WAIVER AND EXTENSION AGREEMENT
This Waiver and Extension Agreement (this "Agreement"), made as of the
22nd of February, 2001, by and among CNL APF PARTNERS, LP, a Delaware limited
partnership with an office at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xx 00000 (the
"Lender") and PHOENIX RESTAURANT GROUP, INC. (formerly known as DenAmerica
Corp.) ("Obligor"), a Georgia corporation with an address at 0000 X.
Xxxxxxxxxx Xxxx, Xxxxx X-000, Xxxxxxxxxx, Xxxxxxx 00000.
WHEREAS, Obligor desires to sell and assign that certain $4,600,000.00
promissory note from Mid-American Restaurants, Inc. to Obligor dated July 3,
1996 ("Note") to CNL Growth Corp. as of the date hereof;
WHEREAS, the Lender is the current holder and owner of (i) that certain
Amended and Restated Credit Agreement dated as of July 3, 1996 (as amended,
restated, supplemented or otherwise modified to the date hereof the "BP
Agreement") with certain "Banks" named therein, including Banque Paribas
("Paribas"), and all the related Loan Documents (as such term is defined in
the BP Agreement) (the BP Agreement and the Loan Documents herein
collectively, the "Credit Agreement"); (ii) that certain Omnibus Agreement
dated as of June 30, 1999, by and among the parties to the Credit Agreement
and Lender, pursuant to which certain rights and obligations of the "Agent"
and the "Banks" under the Credit Agreement were assigned to Lender (herein
sometimes referred to as the "Credit Assignment"); and (iii) that
consolidated Interim Balloon Promissory Note dated June 30, 1999 from Obligor
to Lender in the original principal amount of $22,300,000.00 (the
"Consolidated Note"). The Consolidated Note was due and payable on January
31, 2000;
WHEREAS, Obligor and Lender entered into that certain Waiver, Extension
and Release of Lien Agreement dated as of January 26, 2001 ("First Waiver")
in connection with the sale of certain assets of Obligor which inter alia,
waived defaults under the Credit Agreement and Consolidated Note;
WHEREAS, Obligor failed to make a payment on February 15, 2001 as
required pursuant to the First Waiver and is in default under the Credit
Agreement ("Existing Default");
WHEREAS, Lender has agreed to lend Obligor the additional sums of
$900,000.00 under the Credit Agreement and $632,681.86 under the Credit
Agreement (the "Loans");
WHEREAS, Black-eyed Pea U.S.A., Inc., has agreed to give Lender a Deed
of Trust against that certain Black-eyed Xxx Xxxxxxxxxx, Xxxx Xx. 0000,
located at 0000 Xxxxx Xxxxxxxxxx 00 Xxxx, Xxxxxx, Xxxxx, securing Obligor's
obligations under the note evidencing the $632,681.86 Loan;
WHEREAS, Obligor has requested that the Lender enter into this Agreement for
the purpose of facilitating (i) the consummation of the sale and assignment
of the Note; and (ii) the Loans;
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WHEREAS, for the exclusive purpose of facilitating (i) the sale of the
Note and (ii) the Loans, Lender is willing to waive the Existing Default and
any and all other defaults which currently exist under the Credit Agreement,
Consolidated Note and related documents ("Defaults").
AGREEMENT
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NOW, THEREFORE, in consideration of the sum of Ten and No/100 Dollars
($10.00) each to the other in hand paid and the mutual agreements herein set
forth and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. The above recitals are true and correct and incorporated herein.
2. The Lender waives the Existing Default and any and all other Defaults
currently existing.
3. The standard monthly payment shall continue to be due and payable on
March 1, 2001; provided, however, in the event that certain documents related
to the transactions contemplated by this Agreement are being held in escrow
on and after March 1, 2001, such standard monthly payment shall be due and
payable immediately after the breaking of escrow and delivery of such
documents. The failure to pay such amount when due, shall constitute a
default under the Consolidated Note without any further notice, demand or
opportunity to cure and the Consolidated Note Maturity Date of March 31, 2001
shall remain in effect under the Consolidated Note.
4. Obligor hereby acknowledges and agrees that: (i) this Agreement is
in the best interest of the Obligor, in that among other things it will
permit Obligor and its affiliates to close the sale of the Note and the
Loans, pay the claims of certain of the Obligor's creditors and provide the
Obligor with additional time to pay the Lender's claims as represented by
Obligor to Lender, (ii) this Agreement has been requested by the Obligor to
avoid the costs, expenses and burdens of litigation with Lender, and (iii)
that the benefits that inure to the Obligor pursuant to this Agreement and
any other related documents constitute substantially more than "reasonably
equivalent value", as such term is used in Section 548 of Title 11 of the
United States Code (the "Bankruptcy Code") and in the Uniform Fraudulent
Transfer Act, in exchange for the benefits to be provided by Obligor.
Obligor further presents that it has not entered into this transaction to
provide preferential treatment to the Lender in anticipation of seeking
relief under the Bankruptcy Code nor has Obligor entered into this
transaction with the actual intent to hinder, delay or defraud any of
Obligor's creditors.
5. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy, telex, or
cable communication), and shall be deemed to have been duly given or made
when delivered by hand, or when received after being deposited in the United
States mail, postage prepaid, or, in the case of telex notice, when sent,
answer back received, or, in the case of telecopy notice, when sent, or, in
the case of a nationally recognized overnight courier service, one business
day after delivery to such courier service,
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addressed, in the case of each party hereto, at its address specified below,
or to such other address as may be designated by any party in a written
notice to the other parties hereto:
CNL APF PARTNERS, LP
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
PHOENIX RESTAURANT GROUP, INC.
c/o Xxxxxx Xxxxxxxx
Systems Management
0000 Xxxxxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxx, Xxxxxxxxx 00000
6. This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns.
7. This Agreement may be executed in any number of counterparts and by
the different parties thereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.
8. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
9. Obligor for itself and on behalf of its subsidiaries, 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 partners, of and from any and all manner of actions,
causes and causes of action whatsoever, at law or in equity, and including,
but not limited to, all claims relating to the Loans, the sale of the Note
and all related obligations and transactions of the Obligor and Lender with
respect to this Agreement from the beginning of the world to the date this
Agreement is signed by the last party executing this Agreement.
10. This Agreement is not intended and shall not be construed 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. Obligor hereby indemnifies and holds Lender harmless
from and against any claim, loss, damage, costs, charge or expense (including
attorneys' 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.
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11. No failure or delay on the part of the Lender in exercising any
right, power or privilege hereunder and no course of dealing between the
parties shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege hereunder or thereunder. The rights and remedies herein expressly
provided are cumulative and not exclusive of any rights or remedies which
Lender would otherwise have. No notice to or demand on Obligor or its
successors in any case shall entitle Obligor to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the
rights of the Lender to any other or further action in any circumstances
without notice or demand.
12. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS
OF THE STATE OF FLORIDA (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF
RELATING TO CONFLICTS OF LAW).
13. Any legal action or proceeding with respect to this Agreement and
any action for enforcement of any judgment in respect thereof may be brought
in the courts of the State of Florida or of the United States of America for
the Middle District of Florida, and, by execution and delivery of this
Agreement, Obligor hereby accepts for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of the
aforesaid courts and appellate courts. The Obligor hereby irrevocably
waives, to the extent permitted by law, any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in
the courts referred to above and hereby further irrevocably waives and agrees
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in an inconvenient forum. Nothing
herein shall affect the right of Lender to commence legal proceedings or
otherwise proceed against Obligor in any other jurisdiction.
14. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OBLIGOR HEREBY
IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
ALLEGED COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.
(CONTINUED ON NEXT PAGE)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
PHOENIX RESTAURANT GROUP, INC.,
a Georgia corporation
By: /s/ W. Xxxxx Xxxxxx
-----------------------------------------
Name: W. Xxxxx Xxxxxx
---------------------------------------
Title: President
--------------------------------------
CNL APF PARTNERS, LP, a Delaware
limited partnership
By: CNL APF GP CORP., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------------
Title: SVP
---------------------------------
STATE OF TENNESSEE
COUNTY OF DAVIDSON
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BEFORE ME, the undersigned, a Notary Public in and for said County and
State, on this day personally appeared W. Xxxxx Xxxxxx, as President of
PHOENIX RESTAURANT GROUP, INC., 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 24th day of February, 2001.
(NOTARY SEAL) /s/ Xxxxxx X. Xxxxxxxx
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Notary Public - State of Tennessee
Printed Name: Xxxxxx X. Xxxxxxxx
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Notary Commission No.:
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Commission Expires: 3-24-01
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STATE OF FLORIDA
COUNTY OF ORANGE
------
The foregoing instrument was acknowledged before me this 7th day of
March, 2001, by Xxxxxxx X. Xxxxxx, as SVP 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/she is
personally known to me and did not take an oath.
GIVEN UNDER MY HAND AND SEAL this 7th day of March, 2001.
(NOTARY SEAL) /s/ Xxxxxxx X. XxXxxxxxx
-----------------------------------
Notary Public - State of Florida
Printed Name:
----------------------
Notary Commission No.:
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Commission Expires:
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