SECOND CONSENT AND AGREEMENT
OF HOLDERS OF SERIES B NOTES
OF DENAMERICA CORP.
Dated as of March ___, 1998
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");
WHEREAS, the Holders previously entered into a Consent and Agreement of
Holders of Series B Notes of DenAmerica Corp., dated as of September 30, 1997
(the "First Consent"), with respect to the matters set forth therein;
WHEREAS, DenAmerica is entering into or consummating (i) an Asset
Purchase Agreement, dated January 27, 1998, among DenAmerica, Olajuwon
Holdings, Inc., and Akinola Olajuwon, as amended by the First Amendment to
Asset Purchase Agreement dazed March 16, 1998, substantially in the form
attached as Exhibit C hereto (together, the "Asset Purchase Agreement");
(ii) the exercise of the special repurchase option with respect to the
Senior
Subordinated Promissory Note originally issued July 3, 1996, and transferred
in favor of' Donaldson, Lufkin & Jenrette Securities Corporation on February
12, 1998, as described in the documents attached as Exhibit D hereto (the
"Note Repurchase"); (iii) an Amendment and Limited Waiver dated March ___,
1998 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) the Consent of CNL Entities dated as of March ___, 1998,
substantially in the form attached as Exhibit F hereto (the "CNL Consent").
WHEREAS, the Holders are officers and/or directors of DenAmerica, or
affiliates of such officers and/or directors, and as such will benefit from
the transactions described in and contemplated by the Asset Purchase
Agreement, the Note Repurchase, the Paribas Consent, and the CNL Consent.
WHEREAS, the Holders are familiar with the terms and conditions of the
Asset Purchase Agreement, the Note Repurchase, the Paribas Consent, the CNL
Consent, the Indenture, and the Series B Notes.
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 DenAmerica and its affiliates 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 March 29, 1998, under the terms of
the Series B Notes, or the First Consent, including, without limitation, the
deferral of any deferred interest which previously has been deferred under
the First Consent, all until September 29, 1998 (the "Deferral"); (ii) the
execution and delivery of the Asset Purchase Agreement, the Note Repurchase,
the Paribas Consent, the CNL Consent, 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 currently existing 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
Securities of Section 4.13 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 First Consent, the Deferral,
the Asset Purchase Agreement, the Note Repurchase, the Paribas Consent, the
CNL Consent, or any transactions in connection with or relating to such
agreements, or any prior transactions of DenAmerica or its 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 if 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/ Cathy L. Lloyd
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Cathy L. Lloyd
/s/ William J. Howard
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William J. Howard
/s/ Aileen W. Howard
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Aileen W. Howard