AMENDMENT AND LIMITED CONSENT AND WAIVER
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This AMENDMENT AND LIMITED CONSENT AND WAIVER (this "Consent")
is entered into as of September 30, 1997 among DenAmerica Corp., a Georgia
corporation (the "Borrower"), the Banks (as hereinafter defined) and Banque
Paribas, as Agent.
RECITALS
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WHEREAS, the Borrower, certain financial institutions (the
"Banks") and the Agent are party to that certain Amended and Restated Credit
Agreement dated as of July 3, 1996, as modified by that certain Limited Consent,
dated as of April 16, 1997, as further modified by that certain Limited Consent,
dated as of June 30, 1997, as further modified by that certain Limited Consent,
dated as of July 31, 1997 and as further modified by that certain Limited
Waiver, dated as of August 21, 1997 (as further amended, supplemented or
modified hereby and as hereafter amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower has requested that the Agent and the
Banks amend certain provisions of the Credit Agreement and certain other Loan
Documents and grant certain consents and waivers with respect to certain
provisions of the Credit Agreement, all as more fully described herein; and
WHEREAS, the Agent and the Banks have agreed to grant such
amendments, consents and waivers upon the terms and conditions set forth herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings assigned thereto in
the Credit Agreement.
Section 2. Amendments to the Loan Documents. Subject to the
terms and conditions set forth herein, the Credit Agreement and each other Loan
Document is hereby amended as follows:
(a) Definitions. Each reference in the Credit
Agreement (including Section 1.1 of the Credit Agreement) and in each other Loan
Document (other than this Consent) to the terms "Delayed Draw Term Loan,"
"Delayed Draw Term Loan Commitment," "Delayed Draw Term Loan Commitment
Termination Date," "Delayed Draw Term Loan Maturity Date," "Delayed Draw Term
Note," and "Total Delayed Draw Term Loan Commitment," is hereby deleted in its
entirety and shall be of no further force or effect and, to the extent any such
term is used to calculate certain amounts or percentages in the Credit Agreement
or any other Loan Document, such term for the purpose of such calculation shall
be deemed to equal zero.
(b) Delayed Draw Facility. Section 2.3 of the Credit
Agreement is hereby deleted in its entirety and shall be of no further force or
effect.
(c) Olajuwon Associates, L.L.C.
(i) Section 1.1 of the Credit Agreement is hereby
amended by adding thereto in proper alphabetical order the following
definitions:
"Olajuwon Associates, L.L.C." shall mean the joint venture
between the Borrower and Olajuwon Holdings, Inc. formed upon
terms substantially similar to the terms described in Annex A
to that certain Amendment and Limited Consent and Waiver,
dated as of September 30, 1997 among the Borrower, the Agent
and the Banks and such additional terms as the Agent, in its
sole discretion, shall approve.
"Olajuwon Deferred Purchase Price" shall mean the preferred
return of $5,200,000 to be paid to the Borrower by Olajuwon
Associates, L.L.C. in connection with the Borrower's interest
in the Olajuwon Associates, L.L.C."
(ii) Section 2.13(a) of the Credit Agreement is
hereby amended by (A) deleting the period as it appears at the end
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of subsection (iii) thereof and replacing it with a semicolon and (B)
adding the following new subsection (iv):
"(iv) Notwithstanding anything to the contrary contained in
this Section 2.13(a), the Borrower shall be required to apply
the Net Sale Proceeds received in connection with the Olajuwon
Associates, L.L.C. as follows: first, to prepay the Term
Loans, in inverse order of maturity, together with all accrued
and unpaid interest thereon to and including the date of such
prepayment, in an amount not to exceed $11,000,000, second, to
prepay the outstanding principal amount of the Subordinated
Promissory Note until such Subordinated Promissory Note shall
have repaid in full, together with all accrued and unpaid
interest thereon and all other amounts outstanding thereunder,
third, to prepay the Term Loans, in inverse order of maturity,
until such Term Loans shall have been repaid in full, together
with all accrued and unpaid interest thereon to and including
the date of prepayment and fourth, to prepay the Revolving
Loans until such Revolving Loans shall have been repaid in
full, together with all accrued and unpaid interest thereon,
provided that any such payment of the outstanding principal
amount of the Re volving Loans shall be accompanied by an
equivalent and permanent reduction of the Revolving Loan
Commitment."
(iii) Section 7.4(b) of the Credit Agreement is
hereby amended by adding the words "(other than the Olajuwon
Associates, L.L.C.)" immediately after the word "venture" as it appears
at the end of subsection (iii) thereof.
(iv) Section 7.5 of the Credit Agreement is hereby
amended by (A) deleting the word "and" as it appears at the end of
subsection (f) thereof, (B) deleting the period as it appears at the
end of subsection (g) thereof and replacing such period with a
semicolon and the word "and" and (C) adding to such Section 7.5 the
following new subsections (h) and (i):
"(h) Asset Dispositions effected in connection with
sale/leaseback transactions permitted pursuant to Section
7.14.
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(i) Asset Dispositions effected in connection with the
Olajuwon Associates, L.L.C."
(v) Section 7.8 of the Credit Agreement is hereby
amended by (A) deleting the word "and" as it appears at the end of
subsection (i) thereof, (B) deleting the period as it appears at the
end of subsection (j) thereof and replacing such period with a
semicolon and the word "and" and (C) adding to such Section 7.8 the
following new subsection (k):
"(k) the equity interest of the Borrower in the Olajuwon
Associates, L.L.C. and the Olajuwon Deferred Purchase Price."
Section 3. Limited Consent. Subject to the terms and
conditions set forth herein, the Agent and the Banks, as of the date hereof,
hereby consent to the effect on only the following specified provisions with
respect to each of the following:
(a) CNL Joint Venture. Notwithstanding the terms and
conditions of Sections 7.4(b)(i) and (iii) and 7.8 and of the Credit Agreement,
the Borrower is hereby permitted to purchase the general partnership interest of
each of the following (each such purchase being collectively referred to herein
as the "CNL JV Purchase"), (i) Denwest Foods, Ltd., a Florida limited
partnership, representing 50% of the entire partnership interest in Denwest
Joint Venture, a Florida general partnership, (ii) Densouth Foods II, Ltd., a
Florida limited partnership, representing 50% of the entire partnership interest
in Densouth Restaurants II Joint Venture, a Florida general partnership and
(iii) Denwest Foods II, Ltd., a Florida limited partnership, representing 50% of
the entire partnership interest in Denwest II Joint Venture, a Florida general
partnership. The purchase price for the CNL JV Purchase shall be an amount not
to exceed $4,400,000, which principal amount shall be evidenced solely by the
CNL Subordinated Debenture (as hereinafter defined). As a condition to this
Consent, the Borrower hereby represents and covenants to the Agent and the Banks
that no additional liabilities (other than the CNL Subordinated Debenture) shall
be assumed by the Borrower as a result of the CNL JV Purchase.
(b) CNL Indebtedness and Equity. Notwithstanding the
terms and conditions of Sections 7.2 and 7.21 of the Credit Agreement, the
Borrower is hereby permitted to incur Indebtedness (i) in connection with the
CNL
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JV Purchase in a principal amount not to exceed $4,400,000, which Indebtedness
shall be evidenced by a 5-year convertible redeemable debenture, payable to the
order of CNL Growth Corp. ("CNL"), bearing interest at the rate of 5% per annum
and convertible into shares of the Borrower's common stock (the "CNL
Subordinated Debenture") and (ii) in connection with the CNL Fee Property
Financing (as hereinafter defined), in a principal amount not to exceed
$7,700,000, which Indebtedness shall be evidenced by a promissory note (the "CNL
Subordinated Note") payable to the order of CNL; provided, however, that in
each case, such Indebtedness shall be subordinated in a manner and pursuant to
subordination terms and other terms and conditions satisfactory to the Agent as
determined in its sole discretion.
(c) CNL Personal Property Disposition.
Notwithstanding the terms and conditions of Section 7.5(c) of the Credit
Agreement, the Borrower is hereby permitted to make Asset Dispositions of the
personal property owned by the joint ventures referred to in Section 3(a) hereof
to CNL American Properties Fund, Inc., a Maryland corporation ("CNL Maryland"),
for a sale price of not less than $1,400,000 in the aggregate, paid in
immediately available funds, provided that the proceeds of such sale are applied
in accordance with Sections 2.13(a) and 2.14 of the Credit Agreement.
(d) CNL Equipment Financing. Notwithstanding the
terms and conditions of Sections 7.2(f), 7.5(c)(i), (iv) and (v) and 7.14(i) of
the Credit Agreement, the Borrower is hereby permitted to sell to CNL Maryland
certain equipment owned by the Borrower and located at the properties identified
on Schedule 3(d) hereto (the "Equipment"), for a sale price of not less than
$10,850,000 in the aggregate, paid in immediately available funds, and the
simultaneous lease of such equipment back to the Borrower at its then fair
market value (such sale and leaseback of the Equipment being collectively
referred to herein as, the "CNL Equipment Financing"), provided that the
proceeds of such sale are applied in accordance with the terms of Section 3(i)
hereof. Subject to the consummation of the CNL Equipment Financing and solely
for the purpose of the sale of the Equipment in connection therewith, the Agent
hereby releases its security interest in the Equipment located on the real
properties identified on Schedule 3(d) hereto.
(e) Improvement Financing. Notwithstanding the terms
and conditions of Sections 7.5(c)(i), (iv) and (v), 7.13 and 7.14(i) of the
Credit Agreement, the Borrower is hereby permitted to sell to one or more
affiliates of CNL,
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certain buildings and other improvements owned by the Borrower and located on
the real properties identified on Schedule 3(e) hereto (the "BEP Improvement
Locations"), for a sale price of not less than $4,750,000 in the aggregate, paid
in immediately available funds, and the simultaneous lease of such buildings and
other improvements back to the Borrower or BEP at their then fair market value
(such sale and leaseback of the buildings and other improvements collectively
being referred to herein as, the "CNL Improvement Financing"), provided that the
proceeds of such sale are applied in accordance with the terms of Section 3(i)
hereof.
(f) Fee Property Financing. Notwithstanding the terms
and conditions of Sections 7.4(b)(i), 7.5(c)(i), (iv) and (v) and 7.13 of the
Credit Agreement, the Borrower is hereby permitted to (i) purchase the fee
interest and/or leasehold interest in each of the parcels of real property
listed on Schedule 3(f) hereto (the "CNL Fee Properties") for a purchase price
not to exceed $7,700,000, and (ii) sell the CNL Fee Properties identified as
parcels 1, 2, 3, 5, 6, 7, 9, 10 and 12 on Schedule 3(f) hereto to one or more
affiliates of CNL for a sale price of not less than $8,000,000 in the aggregate,
paid in immediately available funds, and the simultaneous lease of such
properties back to the Borrower at their then fair market value (such purchase,
sale and leaseback of the CNL Fee Properties being collectively referred to
herein as, the "CNL Fee Property Financing"), provided that the proceeds of such
sale are applied in accordance with the terms of Section 3(i) hereof.
(g) Liens. Notwithstanding the terms and conditions
of Section 7.3 of the Credit Agreement, the Borrower is hereby permitted to
grant Liens (i) on its interest in the CNL Fee Properties identified as parcels
1 through 12 on Schedule 3(f) hereto, solely for the purpose of securing its
obligations under the CNL Subordinated Debenture and the CNL Subordinated Note,
(ii) on its interest in the Equipment, pursuant to one or more leases entered
into by the Borrower in connection with the CNL Equipment Financing, but only to
the extent required by such leases, (iii) on the personal property owned by the
Borrower or BEP that is located at the BEP Improvement Locations, pursuant to
one or more leases entered into by the Borrower in connection with the CNL
Improvement Financing, but only to the extent required by such leases and (iv)
on the personal property owned by the Borrower that is located at the CNL Fee
Properties, pursuant to one or more leases entered into by the Borrower in
connection with the CNL Fee Property Financing, but only to the extent required
by such leases.
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(h) Certain Restrictions. Notwithstanding the terms
and conditions of Sections 7.12(b), (c) and (e) of the Credit Agreement, the
Borrower is hereby permitted to enter into, in connection with the CNL JV
Purchase, the CNL Equipment Financing, the CNL Improvement Financing and the CNL
Fee Property Financing, one or more agreements that restrict the Borrower's
ability to sell or otherwise dispose of its assets, to create Liens on its
property and to make Restricted Payments.
(i) Use of Proceeds from CNL Transactions.
Notwithstanding the terms and conditions of Sections 2.13(a) and 2.14 of the
Credit Agreement, the Borrower is hereby required to apply the Net Sale Proceeds
received in connection with the CNL Equipment Financing, the CNL Improvement
Financing and the CNL Fee Property Financing as follows: first, to pay the Term
Loan installment due on September 30, 1997 under the Credit Agreement (the
"September Installment"), second, to prepay the scheduled installments of
principal on the Term Loans, in inverse order of maturity, in a principal amount
equal to $17,000,000 (less the September Installment) and third, to prepay the
outstanding principal amount of the Revolving Loans in a principal amount equal
to approximately $7,500,000.
(j) GHS Franchise Acquisitions.
(i) Notwithstanding the terms and conditions
of Sections 7.4(b)(i)(D) and 7.19 of the Credit Agreement, BEP is
hereby permitted to purchase (A) the fee interest of G.H.S. Restaurant
Management, Inc., an Arizona corporation ("GHS") in the real property
identified as parcel 1 on Schedule 3(j) hereto, together with the
buildings and improvements (including, without limitation, any
restaurants) located on such property (the "GHS Real Property"), (B)
the fee interest of GHS in the buildings and improvements located on
the properties identified as parcels 2 through 6 on Schedule 3(j)
hereto (the "GHS Buildings"), (C) the leasehold interest of GHS in the
real property identified as parcels 2 through 6 on Schedule 3(j) hereto
(the "GHS Leasehold Interests") and (D) the interest of GHS in certain
other personal property located on or used in connection with the GHS
Real Property, the GHS Buildings and the GHS Leasehold Interests
(including, without limitation, the equipment located on each property
(the "GHS Equipment"), for an aggregate purchase price not to exceed
$3,250,000 (each such
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purchase collectively, being referred to herein as the "GHS Franchise
Acquisitions").
(ii) Notwithstanding the terms and
conditions of Sections 6.5, 7.5(c)(i), (iv) and (v), 7.13 of the Credit
Agreement, BEP is hereby permitted to sell the GHS Real Property, the
GHS Buildings (other than the property identified as parcel 4 on
Schedule 3(j) hereto) and the GHS Equipment to one or more affiliates
of CNL for a sale price of not less than $5,600,000 in the aggregate,
paid in immediately available funds, and the simultaneous lease of such
GHS Real Property, GHS Buildings and GHS Equipment back to the Borrower
at their then fair market value (such sale and leaseback being
collectively referred to herein as, the "GHS Financing"), provided that
the proceeds of such sale are applied in accordance with the terms of
Section 3(j)(iii) hereof. As a condition to this Consent, the Borrower
hereby represents and covenants to the Agent and the Banks that in
connection with the GHS Franchise Acquisitions the Borrower will
acquire all rights and interests necessary or desirable to operate the
properties as currently operated and that no additional liabilities
shall be assumed by the Borrower as a result of such acquisitions.
(iii) Notwithstanding the terms and
conditions of Sections 2.13(a) and 2.14 of the Credit Agreement, the
Borrower shall be required to cause BEP to use the Net Sale Proceeds
received in connection with the GHS Financing as follows: first to pay
the purchase price in connection with the FRG Franchise Acquisitions
(as hereinafter defined), in an amount not to exceed $1,500,000, second
to pay the purchase price in connection with the GHS Franchise
Acquisitions, in an amount not to exceed $3,250,000 and third, to
prepay the Revolving Loans in a principal amount equal to the Net Sale
Proceeds received in connection with the GHS Financing less amounts
paid pursuant to clauses first and second hereof.
(k) Colorado Franchise Termination. Notwithstanding
the terms and conditions of Sections 6.5 and 7.5(c) of the Credit Agreement, the
Borrower is hereby permitted to make Asset Dispositions consisting solely of an
assignment of the right, title and interest in and to the BEP trade name, trade-
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marks, trade dress and service marks solely in the State of Colorado, in each
case pursuant to the terms of an agreement substantially in the form of Exhibit
C hereto, which assignment includes the termination of royalty payments to be
paid to BEP pursuant to each of the Franchisor Agreements listed on Schedule
3(k) hereto (collectively, the "BEP Franchisor Agreements").
(l) FRG Franchise Acquisition. Notwithstanding the
terms and conditions of Sections 6.5, 7.4(b)(i)(D) and 7.19 of the Credit
Agreement, BEP is hereby permitted to purchase (A) the fee interest of Florida
Restaurant Group, Inc. ("FRG") in the buildings and improvements located on the
properties identified on Schedule 3(l) hereto (the "FRG Properties"), (B) the
leasehold interest of FRG in the FRG Properties and (C) the interest of FRG in
certain personal property located on or used in connection with the FRG
Properties for an aggregate purchase price not to exceed $1,500,000 (such
purchases collectively being referred to herein as the "FRG Franchise
Acquisitions"). As a condition to this Consent, the Borrower hereby represents
and covenants to the Agent and the Banks that in connection with the FRG
Franchise Acquisitions, BEP will acquire all rights and interests necessary or
desirable to operate the properties as currently operated and that no additional
liabilities shall be assumed by the Borrower or BEP as a result of such
acquisitions.
(m) Unigate Transactions.
(i) Notwithstanding the terms and conditions
of Sections 7.5(c) and 7.10(i) of the Credit Agreement, the Borrower is
hereby permitted to make Asset Dispositions consisting solely of (A)
the termination of the Guarantee Agreement, dated as of May 31, 1996 by
Unigate Holdings, NV in favor of the Borrower and the Borrower's rights
thereunder and (B) the waiver by the Borrower of its indemnification
rights under the Stock Purchase Agreement to the extent provided in the
Settlement Agreement and Release, dated as of September 30, 1997 among
the Borrower, BEP, Beck Holdings, Inc. and Unigate Holdings, NV.
(n) Put Agreement. Notwithstanding the terms and
conditions of Sections 7.2 and 7.6 of the Credit Agreement, the Borrower is
hereby permitted to enter into a certain substitution and put agreement pursuant
to which the Borrower is required to purchase the properties identified on
Schedule 3(n) hereto (collectively, the "Put Properties") upon the occurrence of
certain events
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described in such substitution and put agreement, provided that the Borrower has
the ability under such agreement to provide a comparable property in
substitution for any Put Property and provided, further, that the purchase price
for the Put Properties shall not exceed $4,000,000 in the aggregate.
(o) Security Documents. Notwithstanding the terms and
conditions of Sections 2.22(b), 2.22(c), 6.1(l) and 6.21 of the Credit
Agreement, the Borrower shall not be required to deliver to the Agent on the
date hereof (i) any Mortgages, Uniform Commercial Code financing statements,
fixture filings or any other document pursuant to which the Borrower grants to
the Agent a security interest in or lien on its interest in (A) the Equipment,
(B) the GHS Real Property, (B) the GHS Buildings, (C) the GHS Leasehold
Interests, (D) certain personal property located on or used in connection with
the GHS Real Property, the GHS Buildings and the GHS Leasehold Interests and (E)
the FRG Properties (such property collectively, the "Acquired Property"), or
pursuant to which any such security interest is perfected, (ii) any third party
consents relating to the granting of a security interest to the Agent in the
Acquired Property, or (iii) any filing with respect to any of the Acquired
Property consisting of intellectual property, provided that in each such case,
the Borrower is hereby required to deliver any and all documentation referred to
in clauses (i), (ii) and (iii) above within 90 days of the date hereof.
Section 4. Limited Waiver of Defaults or Events of Default.
Subject to the terms and conditions set forth herein, the Agent and the Banks,
as of the date hereof, hereby waive any Default or Event of Default that has
occurred as of the date hereof or that shall occur, solely as a result of any of
the following:
(a) Financial Covenants. The failure of the Borrower
to maintain the financial covenants set forth in Sections 7.1(b), 7.1(d) and
7.1(e) of the Credit Agreement to and including December 30, 1997.
(b) Notice of Default or Litigation. The failure of
the Borrower to give notice (prior to the date hereof) to the Agent, pursuant to
Sections 6.1(g)(ii), 6.1(g)(iv) and 6.1(g)(vi) of the Credit Agreement, within
one Business Day after an Authorized Officer obtained knowledge of (i) the
occurrence of a material default or event of default under any of the BEP
Franchisor Agreements that could reasonably be expected to have a Material
Adverse Effect, arising solely as a result of BEP's failure to comply with
certain filing requirements under applicable franchising laws and (ii) the
existence of any pending or threatened
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litigation against BEP that could reasonably be expected to have a Material
Adverse Effect, arising solely in connection with the BEP Franchisor Agreements.
(c) Compliance with Laws. The failure of BEP to
comply with all applicable laws pursuant to Section 6.6 of the Credit Agreement,
solely as a result of BEP's failure prior to the date hereof to comply with
certain filing requirements under applicable franchising laws with respect to
the BEP Franchises.
(d) Asset Dispositions. The failure of the Borrower
to comply with the terms and conditions of Sections 2.13(a) and 7.5(c) of the
Credit Agreement as a result of the Borrower's sale of its leasehold interest
in, and its interest in the equipment located on the premises of, 1905 Preston
Road, Plano, Texas.
Section 5. Conditions to Effectiveness of this Consent. The
effectiveness of this Consent is subject to the satisfaction of the following
conditions precedent:
(a) Consent. This Consent shall have been duly
executed and delivered by each of the parties hereto.
(b) Proceeds. The Banks shall have received proceeds
from the respective sales referred to herein in an aggregate principal amount of
at least $24,500,000, to be applied in accordance with the terms and conditions
hereof.
(c) Subordinated Promissory Note. The holder of the
Subordinated Promissory Note shall have effected an amendment substantially in
the form of Exhibit A hereto.
(d) Series B Documentation. The Agent shall have
approved the form and substance of an agreement (which agreement has been
requested by the Agent) to be executed by the Borrower and the holders of the
Series B Subordinated Notes, relating to the deferral of the payment to such
holders (other than $15,000 in the aggregate to Fred W. Martin and the Moffitt
Family Trust) due on September 30, 1997 until March 31, 1998.
(e) Settlement. The Borrower shall have effected a
settlement agreement in the form of Exhibit B hereto with respect its lawsuit
against
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Beck Holdings, Inc. (formerly known as BEP Holdings, Inc.) and Unigate Holdings,
NV.
(f) Legal Opinion. The Agent shall have received a
legal opinion, dated the date hereof, from O'Connor, Cavanagh, Anderson,
Killingsworth & Beshears, counsel to the Borrower and its Subsidiaries, as to
the matters referred to in this Consent and such other matters as requested by
the Agent, which legal opinion shall be in form and substance satisfactory to
the Agent.
(g) Officer's Certificate. The Agent shall have
received a certificate of an Authorized Officer of the Borrower certifying as to
the matters set forth in Sections 6(a) and 6(b) of this Consent.
(h) Transaction Documentation. The Agent shall have
approved the form and substance of each of the definitive agreements to be
executed by the Borrower in connection with each of the transactions
contemplated by Section 3 of this Consent.
(i) Additional Matters. The Agent shall have received
such other certificates, opinions, documents and instruments relating to the
transactions contemplated hereby as may have been requested by the Agent or any
Bank, in each case, in form and substance satisfactory to the Agent.
Section 6. Representations and Warranties. The Borrower
represents and warrants to the Agent and the Banks, as of the date hereof, that
both before and after giving effect to this Consent:
(a) no Default or Event of Default (other than any
Default or Event of Default waived pursuant to the terms hereof) has occurred
and is continuing; and
(b) all of the representations and warranties
contained in the Credit Agreement and in the other Loan Documents (other than
those that expressly speak only as of a different date) are true and correct.
Section 7. Miscellaneous.
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(a) Effect; Ratification. The amendments, consents
and waivers set forth herein are effective solely for the purposes set forth
herein and shall be limited precisely as written, and shall not be deemed to (i)
be a consent to any amendment, consent or modification of any other term or
condition of the Credit Agreement or of any other instrument or agreement
referred to therein; or (ii) prejudice any right or remedy which the Agent or
the Banks may now have or may have in the future under or in connection with the
Credit Agreement or any other instrument or agreement referred to therein. Each
reference in the Credit Agreement to "this Amended Credit Agreement", "herein",
"hereof" and words of like import and each reference in the other Loan Documents
to the "Agreement" or the "Credit Agreement" shall mean the Credit Agreement as
amended hereby. This Consent shall be construed in connection with and as part
of the Credit Agreement and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Credit Agreement and each other
instrument or agreement referred to therein, except as herein amended or waived,
are hereby ratified and confirmed and shall remain in full force and effect.
(b) Loan Documents. This Consent is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
(c) Costs, Fees and Expenses. The Borrower agrees to
pay all costs, fees and expenses (including the reasonable fees and expenses of
counsel to the Agent) incurred in connection with the preparation, execution and
delivery of this Consent as required pursuant to the Credit Agreement.
(d) Headings Descriptive. The headings of the several
Sections and Subsections of this Consent are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision or term
of this Consent.
(e) Counterparts. This Consent may be executed in any
number of counterparts, each such counterpart constituting an original and all
of which when taken together shall constitute one and the same instrument.
(f) Severability. Any provision contained in this
Consent that is held to be inoperative, unenforceable or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or
invalid without affecting the
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remaining provisions of this Consent in that jurisdiction or the operation,
enforceability or validity of such provision in any other jurisdiction.
(g) GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF ILLINOIS.
(h) WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED
BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL
RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR IN CONNECTION WITH THIS CONSENT OR ANY OTHER LOAN DOCUMENT OR ANY MATTER
ARISING HEREUNDER OR THEREUNDER.
* * * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Consent to be executed by their respective duly authorized officers as of the
date first written above.
DEN AMERICA CORP.
By: /s/ T S Brown
-------------------------------
Name: Todd Brown
Its: CFO
BANQUE PARIBAS,
individually and as Agent
By: /s/ Peter Toal
-------------------------------
Name: PETER TOAL
Its: MANAGING DIRECTOR
By: /s/ Clark C. King
-------------------------------
Name: CLARK C. KING III
Its: DIRECTOR
FIRST SOURCE FINANCIAL LLP
By First Source Financial, Inc.
Its Agent/Manager
By: /s/ James W. Wilson
-------------------------------
Name: James W. Wilson
Its: Senior Vice President
LASALLE NATIONAL BANK
By: /s/ Mark E. McCauley
-------------------------------
Name: Mark E. McCauley
Its: S.V.P.
PILGRIM AMERICAN PRIME RATE
TRUST
By: /s/ Daniel A. Norman
-------------------------------
Name: DANIEL A. NORMAN
Its: SENIOR VICE PRESIDENT
KZH-SOLEIL CORPORATION
By: /s/ Virginia R. Conway
-------------------------------
Name: Virginia R. Conway
Its: Authorized Agent