WAIVERS AND AGREEMENT
TO AMEND AND RESTATE
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THIS WAIVERS AND AGREEMENT TO AMEND AND RESTATE (this "Agreement") made
as of this 30th day of June, 1999, by and among CNL APF PARTNERS, LP, a
Delaware limited partnership ("APF"), DENAMERICA CORP., a Georgia corporation
("DenAmerica"), and BLACK-EYED PEA U.S.A., INC., a Texas corporation ("BEP").
In addition, DENAM, INC., a Delaware corporation, ("DenAm") joins herein to
acknowledge that it will execute certain of the Form Documents (as
hereinafter defined) in connection with the Restatement (as hereafter
defined) and as set forth in that certain Commitment letter from CNL
Financial Services, Inc. to DenAm, Inc. for a loan in the amount of
$17,100,000.00 dated April 14, 1999, as assigned to APF and amended by that
certain amendment thereto dated as of June 30, 1999 and that certain
Commitment letter from CNL Fund Advisors, Inc. to DenAmerica for a loan in
the amount of $3,000,000.00 dated April 14, 1999, as assigned to APF and
amended by that certain amendment thereto dated as of June 30, 1999.
W I T N E S S E T H
WHEREAS, DenAmerica entered into financing arrangements under (i) that
certain Amended and Restated Credit Agreement dated as of July 3, 1996 (the
"BP Agreement") with certain "Banks" named therein, including Banque Paribas
(now known as Paribas, ("Paribas")), also as "Agent" under such BP Agreement
(as amended, restated, supplemented or otherwise modified to the date
hereof), and (ii) all the related Loan Documents (as such term is defined in
the BP Agreement) (the BP Agreement and the Loan Documents herein
collectively, the "Credit Agreement"); and
WHEREAS, the parties to the Credit Agreement have concurrently herewith
assigned the rights and obligations of the "Agent" and the "Banks" under the
Credit Agreement to APF and APF has accepted such assignment, in accordance
with the terms and conditions of that certain Omnibus Agreement dated as of
the date hereof by and among such parties and APF (the "Omnibus Agreement"),
which assignment of the Credit Agreement after giving effect thereto is
herein, sometimes referred to herein as the "Credit Assignment"; and
WHEREAS, each of the parties hereto desire to enter into certain further
transactions following the Credit Assignment on or before August 31, 1999 in
order to amend and restate the financing of DenAmerica's (and certain of its
affiliates) currently existing obligations under the Credit Agreement and
other financing arrangements by DenAmerica (and/or certain of its affiliates)
and the other parties hereto, all in accordance with the terms and provisions
of that certain commitment letter by CNL Fund Advisors, Inc. to DenAmerica
dated April 14, 1999, as assigned to APF and as amended by that certain
amendment thereto dated as of June 30, 1999 (the "Equipment Commitment") and
that certain commitment letter by CNL Financial Services, Inc. to DenAmerica
dated April 14, 1999, as assigned to APF and amended by that certain
amendment thereto dated as of June 30, 1999 ("Debt Commitment" and, together
with the Equipment
Commitment, herein, collectively, the "Commitments") (the Debt Commitment is
attached hereto as Exhibit A-1 and the Equipment Commitment is attached
hereto as A-2); and
NOW THEREFORE, in consideration of the foregoing and the mutual benefits
accruing to the parties hereto, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto do hereby agree as follows:
1. CREDIT ASSIGNMENT, INTERIM NOTE AND CONSOLIDATION NOTE.
1.1 In connection with the Credit Assignment, APF will fund the
"Purchase Price" (as such term is defined in the Omnibus Agreement) and
provide certain other funds to, or on behalf of, DenAmerica, as set forth on
Schedule I attached hereto and incorporated by this reference. To evidence
the indebtedness, DenAmerica shall execute the Interim Balloon Promissory
Note in the form attached hereto as Exhibit "B-1" (the "Interim Note") and
the Consolidated Interim Balloon Promissory Note in the form attached hereto
as Exhibit "B-2" (the "Consolidated Interim Note") which will consolidate the
Interim Note; the notes outstanding under the Credit Agreement upon the
assignment to APF; and that certain $2,200,000.00 Note dated effective as of
June 30, 1998 executed by DenAmerica in favor of APF. The Consolidated
Interim Note shall be secured by the collateral described in the Credit
Agreement and by the Loan Documents.
2. ESCROW. Simultaneously with its execution of this Agreement and
consummation of
the Credit Assignment, certain proceeds as set forth on the attached Schedule
I, shall be held by Lawyers Title Insurance Corporation or one of its
affiliates ("Escrow Agent") for the benefit of APF. Escrow Agent shall hold
such funds in escrow and shall not release or disburse the same except in
accordance with the terms and conditions of that certain Escrow Agreement
dated as of the date hereof between Escrow Agent, APF and DenAmerica.
3. FORM DOCUMENTS.
3.1. Commitments and Form Documents. The parties hereto each
acknowledge
and agree that the form documents attached hereto as Exhibits B-1 through G-3
(form of APF XXX Note; form of APF Equipment Note; Form of APF Mortgage;
Consolidated, Amended and Restated Security Agreement; Stock Pledge
Agreement, DenAmerica Corp. Guaranty of APF XXX Note; BEP Guaranty of the APF
XXX Note; and BEP Guaranty of the $4,400,000.00 5-Year 5% Convertible
Redeemable Debenture in favor of CNL Growth Corp. and $7,700,000.00
Promissory Note (Subordinated) in favor of CNL Growth Corp. respectively)
(together the "Form Documents") shall be the form of documentation (together
with APF's standard related ancillary documentation which is executed in
connection with similar loans, including, UCC financing statements,
assignments of warranties and similar
ancillary loan documents)to be executed to consummate the transactions
contemplated by the Commitments and, in connection therewith, the amendment
and restatement of the existing Credit Agreement and related Loan Documents.
Promptly after the date hereof and, in any event, on or before August 31,
1999 (unless extended in writing by the APF for such period as it deems
reasonable), DenAmerica, BEP, and DenAm, APF and the other parties hereto
shall execute the documentation referenced above necessary to restructure the
debt of DenAmerica under the Credit Agreement and certain the existing
obligations to effect the transactions contemplated by the
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Commitments (the "Restatement"). The parties hereto each further acknowledge
and agree that such Form Documents shall be subject only to modifications
which DenAmerica's local counsel have indicated are reasonably necessary or
advisable to comport with local law requirements to ensure or enhance APF's
security interest with respect to the collateral or to otherwise conform the
Documents to the amendments to the Commitments.
3.2 Obligations under Form Documents and Rights under Credit
Agreement. The parties hereto further acknowledge and agree that from the
date of this Agreement, APF and DenAmerica intend to be bound by the terms
and provisions of the Commitments, Consolidated Interim Note, and Form
Documents (but only to the extent that the provisions of the Form Documents
are to be binding upon DenAmerica, BEP, or DenAm, as applicable).
Notwithstanding the foregoing sentence, until the consummation of the
Restatement, APF shall have the exclusive right to enforce the terms of the
Credit Agreement with respect to the property and interests in property, real
or personal, tangible or intangible, now owned or hereafter acquired by
DenAmerica which are subject to a lien under the Credit Agreement, and
including, without limitation, all proceeds of such property and interests in
such property. Further, after a payment default or other material default
(not including any financial covenant default) APF may exercise and enforce
all privileges and rights under the Credit Agreement, the Form Documents,
Consolidated Interim Note or the Commitments, in its sole discretion and
exercise of its business judgment, including the exclusive right to take or
retake control of possession of the collateral and to hold, prepare for sale,
process, sell, lease, dispose of, or liquidate or otherwise take action in
accordance with the provisions of the Credit Agreement. Further, in the
event of a conflict between the provisions of the Credit Agreement and the
Form Documents, the parties hereto agree that the provisions of the Form
Documents shall be controlling, except to the extent necessary in the event
of a payment default or other material default (not including any financial
covenant default) to exercise any available remedies or realize upon any
collateral, in which event the terms of the Credit Agreement shall control.
3.3. Execution of Form Documents. DenAmerica, BEP and DenAm agree that
they shall execute all of the Form Documents in connection with the
Restatement in the forms attached hereto (with the blanks filled in with the
appropriate information) and with the addition of any local law requirements
necessary to effectuate the intent of the documentation and to afford APF the
protections contemplated by such documentation or to otherwise conform the
Form Documents to the amendments to the Commitments.
4. REPRESENTATIONS, WARRANTIES, COVENANTS AND WAIVERS.
4.1 Representations and Warranties. DenAmerica represents and warrants
to APF that:
(a) this Agreement constitutes the legal, valid and binding obligations
of DenAmerica, enforceable in accordance with its terms;
(b) it has no knowledge of any claim, set-off right or defense available
to it in respect of the Credit Agreement, the related notes or any other Loan
Document, or in respect of the performance of any of its rights and
obligations in connection with, or contemplated by, the Credit Agreement, the
related notes or any other Loan Document;
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(c) neither it nor any of its affiliates will directly or indirectly
assert any claim, set-off right or defense which might at any time be
available to it or any of its affiliates in respect of the Credit Agreement,
the related notes, or any other Loan Documents based on any fact,
circumstance or condition on or prior to the date hereof, or based upon the
conduct of any person (including, without limitation, conduct related to the
diligent enforcement of any rights or remedies under or in connection with
the Credit Agreement and any other Loan Documents) on or prior to the date
hereof;
(d) the aggregate outstanding due and owing by DenAmerica; on the
Effective Date is $14,660,844.03, which includes principal, accrued
interest and attorney's fees;
4.2 Covenants and Waivers. As an inducement to DenAmerica's and BEP's
execution hereof, APF hereby waives any and all defaults of DenAmerica or BEP
or any of their respective affiliates under the terms and provisions of the
Credit Agreement or the Loan Documents as of the date hereof, and further
waives any financial covenant defaults or non-material defaults (not
including payment defaults) of DenAmerica or BEP or any of their respective
affiliates through August 31, 1999, which waiver shall in no way be
considered a waiver of any default, other than financial covenant defaults or
non-material defaults (not including payment defaults) by DenAmerica or BEP
or any of their respective affiliates, after the date hereof under the
Consolidated Interim Note, the Credit Agreement, or the Form Documents or a
limitation on any of the rights and remedies available to APF under the
Credit Agreement if a default occurs, other than a financial covenant or non-
material default (not including payment defaults), after the date hereof
under the Consolidated Interim Note, Credit Agreement or Form Documents.
5. MISCELLANEOUS.
5.1. Amendments to this Agreement. Any waiver, permit, consent or
approval by APF of or under any provision, condition or covenant to this
Agreement must be in writing and shall be effective only to the extent it is
set forth in writing and as to the specific facts or circumstances covered
thereby. Any amendment of this Agreement must be in writing and signed by
each of the parties to be bound thereby.
5.2. Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective heirs, personal representatives,
successors and assigns and shall inure to the benefit of each of the parties
and their respective successors, participants and assigns.
5.3. Notices. All notices, requests and demands to or upon the
respective parties hereto shall be deemed duly given, made or received: if by
hand, immediately upon sending; if by national receipted overnight delivery
service, one (1) business day after dispatch; and if mailed by certified
mail, return receipt requested, five (5) days after mailing to the parties at
their addresses set forth below (or to such other addresses as the parties
may designate in accordance with the provisions of this Section):
To APF: CNL APF Partners, LP
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
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If to DenAmerica, BEP, or DenAm: DenAmerica Corp.
0000 Xxxxx Xxxxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxx, XX 00000
Any party may change the address(es) to which all notices, requests and
other communications are to be sent by giving written notice of such address
change to the other parties in conformity with this Section 5.3, but such
change shall not be effective until notice of such change has been received
by the other parties.
5.4. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original with the same force and
effect as if the signatures thereto and hereto were upon the same instrument.
5.5. Governing Law. This Agreement has been executed and delivered to
APF by DenAmerica, BEP and DenAm in Arizona for execution by APF in Texas.
The validity, construction and effect of this Agreement shall be governed by
the laws of the State of Florida.
5.6. Consent to Jurisdiction; Waiver of Jury Trial. Each of the parties
hereby irrevocably consents to the non-exclusive jurisdiction of the courts
of the State of Florida and the United States District Court for the Middle
District of Florida and waives trial by jury in any action or proceeding with
respect to this Agreement.
5.7 No Third Parties Benefitted. Except as expressly provided herein,
this Agreement is solely for the benefit of APF, DenAmerica and (to the
extent contemplated by the Commitments) the other parties hereto and their
respective heirs, personal representatives, successors, participants and
assigns, and no other person shall have any right, benefit, priority or
interest under, or because of the existence of, this Agreement.
[PARAGRAPH 5.8 CONTINUED ON NEXT PAGE]
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5.8. Term. This Agreement is a continuing agreement and shall remain in
full force and effect until the indefeasible satisfaction in full of all
obligations of DenAmerica to APF and the termination of the financing
arrangements between such parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
DENAMERICA CORP., a Georgia
corporation
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Executive Vice-President
DENAM, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Vice-President
BLACK-EYED PEA U.S.A., INC., a Texas
corporation
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
As Its: Authorized Agent
CNL APF PARTNERS, LP, a Delaware limited
partnership
BY:CNL APF GP Corp., a Delaware
corporation, as general partner
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Its: Executive Vice President
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XXXXX XX XXXXXXX
XXXXXX XX XXXXXXXX
XXXXXX XX, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared XXXXXX X. XXXXX as Executive Vice-
President of DENAMERICA CORP., a Georgia corporation, the corporation that
executed the foregoing instrument, known to me to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that the same was the act of the said corporation, and that he executed the
same as the act of such corporation for the purposes and consideration
therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL this 30th day of June, 1999.
/s/ Xxx Xxxxxxx
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(NOTARY SEAL) Notary Public, State of AZ
Printed Name:
Notary Commission No.
My Commission Expires:
STATE OF ARIZONA
COUNTY OF MARICOPA
BEFORE ME, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared XXXXXX X. XXXXX as Vice-President of
DENAM, Inc., a Delaware corporation, the corporation that executed the
foregoing instrument, known to me to be the person and officer whose name is
subscribed to the foregoing instrument, and acknowledged to me that the same
was the act of the said corporation, and that he executed the same as the act
of such corporation for the purposes and consideration therein expressed and
in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL this 30th day of June, 1999.
/s/ Xxx Xxxxxxx
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(NOTARY SEAL) Notary Public, State of AZ
Printed Name:
Notary Commission No.
My Commission Expires:
0
XXXXX XX XXXXXXX
XXXXXX XX XXXXXXXX
XXXXXX XX, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared Xxxxxx X. Xxxxx as Authorized Agent of
BLACK-EYED PEA U.S.A., INC., a Texas corporation, the corporation that
executed the foregoing instrument, known to me to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that the same was the act of the said corporation, and that he executed the
same as the act of such corporation for the purposes and consideration
therein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL this 30th day of June, 1999.
/s/ Xxx Xxxxxxx
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(NOTARY SEAL) Notary Public, State of AZ
Printed Name:
Notary Commission No.
My Commission Expires:
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 30th day of
June, 1999, by Xxxx X. Xxxxxx, as EVP of CNL APF GP CORP., a Delaware
corporation, as General Partner of CNL APF PARTNERS, LP, a Delaware limited
partnership, on behalf of the corporation and limited partnership. He is
personally known to me and did not take an oath.
GIVEN UNDER MY HAND AND SEAL this 30th day of June, 1999.
/s/ Xxxxxxxxx Xxx Xxxxxxx
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(NOTARY SEAL) Notary Public, State of FL
Printed Name:
Notary Commission No.
My Commission Expires:
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SCHEDULE I
1. Purchase Price payable to Banque Paribas $14,660,844.03
2. Additional Financing set forth on Closing Statement $5,439,155.97
3. Costs to be held by LandAmerica pursuant
to Escrow Agreement $345,800.00
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Exhibit "A-1"
Commitment Letter (XXX)
Exhibit "A-2"
Commitment Letter (Equipment)
Exhibit "B-1"
Interim Note
Exhibit "B-2"
Consolidated Interim Note
Exhibit "C-1"
Form APF XXX Note
Exhibit "C-2"
Form APF Equipment Note
Exhibit "D"
Form of APF Mortgage
Exhibit "E"
Consolidated, Amended and Restated Security Agreement
Exhibit "F"
Stock Pledge Agreement
Exhibit "G-1"
DenAmerica Corp. Guaranty of APF XXX Note
Exhibit "G-2"
BEP Guaranty of APF XXX Note
Exhibit "G-3"
BEP Guaranty of the $4,400,000.00 5-Year 5% Convertible Redeemable
Debenture in favor of CNL Growth Corp. and $7,700,000.00 Promissory Note
(Subordinated) in favor of CNL Growth Corp.
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Exhibits omitted due to immateriality
