THIS DOCUMENT PREPARED BY:
Daniel F. McIntosh, Esquire
Lowndes, Drosdick, Doster,
Kantor & Reed, P.A.
P.O. Box 2809
Orlando, Florida 32802
(407) 843-4600
MODIFICATION OF
CONSOLIDATED INTERIM PROMISSORY NOTE
REVISING MATURITY DATE
AND MODIFICATION OF
WAIVERS AND AGREEMENT TO AMEND
AND RESTATE
THIS MODIFICATION OF CONSOLIDATED INTERIM PROMISSORY NOTE REVISING
MATURITY DATE AND MODIFICATION OF WAIVERS AND AGREEMENT TO AMEND AND RESTATE
(hereinafter referred to as the "Agreement") is made and entered into as of
the 8th day of September, 1999, by and between CNL APF PARTNERS, LP, a
Delaware limited partnership, whose address is 400 East South Street, Suite
500, Orlando, Florida 32801 (hereinafter referred to as the "Lender"),
PHOENIX RESTAURANT GROUP, INC., a Georgia corporation, f/k/a DENAMERICA
CORP., a Georgia corporation (hereinafter referred to as "PRG"), BLACK-EYED
PEA U.S.A., INC., a Texas corporation (hereinafter referred to as "BEP"), and
DENAM, INC., a Delaware corporation (hereinafter referred to as "DenAm").
W I T N E S S E T H:
-------------------
WHEREAS, Lender is the owner and holder of a Consolidated Interim
Balloon Promissory Note in the original consolidated principal amount of
TWENTY-TWO MILLION THREE HUNDRED THOUSAND AND NO/100 DOLLARS
($22,300,000.00), executed by PRG in favor of Lender, dated June 30, 1999
(hereinafter referred to as the "Note"); and
WHEREAS, PRG has requested that the maturity date set forth in the Note
be modified to reflect an extension of the maturity date to January 31, 2000;
and
WHEREAS, Lender, PRG, BEP and DenAm executed the Waivers and Agreement
to Amend and Restate, dated as of June 30, 1999 (hereinafter referred to as
the "Waivers Agreement"), wherein the parties agreed that on or before August
31, 1999, the parties would enter into certain further transactions in order
to amend and restate the financing of PRG (and certain of its affiliates) in
accordance with the terms and provisions of the Equipment Commitment and the
Debt Commitment (each as defined in the Waivers Agreement); and
WHEREAS, PRG, BEP and DenAm have requested that the August 31, 1999 date
referred to in the Waivers Agreement also be extended to January 31, 2000;
and
WHEREAS, Lender has agreed to modify the maturity date of the Note and
modify the August 31, 1999 date referred to in the Waivers Agreement, upon
the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises hereof, and the mutual
covenants contained herein, and of the sum of TEN AND NO/100 DOLLARS ($10.00)
in hand paid by PRG to Lender, the receipt and sufficiency of which is hereby
acknowledged, it is agreed as follows:
1. RECITALS CORRECT. The recitals included in this Agreement are not
mere recitals, but constitute binding stipulations of fact by all of the
parties hereto.
2. REPRESENTATIONS OF PRG. In order to induce Lender to enter into
this Agreement, PRG does hereby acknowledge, warrant, and represent to and in
favor of Lender (a) that the total cumulative principal balance of the
indebtedness represented by the Note as of the Effective Date is TWENTY-TWO
MILLION TWO HUNDRED NINETEEN THOUSAND ONE HUNDRED EIGHTY-SIX 37/100 DOLLARS
($22,219,186.37) and that the outstanding accrued interest as of the
Effective Date is TWO HUNDRED NINE THOUSAND EIGHT HUNDRED TWO AND 50/100
DOLLARS ($209,802.50) and that said indebtedness is due from PRG to Lender in
accordance with the terms of the Note as herein modified, free from any
defense, claim, or right to set-off; and (b) that other than the Loan
Documents (as defined in the Note), there are no deeds of trust, liens or
other encumbrances against the Property, and that there are no suits,
judgments, bankruptcies or executions pending against PRG in any court which
could in any way adversely affect the title to the Property (as defined in
the Note).
3. THE NOTE: Maturity Date: The maturity date of the Note which is
set forth in the first and second paragraphs is hereby amended, modified and
changed from August 31, 1999 to January 31, 2000.
4. THE NOTE: Interest Payments: No payments of principal due under
the Note shall be due until January 31, 2000. Monthly interest payments of
TWO HUNDRED NINE THOUSAND FORTY-ONE AND 06/100 DOLLARS ($209,041.06) due
under the Note on the first (1st) day of each month shall continue until the
entire indebtedness evidenced by the Note is fully paid, except that any
remaining indebtedness, if not sooner paid, shall be due and payable on
January 31, 2000.
5. WAVIERS AGREEMENT. The August 31, 1999 date referred to in the
third "Whereas" clause of the Waivers Agreement, Section 3.1 of the Waivers
Agreement and Section 4.2 of the Waivers Agreement is amended, modified and
changed to January 31, 2000.
6. WAIVER OF JURY TRIAL. BY THE EXECUTION HEREOF, PRG AND LENDER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREE, THAT:
(A) NEITHER PRG NOR LENDER, 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 AGREEMENT 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 PRG NOR LENDER 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;
(C) THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY
THE PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS;
(D) NEITHER PRG NOR LENDER 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 LENDER BE RESPONSIBLE OR LIABLE FOR
CONSEQUENTIAL OR PUNITIVE DAMAGES; AND
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(F) THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER
INTO THIS TRANSACTION.
7. EFFECTIVE DATE. The effective date of this Agreement is and shall
be August 31, 1999 (the "Effective Date").
8. RELEASE. PRG hereby remises, releases and forever discharges
Lender, its affiliates, successors and/or assigns, and all of its and their
respective officers, directors, employees, agents, attorneys and
stockholders, of and from any and all manner of actions, causes and causes of
action whatsoever, at law or in equity, all claims relating to the Loan
Documents, and the relationships and activities of PRG and Lender with
respect to this Agreement, the Loan Documents from the beginning of the world
to the effective date of this Agreement. This Agreement and the Loan
Documents, as modified by this Agreement, are not intended to benefit,
modify, release or discharge any third party, and all rights as against
persons or parties not a party to this Agreement are expressly reserved by
Lender. PRG hereby indemnifies and holds Lender harmless from and against
any claim, loss, damage, costs, charge or expense (including reasonable
attorney's fees) whatsoever arising out of or relating to any claim by any
third party not a party to this Agreement of any alleged or purported
benefit, modification, release or discharge resulting from this Agreement or
the Loan Documents. Notwithstanding anything in this Agreement to the
contrary, the release contained in this Section shall not apply to any and
all manners of actions, causes and causes of action whatsoever, at law or in
equity, that PRG may have against Paribas, First Source, LaSalle ((each as
defined in the Omnibus Agreement) as defined in the Waivers Agreement), their
affiliates, successors and/or assigns (other than Lender), and all of their
respective officers, directors, employees, agents, attorneys and
stockholders.
9. OTHER PROVISIONS. Except for the changes and modifications
effected hereby, it is expressly agreed that the Loan Documents shall remain
in full force and effect in strict accordance with the terms thereof, and
nothing herein contained shall affect or be construed to affect the lien,
charge, or encumbrances effected by the Loan Documents, or the priority
thereof over other liens, charges, encumbrances, and conveyances, or to
release or affect the liability of any party or parties who may now or
hereafter be liable under or on account of the Loan Documents. Under no
circumstances shall this Agreement or any portion hereof constitute or be
deemed to constitute a novation of the Loan Documents. This Agreement shall
be binding upon and shall inure to the benefit of, the heirs, executors,
administrators, personal representatives, successors and assigns of the
parties hereto. Each of the parties hereto represent and declare that such
party has carefully read this Agreement and that such party understands the
contents thereof and signs the same freely and voluntarily. The parties
hereto acknowledge that they had the opportunity to consult with legal
counsel of its own choosing concerning this Agreement.
10. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original.
NOTICE: THIS AGREEMENT AND THE LOAN DOCUMENTS CONSTITUTE
A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES RELATING TO THIS LOAN TRANSACTION.
[Signatures on Next Page]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto 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: CNL APF PARTNERS, LP,
a Delaware limited partnership
By: CNL APF GP Corp., a Delaware corporation
as general partner
Witness Name: /s/ By: /s/ Steven D. Shackelford
------------------ ----------------------------------------
Printed Name: Steven D. Shackelford
------------------------------
Its: Senior Vice President/CFO
---------------------------------------
Witness Name: /s/
------------------
"LENDER"
PHOENIX RESTAURANT GROUP, INC.,
a Georgia corporation,
f/k/a DENAMERICA CORP., a Georgia
corporation
Witness Name: /s/ By: /s/ Robert J. Gentz
------------------ ----------------------------------------
Name: Robert J. Gentz
As Its: Executive Vice President
Witness Name: /s/
------------------
"PRG"
\
BLACK-EYED PEA U.S.A., INC.
a Texas corporation,
Witness Name: /s/ By: /s/ Robert J. Gentz
------------------ ----------------------------------------
Name: Robert J. Gentz
As Its: Authorized Agent
Witness Name: /s/
------------------
"BEP"
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DENAM, INC.
a Delaware corporation,
Witness Name: /s/ By: /s/ Robert J. Gentz
------------------ ----------------------------------------
Name: Robert J. Gentz
As Its: Vice President
Witness Name: /s/
------------------
"DENAM"
STATE OF TEXAS
COUNTY OF DALLAS
The foregoing instrument was acknowledged before me on the 8th day of
September, 1999, by Steven D. Shackelford as SR.V.P./CFO 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.
/s/ Cynthia J. Ihrig
------------------------------------
Notary Public - State of Texas
Print Name: Cynthia J. Ihrig
Commission Number:
Commission Expires:12-08-2002
STATE OF ARIZONA
COUNTY OF MARICOPA
The foregoing instrument was acknowledged before me on the 8th day of
September, 1999, by Robert J. Gentz as an authorized agent of PHOENIX
RESTAURANT GROUP, INC., a Georgia corporation, f/k/a DENAMERICA CORP., a
Georgia corporation, for and on behalf of the corporation. He is personally
known to me and did not take an oath.
/s/ Eva M. Grimmett
------------------------------------
Notary Public - State of Arizona
Print Name: Eva M. Grimmett
Commission Number:
Commission Expires: 04 21 00
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STATE OF ARIZONA
COUNTY OF MARICOPA
The foregoing instrument was acknowledged before me on the 8th day of
September, 1999, by Robert J. Gentz as Vice President of BLACK-EYED PEA
U.S.A., INC., a Texas corporation, for and on behalf of the corporation. He
is personally known to me and did not take an oath.
/s/ Eva M. Grimmett
------------------------------------
Notary Public - State of Arizona
Print Name: Eva M. Grimmett
Commission Number:
Commission Expires: 04 21 00
STATE OF ARIZONA
COUNTY OF MARICOPA
The foregoing instrument was acknowledged before me on the 8th day of
September, 1999, by Robert J. Gentz as Executive Vice President of DENAM,
INC., a Delaware corporation, for and on behalf of the corporation. He is
personally known to me and did not take an oath.
/s/ Eva M. Grimmett
------------------------------------
Notary Public - State of Arizona
Print Name: Eva M. Grimmett
Commission Number:
Commission Expires: 04 21 00
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