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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
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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 ▇▇▇▇▇▇ 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:
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(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. ▇▇▇▇▇▇ Loan Documents. Acceptance shall receive eighty
percent (80%) of any and all payments made pursuant to the terms and provisions
of the ▇▇▇▇▇▇ Note, the ▇▇▇▇▇▇ Mortgage and the ▇▇▇▇▇▇ 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 - ▇▇▇▇▇▇, provided that no
default exists under the Note, the Mortgage or any of the other Loan Documents.
7. ▇▇▇▇▇▇ 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.
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(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.
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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/ ▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chairman
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and Chief Executive Officer
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ (CORPORATE SEAL)
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ACCEPTANCE INSURANCE COMPANIES INC.,
a Delaware corporation
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------- Vice President
/s/ ▇▇▇▇▇ ▇. Ern
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Print Name: ▇▇▇▇▇ ▇. Ern (CORPORATE SEAL)
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