OMNIBUS AGREEMENT
This OMNIBUS AGREEMENT (this "Agreement") is entered into as of June 30,
1999, among DenAmerica Corp., a Georgia corporation ("Borrower"), Paribas
(formerly known as Banque Paribas) ("Paribas"), in its individual capacity as
a Bank and as Agent, First Source Financial LLP ("First Source"), in its
capacity as a Bank, LaSalle National Bank ("LaSalle"), in its capacity as a
Bank and CNL APF Partners, LP, a Delaware limited partnership, individually
and in its capacity as successor agent under the Credit Agreement (as
hereinafter defined) (the "Successor Agent") ("CNL").
PRELIMINARY STATEMENTS
Borrower, the Banks and the Agent entered into that certain Amended and
Restated Credit Agreement, dated as of July 3, 1996 (as amended, restated,
supplemented or otherwise modified, the "Credit Agreement"; capitalized terms
used herein and not defined herein shall have the respective meanings set
forth in the Credit Agreement), pursuant to which the Banks made certain
financial accommodations available to Borrower and the Agent agreed to act as
agent on behalf of the Banks.
Borrower, certain of its Affiliates, the other Loan Panics and CNL and
certain of its Affiliates, have entered into that certain Waivers And
Agreement To Amend And Restate dated as of the date hereof (the "Amendment
and Restatement Agreement") which sets forth the terms of a restructuring of
the Borrower's outstanding indebtedness under the Credit Agreement and a
reallocation of the Purchased Interests (as hereinafter defined).
CNL now desires to purchase and otherwise assume all of the rights and
obligations of the Banks under the Credit Agreement, the Notes and the other
Loan Documents (as hereinafter defined), and the Banks desire to sell and
otherwise transfer all of such rights and obligations and assign their
respective Notes and the other Loan Documents (as hereinafter defined) to CNL
in accordance with the terms and conditions hereof.
The Agent desires to assign all of its rights and obligations as Agent
under the Credit Agreement to CNL as successor agent thereunder, and CNL,
individually and as Successor Agent, agrees to accept such assignment and
related agreements hereunder in accordance with the terms and conditions
hereof.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the payment of the
Purchase Price (as hereinafter defined) and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Assignment. (a) On the terms set forth herein, each Bank, as of the
Effective Date, hereby irrevocably sells, assigns, delegates and transfers to
CNL, and CNL hereby purchases, accepts and assumes from each Bank, all of the
rights and obligations of such Bank under the Credit Agreement, each Note and
the other Loan Documents (as hereinafter defined) (such rights and
obligations of each such Bank being hereinafter referred to as its "Bank
Interest" and such rights and obligations of all the Banks collectively being
hereinafter referred to as the "Purchased Interest"); (b) on the terms set
forth herein, the Agent (with the consent of each Bank as evidenced by its
execution hereof), as of the Effective Date, hereby assigns, transfers and
conveys to CNL, individually and as Successor Agent, as successor agent under
the Credit Agreement and Loan Documents (as hereinafter defined) on behalf of
CNL all the rights and obligations of the Agent thereunder, and CNL,
individually and as Successor Agent, hereby accepts and assumes all such
rights and obligations.
Borrower hereby consents to the assignments set forth in this Section 1
pursuant to the terms and conditions set forth herein and pursuant any
additional assignment documents. The Borrower hereby agrees that on and after
the Effective Date the terms and provisions of the Amendment and Restatement
Agreement shall control and apply with respect to certain provisions of the
Loan Documents (as hereinafter defined) as set forth in such Amendment and
Restatement Agreement (provided that no such provisions shall control to
override the effectiveness of paragraph 9 hereof in respect of the survival
of rights for the benefit of Paribas (as Agent and as a Bank), First Source
and LaSalle).
As of the Effective Date, CNL, for itself and as Successor Agent, shall
have the rights and obligations of each "Bank" under each Note and the other
Loan Documents (as hereinafter defined) with respect to the Purchased
Interest, except to the extent of any arrangements with respect to payments
referred to in Section 2
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hereof and CNL shall become the Agent as successor agent to Paribas. The
Effective Date shall be June 30, 1999.
2. Payment. On the Effective Date (and as a condition to the
effectiveness of this Agreement), CNL shall pay (or cause to be paid) to each
Bank, in immediately available funds, the amount set forth on Exhibit B
hereto opposite such Bank's name (the "Purchase Price") payable by wire
transfer to the account designated in Exhibit B hereto for such Bank, which
shall be an amount in immediately available funds equal to accrued and unpaid
interest to the Effective Date if funds are received before 2:00 p.m. Chicago
time on the Effective Date (and including the Effective Date if funds are
received after 2:00 p.m. Chicago time on the Effective Date), principal, fees
and expenses (including legal fees and expenses).
Each of CNL and each Bank hereby agrees that if it receives any payment
of interest, principal, fees or any other amount under the Credit Agreement
or any other Loan Document (as hereinafter defined) which is for the account
of CNL on the one hand, or such Bank on the other, it shall hold the same in
trust for such party to the extent of such party's interest therein and shall
promptly pay the same to such party.
3. Representations and Warranties of the Banks. Each Bank represents
and warrants (as to itself) as follows (except with respect to paragraph 3(d)
below, in respect of which Paribas, as Agent, represents and warrants solely
as to paragraph 3(d)):
(a) As of the date hereof, in each case without giving effect to
assignments thereof which have not yet become effective, the Pro Rata Share
of the Bank of the Revolving Loan Commitment is as set forth on Exhibit C
hereto oppo-site the Bank's name and under the column heading of "Pro Rata
Share of the Revolving Commitment" which Exhibit C is incorporated herewith
by this reference. The Bank has not created any rights in its Bank Interest
for the benefit of any other party, except to CNL as contemplated hereby.
(b) As of the date hereof, in each case without giving effect to
assignments thereof which have not yet become effective, the outstanding
principal balance of Revolving Loans made by the Bank is as set forth on
Exhibit C hereto opposite the Bank's name and under the column heading of
"Principal Balance of Outstanding Revolving Loans."
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(c) The Bank has full power and authority, and has taken all
action necessary to execute and deliver this Agreement and any and all other
documents required or permitted to be executed or delivered by it in
connection with this Agreement and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Agreement, and no
governmental authorizations or other authorizations are required in
connection therewith.
(d) Set forth on Exhibit D hereto and incorporated herewith by
this reference is a list of all of the material agreements that, to the
actual knowledge of Paribas, as Agent, have been delivered to Paribas, as
Agent, by the Borrower in connection with the Credit Agreement (collectively,
the "Loan Documents").
(e) This Agreement constitutes the legal, valid and binding
obligation of such Bank.
4. Limitation of Liability. Except for the express representations
made by each Bank pursuant to Section 3 hereof, the parties hereto agree that
none of Paribas (individually and as Agent), First Source or LaSalle makes
any representation or warranty, covenant, undertaking or agreement in respect
of (or otherwise assumes any responsibility or liability in connection with)
any of the Loan Documents, any Purchased Interest or any rights or interests
in respect thereof, including, without limitation, with respect to and in
connection with: (i) the financial condition of Borrower or any other Loan
Party, (ii) the performance by Borrower or any other Loan Party of the
Obligations, (iii) any statements, warranties or representations made by
Borrower in or in connection with the Credit Agreement or any other Loan
Document, (iv) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other Loan
Document, (v) the performance of or compliance by any party with any terms,
provisions or conditions precedent in respect of any of the Loan Documents,
(vi) the existence or identification of any of the property, books or records
of Borrower or any other Loan Party, (vii) the actions of Paribas as Agent in
connection with any Loan Document or (viii) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral
securing or purporting to secure the Obligations or the continued effective-
ness or sufficiency thereof.
5. Representations and Warranties of CNL. CNL hereby represents and
warrants to the Agent and each Bank as follows:
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(a) CNL has full corporate and legal power and authority, and has
taken all corporate action necessary to execute and deliver this Agreement
individually, and as Successor Agent, and any and all other documents
required or permitted to be executed or delivered by it in connection with
this Agreement and to fulfill its obligations under, and to consummate the
transactions contemplated by, this Agreement, and no governmental
authorizations or other authorizations are required in connection therewith
or CNL has obtained all such required authorizations.
(b) This Agreement constitutes the legal, valid and binding
obligation of CNL enforceable against CNL in accordance with its terms.
(c) CNL has independently and without reliance upon the Agent or
any Bank and based on such information as CNL has independently verified and
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. CNL will, independently and without reliance upon the Agent
or any Bank, and based upon such documents and information as it shall deem
appropriate at any time, at all times make its own credit decisions in taking
or not taking action under the Credit Agreement (and the Amendment and
Restatement Agreement, if appropriate).
(d) CNL acknowledges that it has received originals or copies of
the agreements set forth on Exhibit D hereto.
6. Intentionally left blank.
7. Information. None of Paribas (individually and as Agent), First
Source or LaSalle, or any of their officers, directors, advisors,
representatives, agents and affiliates (except for representations expressly
set forth in paragraph 3 hereof) makes any representation or warranty
(express or implied) as to the accuracy or completeness of any information
(whether written or oral) transmitted to CNL or any of its affiliates or
representatives in the course of its evaluation of the transactions
contemplated hereby, and each of Paribas (individually and as Agent), First
Source or LaSalle specifically disclaims all liability with respect thereto.
CNL hereby agrees that it has conducted its own independent investigation and
analysis of the Borrower, the Loan Documents and this Agreement and any
information provided to it in connection therewith.
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8. Resignation and Termination of Agency. In furtherance of the
assignment of Agency rights and obligations set forth in paragraph 1 hereof,
and in accordance with and pursuant to Section 9.9 of the Credit Agreement,
to the extent the assignment of Agency rights and obligations hereunder is
interpreted to be a resignation, Paribas hereby confirms that it resigns as
Agent under the Credit Agreement and relinquishes all of its rights, powers,
privileges and duties as Agent thereunder; provided, however, that Borrower
and each Bank hereby waives the 30 days' notice of resignation required under
Section 9.9 of the Credit Agreement and any other provision set forth in any
Loan Document which would otherwise qualify or restrict the assignment and
resignation of Paribas as Agent set forth in this Agreement; and provided,
further, that the provisions of Section 9 and Section 10.1 of the Credit
Agreement shall inure to the benefit of Paribas as to any actions taken or
omitted to be taken by it while it was Agent under the Credit Agreement. The
parties hereto acknowledge that Paribas shall have no continuing obligations
or duties in connection with its activities as Agent.
9. Survival of Rights. The parties hereto hereby agree that Paribas
(as Bank and Agent), First Source and LaSalle shall each retain the rights to
claim the benefit of any indemnities in the Credit Agreement and Loan
Documents for the time periods that such entities were a party to the
agreements, and in respect of any liability, loss, obligation, cost, expense
or any other cause of action referenced therein arising during such time
period or in respect thereof
10. Further Assurances. Each of the Borrower, each Loan Party, CNL,
the Agent and each Bank agrees to execute and deliver such other agreements
or instruments, and take such other action, as CNL, the Agent or any Bank may
reasonably request to further evidence the transactions contemplated by this
Agreement. The Agent agrees to execute and deliver a Successor Agent
Certificate in the form attached hereto as Exhibit A in the number of
counterparts reasonably requested by CNL to give effect to the recording of
assignments of recorded Loan Documents by CNL as Successor Agent under the
Credit Agreement as Successor Agent. Such agreements, instruments and
documents shall be prepared, executed and delivered at the cost and expense
of the Borrower.
11. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL
OBLIGATION UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS RELATING THERETO. IN ANY
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DISPUTE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, EACH PARTY HERETO
HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF STATE AND
FEDERAL COURTS LOCATED IN THE STATE OF ILLINOIS.
12. Notices. 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,
addressed, in the case of each party hereto, at its address specified
opposite its signature below, or to such other address as may be designated
by any party in a written notice to the other parties hereto.
13. Successor and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
assigns.
14. Interpretation. The headings of the various sections hereof are
for convenience of reference only and shall not affect the meaning or
construction of any provision hereof.
15. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto 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.
16. Severability. 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.
17. Construction of Terms in Credit Agreement and other Loan Documents.
From and after the Effective Date, all references in the Credit Agreement and
the other Loan Documents to "the Banks" shall mean CNL, individually and as
Successor Agent, and all references to "the Agent" as secured party, pledgee,
mortgagee or assignee shall mean CNL, as Successor Agent.
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18. Satisfaction of Assignment Terms. Each of the parties hereto
hereby agrees and acknowledges that any conditions to assignment of the
Purchased Interest or equivalent restrictions contained in any section of the
Credit Agreement or any other Loan Document (including, without limitation,
Section 10.4 of the Credit Agreement) are hereby deemed to have been
satisfied or waived as of the Effective Date.
19. JURY WAIVER. 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 AGREEMENT.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officials, officers or agents
thereunto duly authorized as of the date first above written.
DENAMERICA CORP.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Its: Executive Vice President
Notice Address: 0000 X. Xxxxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxx
PARIBAS,
individually and as Agent
By: /s/ Xxxxx X. Xxxx, III
--------------------------------
Name: Xxxxx X. Xxxx, III
Its: Managing Director
By: /s/ Xxxxxx X. XxXxxxx
--------------------------------
Name: Xxxxxx X. XxXxxxx
Its: Asst. Vice President
Notice Address: 000 Xxxx Xxxxxx Xx.
Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxx
FIRST SOURCE FINANCIAL LLP by First
Source Financial, Inc. its Agent/Manager
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Its: Senior Vice President
Notice Address: 0000 X. Xxxx Xxxx
0xx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Contract Administration
LASALLE NATIONAL BANK
By: /s/ Xxxx XxXxxxxx
------------------------------------
Name: Xxxx XxXxxxxx
Its:
Notice Address: 000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone: (312)
Facsimile: (000) 000-0000
Attention: X. XxXxxxxx
CNL APF PARTNERS, LP, a Delaware limited
partnership
By: CNL APF GP Corp., a Delaware
corporation, as general partner
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Its: Executive Vice President
Notice Address: 000 X. Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000)000-0000
Facsimile: (000)000-0000
Attention: Xxxx Xxxxxx
