgagor or such endorser or guarantor (if a
partnership or business association) is dissolved or partitioned, or Mortgagor
or such endorser or guarantor (if a trust) is terminated or it expires.
11. Remedies. If an Event of Default shall occur and be
continuing, Mortgagee may, at its option:
A. Acceleration. Declare the principal of the Note to
be due and payable immediately, whereupon interest shall begin accruing at the
highest rate allowable under the laws of the State of Florida.
B. Possession and Use of Mortgaged Premises. If an
Event of Default shall have occurred, Mortgagor, upon demand of Mortgagee,
shall surrender to Mortgagee the actual possession, and if and to the extent
permitted by law, Mortgagee itself, or by such officers or agents as it may
appoint, may enter and take possession of all the Mortgaged Premises, and may
exclude Mortgagor and its agents and employees wholly therefrom, and may have
joint access with Mortgagor to the books, papers and accounts of Mortgagor
relating to the management or operation of the Mortgaged Premises. Upon every
such entering upon or taking of possession, Mortgagee may hold, store, use,
operate, manage and control the Mortgaged Premises and conduct the business
thereof, and from time to time:
(i) make all necessary and proper maintenance,
repairs, renewals and replacements;
(ii) insure or keep the Mortgaged Premises insured;
(iii) manage and operate the Mortgaged Premises and
exercise all the rights and powers of Mortgagor in its name or otherwise, with
respect to the same;
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<PAGE> 9
(iv) enter into agreements with others to exercise
the power herein granted Mortgagee;
all as Mortgagee from time to time may determine; and Mortgagee may collect and
receive all the income, revenues, rents, issues and profits of the same,
including those past due as well as those accruing thereafter, and shall apply
the monies so received by Mortgagee in such priority as Mortgagee may determine
to the payment of accrued interest on the Note; the payment of overdue
installments of principal; the cost of insurance, taxes, assessments and other
proper charges upon the Mortgaged Premises or any part thereof; and the
reasonable compensation, expenses and disbursements of the attorneys and agents
of Mortgagee including, but not limited to, costs incurred by Mortgagee in
connection with its taking possession of the Mortgaged Premises.
Mortgagee shall surrender possession of the Mortgaged Premises to
Mortgagor only when all that is due upon such interest and principal
installments and under the terms of this Mortgage, shall have been paid and all
defaults made good. The same right of taking possession, however, shall exist
if any subsequent Event of Default shall occur and be continuing.
C. Cure by Mortgagee. If the Event of Default can be cured
by the payment of money, Mortgagee shall have the right at any time, at its
sole option, and without waiving or affecting its other remedies hereunder, to
pay such sums of money as may be necessary to cure the default. All sums so
paid, together with interest at the default interest rate and together with all
reasonable costs, charges, attorneys' fees and expenses incurred in connection
with the payment shall be immediately due and payable by Mortgagor and shall be
secured by this Mortgage. Notwithstanding such payments by Mortgagee, the
Event of Default shall be deemed to be continuing until Mortgagee has been
reimbursed by Mortgagor as described herein.
D. Other Remedies. Mortgagee may exercise any other remedy
specifically granted under this Mortgage, or the Note, or the other instruments
securing this Note, as now or hereafter existing in equity, at law, by virtue
of statute, or otherwise;
12. Receiver. If an Event of Default shall have occurred,
Mortgagee, to the extent permitted by law and without regard to the value of
occupancy of the Mortgaged Premises, shall be entitled, as a matter of right if
it so elects, to the appointment of a receiver to enter upon and take
possession of the Mortgaged Premises and to collect all rents, revenues,
issues, income, products and profits thereof and apply the same as the Court
may direct. The receiver shall have all rights and powers permitted under the
laws of the State of Florida and such other expenses including receiver's fees,
attorneys' fees, costs and agent's compensation, incurred pursuant to the
powers herein contained, shall be secured by this Mortgage. The right to enter
and take possession of and to manage and operate the Mortgaged Premises, and to
collect the
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<PAGE> 10
rents, issues and profits thereof, whether by 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. Mortgagee shall
be liable to account only for such rents, issues and profits actually received
by Mortgagee.
13. Suits to Protect the Mortgaged Premises. Mortgagee shall have
the power and the authority to institute and maintain any suits and proceedings
as Mortgagee may deem advisable;
A. to prevent any impairment of the Mortgaged Premises
by any acts which may be unlawful or in violation of this Mortgage;
B. to preserve or protect its interests in the Mortgaged
Premises; and
C. to restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order might impair the security hereunder or be
prejudicial to Mortgagee's interest.
14. No Waiver.
A. No delay or omission of Mortgagee or of any holder of
the Note to exercise any right, power or remedy accruing upon any Event of
Default shall exhaust or impair such right, power or remedy or shall be
construed to waive any such Event of Default or to constitute acquiescence
therein. Every right, power and remedy given to Mortgagee may be exercised
from time to time and as often as may be deemed expedient by Mortgagee.
B. No Waiver of any default hereunder shall extend to or
affect any subsequent or any other Event of Default then existing or impairing
any rights, powers or remedies consequent thereon. If Mortgagee:
(i) grants forbearance or an extension of time
for the payment of any sums secured hereby;
(ii) takes other or additional security for the
payment of sums secured hereby;
(iii) waives or does not exercise any right granted
in the Note, this Mortgage or any other instruments securing the Note;
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<PAGE> 11
(iv) releases any part of the Mortgaged Premises
from the lien of this Mortgage or otherwise changes any of the terms of this
Note, this Mortgage or any other instrument securing the Note;
(v) consent to the filing of any map, plat of the
Mortgaged Premises; or
(vi) makes or consents to any agreement changing the
terms of this Mortgage or subordinating the lien or any charge hereof,
no such act or omission shall release, discharge, modify, change or affect the
original liability under the Note, this Mortgage or otherwise of Mortgagor or
any subsequent purchaser of the Mortgaged Premises or any part thereof, or any
maker, co-maker, endorser, surety or guarantor, nor shall such act or omission
affect, disturb or impair in any manner whatsoever the validity and priority of
the lien of this Mortgage for the full amount of the indebtedness remaining
unpaid together with all other amounts due hereunder. No act or omission of
Mortgagee shall preclude it from exercising any right, power or privilege
herein granted or intended to be granted.
15. Cumulative Remedies. No right, power or remedy conferred upon
or reserved to Mortgagee by the Note, this Mortgage or any other instrument
securing this Note is exclusive of any other right, power or remedy, but each
and every right, power and remedy shall be cumulative and concurrent and shall
be in addition to any other right, power or remedy given hereunder or under the
Note or any other instrument securing the Note or now or hereafter existing at
law, in equity, or by statute.
16. Subsequent Owners. In the event the ownership of the
Mortgaged Premises or any part thereof becomes vested in a person other than
Mortgagor, the Mortgagee may without notice to Mortgagor, deal with such
successor or successors in interest with reference to this Mortgage and to the
Note secured hereby in the same manner as with Mortgagor without in any way
discharging or vitiating Mortgagor's liability hereunder or upon the Note.
17. Partial Payment. Acceptance by the Mortgagee of any payment
in an amount less than the amount then due on the Note or due hereunder shall
be deemed an acceptance on account only, and the failure to pay the entire
amount then due shall be and continue to be an Event of Default. At any time
thereafter, until the entire amount then due has been paid, the Mortgagee shall
be entitled to exercise all rights conferred upon it in this Mortgage upon the
occurrence of an Event of Default.
18. Non-Recourse. Notwithstanding anything to the contrary set
forth in this Mortgage, the indebtedness evidenced by this Mortgage shall be
nonrecourse to the Mortgagor.
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<PAGE> 12
In the event of default by the Mortgagor under this Mortgage, the sole and only
recourse of the Mortgagee, its successor or assigns shall be foreclosure
against the Mortgaged Premises and enforcement of rights in the Mortgaged
Premises. It is expressly understood and agreed by the Mortgagee and by every
person now or hereafter claiming any right or security under this Mortgage that
nothing contained herein or in any document executed or to be delivered in
connection herewith shall be construed as creating any personal liability on
the Mortgagor, any officer, agent or employee of the Mortgagor or any other
person related thereto for any indebtedness arising under or secured by this
Mortgage, and the Mortgagee shall be deemed to covenant and agree that no
deficiency judgment in any foreclosure proceedings, and no money judgment
separate and apart from any foreclosure proceedings, shall be sought or
rendered against the Mortgagor hereon on account of the execution of this
Mortgage, or the covenants and agreements contained herein and the Note and the
right to seek a deficiency judgment or money judgment against Mortgagor for any
sum of money arising from this Mortgage and the Note is hereby expressly waived
by Mortgagee.
19. Further Assurances. Mortgagor agrees that at any time, and
from time to time, after execution and delivery of this Mortgage, it will, upon
the request of Mortgagee, and at Mortgagor's sole expense, execute and deliver
such further documents and do such further acts and things as Mortgagee may
reasonably request in order to fully effect the purposes of this Mortgage and
to subject to the lien of this Mortgage any property intended by the provisions
hereof to be covered hereby.
20. Other Mortgages.
A. If foreclosure proceedings should be instituted on
any mortgage, either superior or inferior to this Mortgage, or if any
foreclosure proceeding is instituted on any lien of any kind, the Mortgagee
may, at its option, immediately or thereafter declare this Mortgage and the
indebtedness secured hereby due and payable. If there is any mortgage superior
to this Mortgage, then failure to pay said mortgage when due and in accordance
with its terms or failure to abide by the terms of said mortgage shall be
deemed an Event of Default hereunder. Any modification of any mortgage
superior to this Mortgage or waiver of any principal or interest payments of
any note and mortgage superior to this Mortgage shall constitute an Event of
Default hereunder.
B. To the extent of the indebtedness of the Mortgagor to
the Mortgagee as described herein or secured hereby, the Mortgagee is
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 described in
Exhibit "A" which is paid and/or satisfied, in whole or in part, out of the
proceeds of the loan described herein or secured hereby. The respective liens
of said mortgages, liens or other encumbrances shall be preserved and shall
pass to and be held by the Mortgagee
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<PAGE> 13
as security for the indebtedness described herein or secured hereby, to the
same extent that it would have been preserved and would have been passed to and
held by the Mortgagee had it been duly and regularly assigned to the Mortgagee
by a separate assignment, notwithstanding the fact that the same may be
satisfied and canceled of record, it being the intention of the parties that
the same will be satisfied and canceled of record by the holders thereof at or
about the time of the recording of this Mortgage.
21. Estoppel Certificate. Mortgagor shall, within thirty (30)
days from written demand by the Mortgagee, execute in such form as may be
reasonably required by the Mortgagee, an estoppel Certificate duly acknowledged
setting forth the amount of principal and interest unpaid hereunder and the
general status of this Mortgage. If Mortgagor fails to make and deliver the
Estoppel Certificate within the required time, Mortgagor shall be deemed to
have admitted all items set forth in such estoppel.
22. Security Agreement. To the extent that the Mortgaged Premises
shall be deemed to be personal property, this Mortgage shall serve as "security
agreement" within the meaning of the Uniform Commercial Code as adopted in the
State of Florida. Mortgagor hereby grants to Mortgagee a security interest in
and to all of those portions of the Mortgaged Premises which may ultimately be
held to be personal property. With respect to such personal property,
Mortgagee shall have all rights afforded secured parties by the Uniform
Commercial Code, as adopted in the State of Florida, and as may hereafter be
modified or amended, in addition to, but not in limitation of, the other rights
afforded the Mortgagee hereunder. Mortgagor agrees to make, execute and
deliver to the Mortgagee, in form satisfactory to the Mortgagee, such financing
statements and further assurances as Mortgagee may from time to time consider
reasonably necessary to create, protect and preserve the Mortgagee's security
interest.
23. No Further Encumbrance or Transfer. Upon the further
encumbrance, sale, transfer of exchange of title of the Mortgaged Premises or
any part thereof or any interest therein, or upon the sale, exchange or
transfer of a majority ownership interest in Mortgagor, without the prior
written approval of Mortgagee, such approval to be granted or denied in the
sole and unfettered discretion of Mortgagee, the full amount of the debt
secured hereby, together with all interest accrued and unpaid thereon, shall
immediately become due and payable.
24. Fees and Costs. Mortgagor shall pay the costs, charges and
expenses, including attorneys' fees, whether or not suit be brought or not, and
whether incurred before, during or after any litigation or upon any appellate
level, reasonably incurred or paid at any time by the Mortgagee, because of the
failure of the Mortgagor to perform, comply with and abide by each and every
one of the stipulations, agreements, conditions and covenants of the Note and
this Mortgage and shall bear interest at the default interest rate provided
herein.
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<PAGE> 14
25. Default Interest. Upon the occurrence of an Event of Default,
the principal amount of the Note, together with all accrued but unpaid
interest, and together with all sums which may have been advanced by Mortgagee
and which are secured hereby, shall bear interest at the lesser of (i) fifteen
percent (15%) per annum or (ii) the highest legal rate permitted within the
State of Florida.
26. Partial Release. So long as no Event of Default is then
existing under the Note or this Mortgage, upon Mortgagee's receipt of the
initial principal reduction payment of One Million Seven Hundred Ninety
Thousand and No/100 ($1,790,000.00), which payment is due on or before March
31, 1996, Mortgagee shall execute and deliver to Mortgagor a Partial Release of
Mortgage releasing the lien of this Mortgage from Lot 2, CRACKER BARREL,
according to the Plat thereof as recorded in Plat Book 35, Page 1, Public
Records of Orange County, Florida.
27. Miscellaneous Provisions.
A. Time is of the essence with respect to each and every
covenant, agreement and obligation of Mortgagor under this Mortgage, the Note
and any and all other instruments now or hereafter evidencing, securing or
otherwise relating to the indebtedness secured hereby.
B. Any and all notices, elections or demands permitted
or required to be made under this Mortgage shall be in writing, signed by the
party giving such notice, election or demand, and shall be mailed through the
United States Postal Service, postage prepaid, or an express courier, to the
other party at the address first set forth above, or to such other address as
may have been supplied in writing.
C. Captions of paragraphs contained in this Mortgage are
inserted only as a matter of convenience and in no way define, limit, extend or
describe the scope of this Mortgage or the intent of any provision hereof.
D. This Mortgage has been negotiated, executed and
delivered in the State of Florida and shall be governed by and construed in
accordance with the laws of the State of Florida.
THIS IS A PURCHASE MONEY MORTGAGE
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<PAGE> 15
IN WITNESS WHEREOF, this Mortgage has been duly executed, delivered
and sealed by the Mortgagor on the day and year first above written.
"MORTGAGOR"
WITNESSES: CRACKER BARREL OLD COUNTRY STORE,
INC., a Tennessee corporation
_______________________________ By:___/s/ Donald G. Kravitz______________
Print Name: ___________________ Name:___Donald G. Kravitz__________________
Title: Vice President
_______________________________
Print Name: ___________________ (Corporate Seal)
STATE OF TENNESSEE
COUNTY OF ___________
The foregoing instrument was acknowledged before me this _____ day of
____________, 1995, by _________________________, as Vice President of Cracker
Barrel Old Country Store, Inc., a Tennessee corporation, on behalf of the
corporation. She/He is personally known to me or has produced ________________
as identification.
---------------------------------
(Signature of Notary Public)
---------------------------------
(Typed name of Notary Public)
Notary Public, State of Tennessee
Commission No.
-------------------
My commission expires:
15
<PAGE> 16
EXHIBIT "A"
LEGAL DESCRIPTION
Lot 1 and Lot 2, CRACKER BARREL, according to the plat thereof as recorded in
Plat Book 35, Page 1, Public Records of Orange County, Florida.
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<PAGE> 17
EXHIBIT "B"
PERMITTED EXCEPTIONS
(1) General taxes for the year 1996 and thereafter, not yet due and
payable.
(2) Agreement by and between The City of Orlando and Major Realty
Corporation, a Delaware corporation, recorded in Official Records Book
1709, Page 813, Public Records of Orange County, Florida.
(3) Declaration of Covenants and Restrictions by Major Realty Corporation,
recorded in Official Records Book 2924, Page 1925, Public Records of
Orange County, Florida.
(4) Easement to Florida Power Corporation recorded February 9, 1970 in
Official Records Book 1915, Page 931; Assignment of Easement to
Orlando Utilities Commission recorded August 24, 1987 in Official
Records Book 3914, Page 1552, Public Records of Orange County,
Florida.
(5) Easement to the City of Orlando, Florida, recorded October 4, 1973 in
Official Records Book 2456, Page 1814, Public Records of Orange
County, Florida.
(6) Easement to Florida Power Corporation recorded July 31, 1970 in
Official Records Book 1969, Page 723, Public Records of Orange County,
Florida.
(7) Agreement for Sanitary Sewer Service recorded December 11, 1984 in
Official Records Book 3585, Page 905, Public Records of Orange County,
Florida; Amendment recorded in Official Records Book 4379, Page 3949,
Public Records of Orange County, Florida.
(8) Stipulated Settlement Agreement by and between Major Realty
Corporation, a Delaware corporation, and the City of Orlando, recorded
in Official Records Book 4550, Page 3223, Public Records of Orange
County, Florida.
(9) Matters reflected upon the Plat of REPLAT OF MAJOR REALTY CENTER UNIT
1, as recorded in Plat Book 3, Page 32, Public Records of Orange
County, Florida.
(10) Matters reflected upon the Plat of CRACKER BARREL, as recorded in Plat
Book 35, Page 1, Public Records of Orange County, Florida.
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<PAGE> 18
EXHIBIT "C"
PURCHASE MONEY PROMISSORY NOTE
$3,580,000.00 Orlando, Florida
September _______, 1995
FOR VALUE RECEIVED, the undersigned, CRACKER BARREL OLD COUNTRY STORE,
INC., A TENNESSEE CORPORATION (the "Maker"), promises to pay to MAJOR REALTY
CORPORATION, A DELAWARE CORPORATION, or order, the principal sum of THREE
MILLION FIVE HUNDRED EIGHTY THOUSAND AND NO/100 DOLLARS ($3,580,000.00), which
sum shall be payable in two (2) equal principal installment payments of One
Million Seven Hundred Ninety Thousand and No/100 ($1,790,000.00) each, with the
first such payment due and payable on or before March 31, 1996 and the second
such payment due and payable on or before March 31, 1997. This Note shall be a
non-interest bearing Note except in the event of a default, in which case
interest shall begin to accrue as provided below.
If not sooner paid, the entire principal balance shall be due and
payable on March 31, 1997 (the "Maturity Date").
The said principal and interest payment shall be payable in lawful
money of the United States of America at 5728 Major Boulevard, Suite 306,
Orlando, Florida 32819 or at such place as may hereafter be designated by
written notice from the holder to the Maker hereof, on the date and in the
manner described above.
This Note may be prepaid in whole or in part at any time or times,
without premium or penalty.
The Maker shall be in default of the terms of this Note if the
payments due hereunder are not paid when due.
If default is made in the payment of any sums mentioned herein and
Maker fails to make such payment within five (5) days after receipt of written
notice of such default, or if Maker defaults in the performance of any of the
agreements contained in this Note or as contained in a certain Nonrecourse
Purchase Money Mortgage of even date (the "Mortgage"), then the entire
principal sum shall, at the option of the holder hereof, become at once due and
collectible without notice, time being of the essence; and said principal sum
shall bear interest from such time until paid at the highest rate allowable
under the laws of the State of Florida. Failure to exercise this option shall
not constitute a waiver of the right to exercise the same in the event of any
subsequent default.
If this Note goes into default and is placed in the hands of any
attorney for collection, the Maker shall pay all costs, charges and expenses,
including without limitation, attorneys' and paralegals' fees, reasonably
incurred or paid at any time by the holder, including without limitation, those
incurred at trial, on appeal and in any bankruptcy or insolvency proceedings
and to enforce any judgment, or whether or not suit is brought.
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<PAGE> 19
Presentment, notice of dishonor and protest are hereby waived by all
makers, sureties, guarantors and endorsers hereof, and each agrees to pay all
reasonable costs and expenses of collection of this Note, including, but not
limited to, reasonable attorneys' fees, whether suit be brought or not, and
whether incurred before, during, or after litigation, or upon any appellate
level, if, after maturity of this Note or default hereunder, counsel shall be
employed to collect this Note.
Any notice to Maker provided for in this Note shall be given by
mailing such notice by certified mail, return receipt requested, addressed to
Maker at the address stated below, or to such other address as Maker may
designate by notice to the Note holder. Any notice to the Note holder shall be
given by mailing such notice by certified mail, return receipt requested, to
the Note holder at the address in the third paragraph of this Note, or at such
other address as may have been designated by notice to Maker.
All agreements between the undersigned and the holder hereof
are expressly limited so that under no contingency or event whatsoever shall
the amount paid or agreed to be paid to the holder hereof for the use,
forbearance or detention of the money advanced or to be advanced hereunder
exceed the highest lawful rate permissible under the laws of the State of
Florida. If fulfillment of any provision hereof or the Mortgage securing this
Note, or any other agreement referred to herein, or pertaining hereto, at the
time performance of such provision shall be due, shall involve exceeding the
limit of validity prescribed by law which a court of competent jurisdiction may
deem applicable hereto, then the obligation to be fulfilled shall be reduced to
the limit of such validity, and if from any circumstances, the holder hereof
shall ever receive as interest an amount which would exceed the highest lawful
rate, such amount which would otherwise be excessive interest, shall be applied
to the reduction of the unpaid principal balance hereunder and not to the
payment of interest. This provision shall control every other provision of all
agreements between the undersigned and the holder hereof.
This Note is secured by the Mortgage which encumbers certain real
property in Orange County, Florida (the "Mortgaged Premises"), and this Note is
to be construed according to the laws of the State of Florida. The terms and
conditions of the Mortgage are by reference incorporated herein.
Notwithstanding anything to the contrary contained herein, the
indebtedness evidenced by this Note shall be nonrecourse to the Maker hereof.
In the event of default by the Maker, the sole and only recourse of the holder,
its successors and assigns shall be foreclosure against the Mortgaged Premises
and enforcement of rights in the Mortgaged Premises. It is expressly
understood and agreed by the holder and by every person now or hereafter
claiming any right or security under this Note that nothing contained herewith
shall be construed as creating any personal liability on the Maker, any
officer, agent, or employee of the Maker or any other person related thereto
for any indebtedness arising under this Note, and the holder shall be deemed to
covenant and agree that no deficiency judgment in any foreclosure proceedings
and no money judgment separate and apart from any foreclosure proceedings,
shall be sought or rendered against the Maker hereof on account of the
execution of the Mortgage or this Note and
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<PAGE> 20
the right to seek a deficiency judgment or money judgment against Maker for any
sum of money arising from the Note is hereby expressly waived by holder.
Upon the sale, exchange or other transfer of title of the Mortgaged
Premises or any part thereof or any interest therein which is then encumbered
by the Mortgage, without the written approval of the holder, the full amount of
the debt secured hereby shall immediately become due and payable. Maker shall
not create, incur, or permit to exist any mortgage, pledge, lien, encumbrance,
or charge on, or adverse claim with respect to the Mortgaged Premises, or any
part thereof, or income therefrom other than (a) liens being contested in good
faith and by appropriate proceedings in the manner permitted by the Mortgage,
(b) liens or taxes or assessments not yet delinquent, (c) the Mortgage, and (d)
the Permitted Exceptions.
Whenever used herein, the terms "holder", "Maker" and "payee" shall be
construed in the singular or plural as the context may require or admit.
THIS IS A PURCHASE MONEY PROMISSORY NOTE.
CRACKER BARREL OLD COUNTRY STORE,
INC., A TENNESSEE CORPORATION
/S/
By:______________________________________
Name:_____Donald G. Kravitz_____________
Title: Vice President
(Corporate Seal)
FLORIDA DOCUMENTARY
STAMPS IN THE AMOUNT OF
$____________ HAVE BEEN
AFFIXED TO THE MORTGAGE
SECURING THIS NOTE.
Maker's Address:
305 Hartmann Drive
Lebanon, TN 37088
Attn: Vice President-Development
20
<PAGE> 1
EXHIBIT 10.58
FLORIDA DOCUMENT TAX WAS PAID IN CONNECTION WITH
THE EXECUTION OF THE ORIGINAL PROMISSORY NOTES
REPLACED BY THIS RESTATED AND CONSOLIDATED PROMISSORY NOTE
RESTATED AND CONSOLIDATED PROMISSORY NOTE
$5,064,144.29 As of October 18, 1995
Wayne County, Michigan
FOR VALUE RECEIVED, the undersigned, Major Realty Corporation, a
Delaware corporation ("Major Realty"), promises to pay to the order of
ACCEPTANCE INSURANCE COMPANIES INC., a Delaware corporation ("AIC") at 222
South 15th Street, Suite 600 North, Omaha, Nebraska 68102, on May 1, 1998, the
sum of FIVE MILLION SIXTY-FOUR THOUSAND ONE HUNDRED FORTY-FOUR AND 29/100
DOLLARS ($5,064,144.29), together with interest on the unpaid principal balance
remaining from time to time, from the date hereof at the rate set forth herein.
Interest on the unpaid principal balance of this Note shall be
computed on a daily basis, based upon a three hundred sixty (360) day year, and
shall be paid upon the actual number of days upon which the principal balance
remains outstanding from time to time, at a rate per annum equal to one and
one-half percent (1-1/2%) in excess of the prime rate of Citibank, N. A., as
announced from time to time by such financial institution (with any change in
such rate to be effective on the date of any such change). Interest only shall
be payable in arrears on the first day of each quarter, commencing January 1,
1996, and continuing on the first day of each April, July, October and January
thereafter until May 1, 1998, the maturity date of this Note, at which time the
principal balance together with all accrued and unpaid interest shall be due
and payable in full; provided, however, the maturity of this Note shall be
accelerated in the event of a Change of Control. For purposes of this Note and
the Mortgage, a Change of Control shall be deemed to have occurred:
(a) if any person (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act") in effect on the date hereof) or any group of
persons acting in concert, other than Major Realty, or any
subsidiary of Major Realty, or employee benefit plan (as
defined in Section 3(3) of ERISA) maintained by Major Realty,
or AIC becomes the "beneficial owner" (as such term is defined
in Rule 13d-3 of the Exchange Act, except that a person also
shall be deemed to be the beneficial owner of all securities
which such person may have a right to acquire, whether or not
such right is presently exercisable) directly or indirectly,
of securities of Major Realty representing fifty percent (50%)
or more of the combined voting power of all classes of Major
Realty's then outstanding
<PAGE> 2
securities ordinarily having the power to vote in the election
of directors ("voting stock"); or
(b) upon the sale, in a single transaction or a series of related
transactions, of fifty percent (50%) or more of Major Realty's
assets as they exist on the date hereof and valued at book
value on the date hereof.
THIS NOTE IS A RESTATEMENT, CONSOLIDATION AND REPLACEMENT OF: (i) THAT
CERTAIN MORTGAGE NOTE DATED OCTOBER 11, 1989 IN THE ORIGINAL PRINCIPAL AMOUNT
OF SIXTEEN MILLION AND NO/100 DOLLARS ($16,000,000.00) BY MAJOR REALTY IN FAVOR
OF CITIZENS FIDELITY BANK AND TRUST COMPANY, A KENTUCKY CORPORATION, AS AMENDED
BY THAT CERTAIN AMENDMENT TO MORTGAGE NOTE DATED AUGUST 29, 1991, AS FURTHER
AMENDED BY THAT CERTAIN SECOND AMENDMENT TO MORTGAGE NOTE DATED AS OF JANUARY
31,1994, AND AS FURTHER AMENDED BY THAT CERTAIN THIRD AMENDMENT TO MORTGAGE
NOTE DATED AS OF JANUARY 31,1995, SUCH MORTGAGE NOTE HAVING BEEN ASSIGNED TO
AIC AS OF THE DATE HEREOF, AND (ii) THAT CERTAIN RENEWAL AND CONSOLIDATION
PROMISSORY NOTE IN THE ORIGINAL PRINCIPAL AMOUNT OF ONE MILLION SIX HUNDRED
THOUSAND DOLLARS AND NO/100 DOLLARS ($1,600,000.00) DATED FEBRUARY 1, 1995 BY
MAJOR REALTY IN FAVOR OF AIC. NO ADDITIONAL FUNDS HAVE BEEN ADVANCED HEREBY.
IT IS SPECIFICALLY AGREED THAT TIME IS OF THE ESSENCE OF THIS NOTE.
For purposes of this Note the term "Business Day" means a day that is not a
Saturday, a Sunday or a day on which institutional lenders are closed pursuant
to authorization or requirement of law.
This Note is secured by that certain Mortgage and Security Agreement
dated October 11, 1989 and recorded on October 12, 1989 in Official Records
Book 4123, Page 1379; as modified by that certain Amendment to Mortgage Deed
and Security Agreement dated August 29, 1991 and recorded on August 30, 1991 in
Official Records Book 4321, Page 983; as further modified by that certain
Notice of Limitation of Future Advances recorded on March 3, 192 in Official
Records Book 4391, Page 3509; as further modified by that certain Modification
of Mortgage Deed and Security Agreement dated October 5, 1992 and recorded on
October 2, 1992 in Official Records Book 4471, Page 2237; as further modified
by that certain Amendment to Mortgage Deed and Security Agreement dated as of
January 31, 1994 and recorded on March 19 1994 in Official Records Book 4705,
Page 657; as further modified by that certain Amendment to Mortgage Deed and
Security Agreement dated as of January 31, 1995 and recorded on February 2,
1995 in Official Records Book 4851 , Page 969; and as further modified by that
certain Mortgage and Note Modification Agreement dated of even date herewith,
executed by Major Realty in favor of AIC; all of the foregoing being recorded
in the Public Records of Orange County, Florida, which encumbers certain real
and personal property described therein (collectively the "Mortgage").
This Note may be prepaid in whole or in part at any time without
penalty, upon five (5) days notice to AIC. All payments on
<PAGE> 3
this Note shall be applied first to payment of interest and then to payment of
principal. If any payment is not made in full within five (5) Business Days
after the same is due, the holder of this Note shall have the option to declare
the entire principal and accrued interest immediately due and payable upon
notice to maker. Failure to exercise said option shall not constitute a waiver
of the subsequent right to exercise same.
Subject always to Major Realty's right to prepay this Note in whole or
in part as set forth above, AIC shall have the right (but not the obligation),
upon twenty (20) days' notice to Major Realty, to exchange and convert, in one
or more installments, all or a portion of the outstanding indebtedness due
under this Note (principal plus accrued but unpaid interest) into shares of the
common stock, par value $0.01 per share, of Major Realty (the "Common Stock").
In the event that AIC elects to convert all or a portion of the indebtedness
into the Common Stock, the conversion price shall be equal to the average
closing price of the Common Stock as reported by NASDAQ during the thirty (30)
day period immediately preceding the date of AIC's notice to Major Realty of
its election. If only a portion of the indebtedness is converted into Common
Stock, the amount converted shall be credited first against accrued and unpaid
interest, and then against the principal due hereunder. Any portion of the
outstanding balance due under this Note that is not converted into Common stock
in accordance with this provision shall remain outstanding, accrue interest and
be paid in accordance with the terms of this Note. Upon conversion of all of
the outstanding indebtedness under this Note or otherwise upon satisfaction of
all obligations and indebtedness under this Note, AIC shall return the original
Note to Major Realty marked "Paid and Cancelled" and shall execute, acknowledge
and deliver to Major Realty a satisfaction of mortgage, UCC-3 Termination
Statement, and such additional documents as may be required to indicate that
the Note has been paid in full and that the lien of the Mortgage has been
released of record.
In the event of default and acceleration of payment of the unpaid
principal balance of the indebtedness evidenced by this Note, the interest rate
on this Note shall be increased as of the date of default to the then current
rate of interest plus three percent (3%) or the highest rate allowed by law,
whichever is lower.
In no event shall the holder of this Note be entitled to receive, nor
shall the maker or any endorser or guarantor of its obligation be obligated to
pay, any amount as interest in excess of the highest lawful rate permitted by
applicable law. If the holder of this Note should receive an amount which
would exceed the highest lawful rate, the amount which would constitute excess
interest shall be returned forthwith.
All persons or entities now or at any time liable, whether primarily
or secondarily, for the payment of the indebtedness hereby evidenced, for
themselves, their heirs, legal
<PAGE> 4
representatives, successors and assigns, respectively, hereby (1) expressly
waive presentment, demand for payment, notice of dishonor, protest, notice of
nonpayment or protest, and diligence in collection; (2) consent that the time
of all payments or any part thereof may be extended, rearranged, renewed or
postponed by the holder hereof and further consent that any real or personal
property securing this Note or any part of such security may be released,
exchanged, added to or substituted by the holder of this Note, without in any
way modifying, altering, releasing, affecting or limiting their respective
liability or the lien of any instrument securing this indebtedness; (3) agree
that the holder of this Note shall not be required first to institute any suit,
or to exhaust any of its remedies against the maker of this Note or any other
person or party to become liable hereunder, in order to force payment of this
Note; (4) agree that the maker of this Note may be released by the holder
hereof from any or all liability under this instrument, and such release shall
not in any way affect or modify the liabilities of the remaining parties
hereto; and (5) agree that if this Note becomes in default and is placed in the
hands of any attorney for collection, to pay all costs and expenses of
collection of said monies by legal action, foreclosure or otherwise, including,
but not limited to, attorneys' fees for negotiations, trial, appellate and
bankruptcy proceedings, including fees incurred for collection and proof of
attorneys' fees, and other legal services, shall be paid by the undersigned.
Attorneys' fees shall also include hourly charges for paralegals and other
staff members operating under the supervision of an attorney.
Any obligor to this Note shall be in default hereunder upon: (a)
nonpayment of any interest or principal hereunder within five (5) Business Days
of the date such payment is due or (b) any default under the terms and
conditions of the Mortgage.
AIC BY ITS ACCEPTANCE HEREOF, AND MAJOR REALTY HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS NOTE, THE MORTGAGE SECURING THIS NOTE, AND ANY OTHER AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) ACTIONS OF EITHER
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ACCEPTANCE OF THIS NOTE
BY AIC.
MAJOR REALTY CORPORATION, a Delaware
corporation
By: /s/ David L. Treadwell
--------------------------------------
David L. Treadwell
Chairman and Chief Executive Officer
(CORPORATE SEAL)
<PAGE> 1
EXHIBIT 10.59
SIXTH AMENDMENT TO LOAN AGREEMENT
(AND LOAN DOCUMENTS)
THIS SIXTH AMENDMENT TO LOAN AGREEMENT (AND LOAN DOCUMENTS) (the
"Amendment"), is made and entered into as of the 18th day of October, 1995 by
MAJOR REALTY CORPORATION (hereinafter referred to as "Borrower") and ACCEPTANCE
INSURANCE COMPANIES INC., a Delaware corporation (hereinafter referred to as
"Lender").
W I T N E S S E T H:
WHEREAS, Borrower and PNC Bank, Kentucky, Inc., a Kentucky
corporation, formerly known as Citizens Fidelity Bank and Trust Company ("PNC")
entered into that certain Loan Agreement dated as of October 11, 1989, as
modified by that certain Amendment to Loan Agreement dated as of November 30,
1990, as further modified by that certain Second Amendment to Loan Agreement
dated as of August 29, 1991, as further modified by that certain Third
Amendment to Loan Agreement dated as of January 31, 1994, as further modified
by that certain Fourth Amendment to Loan Agreement dated as of January 31,
1995, and as further modified by that certain Fifth Amendment to Loan Agreement
dated as of September 1, 1995 (hereinafter together referred to as the "Loan
Agreement") for the purpose of evidencing the terms and conditions subject to
which Lender made a loan to Borrower in the original principal sum of SIXTEEN
MILLION AND NO/100 DOLLARS ($16,000,000.00) (hereinafter referred to as the
"Loan"); and
WHEREAS, the Loan is evidenced by that certain Mortgage Note executed
by Borrower to and in favor of PNC dated October 11, 1989, as modified by that
certain Amendment to Mortgage Note dated as of August 29, 1991, as further
modified by that certain Second Amendment to Mortgage Note dated as of January
31, 1994, as further modified by that certain Third Amendment to Mortgage Note
dated as of January 31, 1995, and as further modified by that certain Restated
and Consolidated Promissory Note of even date herewith (hereinafter together
referred to as the "Note") and is secured by that certain Mortgage Deed and
Security Agreement executed by Borrower to and in favor of PNC dated October
11, 1989, and recorded on October 12, 1989, in Official Records Book 4123, Page
1379, as modified by that certain Amendment to Mortgage Deed and Security
Agreement dated August 29, 1991, and recorded August 30, 1991, in Official
Records Book 4321, Page 983, as further modified by that certain Notice of
Limitation of Future Advances recorded on March 30, 1992, in Official Records
Book 4391, Page 3509, as further modified by that certain Modification of
Mortgage and Security Agreement dated October 5, 1992, and recorded on October
7, 1992, in Official Records Book 4471, Page 2237, as further modified by that
certain Amendment to Mortgage Deed and Security Agreement dated as of January
31, 1994, and recorded March 1, 1994, in Official Records Book 4705, Page 657,
as further modified by that certain Amendment to Mortgage Deed and Security
<PAGE> 2
Agreement dated as of January 31, 1995, and recorded on February 2, 1995, in
Official Records Book 4851, Page 969, as further modified by that certain
Notice of Limitation of Future Advances dated as of January 31, 1995, and
recorded on February 3, 1995, in Official Records Book 4851, Page 3487, and as
further modified by that certain Mortgage and Note Modification Agreement of
even date herewith, all of the Public Records of Orange County, Florida
(hereinafter together referred to as the "Mortgage"); and
WHEREAS, simultaneously with the execution hereof, PNC and Lender have
entered into that certain Master Assignment of Mortgage and Security Agreement
and other Loan Documents whereby PNC has assigned to Lender the Note, the
Mortgage, the Chavez Loan Documents (as defined in the Loan Agreement), the
Cracker Barrel Loan Documents (as defined in the Loan Agreement), and the Loan
Documents; and
WHEREAS, Borrower and Lender have agreed to modify the Loan as herein
provided.
NOW THEREFORE, for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
change, amend and modify the Loan Agreement and Loan Documents as follows:
1. Incorporation of Recitals. The foregoing recitals are true
and correct and are expressly incorporated herein by this reference.
2. Definitions. All capitalized terms not otherwise defined
herein shall have their same respective meanings as contained in the Loan
Agreement.
3. Interest Rate. The interest rate under the Note and Mortgage
is amended to be at a rate per annum equal to one and one-half percent (1-1/2%)
in excess of the prime rate at Citibank, N.A., as announced from time to time
by such financial institution, with any change in such rate to be effective on
the date of such change.
4. Payment of Interest. Interest only on the Note shall be
payable in arrears on the first day of each quarter commencing January 1, 1996
and continuing on the first day of each April, July, October and January
thereafter until May 1, 1998, the maturity date of the Note, at which time the
principal balance together with all accrued and unpaid interest thereon shall
be due and payable in full.
5. Maturity Date. The Note and Mortgage are amended to provide
that the maturity date shall be May 1, 1998; provided, however, that the
maturity date of the Note and Mortgage shall be accelerated in the event of a
Change in Control. For purposes of the Note and Mortgage, a Change of Control
shall be deemed to have occurred:
2
<PAGE> 3
(i) if any person (as used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended ("Exchange
Act") in effect on the date hereof) or any group of persons
acting in concert, other than Borrower, or any subsidiary of
Borrower, or employee benefit plan (as defined in Section 3(3)
of ERISA) maintained by Borrower, or Lender becomes the
"beneficial owner" (as defined in Rule 13d-3 of the Exchange
Act, except that a person also shall be deemed to be the
beneficial owner of all securities which such person may have
a right to acquire, whether or not such right is presently
exercisable) directly or indirectly, of securities of Borrower
representing fifty percent (50%) or more of the combined
voting power of all classes of Borrower's then outstanding
securities ordinarily having the power to vote in the election
of directors; or
(ii) upon the sale, in a single transaction or a series of
related transactions, of fifty percent (50%) of Borrower's
assets as they exist on the date hereof and valued at book
value on the date hereof.
6. Chavez Loan Documents. Acceptance shall receive eighty
percent (80%) of any and all payments made pursuant to the terms and provisions
of the Chavez Note, the Chavez Mortgage and the Chavez Loan Documents. All
such payments shall be made immediately by Borrower to Lender upon receipt by
Borrower of any such payments. To the extent required, Lender will execute
partial releases of the Collateral Assignment - Chavez, provided that no
default exists under the Note, the Mortgage or any of the other Loan Documents.
7. Chavez Loan Documents. Acceptance shall receive eighty
percent (80%) of any and all payments made pursuant to the terms and provisions
of the Cracker Barrel Note, the Cracker Barrel Mortgage and the Cracker Barrel
Loan Documents. All such payments shall be made immediately by Borrower to
Lender upon receipt by Borrower of any such payments. To the extent required,
Lender will execute partial releases of the Collateral Assignment - CB,
provided that no default exists under the Note, the Mortgage or any of the
other Loan Documents.
8. Conditions Precedent. Prior to or contemporaneously with the
execution of this Agreement, the Borrower shall have furnished to the Lender
the following, duly executed and dated to date hereof or such other date as
shall be satisfactory to the Lender, and in form and substance satisfactory to
the Lender:
(a) Opinion Letter. An opinion letter of counsel for the
Borrower, which is in form and substance acceptable to the Lender.
(b) Resolutions. Certified copies of the resolutions of
the Board of Directors of the Borrower, evidencing approval of the execution of
this Agreement, related Loan Documents and other instruments as referred to
herein.
3
<PAGE> 4
(c) Certificate of Borrower. A Certificate of the
Borrower as to such matters as the Lender may elect.
(d) Amendment Documents/Miscellaneous. All the Loan
Documents and such other documents, instruments, certificates or affidavits as
the Lender may reasonably require, duly executed, delivered and recorded, as
appropriate.
(e) Fees and Costs. Borrower shall pay all fees, costs
and expenses, including legal fees, incurred by Lender or otherwise related to
this transaction.
9. Miscellaneous.
(a) In consideration of the agreements of Lender
contained herein, and the benefits received by Borrower pursuant thereto,
Borrower hereby releases, relinquishes and forever discharges Lender and its
successors, assigns, agents, officers, directors, employees, attorneys and
representatives of and from any and all claims, demands, actions and causes of
action of any and every kind of character, whether known or unknown, which
Borrower may have arising out of or with respect to any and all transactions
relating to the Loan and occurring prior to the date hereof.
(b) Borrower hereby ratifies, confirms and reaffirms for
the benefit of Lender all of the covenants, representations, warranties and
agreements of Borrower set forth in the Loan Agreement and in each of the Loan
Documents, all of which are true, correct and effective as of the date hereof.
(c) Except as hereby changed, amended and modified, the
Loan Agreement and each of the Loan Documents shall remain unchanged and in
full force and effect in strict accordance with its terms.
(d) This Amendment shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.
(e) This Amendment may be executed in several
counterparts, each of which shall be treated for all purposes as an original,
and all of which shall be treated as one and the same instrument. This
Amendment will not be binding upon or constitute evidence of an agreement
between the parties hereto until such time as each party has fully executed
this Amendment (or a counterpart hereto) and delivered the same to the other
party to this Amendment.
4
<PAGE> 5
IN WITNESS WHEREOF, Borrower and Lender have caused these presents to
be executed in manner and form sufficient to bind them as of the day and year
first above written.
Signed, sealed and delivered
in the presence of:
MAJOR REALTY CORPORATION,
a Delaware corporation
/s/ Cheryl Dolan By: /s/ David L. Treadwell
- ------------------------------------ -----------------------------
Print Name: Cheryl Dolan David L. Treadwell, Chairman
-----------------------
and Chief Executive Officer
/s/ Lisa Thompson
- ------------------------------------
Print Name: Lisa Thompson (CORPORATE SEAL)
-----------------------
ACCEPTANCE INSURANCE COMPANIES INC.,
a Delaware corporation
/s/ Peter A. Knolla By: /s/ William J. Gerber
- ------------------------------------ ------------------------------
Print Name: Peter A. Knolla William J. Gerber
----------------------- Vice President
/s/ Carol A. Ern
- ------------------------------------
Print Name: Carol A. Ern (CORPORATE SEAL)
-----------------------
5
<PAGE> 1
EXHIBIT 10.60
Return To:
IGAL KNOBLER, P.A.
Broad and Cassel
Barnett Bank Center
P.O. Box 4961
Orlando, Florida 32802-4961
PREPARED BY:
Gregory C. Yadley, Esquire
Shumaker, Loop & Kendrick
Barnett Plaza, Suite 2500
101 East Kennedy Boulevard
Tampa, Florida 33602
MORTGAGE AND NOTE MODIFICATION AGREEMENT
This Agreement made as of the 18th day of October, 1995, by and
between ACCEPTANCE INSURANCE COMPANIES INC., a Delaware corporation, having an
office at 222 South 15th Street, Suite 600 North, Omaha, Nebraska 68102
(hereinafter referred to as "Mortgagee"), and MAJOR REALTY CORPORATION, a
Delaware corporation, having an office at 5728 Major Boulevard, Suite 306,
Orlando, Florida 32819-7996 (hereinafter referred to as "Mortgagor").
The parties recite, declare and agree:
(1) Mortgagee is the holder of that certain Mortgage Deed and
Security Agreement executed by Mortgagor in favor of PNC Bank, Kentucky, Inc.,
a Kentucky corporation, formerly known as Citizens Fidelity Bank and Trust
Company ("PNC"), dated October 11, 1989, and recorded on October 12, 1989, in
Official Records Book 4123, Page 1379, as modified by that certain Amendment to
Mortgage Deed and Security Agreement dated August 29, 1991, and recorded on
August 30, 1991, in Official Records Book 4321, Page 983, as further modified
by that certain Notice of Limitation of Future Advances recorded on March 30,
1992, in Official Records Book 4391, Page 3509, as further modified by that
certain Modification of Mortgage and Security Agreement dated October 5, 1992,
and recorded on October 7, 1992, in Official Records Book 4471, Page 2237, as
further modified by that certain Amendment to Mortgage Deed and Security
Agreement dated as of January 31, 1994, and recorded March 1, 1994, in Official
Records Book 4705, Page 657, as further modified by that certain Amendment to
Mortgage Deed and Security Agreement dated as of January 31, 1995, and recorded
on February 2, 1995, in Official Records Book 4851, Page 969, and as further
modified by that certain Notice of Limitation of Future Advances dated as of
January 31, 1995 and recorded February 3, 1995, in
-1-
<PAGE> 2
Official Records Book 4851, Page 3487, all of the Public Records of Orange
County, Florida, (hereinafter collectively referred to as the "Mortgage"),
which is a lien on the property described in Exhibit "A."
(2) Mortgagee is the owner and holder of that certain Mortgage
Note executed by Mortgagor in favor of PNC dated October 11, 1989, in the
original principal amount of Sixteen Million and No/100 Dollars
($16,000,000.00), as modified by that certain Amendment to Mortgage Note dated
as of August 29, 1991, as further modified by that certain Second Amendment to
Mortgage Note dated as of January 31, 1994, and as further modified by that
certain Third Amendment to Mortgage Note dated as of January 31, 1995, and as
further modified by that certain Restated and Consolidated Promissory Note of
even date herewith (hereinafter collectively referred to as the "Note"),
evidencing a loan by PNC to Mortgagor in such amount (hereinafter referred to
as the "Loan").
(3) Mortgagee is the holder of a Uniform Commercial Code Financing
Statement Form UCC-1 filed on June 1, 1993 at No. 93-0000113664 of the Records
of the Florida Secretary of State (hereinafter referred to as the "State
Financing Statement").
(4) Mortgagee is the holder of a Uniform Commercial Code Financing
Statement Form UCC-1 recorded October 12, 1989 in Official Records Book 4123,
Page 1454, amended by a Uniform Commercial Code Continuation Financing
Statement Form UCC-3 recorded September 29, 1994 in Official Records Book 4802,
Page 789, together with that certain Uniform Commercial Code Financing
Statement Form UCC-1 recorded May 26, 1993 in Official Records Book 4567, Page
2802, all in and upon the Public Records of Orange County, Florida (together
with the State Financing Statement hereinafter collectively referred to as the
"Financing Statement").
(5) Documentary stamps have been paid and cancelled on the Note.
(6) The Note was endorsed over and delivered to Mortgagee by PNC,
and the Mortgage was assigned and delivered to Mortgagee by PNC on even date
hereof.
(7) Mortgagee presently holds the Note and the Mortgage and is
legally entitled to enforce collection of the indebtedness evidenced and
secured thereby in accordance with the terms therein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
-2-
<PAGE> 3
1. The foregoing recitals are made a part of this Mortgage and
Note Modification Agreement as if they were more specifically set forth below.
2. All of the terms and conditions of the Financing Statement
shall remain in full force and effect.
3. The Note hereby is modified and amended as follows:
A. The maturity date shall be May 1, 1998; provided,
however, that the maturity date of this Note shall be accelerated in
the event of a Change of Control. For purposes of this Note, a Change
of Control shall be deemed to have occurred:
(1) if any person (as used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended ("Exchange Act") in
effect on the date hereof) or any group of persons acting in concert,
other than Mortgagor, or any subsidiary of Mortgagor, or employee
benefit plan (as defined in Section 3(3) of ERISA) maintained by
Mortgagor, or Mortgagee becomes the "beneficial owner" (as defined in
Rule 13d-3 of the Exchange Act, except that a person also shall be
deemed to be the beneficial owner of all securities which such person
may have a right to acquire, whether or not such right is presently
exercisable) directly or indirectly, of securities of Mortgagor
representing fifty percent (50%) or more of the combined voting power
of all classes of Mortgagor's then outstanding securities ordinarily
having the power to vote in the election of directors; or
(2) upon the sale, in a single transaction or a series of
related transactions, of fifty percent (50%) or more of Mortgagor's
assets as they exist on the date hereof and valued at book value on
the date hereof.
B. Interest on the unpaid principal balance of this Note
shall be computed on a daily basis, based upon a three hundred sixty
(360) day year, and shall be paid upon the actual number of days upon
which the principal balance remains outstanding from time to time, at
a rate per annum equal to one and one-half percent (1-1/2%) in excess
of the "prime rate" of Citibank, N.A., as announced from time to time
by such financial institution (with any change in such rate to be
effective on the date of any such change). Interest in the foregoing
amount shall be payable quarterly in arrears on the first day of
January, April, July and October, commencing January 1, 1996.
4. The Mortgage hereby is modified and amended as follows:
-3-
<PAGE> 4
A. The maturity date shall be May 1, 1998; provided,
however, that the maturity of this Mortgage shall be accelerated in
the event of a Change in Control. For purposes of this Mortgage, a
Change in Control shall be deemed to have occurred:
(1) if any person (as used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, as amended ("Exchange Act") in
effect on the date hereof) or any group of persons acting in concert,
other than Mortgagor, or any subsidiary of Mortgagor, or employee
benefit plan (as defined in Section 3(3) of ERISA) maintained by
Mortgagor, or Mortgagee becomes the "beneficial owner" (as defined in
Rule 13d-3 of the Exchange Act, except that a person also shall be
deemed to be the beneficial owner of all securities which such person
may have a right to acquire, whether or not such right is presently
exercisable) directly or indirectly, of securities of Mortgagor
representing fifty percent (50%) or more of the combined voting power
of all classes of Mortgagor's then outstanding securities ordinarily
having the power to vote in the election of directors; or
(2) upon the sale, in a single transaction or a series of
related transactions, of fifty (50%) or more of Mortgagor's assets as
they exist on the date hereof and valued at book value on the date
hereof.
B. Provided that no default exists under the Mortgage,
the Note or any of the Loan Documents, as hereinafter defined,
Mortgagor shall be entitled to partial releases upon payment of the
appropriate prices as set forth in the Loan Agreement, as hereinafter
defined.
C. All references in the Mortgage to the Note shall be
deemed to mean the Restated and Consolidated Promissory Note, of even
date herewith, in the principal amount of FIVE MILLION SIXTY-FOUR
THOUSAND ONE HUNDRED FORTY-FOUR AND 29/100 DOLLARS ($5,064,144.29).
5. The indebtedness evidenced by the Note and Mortgage, as
modified by this Agreement, shall continue to be secured by the Mortgage, as
modified. Mortgagor and Mortgagee agree that to the extent, if any, that this
Agreement increases Mortgagor's obligation under the Note, said increases are
future advances as contemplated by the Note and Mortgage.
6. Nothing set forth in this Agreement shall be construed or
deemed to release or discharge any liens or rights or remedies that Mortgagee
heretofore had, may now have or may hereafter acquire against any property,
Mortgagor or any other person who is now or may
-4-
<PAGE> 5
hereafter become liable to Mortgagee upon any debt affected by this Agreement
and Mortgagee hereby expressly reserves its rights against any such party and
property.
7. Mortgagor hereby acknowledges that (i) Mortgagor has no
defense, offset or counterclaim with respect to the payment of any sum owed to
PNC or Mortgagee, or with respect to any covenant in the Note or the Mortgage;
(ii) each of PNC and Mortgagee, on and as of the date hereof, has fully
performed all obligations to Mortgagor which it may have had or has on and as
of the date hereof; (iii) other than as expressly set forth herein, by entering
into this Agreement, Mortgagee does not waive any condition or obligation in
the Note or the Mortgage; and (iv) if Mortgagee shall waive or fail to enforce
any of the conditions or provisions of the Agreement, the Note or the Mortgage,
such waiver shall not be deemed to be a continuing waiver and shall never be
construed as such, and Mortgagee shall at any time, without further or other
notice, (regardless of any prior waiver by Mortgagee or default of Mortgagor or
delay of Mortgagee in exercising any right, privilege or option) have the right
to insist upon the enforcement of such conditions or provisions.
8. Mortgagor will do, execute and deliver, or will cause to be
done, executed and delivered all such further acts, documents (including
certificates, declarations, affidavits, reports and opinions) and things as
Mortgagee may reasonably request for the purpose of giving effect to this
Agreement or for the purpose of establishing compliance with the
representations, warranties and conditions of this Agreement.
9. Any provision in this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
10. All of the terms and conditions of the Mortgage and the other
loan documents executed in connection therewith (the "Loan Documents"), other
than as herein modified, shall remain in full force and effect. In the event
of any conflict or inconsistency between (a) any of the terms of that certain
Loan Agreement dated as of October 11, 1989, between Mortgagor and PNC, as
modified by that certain Amendment to Loan Agreement dated as of November 30,
1990, as further modified by that certain Second Amendment to Loan Agreement
dated as of August 29, 1991, as further modified by that certain Third
Amendment to Loan Agreement dated as of January 31, 1994, as further modified
by that certain Fourth Amendment to Loan Agreement dated as of January 31,
1995, as further modified by that certain Fifth Amendment to Loan Agreement
dated as of September 1, 1995 and as further amended by that certain Sixth
Amendment to Loan Agreement of even date herewith (hereinafter collectively
referred to as the "Loan Agreement"), and (b) any provision of this Agreement
or the Note, the terms of this Agreement and the Note shall prevail and be
controlling.
-5-
<PAGE> 6
11. If any provision of this Agreement or any other Loan Document
or the application thereof shall, for any reason and to any extent, be invalid
or unenforceable, neither the remainder of the instrument in which such
provision is contained, nor the application of the provision to other persons,
entities or circumstances, nor any other instrument referred to hereinabove
shall be affected thereby, but instead shall be enforced to the maximum extent
permitted by law.
12. It is the intent of the parties that this instrument shall not
constitute a novation and shall in no way adversely affect the lien priority of
the Mortgage or the Loan Documents. In the event that this Agreement or any
part hereof shall be construed by a court of competent jurisdiction as
operating to affect the lien priority of the Mortgage or the Loan Documents or
any of them over the claims which would otherwise be subordinate thereto, then,
to the extent so ruled by such court and to the extent that third persons
acquiring an interest in such property as is encumbered by the Mortgage or the
respective Loan Documents between the time of execution of the Mortgage or the
Loan Documents and the execution hereof are prejudiced thereby, this Agreement
or such portion hereof as shall be so construed shall be void and of no force
and effect and this Agreement shall constitute, as to that portion, a
subordinate lien on the collateral described therein, incorporating by
reference the terms of the Mortgage or the Loan Documents and which Mortgage or
Loan Documents then shall be enforced pursuant to the terms therein contained,
independent of this Agreement; provided, however, that notwithstanding the
foregoing, the parties hereto, as between themselves, shall be bound by all
terms and conditions hereof until all indebtedness owing from Mortgagor to
Mortgagee shall have been paid in full.
13. No provision in this Agreement, the Note or the Mortgage shall
be amended, waived, modified, discharged or terminated except by an instrument
in writing and signed by the parties hereto.
14. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their heirs, personal representatives,
successors and assigns.
15. This Agreement and all documents delivered pursuant hereto
shall unless otherwise stated be governed by and construed in accordance with
the laws of the State of Florida.
-6-
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Signed, sealed and delivered
in the presence of:
MAJOR REALTY CORPORATION,
a Delaware corporation
/s/ Cheryl Dolan By: /s/ David L. Treadwell
- ------------------------------------ --------------------------------
Print Name: Cheryl Dolan David L. Treadwell, Chairman and
-----------------------
Chief Executive Officer
/s/ Lisa Thompson
- ------------------------------------
Print Name: Lisa Thompson (CORPORATE SEAL)
-----------------------
STATE OF Michigan
------------
COUNTY OF Wayne
-----------
The foregoing instrument was acknowledged before me this _17__ day of
October_________, 1995, by David L. Treadwell, Chairman and Chief Executive
Officer of MAJOR REALTY CORPORATION, a Delaware corporation, on behalf of the
corporation. He/she is personally known to me or has produced ________________
as identification and who did/did not take an oath.
/s/ Lisa Thompson
----------------------------------
(Signature of Notary Public)
Lisa Thompson
----------------------------------
(Typed name of Notary Public)
Notary Public, State of Michigan
----------
Commission No.
--------------------
My commission expires:
-7-
<PAGE> 8
ACEPTANCE INSURANCE COMPANIES INC.,
a Delaware corporation
/s/ Carol A. Ern By: /s/ William J. Gerber
- ---------------------------------------- -------------------------------
Print Name: Carol A. Ern William J. Gerber
----------------------- Vice President
/s/ Sandra R. Sealock
- ---------------------------------------
Print Name: Sandra R. Sealock (CORPORATE SEAL)
-----------------------
STATE OF Nebraska
--------
COUNTY OF Douglas
----------------
The foregoing instrument was acknowledged before me this _16th day of
_October________, 1995, by William J. Gerber, Vice President of ACCEPTANCE
INSURANCE COMPANIES INC., a Delaware corporation, on behalf of the corporation.
He/she is personally known to and who did take an oath.
/s/ Peter A. Knolla
---------------------------------
(Signature of Notary Public)
Peter A. Knolla
----------------------------------
(Typed name of Notary Public)
Notary Public, State of
-----------
Commission No.
--------------------
My commission expires:
-8-
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