CONSOLIDATED INTERIM BALLOON PROMISSORY NOTE
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[Consolidating the unpaid principal balance of (i) that
certain Interim Balloon Promissory Note dated June 30, 1999
in the original principal amount of $5,439,155.97 executed
by the undersigned to and in favor of CNL APF Partners, LP;
(ii) that certain Revolving Note dated March 29, 1996 in the
original principal amount of $9,230,769.23 executed by the
undersigned to and in favor of Banque Paribas; (iii) that
certain Revolving Note dated March 29, 1996 in the original
principal amount of $2,307,692.31 executed by the undersigned
to and in favor of First Source Financial LLP; (iv) that
certain Revolving Note dated March 29, 1996 in the original
principal amount of $3,461,538.46 executed by the undersigned
to and in favor of LaSalle National Bank, each of the
Revolving Notes referenced in (ii), (iii) and (iv) above
having been assigned to CNL APF Partners, LP as of the date
hereof; and (v) that certain Balloon Promissory Note dated
effective as of June 30, 1998 in the original principal
amount of $2,200,000.00 executed by the undersigned to
and in favor of CNL American Properties Fund, Inc.]
US $22,300,000.00 Phoenix, Arizona
June 30, 1999
FOR VALUE RECEIVED, the undersigned, jointly and severally if more than
one, promises to pay to the order of CNL APF PARTNERS, LP, a Delaware limited
partnership, the principal sum of TWENTY-TWO MILLION THREE HUNDRED THOUSAND
AND NO/100 DOLLARS (US $22,300,000.00), with interest in arrears on (i)
$5,200,000.00 of the unpaid principal balance from the date of funding of
this Note, until paid, at the rate of ten and one-half of one percent (10.5%)
per annum, and (ii) $17,100,000.00 of the unpaid principal balance from the
date of funding of this Note, until paid, at the rate of eleven and fifty-
three one hundredths of one percent (11.53%) per annum The principal and
interest shall be payable at 400 E. South Street, Suite 500, Orlando, Florida
32801, or such other place as the holder hereof may designate in writing, in
consecutive monthly installments of TWO HUNDRED NINETY-SEVEN THOUSAND SIX
HUNDRED NINE AND 55/100 DOLLARS (US $297,609.55) on the first (1st) day of
each month beginning August 1, 1999, until the entire indebtedness evidenced
hereby is fully paid, except that any remaining indebtedness, if not sooner
paid, shall be due and payable on August 31, 1999 (the "Maturity Date"). All
computation of interest shall be made by the holder on the basis of a year of
360 days and shall be allocated in twelve (12) equal monthly installments.
THIS NOTE IS PAYABLE IN FULL ON AUGUST 31, 1999. AT MATURITY THE
UNDERSIGNED MUST REPAY THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND UNPAID
INTEREST THEN DUE. THE HOLDER IS UNDER NO OBLIGATION TO REFINANCE OR RENEW
THE NOTE AT THAT TIME. THE UNDERSIGNED WILL THEREFORE BE REQUIRED TO MAKE
PAYMENT OUT OF OTHER ASSETS THE UNDERSIGNED MAY OWN, OR THE UNDERSIGNED WILL
HAVE TO FIND A LENDER WILLING TO LEND THE UNDERSIGNED THE MONEY. IF THE
UNDERSIGNED REFINANCES OR RENEWS THIS NOTE AT MATURITY, THE UNDERSIGNED MAY
HAVE TO PAY SOME OR ALL OF THE CLOSING COSTS NORMALLY ASSOCIATED WITH A NEW
LOAN EVEN IF THE UNDERSIGNED OBTAINED REFINANCING FROM THE SAME LENDER.
If any installment under this Note is not received by the holder hereof
within ten (10) calendar days after it is due and holder's written demand for
such amount, the entire principal amount outstanding hereunder and accrued
interest thereon shall at once become due and payable, at the option of the
holder. The holder may exercise this option to accelerate during any Default
(as hereinafter defined) by the undersigned regardless of any prior
forbearance. In the event of any Default under this Note, and if the same is
referred to an attorney at law for collection or any action at law or in
equity is brought with respect hereto, the undersigned shall pay the holder
all of its reasonable expenses and costs, including, but not limited to,
reasonable attorneys' fees and expenses, including reasonable attorneys= fees
and expenses on any appeal. Any forbearance by the holder in exercising any
right or remedy under this Note or the Instrument or any other Loan Document,
or otherwise afforded by applicable law, shall not be a waiver of or preclude
the exercise of any right or remedy. The acceptance by the holder of payment
of any sum due hereunder after the due date of such payment or after holder
has declared an event of default shall not be a waiver of holder's right to
either require prompt payment when due of all other sums so secured or to
declare a Default for failure to make prompt payment. The undersigned shall
make payments to the holder in the installments due hereunder by electronic
transfer. In connection therewith, the undersigned shall deliver to the
holder an electronic funds transfer authorization in a form satisfactory to
holder. The holder agrees to notify the undersigned within forty-eight (48)
hours in the event that the electronic funds transfer does not take place on
the first (1st) day of each month.
If any installment under this Note is not received by the holder within
ten (10) calendar days after the installment is due, the undersigned shall
pay to the holder a late charge of five percent (5%) of such installment,
such late charge to be immediately due and payable without demand by the
holder. If any installment under this Note or any other monetary payment due
under this Note, any Instrument or any other Loan Document remains past due
for ten (10) calendar days or more after holder's written demand for such
amount, or if there shall exist any other Default under this Note (after any
applicable notice or cure period provided therein or herein), the outstanding
balance of this Note shall bear interest during the period in which the
undersigned is in Default at the lesser of (i) four percent (4%) above the
interest rate referenced in the first paragraph above or (ii) the highest
rate allowed by applicable law.
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From time to time, without affecting the obligation of the undersigned
or the successors or assigns of the undersigned to pay the outstanding
principal balance of this Note and observe the covenants of the undersigned
contained herein (after any applicable notice or cure period, if any), and
without affecting the guaranty of any person, corporation, partnership or
other entity for payment of the outstanding principal balance of this Note,
without giving notice to or obtaining the consent of the undersigned, the
successors or assigns of the undersigned or guarantors, and without liability
on the part of the holder, the holder may, at the option of the holder,
extend the time for payment of said outstanding principal balance or any part
thereof, reduce the payments thereon, release anyone liable on any of said
outstanding principal balance, accept a renewal of this Note, modify the
terms and time of payment of said outstanding principal balance, join in any
extension or subordination agreement, release any security given herefor,
take or release other or additional security, and agree in writing with the
undersigned to modify the rate of interest or period of amortization of this
Note or change the amount of the monthly installments payable hereunder or
otherwise modify, amend or waive any term or provision of this Note, the
Instrument or any other Loan Document.
Presentment, notice of dishonor, right to set off and counterclaim, and
protest are hereby waived by all makers, sureties, guarantors and endorsers
hereof. This Note shall be the joint and several obligation of all makers,
sureties, guarantors and endorsers, and shall be binding upon them and their
successors and assigns.
The indebtedness evidenced by this Note (herein the "Loan") is secured
by that certain Amended and Restated Credit Agreement (the "Credit
Agreement"), assigned to holder by Banque Paribas and other "Banks" (as such
term is defined in the Credit Agreement) in accordance with the terms of such
Credit Agreement as modified by that certain Waiver and Agreement to Amend
and Restate (the "Waivers Agreement") by and among holder, the undersigned
and certain other parties dated as of the date hereof (herein the
"Instrument") and certain of the other Loan Documents each executed by the
undersigned or its affiliates, and encumbering certain real property and
personal property more particularly described therein (herein referred to as
the "Property"), and reference is made thereto for rights as to acceleration
of the indebtedness evidenced by this Note. The collateral includes
machinery, equipment, goods and other personal property owned by the
undersigned.
An Event of Default as defined in the Instrument or any and all other
notes, instruments, guaranties, documents and agreements evidencing or
securing or relating to the same or the indebtedness represented or secured
thereby (herein the "Loan Documents") under the Instrument or any Loan
Document shall constitute a Default under this Note. Notwithstanding
anything herein to the contrary, holder's rights and remedies under this Note
are subject to and limited by the provisions of the Waivers Agreement.
Unless funds are advanced hereunder on the first day of the month, the
undersigned shall pay the holder interest only, in advance, on the
outstanding principal balance of this Note at the rate set forth above from
the date that funds are advanced to and including the last day of the month
on which funds are so advanced.
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Unless applicable law provides otherwise, so long as the undersigned is
not in Default hereunder, all payments received by the holder under this Note
or any Instrument shall be applied by holder in the following order of
priority: (i) amounts due and payable to holder by the undersigned for any
advances made by the holder under the Instrument or under any of the other
Loan Documents for the purposes of paying taxes, insurance and other charges
incurred with respect to the Property; (ii) interest due and payable on the
Note; (iii) principal of the Note; (iv) interest due and payable on advances
made by the holder under the Instrument or under any of the other Loan
Documents in order to protect the holder's security interest in any of the
collateral securing the Note; (v) principal of advances made by the holder
under the Instrument or under any of the other Loan Documents in order to
protect the holder's security interest in any of the collateral securing the
Note; (vi) interest due and payable on any Future Advance (as such term is
defined in the Instrument), provided that if more than one Future Advance is
outstanding, the holder may apply payments received among the amounts of
interest payable on the Future Advances in such order as the holder, in the
holder's sole discretion, may determine; (vii) principal of any Future
Advance, provided that if more than one Future Advance is outstanding, the
holder may apply payments received among the principal balances of the Future
Advances in such order as the holder, in the holder's sole discretion, may
determine; and (viii) any other sums due and payable secured by this
Instrument or under any of the other Loan Documents in such order as the
holder, at the holder's option, may determine; provided, however, that the
holder may, at the holder's option, apply any sums payable on advances made
by the holder under the Instrument or under any of the other Loan Documents
in order to protect the holder's security interest in any of the collateral
securing the Note prior to interest on and principal of the Note, but such
application shall not otherwise affect the order of priority of application
herein. Upon the undersigned's Default under this Note, the Instrument or in
any of the other Loan Documents, the holder may apply any payments received
by the holder in any amount and in any order as the holder shall determine in
the holder's sole discretion.
ADDITIONAL COVENANTS. In addition to the covenants and agreements made
in this Note, the undersigned further covenants and agrees with and in favor
of holder as follows:
A. PREPAYMENT PREMIUM
1. PREPAYMENT IN FULL
MAKE WHOLE. Upon giving Lender sixty (60) days prior written notice,
the Borrower may prepay the entire unpaid principal balance of the Note in
full on the last Business Day before a scheduled monthly payment date as set
forth below. The Note may be prepaid subject to certain restrictions and
payment of a Prepayment Premium (as described below), if due, and interest
for the balance of the month in which any prepayment occurs, which shall be
paid in order to compensate Lender for costs and losses which will be
incurred as a result of any prepayment under the Note (including the breakage
costs which could be incurred by Lender for the interest rate swap agreements
and similar interest rate undertakings of Lender required to support the
fixed rate on the Loan and the profits lost by Lender notwithstanding any
reinvestment of the prepayment proceeds).
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Upon any such prepayment, the Borrower agrees to pay the Lender hereof,
in addition to the entire unpaid principal balance, accrued interest, and any
other sums due Lender at the time of prepayment, a prepayment premium equal
to (i) the present value of all remaining payments of principal and interest,
discounted at the Treasury Rate, less (ii) the amount of principal being
prepaid, but shall not be less than one percent (1%) of the then outstanding
principal balance of the Note (the APrepayment Premium@). The ATreasury
Rate@ shall be the yield on securities issued by the United States Treasury
having a maturity equal to the remaining term of the Note, as quoted in
Federal Reserve Statistical Release [H.15(519)] under the heading AU.S.
Government Securities-Treasury Constant Maturity@ for the date most nearly
two (2) weeks before the prepayment date (or a comparable rate if this rate
is no longer published) [adjusted to reflect a monthly payment interval]. If
the above rate is not available for a term equal to the remaining stated term
of the Note as of the date of such prepayment, the Treasury Rate shall be
determined by interpolating between the yields on securities of the next
longer and next shorter maturity.
The principal sum of the Note may not be prepaid, in whole or in part,
at any time during the term hereof except as specifically allowed under this
section. In addition, during the ninety (90) day period immediately
preceding the Note Maturity Date, the Note may be prepaid at any time in
whole but not in part after Borrower has given thirty (30) days prior written
notice to the holder of the Note without payment of a Prepayment Premium.
In the event that the Note is accelerated then Borrower shall also pay the
amount of the Prepayment Premium that would have been due had Borrower
voluntarily prepaid the Loan. The Lender or holder shall have no obligation
to accept any prepayment of principal under the Note except as expressly
stated in this section.
2. PARTIAL PREPAYMENTS
The undersigned shall have no right to make a partial prepayment of the
outstanding indebtedness during the term of this Note.
3. PREPAYMENT PREMIUM DUE WHETHER VOLUNTARY OR INVOLUNTARY PREPAYMENT;
INSURANCE AND CONDEMNATION PROCEEDS
The undersigned shall pay the Prepayment Premium due under this Note
whether the prepayment is voluntary or invol-untary (in connection with the
holder's acceleration of the unpaid principal balance of this Note) or the
Instrument is satisfied or released by foreclosure (whether by power of sale
or judicial proceeding), deed in lieu of foreclosure or by any other means.
Notwithstanding any other provision herein to the contrary, the undersigned
shall not be required to pay any Prepayment Premium in connection with any
prepayment occurring as a result of the application of insurance proceeds or
condemnation awards under the Instrument or as part of any amendment or
restatement pursuant to the Waivers Agreement.
If the undersigned shall give notice of a prepayment but shall fail, for
any reason, to make such prepayment, the undersigned shall immediately pay
the holder any and all reasonable costs, fees and
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expenses (including reasonable in house and outside attorneys' fees and
expenses) associated with the holder's administrative preparation for such
prepayment.
The Prepayment Premium is the negotiated charge between the undersigned
and the holder for the privilege of the undersigned to prepay this Note at
the times provided above and to reimburse holder for administrative and other
costs related thereto and is not a penalty. The undersigned hereby covenants
and agrees to indemnify the holder hereof and hold it harmless from any
costs, fees, expenses (including attorneys' fees and expenses) resulting from
any action, litigation or judicial action alleging or claiming that the
Prepayment Premium is a penalty.
B. NOTICE; BUSINESS DAY
Any notice to the holder or the undersigned provided for in this Note
shall be given in the manner provided in the Instrument. The term "Business
Day" means any day other than a Saturday, a Sunday, or any other day on which
the holder is not open for business.
C. ASSIGNMENT
This Note is freely assignable in whole or in part, from time to time,
by the holder and the holder may grant participation interest(s) herein.
Without limiting the foregoing, the undersigned understands and agrees that
the holder intends to and may sell, pledge, grant a security interest in,
collaterally assign, transfer, deliver or otherwise dispose of this Note and
the undersigned's other Loan Documents (or any interest therein, or its
rights and powers thereunder), from time to time. This Note shall be binding
upon the undersigned, its heirs, devises, administrators, executives,
personal representatives, successors, receivers, trustees, permitted
assignees, including all successors in interest of the undersigned, and shall
inure to the benefit of the holder hereof, and the successors and assignees
of the holder.
D. GOVERNING LAW; MISCELLANEOUS
This Note shall be governed by and construed in accordance with the laws
of the State of Arizona and applicable federal law, except for enforcement
rights as to any such Property which must be governed by the law of any other
jurisdiction in which any such Property may be located. The undersigned and
holder agree that any dispute arising out of this Note shall be subject to
the jurisdiction of both the state and federal courts in Arizona. For that
purpose, the undersigned hereby submits to the jurisdiction of the state and
federal courts of Arizona. The undersigned further agrees to accept service
of process out of any of the aforesaid courts in any such dispute by
registered or certified mail addressed to the undersigned. Nothing herein
contained, however, shall prevent holder from bringing any action or
exercising any rights against (i) the undersigned, (ii) any security, (iii)
a guarantor personally, or (iv) the assets of the undersigned or any
guarantor, within any other state or jurisdiction. The parties hereto intend
to conform strictly to the applicable usury laws. In no event, whether by
reason of demand for payment, prepayment, acceleration of the maturity hereof
or otherwise, shall the interest contracted for, charged or received by the
holder hereunder or
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otherwise exceed the maximum amount permissible under applicable law. If
from any circumstance whatsoever interest would otherwise be payable to the
holder in excess of the maximum lawful amount, the interest payable to the
holder shall be reduced automatically to the maximum amount permitted by
applicable law. If the holder shall ever receive anything of value deemed
interest under applicable law which would apart from this provision be in
excess of the maximum lawful amount, an amount equal to any amount which
would have been excessive interest shall be applied to the reduction of the
principal amount owing hereunder in the inverse order of its maturity and not
to the payment of interest, or if such amount which would have been excessive
interest exceeds the unpaid balance of principal, such excess shall be
refunded to the undersigned. All interest paid or agreed to be paid to the
holder shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term (including
any renewal or extension) of such indebtedness so that the amount of interest
on account of such indebtedness does not exceed the maximum permitted by
applicable law. The provisions of this paragraph shall control all existing
and future agreements between the undersigned and the holder.
Whenever possible this Note and each provision hereof shall be
interpreted in such manner as to be effective, valid and enforceable under
applicable law. Any provisions of this Note which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In addition, any
determination that the application of any provision hereof to any person or
under any circumstance is illegal and unenforceable shall not affect the
legality, validity and enforceability of such provision as it may be applied
to any other person or in any other circumstance.
WAIVER OF JURY TRIAL. THE UNDERSIGNED AND HOLDER BY ITS ACCEPTANCE
HEREOF, FOR ITSELF AND FOR EACH HOLDER HEREOF, HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY AGREE, THAT:
(A) NEITHER THE UNDERSIGNED NOR HOLDER, NOR ANY ASSIGNEE, SUCCESSOR,
HEIR OR LEGAL REPRESENTATIVE OF ANY OF THE SAME SHALL SEEK A JURY TRIAL IN
ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE
ARISING FROM OR BASED UPON THIS NOTE, ANY INSTRUMENT OR ANY LOAN DOCUMENT
EVIDENCING, SECURING OR RELATING TO THE OBLIGATIONS OR TO THE DEALINGS OR
RELATIONSHIP BETWEEN OR AMONG THE PARTIES THERETO;
(B) NEITHER THE UNDERSIGNED NOR HOLDER SHALL SEEK TO CONSOLIDATE ANY
SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED;
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(C) THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE
UNDERSIGNED AND HOLDER, AND THESE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS;
(D) NEITHER THE UNDERSIGNED NOR HOLDER HAS IN ANY WAY AGREED WITH OR
REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT
BE FULLY ENFORCED IN ALL INSTANCES;
(E) IN NO EVENT SHALL HOLDER BE RESPONSIBLE OR LIABLE FOR CONSEQUENTIAL
OR PUNITIVE DAMAGES; AND
(F) THIS PROVISION IS A MATERIAL INDUCEMENT FOR HOLDER TO ENTER INTO
THIS TRANSACTION AND IS SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY WITH THE
BENEFIT OF COMPETENT LEGAL COUNSEL.
NOTICE TO THE BORROWER
DO NOT SIGN THIS NOTE BEFORE YOU READ IT. THIS NOTE PROVIDES FOR THE
PAYMENT OF A PREMIUM IF YOU WISH TO REPAY THE LOAN PRIOR TO THE DATE PROVIDED
FOR REPAYMENT IN THIS NOTE. IN ADDITION, THIS NOTE AUTHORIZES THE HOLDER TO
REFUSE TO ACCEPT REPAYMENT OF THE LOAN PRIOR TO THE DATE PROVIDED FOR
REPAYMENT IN THIS NOTE UNLESS CERTAIN CONDITIONS STATED IN THIS NOTE ARE MET.
DENAMERICA CORP., a Georgia corporation
By: /s/ Robert J. Gentz
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Robert J. Gentz, Executive Vice-President
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CORPORATE ACKNOWLEDGMENT
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 Robert J. Gentz, 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/ Joy Capella
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Notary Public - State of____________
Print Name:_________________________
Commission Number:__________________
Commission Expires:_________________
This instrument was prepared by: Daniel F. McIntosh, Esquire
Lowndes, Drosdick, Doster, Kantor & Reed,
P.A.
CNL Center at City Commons
450 South Orange Avenue
Orlando, Florida 32801
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