Exhibit 10.11


 


CONSOLIDATED, AMENDED AND RESTATED PROMISSORY NOTE


 


Consolidating, amending and
restating the unpaid principal balance of those certain Promissory Notes
currently held by WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, f/k/a
NORWEST BANK MINNESOTA, N.A., as Indenture Trustee under that certain Servicing
Agreement dated as of November 1, 1999, as more particularly described on
Exhibit “A” attached hereto and by this reference made a part hereof, copies of
which are attached hereto.


 


	
  US $13,045,425.74

  	
   

  	
  New York, New York

  July 12, 2001

  



 


FOR
VALUE RECEIVED, the undersigned, jointly and severally if more than one,
promises to pay to the order of CNL FUNDING 99-1, LP, a Delaware limited
partnership, the principal sum of THIRTEEN MILLION FORTY-FIVE THOUSAND FOUR  HUNDRED
TWENTY-FIVE AND 74/100 DOLLARS (US$13,045,425.74), with interest in
arrears on the unpaid principal balance from the date of funding of this Note,
until paid, at an initial rate of 10.27479% per annum. Payments of principal
and Interest shall be payable to the holder hereof by electronic funds transfer
in accordance with instructions provided by holder to the undersigned, or such
other place as the holder hereof may designate in writing, in consecutive
monthly installments in the amount of ONE HUNDRED THIRTY-SIX THOUSAND FOUR HUNDRED
SEVENTY-FOUR AND 71/100 DOLLARS (US$136,474.71) on the first (1st)
day of each month beginning March 1, 2001 though the payment due April 1, 2014,
Borrower’s payment of principal and interest due on May l, 2014 shall be in the
amount of ONE
HUNDRED FIFTEEN THOUSAND SIX HUNDRED ELEVEN AND 41/100 DOLLARS (US$115,611.41),
Borrower’s payment of principal and interest due commencing with the payment
due June 1, 2014 and continuing through the payment due April 1, 2019,
Borrower’s payment of principal and interest shall be ONE HUNDRED FIVE THOUSAND ONE HUNDRED
ONE AND 34/100 DOLLARS (US$105,101.34), Borrower’s payment of
principal and interest due on May 1, 2019 shall be in the amount of EIGHTY-SEVEN
THOUSAND AND NINETY-THREE AND 73/100 DOLLARS (US$87,093.73),
Borrower’s payment of principal and interest due commencing with the payment
due June 1, 2019 shall be in the amount of SEVENTY-THREE THOUSAND FIFTY-SIX AND 81/100 DOLLARS
(US$73,056.81) and continue until the entire indebtedness evidenced
hereby is fully paid, except that any remaining indebtedness, if not sooner
paid, shall be due and payable on October 1, 2019 (the “Maturity Date”). If any
installment under this Note is due on a day that is not a Business Day (as
defined herein), such installment shall be deemed to be due and payable on the
next Business Day. All computation of interest shall be made by the holder on
the basis of a year of 360 days and shall be allocated in twelve (12) equal
monthly installments.


 


If
any installment under this Note is not received by the holder hereof within ten
(10) calendar days after holder’s written demand for such amount, the entire
principal amount


 

















 


outstanding hereunder and accrued interest thereon shall at once become
due and payable, at the option of the holder. The holder may exercise this
option to accelerate during any Default (as hereinafter defined) by the
undersigned regardless of any prior forbearance. In the event of any Default
under this Note or the Instrument or any other Loan Document (as such terms are
hereinafter defined), and if the same is referred to an attorney at law for
collection or any action at law or in equity is brought with respect hereto,
the undersigned shall pay the holder all of its reasonable expenses and costs,
including, but not limited to, attorneys’ fees and expenses, including
reasonable attorneys’ fees and expenses on any appeal and without relief from
valuation and appraisement laws. Any forbearance by the holder in exercising any
right or remedy under this Note or the Instrument or any other Loan Document,
or otherwise afforded by applicable law, shall not be a waiver of or preclude
the exercise of any right or remedy. The acceptance by the holder of payment of
any sum due hereunder after the due date of such payment or after holder has
declared a Default shall not be deemed to be a waiver of holder’s right
thereafter either to require prompt payment when due of all indebtedness owing
or to declare a Default for failure to make prompt payment.


 


If
any installment under this Note is not received by the holder within ten (10)
calendar days after the installment is due, the undersigned shall pay to the
holder a late charge of five percent (5%) of such installment such late charge
to be immediately due and payable without demand by the holder. If any
installment under this Note or any other monetary payment due under


 


2

















 


this Note, the Instrument or any other Loan Document remains past due
for ten (10) calendar days or more after holder’s written demand for such
amount, or if there shall exist any other Default under this Note, the
Instrument or any other Loan Document (after any applicable notice or cure
period provided therein or herein), the outstanding balance of this Note shall
bear interest during the period in which the undersigned is in Default at the
lesser of (i) four percent (4%) above the interest rate referenced in the first
paragraph above or (ii) the highest rate allowed by applicable law (the
“Default Rate”).


 


From
time to time, without affecting the obligation of the undersigned or the
successors or assigns of the undersigned to pay the outstanding principal
balance of this Note and to observe the covenants of the undersigned contained
herein (after any applicable notice or cure period, if any), and without
affecting the guaranty of any person, corporation, partnership or other entity
for payment of the outstanding principal balance of this Note, without giving
notice to or obtaining the consent of the undersigned, the successors or
assigns of the undersigned or guarantors, and without liability on the part of
the holder, the holder may, at the option of the holder, extend the time for
payment of said outstanding principal balance or any part thereof, reduce the
payments thereon, release anyone liable on any of said outstanding principal
balance, accept a renewal of this Note, modify the terms and time of payment of
said outstanding principal balance, join in any extension or subordination
agreement, release any security given herefor, take or release other or
additional security, and agree in writing with the undersigned to


 


3

















 


modify the rate of interest or period of amortization of this Note or
change the amount of the monthly installments payable hereunder or otherwise
modify, amend or waive any term or provision of this Note, the Instrument or
any other Loan Document.


 


Presentment,
notice of dishonor, right to set off and counterclaim, and protest are hereby
waived by all makers, sureties, guarantors and endorsers hereof. This Note
shall be the joint and several obligation of all makers, sureties, guarantors
and endorsers, and shall be binding upon them and their successors and assigns.


 


The
indebtedness evidenced by this Note (herein the “Loan”) is secured by certain
Commercial Mortgages/Deeds of Trust, Assignment of Rents and Security Agreement
with respect to property located in the States of Maryland, Virginia and Delaware
(collectively, the “instrument”) and certain of the other Loan Documents each
executed by the undersigned or its affiliates, and relating to certain real
property and personal property more particularly described therein (herein
referred to as the “Property”), and reference is made thereto for rights as to
acceleration of the indebtedness evidenced by this Note and as to other rights
and remedies. The collateral includes machinery, equipment, goods and other
personal property owned by the undersigned.


 


A
Default as defined in the Instrument or any and all other notes, instruments,
guaranties, documents and agreements evidencing or securing or relating to the
same or the indebtedness


 


4

















 


represented or secured thereby (herein the “Loan Documents”) under the
Instrument or any Loan Document shall constitute a Default under this Note.


 


Unless
funds are advanced hereunder on the first day of the month, the undersigned
shall pay the holder interest only, in advance, on the outstanding principal
balance of this Note at the rate set forth above from the date that funds are
advanced to and including the last day of the month during which funds are so
advanced.


 


Unless
applicable law requires otherwise, so long as the undersigned is not in Default
hereunder, all payments received by the holder under this Note or any
Instrument shall be applied by holder in the following order of priority: (i)
amounts due and payable to holder by the undersigned for any advances made by
the holder under the Instrument or any of the other Loan Documents for the
purposes of paying taxes, insurance and other charges incurred with respect to
the Property; (ii) interest (and late charges, if any) due and payable on the
Note; (iii) principal of the Note; (iv) interest due and payable on advances
made by the holder under the Instrument or under any of the other Loan
Documents in order to protect the holder’s security interest in any of the
collateral securing the Note; (v) principal of advances made by the holder
under the Instrument or any of the other Loan Documents in order to protect the
holder’s security interest in any of the collateral securing the Note; (vi)
interest due and payable on any Future Advance (as such term is defined in the instrument),
provided that if more than one Future Advance is outstanding, the holder may
apply payments received among the amounts of interest payable on


 


5

















 


the Future Advances in such order as the holder, in the holder’s sole
discretion, may determine; (vii) principal of any Future Advance, provided that
if more than one Future Advance is outstanding, the holder may apply payments
received among the principal balances of the Future Advances in such order as the
holder, in the holder’s sole discretion, may determine; and (viii) any other
sums due and payable secured by this Instrument or under any of the other Loan
Documents in such order as the holder, at the holder’s option, may determine;
provided, however, that the holder may, at the holder’s option, apply any sums
payable on advances made by the holder under the Instrument or any of the other
Loan Documents in order to protect the holder’s security interest in any of the
collateral securing the Note prior to interest on and principal of the Note,
but such application shall not otherwise affect the order of priority of
application herein. Upon the undersigned’s Default under this Note, the
Instrument or in any of the other Loan Documents, the holder may apply any
payments received by the holder in any amount and in any order as the holder
shall determine in the holder’s sole discretion.


 


ADDITIONAL COVENANTS. In addition to
the covenants and agreements made in this Note, the undersigned further
covenants and agrees with and in favor of holder as follows:


 


A.                                    Prepayment
Premium


 


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1.             Prepayment
in Full


 


At
any time from the date of this Note upon giving holder sixty (60) days prior
written notice, the undersigned may prepay the entire unpaid principal balance
of this Note in full on the last Business Day before a scheduled monthly
payment date. Upon any such prepayment, the undersigned agrees to pay the
holder, in addition to the entire unpaid principal balance, accrued interest,
and any other sums due holder at the time of prepayment, a prepayment premium
(the “Prepayment Premium”) equal to the greater of


 


(a)                                  1
% of the entire unpaid principal balance of this Note; or


 


(b)                                 (i)            the present value of all remaining payments
of principal and interest, discounted at the “Treasury Rate,” minus


 


(ii)                                  the
amount of principal being prepaid.


 


The
“Treasury Rate” shall be defined herein as the yield on securities issued by
the United States Treasury having a maturity equal to the remaining term of
this Note, as quoted in Federal Reserve Statistical Release [H.15(519)] under
the heading “U.S. Government Securities-Treasury Constant Maturity” for the
date most nearly two (2) weeks before the prepayment date (or a comparable rate
if this rate is no longer published) adjusted to reflect a monthly payment
interval. If the above rate is not available for a term equal to the remaining
stated term of this Note


 


7

















 


as of the date of such prepayment, the Treasury Rate shall be
determined by interpolating between the yields on securities of the next longer
and next shorter maturity.


 


The
principal sum of this Note may not be prepaid, in whole or in part, at any time
during the term hereof except (i) as specifically allowed herein and (ii)
during the ninety (90) day period immediately preceding the Maturity Date, when
this Note may be prepaid at any time in whole but not in part without payment
of a Prepayment Premium after the undersigned has given thirty (30) days prior
written notice to the holder. In the event that this Note is accelerated, the
undersigned shall also pay the amount of the Prepayment Premium that would have
been due had the undersigned voluntarily prepaid this Note. The holder shall
have no obligation to accept any prepayment of principal under this Note except
as expressly stated herein.


 


2.             Partial
Prepayment


 


The undersigned shall have no right to make a partial
prepayment of the outstanding indebtedness during the term of this Note.


 


8

















 


3.             Prepayment
Premium Due Whether Voluntary or Involuntary Prepayment: Insurance and
Condemnation Proceeds


 


The
undersigned shall pay the Prepayment Premium due under this Note whether the prepayment
is voluntary or involuntary (in connection with the holder’s acceleration of
the unpaid principal balance of this Note) or the Instrument is satisfied or
released by foreclosure (whether by power of sale or judicial proceeding), deed
in lieu of foreclosure or by any other means.           Notwithstanding
any other provision herein to the contrary, the undersigned shall not be
required to pay any Prepayment Premium in connection with any prepayment
occurring as a result of the application of insurance proceeds or condemnation
awards under the Instrument.


 


If
the undersigned shall give notice of a prepayment but shall fail, for any
reason, to make such prepayment, the undersigned shall immediately pay the
holder any and all reasonable costs, fees and expenses (including reasonable in
house and outside attorneys’ fees and expenses) associated with the holder’s
administrative preparation for such prepayment.


 


The
Prepayment Premium is the negotiated charge between the undersigned and the
holder for the privilege of the undersigned to prepay this Note at the times
provided above and to reimburse holder for administrative and other costs
related thereto and is not a penalty. The undersigned hereby covenants and
agrees to indemnify the holder hereof and hold it harmless from any costs,
fees, expenses (including attorneys’ fees and expenses) resulting from any
action, litigation or judicial action alleging or claiming that the Prepayment
Premium is a penalty.


 


9

















 


B.                                    Notice;
Business Day


 


Any
notice to the holder or the undersigned provided for in this Note shall be
given in the manner provided in the Instrument. The term “Business Day” means
any day other than a Saturday, a Sunday, or any other day which in Maryland is
a legal holiday or a day on which banking institutions are authorized or
required by law or government action to close.


 


C.                                    Assignment


 


This
Note is freely assignable in whole or in part, from time to time, by the holder
and the holder may grant participation interest(s) herein. Without limiting the
foregoing, the undersigned understands and agrees that the holder intends to
and may sell, pledge, grant a security interest in, collaterally assign,
transfer, deliver or otherwise dispose of this Note and the undersigned’s other
Loan Documents (or any interest therein, or its rights and powers thereunder),
from time to time, in connection with a Securitization (as defined in the
Instrument). This Note shall be binding upon the undersigned, its heirs,
devises, administrators, executives, personal representatives, successors,
receivers, trustees, permitted assignees, including all successors in interest
of the undersigned, and shall inure to the benefit of the holder hereof, and
the successors and assignees of the holder.


 


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D.                                    Governing
Law; Usury; Miscellaneous


 


This
Note shall be governed by and construed in accordance with the laws of the
State of Maryland and applicable federal law, except for enforcement rights as
to any such Property which must be governed by the law of any other
jurisdiction in which any such Property may be located.  The undersigned and holder agree that any
dispute arising out of this Note shall be subject to the jurisdiction of both
the state and federal courts in Maryland. For that purpose, the undersigned
hereby submits to the jurisdiction of the state and federal courts of Maryland.
The undersigned further agrees to accept service of process out of any of the
aforesaid courts in any such dispute by registered or certified mail, postage
prepaid, addressed to the undersigned. Nothing herein contained, however, shall
prevent holder from bringing any action or exercising any rights against (i)
the undersigned, (ii) any security, (iii) a guarantor personally, or (iv) the
assets of the undersigned or any guarantor, within any other state or
jurisdiction. The parties hereto intend to conform strictly to the applicable
usury laws. In no event, whether by reason of demand for payment, prepayment, acceleration
of the maturity hereof or otherwise, shall the interest contracted for, charged
or received by the holder hereunder or otherwise exceed the maximum amount
permissible under applicable law. If from any circumstance whatsoever interest
would otherwise be payable to the holder in excess of the maximum lawful
amount, the interest payable to the holder shall be reduced automatically to
the maximum amount permitted by applicable law. If the holder shall ever
receive anything of value deemed interest under


 


11

















 


applicable law which would apart from this provision be in excess of
the maximum lawful amount, an amount equal to any amount which would have been
excessive interest shall be applied to the reduction of the principal amount
owing hereunder in the inverse order of its maturity (without the payment of a
Prepayment Premium) and not to the payment of interest, or if such amount which
would have been excessive interest exceeds the unpaid balance of principal,
such excess shall be refunded to the undersigned. All interest paid or agreed
to be paid to the holder shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated term
(including any renewal or extension) of such indebtedness so that the amount of
interest on account of such indebtedness does not exceed the maximum permitted
by applicable law. The provisions of this paragraph shall control all existing
and future agreements between the undersigned and the holder.


 


Whenever
possible this Note and each provision hereof shall be interpreted in such
manner as to be effective, valid and enforceable under applicable law. Any
provisions of this Note which are prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction. In addition, any determination that the application of any
provision hereof to any person or under any


 


12

















 


circumstance is illegal and unenforceable shall not affect the
legality, validity and enforceability of such provision as it may be applied to
any other person or in any other circumstance.


 


WAIVER OF JURY TRIAL; NO CONSEQUENTIAL OR
PUNITIVE DAMAGES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE UNDERSIGNED
AND HOLDER BY ITS ACCEPTANCE HEREOF, FOR ITSELF AND FOR EACH HOLDER HEREOF,
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREE, THAT:


 


13

















 


(A)          NEITHER
THE UNDERSIGNED NOR HOLDER, 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 PROCEDURE ARISING FROM OR
BASED UPON THIS NOTE, ANY INSTRUMENT 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
THE UNDERSIGNED NOR HOLDER 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 UNDERSIGNED AND
HOLDER, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS;


 


(D)          NEITHER
THE UNDERSIGNED NOR HOLDER 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;


 


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(E)           IN
NO EVENT SHALL HOLDER BE RESPONSIBLE OR LIABLE FOR CONSEQUENTIAL OR PUNITIVE
DAMAGES TO THE EXTENT PERMITTED BY LAW; AND


 


(F)           THIS  PROVISION
IS A MATERIAL INDUCEMENT FOR HOLDER TO ENTER INTO THIS TRANSACTION AND IS
SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL
COUNSEL.


 


15

















 


NOTICE TO THE BORROWER


 


Do not sign this Note before you read it. This Note
provides for the payment of a premium if you wish to repay the Loan prior to
the date provided for repayment in this Note. In addition, this Note authorizes
the holder to refuse to accept repayment of the Loan prior to the date provided
for repayment in this Note unless certain conditions stated in this Note are
met.


 


 


	
   

  	
  DAVCO RESTAURANTS, INC.,
  Delaware

  corporation

  
	
   

  	
   

  
	
   

  	
  /s/  DAVID J. NORMAN

  	
   

  
	
   

  	
  David J. Norman, Secretary

  
	
   

  	
   

  
	
   

  	
   

  	
  (CORPORATE
  SEAL)

  
	
   

  	
   

  
	
   

  	
  DAVCO ACQUISITION HOLDING INC.,
  a

  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  /s/  DAVID J. NORMAN

  	
   

  
	
   

  	
  David J. Norman, Secretary

  
				



 


16

















 


	
   

  	
   

  	
  (CORPORATE
  SEAL)

  
	
   

  	
   

  
	
   

  	
  FRIENDCO RESTAURANTS, INC., a
  Maryland

  corporation

  
	
   

  	
   

  
	
   

  	
  /s/  DAVID J. NORMAN

  	
   

  
	
   

  	
  David J. Norman, Secretary

  
	
   

  	
   

  
	
   

  	
   

  	
  (CORPORATE
  SEAL)

  
	
   

  	
   

  
	
   

  	
  HERON REALTY CORPORATION, Maryland

  corporation

  
	
   

  	
   

  
	
   

  	
  /s/  DAVID J. NORMAN

  	
   

  
	
   

  	
  David J. Norman, Secretary

  
	
   

  	
   

  
	
   

  	
   

  	
  (CORPORATE
  SEAL)

  
				



 


17

















 


EXHIBIT “A”

to Consolidated, Amended and Restated Promissory Note

in the amount of $13,045,425.74 dated July 12, 2001


 


1.             Promissory Note from FriendCo Restaurants, Inc. to and
in favor of CNL Financial Services, Inc. in the amount of $972,000,000, dated
April 28, 1999.


 


2.             Promissory Note  from Friendco Restaurants, Inc., to and in
favor of CNL Financial Services, Inc. in the  amount of $918,000.00, dated March 16,
1999.


 


3.             Promissory Note from Friendco Restaurants, Inc., to and
in favor of CNL Financial Services, Inc. in the amount of $1,834,000.00, dated
March 16, 1999.


 


4.             Promissory Note from Friendco Restaurants, Inc. to and
in favor of CNL Financial Services, Inc. in the amount of $990,000.00, dated March
16, 1999.


 


5.             Promissory Note from Friendco Restaurants,
Inc. and Heron Realty Corporation to and in favor of CNL APF Partners,
LP, in the amount of $235,000.00, dated September 22, 1999.


 


18

















 


6.             Promissory
Note from Friendco Restaurants, Inc. and Heron Realty Corporation to and in
favor of CNL APF Partners, LP, in the amount of $2,726,000.00, dated September
22, 1999.


 


7.             Promissory
Note from Friendco Restaurants, Inc. and Heron Realty Corporation to and in
favor of CNL APF Partners, LP, in the amount of $500,000.00, dated September
22, 1999.


 


8.             Promissory
Note from Friendco Restaurants, Inc. and Heron Realty Corporation to and in
favor of CNL APF Partners, LP, in the amount of $1,239,000.00, dated September
22, 1999.


 


9.             Promissory
Note from Friendco Restaurants, Inc. and Heron Realty Corporation to and in
favor of CNL APF Partners, LP, in the amount of $425,000.00, dated September
22, 1999.


 


10.           Promissory
Note from Friendco Restaurants, Inc. and Heron Realty Corporation to and in
favor of CNL APF Partners, LP, in the amount of $425,000.00, dated
September 22, 1999.


 


19

















 


11.           Promissory
Note from Friendco Restaurants, Inc. and Heron Realty Corporation to and in
favor of CNL APF Partners, LP, in the amount of $650,000.00, dated
September 22, 1999.


 


12.           Promissory
Note from Friendco Restaurants, Inc. and Heron Realty Corporation to and in
favor of CNL APF Partners, LP, in the amount of $650,000.00, dated
September 22, 1999.


 


13.           Promissory
Note from Friendco Restaurants, Inc. and Heron Realty Corporation to and in
favor of CNL APF Partners, LP, in the amount of $550,000.00, dated September
22, 1999.


 


14.           Promissory
Note from Friendco Restaurants, Inc., to and in favor of CNL Financial
Services, Inc. in the amount of $1,449,000.00, dated April 28, 1999.


 


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