EXHIBIT 10.115
AGREEMENT
This Agreement is entered into as of September 30, 1997 by and among
DenAmerica Corp., a Georgia corporation ("DenAm"), ▇▇▇▇ Holdings, Inc., a
Delaware corporation formerly known as BEP Holdings, Inc. ("▇▇▇▇"), and Unigate
Holdings, NV, a corporation organized under the laws of The Netherlands ("UNV").
Whereas, DenAm and ▇▇▇▇ are parties to a Stock Purchase Agreement dated
as of May 31, 1996 (the "Stock Purchase Agreement"), pursuant to which DenAm
purchased the stock of Black-eyed Pea USA, Inc. ("BEP") from ▇▇▇▇.
Whereas, UNV guaranteed certain obligations of ▇▇▇▇ under the Stock
Purchase Agreement pursuant to a Guarantee Agreement dated as of May 31, 1996.
Whereas, ▇▇▇▇ holds a Senior Subordinated Promissory Note payable by
DenAm with a current principal amount of $15,289,980 (the "Note").
Whereas, in July 1997 DenAm commenced litigation against ▇▇▇▇ and UNV
in the United States District Court in and for the district of Arizona as to
certain matters (the "Litigation").
Whereas, DenAm is (1) proposing to enter into certain transactions with
various entities affiliated with CNL Group (the "CNL Transactions") and (2)
considering certain transactions with various entities affiliated with members
of the Olajuwon family (the "Olajuwon Transactions").
Whereas, the CNL Transactions and the Olajuwon Transaction require the
consent of ▇▇▇▇ under the terms of the Note.
Now, therefore, for good and valuable consideration the receipt and
sufficiency of which is agreed and acknowledged, parties hereto agree as
follows:
1. DenAm, Black-eyed Pea U.S.A., Inc., ▇▇▇▇ and UNV shall immediately
execute and deliver the Settlement Agreement and Release attached
hereto as Exhibit 1.
2. DenAm and UNV agree that the Guarantee is forever and irrevocably
canceled, and that UNV shall have no liability under the Guarantee in
respect of any past, present or future claim or matter.
3. DenAm and ▇▇▇▇ agree that the Note is hereby amended by adding the
following as new Section 2(f):
"(f) Special Repurchase Option. Notwithstanding
anything in this Note to the contrary:
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(i) The Company shall have the option (exercisable at
any time on or prior to March 27, 1998) to repurchase this
Note from the Holder at a price equal to $13 million minus the
aggregate amount of all principal payments made on this Note
on or after September 30, 1997 minus the Special Deduction
plus all accrued but unpaid interest on this Note through the
date of repayment (the "Repurchase Option"). The "Special
Deduction" shall equal the product of (i) $138,000 times (ii)
the number of days elapsed from (and including) September 30,
1997 through the closing of the Repurchase Option divided by
182 (but not to exceed 1.0).
(ii) The Company may elect to exercise the Repurchase
Option by delivering written notice to such effect to the
holder on or prior to March 27, 1998. Such notice shall be
transmitted by telecopy to the attention of ▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇
Holdings at (▇▇▇) ▇▇▇-▇▇▇▇ (with receipt confirmed by
telephone at (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to the attention of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ (with
receipt confirmed by telephone at (▇▇▇) ▇▇▇-▇▇▇▇). In the even
the Repurchase Option is so exercised, the closing of the
repurchase of the Note shall occur on the third business day
following delivery of the Exercise Notice to the Holder. At
the closing, the Company shall pay the repurchase price to the
Holder by wire transfer of immediately available fund to a
bank account designated by the Holder, and the Holder shall
deliver the Note to the Company for cancellation. In the event
that the closing of the repurchase does not occur on or prior
to the third business day following delivery of the Exercise
Notice for any reason (other than a failure by the Holder to
specify wire transfer instructions or make the Note available
for cancellation at the closing), the purported exercise of
the Repurchase Option shall be deemed null and void; provided
that the Company may deliver subsequent Exercise Notices at
any time on or prior to March 27, 1998."
(iii) The Repurchase Option shall not be exercisable
by the Company after March 27, 1998.
(iv) The Repurchase Option shall not affect or reduce
the interest payable on the note, which will continue to
accrue and be payable on the full principal amount of the Note
(as opposed to the price payable upon exercise of the
repurchase Option). Without limiting the generality of the
foregoing, interest shall be due and payable on the full
principal amount of the Note upon the terms set forth in the
Note on September 30, 1997, December 31, 1997, March 31, 1998
and all interest due dates thereafter (until such time as the
Note is repaid in full upon exercise of the Repurchase Option
or otherwise).
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4. ▇▇▇▇ hereby consents to the cancellation of the Delayed Draw Facility
(as defined in the Note) and waives those requirements of the Note
which require DenAm to utilize the Delayed Draw Facility to repay the
Note.
5. DenAm and ▇▇▇▇ agree that the Common Stock Purchase Warrant dated July
3, 1996 issued by DenAm to ▇▇▇▇ is hereby amended as follows:
a. The first sentence of the first paragraph of he warrant is
amended and restated to read as follows:
"This is to certify that, for value received, ▇▇▇▇ HOLDINGS,
INC., or assigns (the "Warrantholder"), is entitled, subject
to the terms and conditions hereinafter set forth, at any time
after April 1, 1998 and on or before 5:00 P.M., Pacific
Standard Time, on March 31, 2002, but not thereafter, to
purchase the Applicable Number (as defined below) of shares of
common stock, par value $0.10 per share (the "Common Stock"),
of DENAMERICA CORP. (the "Company") for the Warrant Price (as
defined below), and to receive a certificate or certificates
for the shares of Common Stock so purchased."
b. The first sentence of Section 2(a) of the Warrant is amended
and restated to read as follows:
"Subject to the terms of this Warrant, the Warrantholder shall
have the right, at any time during the period (the "Exercise
Period") commencing on April 1, 1998 and ending at 5:00 P.M.,
Pacific Standard Time, on March 31, 2002 (the "Termination
Date), or, if such date is a day on which banking institutions
are authorized by law to close, then on the next succeeding
day which shall not be such a day, to purchase from the
Company up to the number of fully paid and nonasessable shares
of Common Stock which the Warrantholder may at the time be
entitled to purchase pursuant to this Warrant Certificate."
c. A new Section 10 is added to the Warrant as follows:
10. Automatic Cancellation Under Certain
Circumstances. Notwithstanding anything in this Warrant to the
contrary, if all or any portion of the principal amount of the
Note is repaid during the period beginning on September 30,
1997 and ending on March 31, 1998 (the "Specified Period"),
then the Specified Percentage of this Warrant shall
automatically be canceled without any consideration or benefit
to the Warrantholder (and the canceled portion shall be null
and void and of no further force or effect). Any such
cancellation shall be effective on March 31, 1998. The
"Specified Percentage" shall equal the percentage represented
by (i) the aggregate amount of principal payments made on the
Note during the Specified
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Period divided by (ii) $15,289,980 (or, if the Note is
repurchased pursuant to the Repurchase Option, $13 million).
6. ▇▇▇▇ consents to, and waives the application of the covenants contained
in the Stock Purchase Agreement and the Note (and any other document
executed in connection with the Stock Purchase Note or the Note) to,
the CNL Transactions, as the same are described in the documents
attached as Exhibit 2 hereto. Any material deviation from the terms
described in Exhibit 2 hereto which would have an adverse effect on
▇▇▇▇, as holder of the Note, shall require ▇▇▇▇'▇ further written
consent.
7. ▇▇▇▇ and DenAm agree that Section 4(h)(viii) of the Note is deleted in
its entirety and replaced with the following:
"(viii) Indebtedness of the Company to CNL
Growth Corp., a Florida corporation, as agent for CNL
Income & Growth Fund, Ltd., CNL Income & Growth Fund
ll, Ltd., and Denglass Real Estate Venture, or to CNL
Growth Corp., a Florida corporation, as agent for
Denwest Foods, Ltd. and Denwest Foods II, Ltd. (or
their affiliates) in an aggregate principal amount of
up to $12.1 million (plus any Indebtedness which may
be deemed to exist by reason of the sale/leaseback
transactions with such Persons entered into on
September 30, 1997); and
(ix) additional unsecured Indebtedness of
the Company not otherwise permitted by any of clauses
(i) through (viii) above, provided that the aggregate
principal amount of such additional indebtedness
shall not at any time exceed $5,000,000."
8. ▇▇▇▇ hereby consents, and waives the application of the covenants
contained in the Note, to the acquisition of restaurants located in the
State of Arizona from Colorado Restaurant Management, Inc. and/or
G.H.S. Restaurants Management, Inc. (the "Franchisees"), the
sale/leaseback financing transactions involving the assets acquired in
such restaurant acquisitions, the application of the proceeds from such
sale/leaseback financing transactions to the settlement of claims made
by Black-eyed Pea franchisees and the forgiveness of any franchise fees
or royalties owed by the Franchisees to affiliates of DenAm. The
consent and waiver contained in this Section 8 does not, however,
constitute ▇▇▇▇'▇ consent to the settlement of claims made by the
Franchisees against Black-eyed Pea U.S.A., Inc. and/or DenAm or any
admission of wrongdoing by ▇▇▇▇ or UNV.
9. Subject to Section 10 below, ▇▇▇▇ consents to, and waives the
application of the covenants contained in the Stock Purchase Agreement
and the Note (and any other document executed in connection with the
Stock Purchase Note or the Note) to, the Olajuwon Transaction, as the
same is described in that certain document entitled "Summary of The
Mechanics of The Joint Venture" attached as Exhibit 3 hereto. Any
material deviation from the terms described
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in Exhibit 3 which would have an adverse effect on ▇▇▇▇, as holder of
the Note, shall require ▇▇▇▇'▇ further written consent.
10. ▇▇▇▇'▇ consent to the Olajuwon Transaction is conditioned on (a) the
immediate application of any proceeds (net of reasonable and documented
third party transaction costs) from the Olajuwon Transaction in excess
of $11 million in the aggregate to the repayment of the Note and (b)
the application of the first $11 million of such net proceeds to bank
debt. In the event that the proceeds of the Olajuwon Transaction are
not applied in accordance with the preceding sentence, ▇▇▇▇'▇ consent
to the Olajuwon Transaction shall be null and void.
11. DenAm represents and warrants that it has obtained the consent of its
bank syndicate to the application of proceeds as described in Section
10 above.
12. ▇▇▇▇ and ▇▇▇▇▇ agree that the Note shall be automatically amended as
follows, if and when the Olajuwon Transaction is consummated with
▇▇▇▇'▇ consent, as described in this Agreement:
a. The following shall be added as Section 4(i)(vi) of the Note:
"(vi) Investments in the limited liability
company or joint venture to be formed with members of
the Olajuwon family (or entities affiliated with
them), on the terms set forth in that certain
document entitled "Summary of The Mechanics of The
Joint Venture" attached as Exhibit 3 hereto (the
"Olajuwon Transaction")."
b. Section 4(j)(ii) shall be amended and restated to read as
follows:
"(ii) Asset Sales consisting of sales of
property having a fair market value, in the aggregate
for all such Asset Sales from and after September 30,
1997, of not greater than $5,000,000; provided, that
(1) prior to and after giving effect to such Asset
Sale, or Event of Default is continuing and (2) the
consideration received by the Company or such
Subsidiary on the closing date of such Asset Sale
shall be equal to the fair market value of the assets
sold and at least 80% of the consideration shall
consist of immediately available funds (provided that
the Company and its subsidiaries shall be entitled to
sell non- or under-performing restaurants in
transactions which fail to meet the 80% test
contained in this clause so long as the fair market
value of the aggregate proceeds of such transactions
does not exceed $10,000,000), and further provided,
that any Asset Sales made as part of the Olajuwon
Transaction shall be excluded from the $5,000,000
basket referred to above;"
c. The following shall be added as Section 4(j)(vi) of the Note:
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"(vi) Asset Sales made as part of the
Olajuwon Transaction."
13. From and after the date of this Agreement, neither DenAm nor Black-eyed
Pea U.S.A., Inc. nor any of their directors, officers or employees will
issue any press releases, or make any comments to the media or others,
which are disparaging to ▇▇▇▇, UNV or any of their affiliates or which
in any way suggest that the Litigation was settled on a basis other
than that described in this Agreement and the Settlement Agreement and
Release (including without limitation Section 1.4 thereof).
14. From and after the date of this Agreement, neither ▇▇▇▇ nor UNV nor any
of their directors, officers or employees will issue any press
releases, or make any comments to the media or others, which are
disparaging to DenAm, Black-eyed Pea U.S.A., Inc. or any of their
affiliates or which in any way suggest that the Litigation was settled
on a basis other than that described in this Agreement and the
Settlement and Release.
15. ▇▇▇▇ agrees to add the following legend (in the applicable form) to the
face of each of the Note and the Warrant and to send copies of such
instruments to DenAm promptly thereafter:
"THE TERMS OF THIS [NOTE][WARRANT] HAVE BEEN AMENDED BY, AND IS SUBJECT
TO, THE AGREEMENT DATED AS OF SEPTEMBER 30, 1997 BY AND AMONG
DENAMERICA CORP., ▇▇▇▇ HOLDINGS, INC. AND UNIGATE HOLDINGS, NV. A COPY
OF SUCH AGREEMENT SHALL BE FURNISHED BY DENAMERICA TO THE HOLDER HEREOF
UPON WRITTEN REQUEST AND WITHOUT CHARGE."
Upon ▇▇▇▇'▇ request, DenAm will issue amended and restated versions of
the Note and Warrant reflecting the amendments set forth in this
Agreement.
16. The consents contained in this Agreement shall be effective only with
respect to the matters specifically described herein, and this
Agreement shall not constitute a consent or waiver as to any other
action or transaction or any non-compliance by DenAm with any of the
terms of the Note. Except as expressly provided herein, the Note shall
remain unchanged and in full force and effect. This Agreement may be
executed in any number of counterparts, all of which taken together
shall constitute one and the same instrument and any of the parties
hereto may execute this Agreement by signing any such counterpart.
17. DenAm represents and warrants that (i) it has obtained all consents and
approvals which are required in connection with its execution, delivery
and performance of this Agreement and the Settlement Agreement and
Release and (ii) neither Denwest Foods, Ltd. nor Denwest Foods, II,
Ltd. are affiliates of DenAm or any of its officers or directors.
18. ▇▇▇▇ and UNV represent and warrant that they have obtained all consents
and approvals which are required in connection with their execution,
delivery and performance of this
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Agreement and the Settlement Agreement and Release. ▇▇▇▇ represents and
warrants that it is the sole record and beneficial owner of the Note
and the Warrant.
19. This Agreement shall be governed by, and construed in accordance with,
the law of the State of Delaware.
20. This Agreement, to the extent signed and delivered by means of a
facsimile machine, shall be treated in all manner and respects as an
original Agreement and shall be considered to have the same binding
legal effects as if it were the original signed version thereof
delivered in person. No party hereto shall raise the use of a facsimile
machine to deliver a signature or the fact that any signature was
transmitted or communicated through the use of facsimile machine as a
defense to the formation of a contract and each such party forever
waives any such defense.
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In witness whereof, the parties have executed this Agreement as of the
date first written above.
DENAMERICA CORP.
BY: /s/ ▇ ▇ ▇▇▇▇▇
--------------------------
ITS: Vice President
-------------------------
▇▇▇▇ HOLDINGS, INC.
BY: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇
--------------------------
ITS: President
-------------------------
UNIGATE HOLDINGS NV
BY: /s/ ▇. ▇. ▇▇▇▇▇▇
--------------------------
ITS: Director
-------------------------
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