CONSENT AND AGREEMENT
OF HOLDERS OF SERIES B NOTES
OF DENAMERICA CORP.
Dated as of September 30, 1997
WHEREAS, the undersigned are holders ("Holders") of Series B 13%
Subordinated Notes due 2003 (the "Series B Notes") of DenAmerica Corp., a
Georgia corporation ("DenAmerica"), copies of which are attached as Exhibit
A hereto, issued pursuant to that certain Indenture (Series B Notes) dated
March 29, 1996 (the "Indenture") as amended by the Supplemental Indenture
dated as of July 3, 1996 (the "Supplemental Indenture"), attached hereto as
Exhibit B (together, the Indenture and the Supplemental Indenture are
referred to herein as the "Indenture"), between DenAmerica and State Street
Bank and Trust Company, as Trustee ("Trustee"); and
WHEREAS, DenAmerica is entering into (i) a Settlement Agreement and
Release, dated September 30, 1997, by and among DenAmerica, Black-Eyed Pea
U.S.A., Inc. ("BEP"), Beck Holdings, Inc. ("Beck"), and Unigate Holdings, NV
("UNV"), substantially in the form attached as Exhibit C hereto (the "Black
- -Eyed Pea Settlement"); (ii) an Agreement dated as of September 30, 1997, by
and among DenAmerica, Beck and UNV, substantially in the form attached as
Exhibit D hereto (the "Beck Agreement"); (iii) an Amendment and Limited
Consent and Waiver dated September 30, 1997 among DenAmerica, the Banks set
forth therein, and Banque Paribas,
as Agent, substantially in the form attached as Exhibit E hereto (the
"Paribas Consent"); and (iv) a Loan and Security Agreement dated as of
September 30, 1997 by and between DenAmerica and CNL Growth Corp., as Agent,
substantially in the form attached as Exhibit F hereto (the "CNL Loan").
WHEREAS, the Holders are officers and/or directors of DenAmerica or
their affiliates and as such will benefit from the transactions described in
and contemplated by the Black-Eyed Pea Settlement, the Beck Agreement, the
Paribas Consent, and the CNL Loan.
WHEREAS, the Holders are familiar with the terms and conditions of the
Black-Eyed Pea Settlement, substantially in the form attached as Exhibit C
hereto, the Beck Agreement, substantially in the form attached as Exhibit D
hereto, the Paribas Consent, substantially in the form attached as Exhibit E
hereto, the CNL Loan, substantially in the form attached as Exhibit F hereto,
the Indenture, attached as Exhibit B hereto, and the Series B Notes, attached
as Exhibit A hereto.
NOW THEREFORE, for good and valuable consideration, the sufficiency and
receipt of which is hereby acknowledged by the undersigned Holders, the
undersigned Holders agree for the benefit of DenAmerica and BEP as follows:
1. CONSENT AND APPROVAL. Notwithstanding any provision of the Series
B Notes, or the Indenture, the undersigned Holders do hereby consent to and
approve (i) the deferral of
any payments to the undersigned Holders due on September 30, 1997, under the
terms of the Series B Notes, until March 31, 1998, without the payment of any
additional interest to Holders (the "Deferral"); (ii) the execution and
delivery of the Black-Eyed Pea Settlement, substantially in the form attached
as Exhibit C hereto, the Beck Agreement, substantially in the form attached
as Exhibit D hereto, the Paribas Consent, substantially in the form attached
as Exhibit E hereto, and the CNL Loan, substantially in the form attached as
Exhibit F hereto, and all transactions in connection with or relating to any
such agreements; (iii) the waiver of (a) any "Default" or "Event of Default",
as those terms are defined in the Indenture, by DenAmerica, (b) any
violations by DenAmerica of any of the provisions of the Indenture,
including, without limitation, (A) the Article IV Covenants of the Indenture,
including, without limitation, the Limitation on Additional Indebtedness of
Section 4.9 of the Indenture, the Limitation on Investments of Section 4.10
of the Indenture, the Limitation on Mergers, Sales, etc. of Section 4.11 of
the Indenture, the Issuance of Equity of Securities Section 4.12 of the
Indenture, and the Financial Covenants of Section 4.15 of the Indenture; and
(B) the Article VIII Subordination Provisions of the Indentures, as a result
of the Deferral, the Black-Eyed Pea Settlement, the Beck Agreement, the
Paribas Consent, the CNL Loan, or any transactions in connection with or
relating to such agreements, or any prior transactions of DenAmerica or BEP
or their affiliates inconsistent with the provisions of the Indenture; and
(iv) any amendment to the Indenture determined by DenAmerica in its sole
discretion to be necessary to reflect the Deferral or the transactions
described in or contemplated by the Black-Eyed Pea Settlement, the Beck
Agreement, the Paribas Consent, the CNL Loan, or any prior transaction of
DenAmerica or BEP or their affiliates inconsistent with the provisions of the
Indenture.
2. NOTICES. All notices, requests, demands, and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given, made and received when delivered against
receipt or upon actual receipt of registered or certified mail, postage
prepaid, return receipt requested, addressed as set forth below:
(a) If to Holders:
The address of Holders on the books
and records of DenAmerica
(b) if to DenAmerica:
DenAmerica Corp.
7373 N. Scottsdale Road, Suite D-120
Scottsdale, Arizona 85253
Attention: Jack M. Lloyd
Phone: (602) 483-7055
Fax: (602) 483-9592
with a copy to:
O'Connor, Cavanagh, Anderson,
Killingsworth & Beshears, P.A.
One East Camelback, Suite 1100
Phoenix, Arizona 85012
Attention: Robert S. Kant, Esq.
Phone: (602) 263-2606
Fax: (602) 263-2900
Any party may alter the address to which communications or copies are to
be sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice.
3. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories. Any photographic or xerographic copy of this Agreement, with all
signatures reproduced on one or more sets of signature pages, shall be
considered for all purposes as of it were an executed counterpart of this
Agreement.
4. PROVISIONS SEPARABLE. The provisions of this Agreement are
independent and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in whole
or in part.
5. NUMBER OF DAYS. In computing the number of days for purposes of
this Agreement, all days shall be counted, including, but not limited to,
Saturdays, Sundays, and bank holidays; provided, however, that if the final
day of any time period falls on a Saturday, Sunday, or bank holiday, then the
final day shall be deemed to be the next day which is not a Saturday, Sunday,
or bank holiday.
6. BINDING NATURE OF AGREEMENT; ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal
representatives, successors, and assigns, except that no party may assign or
transfer its or his rights or obligations under this Agreement without the
prior written consent of the other parties hereto. Nothing in this Agreement
is intended to confer any rights or benefits to any third party.
7. ENTIRE AGREEMENT. This Agreement together with the exhibits and
schedules hereto contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements, understandings, inducements and
conditions, express or implied, oral or written, of any nature whatsoever
with respect to the subject matter hereof. The express terms hereof control
and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified
or amended other than by an agreement in writing.
8. CONTROLLING LAW; VENUE. This Agreement and all questions relating
to its validity, interpretation, performance and enforcement, shall be
governed by and construed, interpreted and enforced in accordance with the
laws of the state of Arizona, notwithstanding any Arizona or other conflict-
of-law provisions to the contrary. In the event there is any dispute arising
under any provisions of this Agreement, whether in a court of law or
otherwise, the parties agree that the venue for such dispute shall be in
Maricopa County, Arizona.
9. SCHEDULES AND EXHIBITS. All Schedules and Exhibits referred to
herein or attached hereto are hereby incorporated by reference into, and made
a part of, this Agreement.
The form of any such Schedule or Exhibit may be delivered by the parties
after the execution of this Agreement and shall be as mutually agreed by the
parties.
10. INDULGENCES, NOT WAIVERS. Neither the failure nor any delay on the
part of a party to exercise any right, remedy, power, or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power, or privilege preclude any other or
further exercise of the same or of any other right, remedy, power, or
privilege, nor shall any waiver of any right, remedy, power, or privilege
with respect to any occurrence be construed as a waiver of such right,
remedy, power, or privilege with respect to any other occurrence. No waiver
shall be effective unless it is in writing and is signed by the party
asserted to have granted such waiver.
IN WITNESS WHEREOF, DenAmerica and the Holders have executed and
delivered this Agreement as of the date first above written.
DENAMERICA:
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DENAMERICA CORP., a Georgia corporation
By: /s/ Todd S. Brown
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Name: Todd Brown
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Its: Vice President
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HOLDERS:
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/s/ Jack M. Lloyd
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Jack M. Lloyd
/s/ William J. Howard
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William J. Howard