MODIFICATION OF
CONSOLIDATED INTERIM PROMISSORY NOTE
REVISING MATURITY DATE
THIS MODIFICATION OF CONSOLIDATED INTERIM PROMISSORY NOTE REVISING
MATURITY DATE (hereinafter referred to as the "Agreement") is made and
entered into as of the 31st day of March, 2001, by and between CNL APF
PARTNERS, LP, a Delaware limited partnership, whose address is 000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as the
"Lender"), and PHOENIX RESTAURANT GROUP, INC., a Georgia corporation, f/k/a
DENAMERICA CORP., a Georgia corporation (hereinafter referred to as "PRG").
W I T N E S S E T H:
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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, as
modified by that certain Waiver, Extension and Release of Lien Agreement
dated as of January 26, 2001 and as otherwise modified and/or extended
(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 December 31,
2001; and
WHEREAS, Lender and PRG have agreed to modify the Note to extend the
Maturity Date.
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 that (a) the total cumulative principal balance of the
indebtedness represented by the Note as of the Effective Date (as hereinafter
defined) is TWENTY-TWO MILLION SIXTY-NINE THOUSAND ONE HUNDRED EIGHTY-SIX
AND 37/100 DOLLARS ($22,069,186.37) and that the outstanding accrued interest
as of the Effective Date is THREE HUNDRED EIGHTY-SIX THOUSAND TWO HUNDRED TEN
AND 76/100 DOLLARS ($386,210.76) 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) other than the Loan
Documents (as defined in the Note), there are no deeds of trust, liens or
other encumbrances against the Property (as defined in the Note), 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.
3. THE NOTE: Maturity Date: The maturity date of the Note which is
set forth in the first and second paragraphs of the Note is hereby amended,
modified and changed from March 31, 2001 to December 31, 2001.
4. 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 PROCEEDING 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
(f) THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER
INTO THIS TRANSACTION.
5. EFFECTIVE DATE. The effective date of this Agreement is and shall
be March 31, 2001 (the "Effective Date").
6. 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 and the Loan Documents from the beginning of the
world to the Effective Date. 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 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 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, and/or LaSalle [(as each is defined in
the Omnibus Agreement) as defined in that certain Waivers and Agreement to
Amend and Restate dated as of June 30, 1999, as modified)], and/or their
respective their affiliates, successors and/or assigns (other than Lender),
and all of their respective officers, directors, employees, agents, attorneys
and stockholders.
7. 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
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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 represents and declares 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.
8. 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.
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
/s/ Xxxxx Xxxxxxx
--------------------------
Name: Xxxxx Xxxxxxx
--------------------------
By: /s/ Xxxxxx Xxxxx Xxxxxxx, Xx.
------------------------------------
Xxxxxx Xxxxx Xxxxxxx, Xx., Vice
President
/s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx "LENDER"
--------------------------
STATE OF GEORGIA
COUNTY OF XXXXXX
The foregoing instrument was acknowledged before me on the 29th day of
June, 2001, by Xxxxxx Xxxxx Xxxxxxx, Xx. as Vice President 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/ Xxxxxx Xxxxxx
---------------------------------
Notary Public - State of Georgia
Print Name: Xxxxxx Xxxxxx
----------------------
Commission Number:
---------------
Commission Expires: July 12, 2003
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PHOENIX RESTAURANT GROUP, INC.,
a Georgia corporation, f/k/a DENAMERICA CORP.,
a Georgia corporation
/s/ Xxxxxxx X. Xxxx
-------------------------
Name: Xxxxxxx X. Xxxx
-------------------------
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxx, Chairman of the Board
/s/ Xxx X. Xxxxxxxx and Chief Executive Officer
-------------------------
Name: Xxx X. Xxxxxxxx
------------------------- "PRG"
STATE OF TENNESSEE
COUNTY OF DAVIDSON
The foregoing instrument was acknowledged before me on the 29th day of
June, 2001, by Xxxxxx X. Xxxxxxxx, Chairman of the Board and Chief Executive
Officer 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/ Xxxxxx X. Xxxxx
--------------------------------------
Notary Public - State of Tennessee
Print Name: Xxxxxx X. Xxxxx
--------------------------
Commission Number:
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Commission Expires: November 30, 2002
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