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EXHIBIT 10.57
Prepared By and Return To:
XXXX XXXXXXX, P. A.
Broad and Xxxxxx
Xxxxxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
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 000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx
00000, to and in favor of MAJOR REALTY CORPORATION, A DELAWARE CORPORATION (the
"Mortgagee"), whose mailing address is 0000 Xxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000.
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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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
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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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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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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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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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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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(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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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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(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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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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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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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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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/ Xxxxxx X. 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:
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EXHIBIT "A"
LEGAL DESCRIPTION
Xxx 0 xxx Xxx 0, XXXXXXX XXXXXX, according to the plat thereof as recorded in
Plat Book 35, Page 1, Public Records of Orange County, Florida.
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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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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 0000 Xxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 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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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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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:
000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Vice President-Development
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