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EXHIBIT 99.3
FUTURE ADVANCE MORTGAGE
[Store No. 151 - Sterling Heights, MI)
THIS FUTURE ADVANCE MORTGAGE (hereinafter referred to as the
"Mortgage") is made and entered into as of this 5th day of June, 2001 by and
between COOKER RESTAURANT CORPORATION, an Ohio corporation whose address is 2609
West End Avenue, Nashville, Tennessee 37203 (the Grantor herein and hereinafter
referred to as the "Mortgagor") and ROBERT K. ZELLE, an individual whose address
is 1209 Chickering Road, Nashville, Tennessee 37215 (the Grantee herein and
hereinafter referred to as "Mortgagee"), under the following circumstances:
RECITALS
A. On May 25, 2001, Mortgagor, CGR Management Corporation, a Florida
corporation (herein "CGR") and Southern Cooker Limited Partnership, an Ohio
limited partnership (herein "SCLP") each filed a voluntary petition in
bankruptcy under Chapter 11, United States Bankruptcy Code in the United States
Bankruptcy Court, S.D. (OH), E.D. (herein "Bankruptcy Court") as Bankruptcy
Court Case Nos. 01-56156 (Mortgagor), 01-56158 (SCLP), and 01-56160 (CGR)
[jointly administered under Case No. 01-56156], which shall hereinafter be
referred to as the "Bankruptcy Case". Pursuant to the Bankruptcy Case, Mortgagor
is a debtor-in-possession of assets owned at the time the Bankruptcy Case was
filed. The loan evidenced by the hereafter defined "Note" is made pursuant to
order of the Bankruptcy Court in the Bankruptcy Case entered on or about the
date of this Mortgage which order is hereby incorporated by this reference in
its entirety and the order and "Term Sheet" forming a part of or incorporated
into said order shall hereinafter be referred to as the "Loan Agreement". To the
extent that this Mortgage conflicts with the Loan Agreement, the provisions of
the Loan Agreement shall control for all purposes.
B. On the date hereof, Mortgagor is the sole owner of improved real
estate located in THE CITY OF STERLING HEIGHTS, MACOMB COUNTY, MICHIGAN more
particularly described in EXHIBIT A, consisting of one (1) sheet, which exhibit
is attached hereto, by this reference made a part hereof and which shall
hereinafter be referred to as the "Property". The term "Property" does not
include furniture, fixtures and equipment subject to a first security interest
granted by Mortgagor to The CIT Group/Equipment Financing, Inc. of prior record.
C. This Mortgage is given to secure (i) Mortgagor's performance of the
Loan Agreement, and (ii) payment of a certain "Promissory Note" of even date
herewith from Mortgagor, CGR and SCLP, jointly an severally as "Maker", to
Mortgagee, as "Payee", in the principal amount of One Million and no/100 Dollars
($1,000,000.00), which is hereby incorporated by this reference and has
heretofore and shall hereinafter be respectively referred to as the "Note".
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PROVISIONS
NOW, THEREFORE, for valuable consideration paid and in consideration of
the loan made by Mortgagee to Mortgagor as evidenced by the "Note" previously
described and incorporated in the Recitals, next above (which Recitals portion
of this Mortgage is hereby incorporated herein in its entirety by this
reference), Mortgagor hereby grants and conveys to Mortgagee the Property,
together with all privileges and appurtenances to the same belonging, and all
rents, issues and profits thereof and therefrom.
This Mortgage is given, upon the "statutory condition" (hereafter
defined), to secure performance of the Loan Agreement and payment of the Note in
accordance with its terms. In addition to any other debt or obligation secured
hereby, this Mortgage shall secure unpaid balances of advances made for payment
of taxes, assessments, insurance premiums or other costs, if any, incurred by
Mortgagee for the protection of the Property, together with interest thereon as
hereinafter provided. This Mortgage is a "Future Advance Mortgage" within the
meaning of Act. No. 348 of Michigan Public Acts of 1990, MCL 565.901 et seq., as
amended from time to time. ALL EXITING AND FUTURE OBLIGATIONS OF MORTGAGOR TO
THE MORTGAGEE, INCLUDING THOSE UNDER THE NOTE, THE LOAN AGREEMENT AND THIS
MORTGAGE INCLUDING FUTURE ADVANCES WHETHER OR NOT THIS MORTGAGE OR THE NOTE
EVIDENCES SUCH, ARE SECURED HEREBY.
"Statutory condition" is defined in Section 5302.14 of the Ohio Revised
Code and provides generally that if Mortgagor pays the principal and interest
secured by this Mortgage, performs the other obligations secured hereby, pays
all taxes and assessments, maintains insurance against fire and other hazards,
and does not commit or suffer waste, then this Mortgage shall be and become
void.
It is a further condition of this Mortgage, and Mortgagor hereby
covenants and agrees as follows:
1. This Mortgage is made subject to, and there are excepted from the
mortgage covenants, the following:
(a) All easements, conditions, restrictions, reservations,
covenants, taxes, liens, assessments and encumbrances of prior record
disclosed in First American Title Insurance Company's Loan Policy
Commitment No. 229551 bearing effective date of March 20, 2001;
(c) Zoning and building laws, ordinances, resolutions and
regulations; and
(c) The Bankruptcy Case and Loan Agreement made thereunder.
Except as expressly previously set forth in subparagraph (a), (b) and
(c) of this paragraph, Mortgagor represents and warrants that the Property is
free and clear of any liens, charges, encumbrances, security interests, and
adverse claims whatsoever. If the interest of Mortgagee in the Property or any
part thereof shall be challenged or attacked, directly or indirectly, Mortgagor
hereby
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authorizes Mortgagee at Mortgagor's expense, to take all necessary and proper
steps for the defense of such interest, including the employment of counsel, the
prosecution or defense of litigation, and the compromise or discharge of claims
made against such interest.
2. Mortgagor shall promptly and fully pay all taxes and assessments
against the Property and maintain the Property in good order and condition and
not commit or suffer waste of the Property. In addition to any other remedy,
Mortgagee shall have the right, but not the obligation, to pay any taxes and
assessments which may become due and unpaid by Mortgagor and to advance other
amounts, if necessary, for the protection of the Property. All sums advanced or
paid pursuant to the preceding sentence shall bear interest, from the date of
such payment by the Mortgagee until repaid by the Mortgagor, at the "Default
Rate" of interest provided in the Note, and such sums (together with said
interest) shall be secured by this Mortgage and payable on demand. Provided,
however, Mortgagee shall not advance any sum for payment of any of the items
previously specified in this paragraph 2. until not less than five (5) days
after Mortgagee gives written notice to Mortgagor of Mortgagee's intent to do
so.
3. If one or more of the following events ("defaults") shall occur,
namely, (a) Mortgagor fails to pay the Note, or any part thereof, when due in
accordance with its terms, or (b) Mortgagor fails to pay, when due, any other
sum payable hereunder or secured hereby, or (c) Mortgagor fails to fully perform
each and every one of Mortgagor's obligations, covenants or agreements contained
in this Mortgage or contained in either the Note or the Loan Agreement, then,
and in any such event, all of the indebtedness secured hereby shall become and
be immediately due and payable, at the option of Mortgagee, provided that
Mortgagee has given such notice, if any, required to be given pursuant to the
Note and/or Loan Agreement and Mortgagor has failed to cure the noticed default
within the time period it is granted to cure the default as specified in the
Note and/or Loan Agreement, if any. In addition to any other right or remedy
which Mortgagee may now or hereafter have by law, Mortgagee shall have the right
to: (i) foreclose this Mortgage; (ii) enter upon and take possession of the
Property or any part thereof, and to perform any act Mortgagee deems necessary
or proper to conserve the security of the Property, and to collect and receive
all rents, issues and profits thereof, including those past due as well as those
accruing thereafter; and (iii) apply without notice, which notice Mortgagor
hereby expressly waives, for the appointment of a receiver of the rents and
profits of the Property, as a matter of right without consideration of the value
of the Property as security for the amount due Mortgagee, or the solvency of any
person or persons liable for the payment of such amounts. Mortgagee shall, after
payment of all costs and expenses incurred by it, apply such rents, issues and
profits received by it on the indebtedness secured hereby in such order as
Mortgagee determines. The rights to enter and take possession of the Property,
to manage and operate the same, and to collect and apply the rents, issue and
profits thereof, whether by a receiver or otherwise, shall be cumulative and in
addition to any other right or remedy hereunder, or now or hereafter existing in
law or in equity or by statute, and may be exercised concurrently therewith and
independently thereof.
4. If, without prior written consent of Mortgagee (which consent may be
withheld by Mortgagee under all circumstances), a sale, transfer, assignment or
encumbrance occurs affecting all or any part of the Property or any legal or
equitable interest therein, including, without limitation, (i) any land
installment contract, (ii) agreement for deed or lease with option to purchase,
or (iii) the sale, transfer or assignment (whether voluntarily or by operation
of law) of the interest of all or any
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portion of the Mortgagor's interest in the Property occurs, then the Note shall
become due and payable at the election of the Mortgagee and foreclosure
proceedings may be instituted.
5. Mortgagor shall not, without the prior written consent of Mortgagee
(which consent may be withheld by Mortgagee under all circumstances), grant any
lien, security interest, or other encumbrance covering or affecting any of the
Property.
6. As additional security for payment of the Note and this Mortgage,
the Mortgagor does hereby assign to Mortgagee any and all casualty insurance
proceeds or condemnation settlements or awards receivable by the Mortgagor for
any casualty occurring on or affecting any portion of the Property or
condemnation or eminent domain award or compensation for the taking or
threatened taking of any portion of the Property. Any such payments received by
the Mortgagee shall be deemed a payment made pursuant to the Note and shall be
applied in accordance with the terms of the Note.
7. Mortgagor hereby represents and warrants to the Mortgagee that: (a)
no toxic or hazardous material, condition or substance (as the foregoing are
defined in applicable federal and state statutes, rules and regulations) exists
in, on, about or forms a part of the Property on the date hereof and none shall
be created, stored or permitted to arise or exist during the period that
Mortgagor owns the Property; (b) the Property is not now nor shall it be during
Mortgagor's ownership subject to any lien or charge of any governmental or
quasi-governmental environmental department, agency, bureau, board or
commission; and (c) no permit or license is, has been or shall be required from
the United States Environmental Protection Agency, Ohio Environmental Protection
Agency or similar governmental department, agency, bureau, board or commission
for the use or improvement of the Property as it now exists or is hereafter
improved. No summons or citation has been issued by any such governmental
environmental department, agency, bureau, board or commission for the payment of
or reimbursement for costs incurred under (i) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, (ii) the Superfund
Amendment and Reauthorization Act of 1986, as amended, or (iii) any other
similar governmental or quasi-governmental statute, rule or regulation, and no
inquiry concerning the Property has been made by any governmental environmental
department, agency, bureau, board or commission with respect to the foregoing.
Mortgagor agrees to and shall indemnify, defend and hold harmless Mortgagee from
and against any liability, claim, obligation or loss, including reasonable
attorneys' fees, incurred by Mortgagee or assessed against the Property by
virtue of any claim or lien of any governmental or quasi-governmental
department, agency, bureau, board or commission or any third party for clean-up
costs or other costs pursuant to (i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as now or hereafter amended, (ii) the
Superfund Amendment and Reauthorization Act of 1986, as now or hereafter
amended, and (iii) any other similar statute, law, rule or regulation of any
governmental or quasi-governmental department, agency, bureau, board or
commission. The provisions of this paragraph 7. shall survive the repayment of
the Note and shall continue in full force and effect so long as the possibility
of any such liability, claim, obligation or loss exists, and shall further
survive the acquisition of the Property by Mortgagee pursuant to a sale or
foreclosure under this Mortgage or pursuant to a deed in lieu of foreclosure or
otherwise. If any hazardous waste materials of any kind whatsoever are
discovered upon the Property, Mortgagee shall have the right, but not the
obligation, to reassign or reconvey the Property to Mortgagor notwithstanding
that Mortgagee has acquired title to the Property.
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8. All of the covenants and conditions hereof shall run with the land
and shall be binding upon the successors and assigns of Mortgagor, and inure to
the benefit of the successors and assigns of Mortgagee. Any reference herein to
"Mortgagee" shall include the successors and assigns of Mortgagee.
9. This Mortgage shall be subject to and governed and construed in
accordance with the laws of the State of Ohio to the extent that said laws do
not conflict with the laws of Michigan or limit, diminish, or impair the
security of this Mortgage or interfere with or prolong the right of Mortgagee to
foreclose this Mortgage and realize the security of this Mortgage; otherwise,
the laws of the State of Michigan shall control. Notwithstanding the foregoing
sentence, all foreclosure and remedial laws (including procedural) of the State
of Michigan shall govern foreclosure of this Mortgage.
10. Any notice required or permitted to be given hereunder shall be
given in the manner and at the addresses set forth in the Note.
11. WAIVER OF RIGHTS REGARDING SALE BY ADVERTISEMENT. The Mortgagor
understands, acknowledges, and agrees that, upon occurrence of any default, the
Mortgagee has the right, at Mortgagee's option, to foreclose this Mortgage by
advertisement pursuant to relevant Michigan statutes and that such statutes
provide for notice of a sale solely by advertisement and posting and afford no
right to a hearing to the Mortgagor. The Mortgagor hereby voluntarily and
knowingly agrees and consents to the right of the Mortgagee, at Mortgagee's
option, to foreclose this Mortgage by advertisement and waives its rights, if
any, under the Constitution of the United States and/or the State of Michigan to
notice or a hearing regarding such foreclosure by advertisement, except for the
notice requirements described in the Michigan statutes providing for such sale.
IN WITNESS WHEREOF, the Mortgagor, COOKER RESTAURANT CORPORATION, has
caused this Mortgage to be executed by its duly authorized undersigned officer
and caused this Mortgage to be delivered in Columbus, Franklin County, Ohio to
be effective as of the day and year first above set forth.
Signed, Acknowledged and COOKER RESTAURANT CORPORATION, an Ohio
Delivered in the Presence of: corporation ("Mortgagor")
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Print Name: By:
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Henry R. Hillenmeyer, Chairman and
Chief Executive Officer
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Print Name:
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STATE OF OHIO
COUNTY OF FRANKLIN, SS:
The foregoing instrument was acknowledged before me this 5TH day of
June, 2001 by Henry R. Hillenmeyer, Chairman and Chief Executive Officer of
COOKER RESTAURANT CORPORATION, an Ohio corporation, on behalf of the corporation
for the uses and purposes therein set forth.
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Notary Public
Print/Stamp Name:
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(Notarial Seal) My Commission Expires:
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THIS INSTRUMENT PREPARED BY:
James F. Hadley, Esquire
James F. Hadley Co., L.P.A.
6556 Carrietowne Lane East
Toledo, OH 43615-1767
RECORD AND RETURN TO:
Deborah Deacon Odette, Esquire
First American Title Insurance Company
755 West Big Beaver Rd. - Suite 700
Troy, MI 48084
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