EXHIBIT 4-I
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
DATED AS OF MAY 11, 1999
BY AND BETWEEN
QUALITY DINING, INC.
AND
GAGHC, INC.,
as Borrowers,
AND
THE BANKS WHICH ARE PARTY HERETO AND
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
(f/k/a Texas Commerce Bank National Association),
as Administrative Agent
AND
NBD BANK, N.A.,
as Documentation Agent
AND
NATIONSBANK, N.A.,
as Co-Agent
ARTICLE I. DEFINITIONS 1
ARTICLE II. THE ADVANCES 14
2.1. Advances. 14
2.2. Election by Borrower 18
2.3. Increased Costs; Capital Adequacy 19
2.4. Liquidation Fee 21
2.5. Basis for Determining LIBOR Rate
Inadequate or Unfair 21
2.6. Payments 22
2.7. Setoff; etc 22
2.8. Sharing 23
2.9. Commitment Fee 23
2.10.Amendment Fees 24
2.11.Lending Branch 24
2.12.Letters of Credit 24
2.13. Application of Payments and
Collections 26
2.14. Extension of Termination Date 28
ARTICLE III. CONDITIONS PRECEDENT 28
3.1. Conditions Precedent to
Effectiveness 28
3.2. Conditions Precedent
to All Advances 30
ARTICLE IV. REPRESENTATIONS AND
WARRANTIES 31
4.1. Organization; etc 31
4.2. Due Authorization 31
4.3. Subsidiaries 32
4.4. Validity of the Agreement; etc. 32
4.5. Financial Statements 32
4.6. Litigation; etc 33
4.7. Compliance with Law 33
4.8. ERISA Compliance 33
4.9. Title to Assets 33
4.10.Indebtedness 34
4.11.Use of Proceeds 34
4.12.Margin Stock 34
4.13.Investment Company Act 34
4.14.Unregistered Securities 34
4.15.Public Utility Holding
Company Act 34
4.16.Accuracy of Information 34
4.17.Tax Returns; Audits 34
4.18.Environmental and Safety
Regulations 35
4.19.Forecasts 35
4.20.Solvency 36
4.21.No Default 36
4.22.Subsidiary Guarantors 36
4.23.Year 2000 Compliance 36
ARTICLE V. CERTAIN AFFIRMATIVE COVENANTS 37
5.1. Financial Information; etc 37
5.2.Maintenance of Corporate Existence;etc 38
5.3. Payment of Taxes; etc 39
5.4. Compliance with Laws 39
5.5. Books and Records; etc 39
5.6. Insurance 39
5.7. Conduct of Business 40
5.8. Maintain Business 40
5.9. ERISA 40
5.10.Changes to GAAP 40
5.11.Use of Proceeds 41
5.12.Subsidiary Guaranty 41
5.13.Security Documents 42
5.14.Year 2000 Compliance 43
5.15.Survival of Warranties
and Representations 43
ARTICLE VI. CERTAIN FINANCIAL COVENANTS
AND NEGATIVE COVENANTS 43
6.1. Fixed Charge Coverage Ratio 43
6.2. Ratio of Funded Debt to Pro Forma
Consolidated Cash Flow 44
6.3. Limitations on Indebtedness 44
6.4. Liens 45
6.5. Dividends, Stock Purchases and
Restricted Payments 46
6.6. Sales of Assets 47
6.7. Mergers and Consolidations 47
6.8. Preferred Stock of Subsidiaries 47
6.9. Disposition of Securities of
a Subsidiary 48
6.10.Investments 48
6.11.Transactions with
Affiliates 48
6.12. Capital Expenditures 49
6.13. Acquisitions 49
6.14. SPE 49
6.15. Rate Hedging Obligations 49
6.16. Franchise Agreements 49
ARTICLE VII. EVENTS OF DEFAULT 50
7.1. Events of Default 50
7.2. Action If Event of Default 51
7.3. Remedies 52
ARTICLE VIII. THE AGENT 52
8.1. Appointment and Authorization 52
8.2. Power 52
8.3. Employment of Counsel; etc 53
8.4. Reliance 53
8.5. General Immunity 53
8.6. Credit Analysis 54
8.7. Agent and Affiliates 54
8.8. Indemnification 55
8.9. Successor Administrative Agent 55
8.10. Agents' Fees 56
8.11. Collateral Matters 56
ARTICLE IX. AMENDMENT AND RESTATEMENT 56
9.1. Amendment and Restatement of Existing
Credit Agreement 56
9.2. Master Assignment 56
9.3. Replacement Notes 58
9.4. Security Documents 59
9.5. Release of Subject Assets 59
ARTICLE X. MISCELLANEOUS 59
10.1.Waivers, Amendments; etc 59
10.2.Payment Dates 60
10.3.Notices 60
10.4.Costs and Expenses 60
10.5.Indemnification 60
10.6.Severability 61
10.7.Cross-References 61
10.8.Headings 61
10.9.Governing Law 61
10.10.Successors and Assigns 61
10.11.Execution in Counterparts 63
10.12.Joint and Several Liability 63
10.13.Financial Information 63
10.14.Consent to Jurisdiction 63
10.15.Waiver of Jury Trial 64
SCHEDULE I - Commitments
ANNEX I-List of Jurisdictions in which the Borrower is Qualified to Do Business
ANNEX II-List of Subsidiaries; Jurisdiction of Incorporation and Stock Ownership
ANNEX III-Indebtedness;Liens
ANNEX IV-Investments
ANNEX V-Description ofReal Property
EXHIBIT A - Form of Note
EXHIBIT B - Notice of Borrowing
EXHIBIT C - Legal Opinion of Counsel
EXHIBIT D - Form of Assignment Agreement
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This Third Amended and Restated
Revolving Credit Agreement dated as of May 11,
1999 by and between Quality Dining, Inc., an
Indiana corporation, and GAGHC, Inc., a Delaware
corporation, as Borrowers, the banks now or
hereafter parties hereto (the "Banks"), Chase Bank
of Texas, National Association, in its capacity as
Administrative Agent for the Banks (in its
capacity as such, and together with any successor
administrative agent hereunder, the
"Administrative Agent"), NBD Bank, N.A. in its
capacity as Documentation Agent for the Banks (in
such capacity, the "Documentation Agent") and
NATIONSBANK, N.A. in its capacity as Co-Agent for
the Banks (in such capacity, the "CoAgent").
WHEREAS, the Borrowers have requested and the
Banks have agreed to amend the Existing Credit
Agreement (as defined below);
WHEREAS, the Borrowers, the Banks and the Agents
have agreed to enter into this Agreement in order
to amend and restate the Existing Credit
Agreement; and
WHEREAS, it is the intention of the
parties to this Agreement that this Agreement not
constitute a novation of the obligations under the
Existing Credit Agreement and that, from and after
the Effective Date, the Existing Credit Agreement
shall be amended and restated hereby and all
references herein to "hereunder," "hereof," or
words of like import and all references in any
other Loan Document to the "Credit Agreement" or
words of like import shall mean and be a reference
to the Existing Credit Agreement as amended and
restated hereby.
NOW, THEREFORE, in consideration of the terms and
conditions contained herein, and of any loans or
extensions of credit heretofore, now or hereafter
made to or for the benefit of the Borrowers by the
Banks and the Agents, the parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS
The following terms when used in
this Agreement shall, except where the context
otherwise requires, have the following meanings
(such definitions to be equally applicable to the
singular and plural forms thereof):
"Acquisition" means any transaction, or any
series of related transactions, consummated on or
after September 11, 1998, by which either of the
Borrowers and/or their respective Subsidiaries
(other than SPE) (i) acquires any going business
or all or substantially all of the assets of any
firm, corporation or division thereof, whether
through purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a
series of transactions) voting power for the
election of directors (other than securities
having such power only by reason of the happening
of a contingency) or a majority (by percentage of
voting power)of the outstanding partnership
interests of a partnership (any such target
business, assets, corporation, partnership or the
like herein referred to as a "Target").
"Acquisition Closing Date" means
the date of the consummation of any Acquisition of
any Target under the terms of this Agreement.
"Adjusted LIBOR Rate" shall mean a rate per annum
determined pursuant to the following
formula:
LIBOR Rate
--------------------------------------
Adjusted LIBOR Rate = 1 - Reserve Requirement
"Advance" shall mean an Advance as described in Section 2.1(a).
"Affiliate" shall include, with respect to
any Person, any Person which directly or
indirectly controls, is controlled by, or is under
common control with such party and in addition, in
the case of the Borrower and each Subsidiary, each
officer, director, stockholder, joint venture and
partner of the Borrower and each Subsidiary.
For purposes of this definition, a Person shall be
deemed to control another Person if the
controlling Person owns directly or indirectly
five percent (5%) or more of the shares of stock
of the controlled Person or possesses, directly or
indirectly, thepower to direct or cause the
direction of the management and policies of the
controlled Person, whether through ownership of
stock, by contract or otherwise.
"Agent" shall mean each of the Administrative
Agent, the Documentation Agent and the Co-Agent,
and "Agents" shall mean the Administrative Agent,
the Documentation Agent and the Co-Agent
collectively.
"Agreement" shall mean this Third Amended and
Restated Revolving Credit Agreement as
originally executed and as amended, modified or
supplemented from time to time.
"Banks" shall mean the Banks referenced in
the preamble hereto or any assignee or successor
thereto.
"Base Rate" shall mean, for any day, a
fluctuating rate of interest per annum equal to
the higher of (i) the Prime Rate for such day, and
(ii) the Federal Funds Rate plus 0.50%.
"Base Rate Loan" shall mean, as of any date,
an Advance designated as a "Base Rate Loan"
pursuant to Section 2.2.
"Board of Directors" shall mean the Board of
Directors of QDI, GAGHC or any Subsidiary
Guarantor, as applicable.
"Borrower" shall mean each of QDI and GAGHC; and
"Borrowers" shall mean QDI and GAGHC together.
"Business Day" shall mean any day on which
commercial banks are not authorized or required to
close in Houston, Texas and if such day relates to
an event, a transaction or a notice in respect of
a LIBOR Base Loan, a day which is also a day on
which dealings in U.S. Dollar deposits are carried
out in the London interbank market.
"Capital Expenditure" shall mean any
expenditure by a Borrower or any Subsidiary in
respect of the purchase or other acquisition of
assets which, in conformity with GAAP, are
included in the property, plant, equipment, or
other fixed asset accounts reflected in the
consolidated balance sheet of QDI.
"Capital Lease" shall mean a lease of (or
other agreement conveying the right to use) real
and/or personal property, which obligation is, or
in accordance with GAAP (including Statement of
Financial Accounting Standards No. 13 of the
Financial Accounting Standards Board) is required
to be, classified and accounted for as a capital
lease on a balance sheet of such Person.
"Capital Lease Obligations" shall mean, with
respect to any Person, any obligation of such
Person to pay rent or other amounts under a
Capital Lease and for purposes of this Agreement
the amount of each Capital Lease Obligation shall
be the capitalized amount thereof determined in
accordance with GAAP.
"CBT" shall mean Chase Bank of Texas, National
Association, in its individual capacity.
"Change of Control" shall mean the ownership,
through purchase or otherwise (including
the agreement to act in concert without anything
more), by any Person or group of Persons (other
than one or more of Daniel B. Fitzpatrick, the
spouse, children or grandchildren or the heirs of
Daniel B. Fitzpatrick or any trusts created for
their benefit) acting in concert, directly or
indirectly, in one or more transactions, of (i)
beneficial ownership or control of securities
representing more than 30% of the combined voting
power of QDI's Voting Stock or (ii) substantially
all of the assets of QDI.
"Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
"Commitment" shall mean, for each Bank for
any period, the amount appearing opposite such
Bank's name under the heading "Commitments" in
Schedule I, as such amount may be reduced pursuant
to Section 2.1(b) or temporarily adjusted pursuant
to Section 2.1(d) and as said Schedule I may be
amended from time to time pursuant to Section
10.1; provided, however, that the aggregate
Commitments of all Banks shall not exceed
$80,000,000. "Consolidated Capital Expenditures"
shall mean, for any fiscal period, the sum of all
Capital Expenditures made by the Borrowers and
their consolidated Subsidiaries during such
period.
"Consolidated Cash Flow" of any person shall
mean, for any period for which the amount thereof
is to be determined, Consolidated Net Income of
such Person for such period, plus (to the extent
deducted in determining Consolidated Net Income
and without duplication to adjustments to net
income of such Person (determined in accordance
with GAAP) made in the determination of
Consolidated Net Income) (i) provisions for any
Federal, state or local taxes during such period,
(ii) interest expense of such Person during such
period and (iii) depreciation and amortization of
such Person during such period, and (iv) other non-
cash income or expenses of such Person during such
period.
"Consolidated Net Income" shall mean, for any
period for which the amount thereof is to be
determined, the net income (or net losses) of QDI
and its Subsidiaries on a consolidated basis as
determined in accordance with GAAP after
deducting, to the extent included in computing
said net income and without duplication, (i) the
income (or deficit) of any Person (other than a
Subsidiary) in which QDI or any of its Subsidiaries
has any ownership interest, except to the extent that any such
income has been actually received by QDI or such
Subsidiary in the form of cash dividends or similar cash
distributions, (ii) any income (or deficit) of any other Person
accrued prior to the date it becomes a Subsidiary
of QDI or merges into or consolidates with QDI or
another of its Subsidiaries, (iii) the gain or
loss (net of any tax effect) resulting from the
sale, exchange or disposal of any capital assets,
(iv) any gains or losses, or other income (net of
any tax effect in respect thereof) which is
nonrecurring or otherwise properly classified as
extraordinary in accordance with GAAP, (v)
income resulting from any reappraisal,
reevaluation or writeup of any assets, (vi) any
portion of the net income of the Subsidiaries
which for any reason is not available for
distribution, and (vii) the proceeds of any life
insurance policy on the life of any officer,
director or employee of QDI or any of its
Subsidiaries.
"Default" shall mean any event which if continued
uncured would, with notice or lapse of
time or both, constitute an Event of Default.
"Earnings Available for Fixed Charges" shall
mean, for any period for which the amount thereof
is to be determined, the sum of (without
duplication): (i) the Consolidated Cash Flow of
QDI and its Subsidiaries for such period, and (ii)
the rents and other payments (exclusive of
property taxes, property and liability insurance
premiums and maintenance costs) made by QDI and
its Subsidiaries during such period under
Operating Leases.
"Effective Date" shall mean the later of May 11,
1999 and the date on which the conditions
set forth in Article III are satisfied.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended,
and any successor statute of similar import,
together with the regulations thereunder and
under the Code, in each case as in effect from
time to time. References to sections of ERISA
shall be construed to also refer to any successor
sections.
"ERISA Affiliate" shall mean any
corporation, trade or business that is, along
with QDI or any of its Subsidiaries, a member of a controlled
group of corporations or a controlled group of
trades or businesses, as described in Sections
414(b) and 414(c), respectively, of the Code or
Section 4001 of ERISA.
"Event of Default" shall mean any Event of
Default described in Article VII.
"Existing Credit Agreement" shall mean the
Second Amended and Restated Revolving Credit
Agreement dated as of September 11, 1998 by and
between, QDI, GAGHC, the Banks which are a party
thereto (the "Existing Banks") and CBT, as Agent,
and NBD Bank, N.A., as Documentation Agent.
"Existing Notes" shall mean the promissory
notes issued by the Borrowers in favor of the
Existing Banks evidencing the Loans outstanding
under the Existing Credit Agreement.
"Federal Funds Rate" means a fluctuating
interest rate per annum equal for each day to the
weighted average of the
rates on overnight Federal funds transactions
with members of the Federal Reserve System
arranged by Federal funds brokers, as published
for such day (or, if such day is
not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for
any day which is a Business Day, the average of
the quotations for such day on such transactions
received by the Administrative Agent from three
Federal funds brokers of recognized standing
selected by it.
"Fixed Charges" shall mean, for any period for
which the amount thereof is to be determined, the sum
of the following (without duplication): (i)
Interest Expense of QDI and its Subsidiaries for
such period, plus (ii) all rents and other
payments (exclusive of property taxes, property
and liability insurance premiums and maintenance
costs) which are made by QDI and its Subsidiaries
during such period under Operating Leases in
respect of which QDI or any of its Subsidiaries
is obligated as a lessee or user or as a
guarantor of the obligations of a lessee or user,
plus (iii) Capital Lease Obligations paid or
required to be paid by QDI or any of its
Subsidiaries during such period, plus (iv) the
Principal Requirement for such period.
"Franchise" in respect of any Person shall mean
all rights of such Person as a franchisee pursuant to
a Franchise Agreement relating to one or more of
the businesses conducted by such
Person or an Affiliate of such Person.
"Franchise Agreement" in respect of any
Person shall mean each of the franchise
agreements to which such Person is a party as
franchisee, as any of the same may from time to
time be amended, modified, supplemented or
restated.
"Funded Debt" of any Person shall mean all
Indebtedness owed or guaranteed by such
Person which by its terms matures more than one
year from the date of creation or which is
renewable at the option of the obligor for more
than one year from such date whether or not
theretofore renewed.
"GAAP" shall mean generally accepted accounting principles consistently
applied and maintained throughout the term of
this Agreement except for such changes as are in
accordance with the generally accepted accounting
principles in effect at the time of such change
and shall be concurred in by the certified public
accountants certifying the financial statement of
QDI and its Subsidiaries. Whenever any
accounting term is used herein which is not
otherwise defined, it shall be interpreted in
accordance with GAAP.
"GAGHC" shall mean GAGHC, Inc., a Delaware
corporation, and its successors and assigns, and
any surviving, resulting or transferee
corporation.
"Guarantee(s)" shall mean all guarantees,
sales with recourse, endorsements (other than for
collection or deposit in the ordinary course of
business) and other obligations (contingent or
otherwise) by any Person to pay, purchase,
repurchase or otherwise acquire or become liable
upon or in respect of any Indebtedness of any
other Person, and, without limiting the
generality of the foregoing, all obligations
(contingent or otherwise) by any Person to
purchase products, supplies or other property or
services for any Person under agreements
requiring payment therefor regardless of the non-
delivery or non-furnishing thereof, or to make
investments in any other Person, or to maintain
the capital, working capital, solvency or general
financial conditions of any other Person, or to
indemnify any other Person against and hold him
harmless from damages, losses and liabilities, all under
circumstances intended to enable such other Person or Persons
to discharge any Indebtedness or to comply with
agreements relating to such Indebtedness or
otherwise to assure or protect creditors against
loss in respect of such Indebtedness. The amount
of any Guarantee shall be deemed to be the amount
of the Indebtedness of, or damages, losses or
liabilities of, the other Person or Persons in
connection with which the Guarantee is made or to
which it is related unless the obligations under
the Guarantee are limited to a determinable
amount, in which case the amount of such
Guarantee shall be deemed to be such determinable
amount.
"Indebtedness" of any Person shall mean and
include, as of any date as of which the
amount thereof is to be determined, (i) all
obligations of such Person for borrowed money or
which has been incurred in connection with the
acquisition of Property; (ii) all Guarantees of
such Person; (iii) all indebtedness, liabilities
and other obligations secured by any Lien on or
in respect of Property of such Person, whether or
not liability has been assumed by such Person for
the payment of such obligations; (iv) all
indebtedness, liabilities and other obligations
of such Person arising under any conditional sale
or other title retention agreement, whether or
not the rights and remedies of the seller or
lender under such agreement in the event of
default are limited to repossession or sale of
such property; (v) all obligations of such Person
as an account party in respect of letters of
credit and bankers acceptances; (vi) all net
obligations of such Person in respect of Rate
Hedging Obligations and (vii) Capital Lease
Obligations of such Person.
"Indebtedness Ratio" shall mean, as of any
date of determination thereof, the ratio of (i)
Funded Debt of QDI and its Subsidiaries as of
such date, excluding, however, for purposes of
this calculation, any obligations in respect of
letters of credit (to the extent undrawn)
securing insurance and workers' compensation
programs of QDI and its Subsidiaries, to (ii) the
Pro Forma Consolidated Cash Flow of QDI and its
Subsidiaries for the twelvemonth period ending on
such date.
"Interest Expense" shall mean, for any
period for which the amount thereof is to be
determined, the consolidated interest expense of
QDI and its Subsidiaries, including all interest
on Indebtedness (including imputed interest
related to Capitalized Leases), all amortization
of debt discount and expense and Rate Hedging
Obligations of the Borrowers and their
Subsidiaries, to the extent required to be
reflected on the income statement of QDI and its
Subsidiaries on a consolidated basis in
accordance with GAAP.
"Interest Period" shall mean, with respect
to any LIBOR Base Loan, the period designated
by a Borrower for the computation of interest
commencing on the date the relevant Advance is
made and ending on the date which is one (1), two
(2), three (3) or six (6) months thereafter. For
purposes of determining an Interest Period, a
month means a period starting on one day in a
calendar month and ending on a numerically
corresponding date in the next calendar month,
provided, however, that if there is no
numerically corresponding day in the month in
which an Interest Period is to end or if an
Interest Period begins on the last day of a
calendar month, such Interest Period shall end on
the last Business Day of such calendar month and
provided further that no Interest Period may
extend beyond the Termination Date.
"Investment" shall mean any purchase of
capital stock, obligations or other securities of
any Person, any contribution of capital to any
Person, any loan, advance or extension of credit
to any Person or other investment or acquisition
of any interest in any Person.
"Junior Subordinated Note" shall mean the junior
subordinated note dated October 20,
1997 in the original principal amount of
$10,000,000 issued by Bruegger's Corporation to
QDI, and thereafter assigned by QDI to Southwest
Dining, Inc., as it may be amended, modified,
restated or replaced from time to time.
"LIBOR Base Loan" shall mean, for any
Interest Period, an Advance designated as a
LIBOR Base Loan pursuant to Section 2.2.
"LIBOR Rate" shall mean for each Interest Period
the rate of interest per annum as
determined by the Administrative Agent (rounded
upward, if necessary, to the nearest whole
multiple of one-sixteenth of one percent (1/16th
of 1%)) at which deposits of United States
Dollars in immediately available and freely
transferable funds are offered at 11:00 A.M.
London time two (2) Business Days prior to the commencement
of such Interest Period to the Administrative
Agent or its agent in the London interbank market
for a term comparable to such Interest Period and
in an amount comparable to the principal amount
of the LIBOR Base Loan to be outstanding during
such Interest Period.
"Lien" shall mean: (a) any interest in
Property (whether real, personal or mixed and
whether tangible or intangible) which secures the
payment of indebtedness or an obligation owed to,
or a claim by, a Person other than the owner of
such Property, whether such interest is based on
the common law, statute or contract, including,
without limitation, any such interest arising
from a mortgage, charge, pledge, security
agreement, conditional sale, Capital Lease or
trust receipt, or arising from a lease,
consignment or bailment given for security
purposes, and (b) any exception to or defect in
the title to or ownership interest in such
Property, including, without limitation,
reservations, rights of entry, possibilities of
reverter, encroachments, easements, rights of
way, restrictive covenants, leases and licenses. For
purposes of this Agreement, a Borrower or any
Subsidiary shall be deemed to be the owner of any
Property which it has acquired or holds subject
to a conditional sale agreement, Capital Lease or
other arrangement pursuant to which title to the
Property has been retained by or vested in some
other person for security purposes.
"Loan" shall mean, individually or
collectively, as the case may be, a Base Rate
Loan or a LIBOR Base Loan.
"Loan Document" shall mean, individually or
collectively, as the case may be, this
Agreement, the Notes, the Subsidiary Guaranty,
the Reaffirmation of Subsidiary Guaranty and
each Security Document, each as originally
executed and as amended, modified or supplemented
from time to time.
"Material Adverse Occurrence" shall mean
any occurrence of whatsoever nature (including,
without limitation, any adverse determination in
any litigation, arbitration or governmental
investigation or proceeding) which could
materially adversely affect the business,
properties, operations or condition, financial or
otherwise, of QDI and its Subsidiaries or could
materially impair the ability of QDI or its
Subsidiaries to perform its obligations under the
Loan Documents.
"Monthly Payment Date" shall mean the first
Business Day of each calendar month, commencing
on the first of such dates to occur after the
Effective Date.
"Mortgage Transaction" shall mean one or
more transactions (a) pursuant to which (i) QDI
and/or a Subsidiary thereof sells for fair
consideration all or a portion of the Subject
Assets to a SPE, (ii) QDI and/or its Subsidiaries
lease from such SPE the Subject Assets which were
sold to such SPE, as contemplated by clause (i)
above, and (iii) none of QDI and its Subsidiaries
(other than such SPE) have entered into any
Guarantee in respect of any of the obligations of
such SPE and (b) in respect of which the
aggregate annual rentals and other payments
(exclusive of property taxes, property and
liability insurance premiums and maintenance
costs) shall not exceed the annual mortgage
payments payable by the SPEs to unaffiliated
third parties.
"Net Proceeds" shall mean, with respect to
any sale of assets, the proceeds of such sale net
of (i) direct out-of-pocket costs and expenses of
such sale, (ii) federal and state income taxes,
sales taxes, transfer taxes or similar taxes
imposed on the seller on account of such sale,
and (iii) amounts, if any, required to be paid
with respect to Indebtedness secured by any Lien
on such assets which is senior in priority to the
Lien of the Administrative Agent, if any, on such
assets.
"Northern" shall mean The Northern Trust Company,
in its individual capacity.
"Note(s)" shall mean, individually or
collectively, as the case may be, each of the
promissory notes, substantially in the form of
Exhibit A attached hereto, made by the Borrowers
payable to the order of each of the Banks to
evidence the Advances made by such Bank, and such
other promissory notes accepted by the Banks in
exchange for or in substitution of any such
Notes.
"Note Pledge Agreement" shall mean the Note
Pledge Agreement dated as of October 22,
1997 by and between Southwest Dining, Inc. and
the Administrative Agent for the benefit of the
Banks, as it may be amended, modified, restated
or replaced from time to time.
"Notice of Borrowing" shall mean the notice
in the form of Exhibit B attached hereto to be
delivered to the Administrative Agent pursuant to
Section 2.1(d).
"Obligations" shall mean (i) all loans
(including the Loans), Advances, debts,
liabilities, obligations, covenants and duties
owing by the Borrowers or the Subsidiary
Guarantors to the Administrative Agent, the Banks
or any Bank of any kind or nature, present or
future, arising under this Agreement or any other
Loan Document, whether evidenced by any note,
guaranty or other instrument, whether for the
payment of money or in kind, whether arising by
reason of any extension of credit, issuing,
guaranteeing or confirming of a letter of credit,
guaranty, indemnification or in any other manner,
whether direct or indirect (including those
acquired by assignment or purchase), absolute or
contingent, due or to become due, and however
acquired and (ii) all Rate Hedging Obligations
owing at any time or from time to time by the
Borrowers or the Subsidiary Guarantors, or any of
them, to the Banks or any Bank. The term
includes, without limitation, all principal,
interest, fees, charges, expenses, reasonable
attorneys' fees, and any other sum chargeable to
the Borrowers or the Subsidiary Guarantors under
this Agreement on any other Loan Document or in
connection with any Rate Hedging Obligation.
"Operating Lease" shall mean a lease
(excluding Capital Leases) of Property to which
QDI or any of its Subsidiaries is a party as
lessee having an unexpired term (including any
periods of renewal or extension which may be
exercised at the option of the lessor or lessee)
in excess of one year.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation and any entity succeeding
to any or all of its functions under ERISA.
"Percentage" shall mean, with respect to
each Bank, the percentage derived from dividing
such Bank's Commitment by the sum of the
aggregate Commitments for all Banks; provided
that after the termination of the Commitments,
"Percentage" shall mean, with respect to each
Bank, the percentage derived by dividing the
principal amount outstanding of such Bank's Note
by the aggregate principal amount outstanding of
all Notes.
"Permitted Disposition" shall mean (i) any
sale by a Borrower or any Subsidiary of inventory
in the ordinary course of its business and on
usual and customary terms, (ii) any sale of a
past due receivable for collection only in the
ordinary course of business, (iii) any sale of
assets of a Subsidiary to QDI or a Subsidiary
Guarantor, (iv) any sale of equipment no longer
used or useful in the business of a Borrower or
any Subsidiary and (v) any sale or lease by a
Borrower or any Subsidiary of any other assets
(including without limitation the capital stock
of any Subsidiary), provided that no sale or
financing of assets by the Borrower or a
Subsidiary described in clause (v) above shall be
a Permitted Disposition unless the Net Proceeds
of such sale or financing are applied within
twelve months (x) to prepay Funded Debt of the
Borrowers and/or (y) to acquire replacement
assets having equal or greater value.
"Permitted Investment" shall mean any of
the following Investments made by QDI or any of
its Subsidiaries in any Person: (i) obligations,
with a maturity of less than two years from the
date of acquisition thereof, issued by or
unconditionally guaranteed by the United States
of America or an agency or instrumentality
thereof backed by the full faith and credit of
the United States of America; (ii) direct
obligations of any state of the United States,
any subdivision or agency thereof or any
municipality therein which are rated by Standard
& Poor's Corporation ("S&P") or Moody's Investors Service, Inc.
("Moody's") in one of the top two rating
classifications and maturing within two years of
the date of acquisition thereof; (iii)
certificates of deposit or banker's acceptances,
maturing within two years of the date of
acquisition thereof, issued by commercial banks
organized under the laws of the United States or
any state thereof, having capital, surplus and
undivided profits aggregating not less than $100
million and whose unsecured long-term debt is
rated in one of the top two rating
classifications by S&P or Moody's; (iv)
commercial paper of any corporation organized
under the laws of the United States or any state
thereof, rated in one of the top two rating
classifications by S&P or Moody's and with a
maturity of less than 270 days from the date of
acquisition thereof; (v) Investments of QDI in
and to any Wholly-Owned Subsidiary of QDI (other
than any SPE) and Investments of any Wholly-Owned
Subsidiary of QDI in and to QDI or any Wholly-
Owned Subsidiary of QDI (other than SPE),
including any Investments in a corporation which
after giving effect thereto will become a Wholly-
Owned Subsidiary; (vi) Investments existing as of
the date of this Agreement, as disclosed on Annex
IV; (vii) Investment of not in excess of
$1,000,000 in a joint venture for the
construction and ownership of an office building;
(viii) the Junior Subordinated Note; and (ix)
Investment in SPEs in an aggregate amount not to
exceed $40,000,000.
"Person" shall mean any natural person,
corporation, firm, joint venture, partnership,
limited liability company, association, trust or
other entity or organization, whether acting in
an individual, fiduciary or other capacity, or
any government or political subdivision thereof
or any agency, department or instrumentality
thereof.
"Plan" shall mean each employee benefit plan or
other class of benefits covered by Title IV
of ERISA, in either case whether now in existence
or hereafter instituted, of QDI, any of its
Subsidiaries or any ERISA Affiliate.
"Pledge Agreement" shall mean the Pledge
Agreement, dated as of October 31, 1997, entered
into by certain of QDI's Subsidiaries in favor of
the Administrative Agent for the benefit of the
Banks, as it may be amended, modified, restated
or replaced from time to time.
"Pledgor" shall mean each of the Borrowers
and their respective Subsidiaries and Affiliates
which is a party to the Pledge Agreement, the
Note Pledge Agreement, the Security Agreement or
any other Security Document at any time or from
time to time.
"Preferred Stock" shall mean any class of
capital stock of a Person with respect to which
mandatory payments are required or with respect
to which a payment (of interest, dividends or
return of capital) has a preference or priority
over the making of a similar payment on any other
class of capital stock of such Person.
"Prime Rate" shall mean the rate announced
by CBT from time to time as its prime rate,
changing as and when such prime rate changes; CBT
may lend to its customers at rates that are at,
above or below the Prime Rate.
"Principal Requirements" shall mean, for
any period for which the amount thereof is to be
determined, all payments of principal made or
required to be made by QDI and its Subsidiaries
during such period on Indebtedness for borrowed
money (other than Capital Leases).
"Pro Forma Consolidated Cash Flow" shall
mean, for any period for which the amount thereof
is to be determined, Consolidated Cash Flow of
QDI and its Subsidiaries during such period;
provided that (i) in respect of any Acquisition
consummated during such period the Consolidated
Cash Flow thereof shall be calculated on a pro
forma basis as if such Acquisition had occurred
on the first day of such period, and (ii) in
respect of any Property developed during such
period, the Consolidated Cash Flow of such
Property shall be the Consolidated Cash Flow of
such Property for the portion of such period that
such Property has been in operation annualized
for such period.
"Property" shall mean any interest in any
kind of property or asset, whether real, personal
or mixed, or tangible or intangible.
"QDI" shall mean Quality Dining, Inc., an Indiana
corporation, and its successors and assigns, and
any surviving, resulting or transferee
corporation.
"Rate Hedging Obligations" shall mean any and all
obligations of such Person, whether absolute or
contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all
renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and
all agreements, devices or arrangements designed
to protect at least one of the parties thereto
from the fluctuations of interest rates
applicable to such party's assets or liabilities,
including but not limited to interest rate swaps,
basis swaps, interest rate floors, interest rate
collars, interest rate caps, forward rate
agreements or other similar rate protection
transactions, or any combination of or option
with respect to any of the foregoing, and (ii)
any and all cancellations, buy backs, reversals,
terminations or assignments of any of the
foregoing.
"Real Property" shall mean all real property or
interests therein wherever situated now,
heretofore or hereafter owned, leased or utilized
by QDI or any of its Subsidiaries.
"Regulation D" shall mean Regulation D of
the Board of Governors of the Federal Reserve
System as from time to time in effect and any
successor to all or a portion thereof
establishing margin requirements.
"Regulation U" shall mean Regulation U of
the Board of Governors of the Federal Reserve
System as from time to time in effect and any
successor to all or a portion thereof
establishing margin requirements.
"Regulatory Change" shall mean any
change after the date hereof in any (or the
adoption after the date hereof of any new):
(a) Federal or state law or foreign law applying
to a class of financial institutions (including
an Agent or one or more of the Banks); or
(b) regulation, interpretation, directive or
request (whether or not having the force of law) applying
to a class of financial institutions (including
an Agent or one or more of the Banks) of any court or
governmental authority charged with the interpretation or
administration of any law referred to in clause
(a) of this definition or of any fiscal, monetary
or other authority having jurisdiction over an
Agent or any Bank.
"Required Banks" shall mean Banks (excluding
Banks whose failure to fund an advance
have not been cured) whose Percentage, in the
aggregate, equals or exceeds 51%.
"Reserve Requirement" shall mean, for any
Interest Period for any LIBOR Base Loan, the sum
(expressed as a decimal) of (a) the average
maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are
required to be maintained during such Interest
Period under Regulation D by member banks of the
Federal Reserve System against "Eurocurrency
liabilities" and (b) any other reserves required
to be maintained by such member banks by reason
of any Regulatory Change against (i) any category
of liabilities which includes deposits by
reference to which the LIBOR Rate is to be
determined or (ii) any category of extensions of
credit or other assets which includes a LIBOR
Base Loan.
"Restricted Payments Basket" as of any date
shall mean, for the period from October 26, 1998
through such date of determination, (a) the sum
of (i) the Consolidated Cash Flow of QDI and its
Subsidiaries for such period and (ii) the Net
Proceeds of any sale of assets received by the
Borrowers and/or their Subsidiaries during such
period, less (b) the sum of (i) the aggregate
amount of Capital Expenditures during such
period, (ii) the aggregate Principal Requirements
during such period, (iii) the aggregate Capital
Lease Obligations during such period, (iv) the
aggregate Interest Expense during such period,
(v) the aggregate amount of taxes (federal, state
and local) paid or payable by the Borrowers and
their Subsidiaries during such period and (vi)
the aggregate amount of Net Proceeds of any sale
of assets required to be applied to the
prepayment of the Loans pursuant to Section 2.1(h)(ii) of this
Agreement.
"Security Agreement" shall mean the Pledge
and Security Agreement dated as of September 11,
1998, entered into by the Borrowers and certain
of their respective Subsidiaries in favor of the
Administrative Agent for the benefit of the
Banks, as it may be amended, modified, restated
or replaced from time to time.
"Security Document" shall mean the Pledge
Agreement, the Note Pledge Agreement, the
Security Agreement and each other mortgage,
assignment, pledge or security agreement or
document executed from time to time by any person
in favor of the Administrative Agent for the
benefit of the Banks, to secure all or any portion of
the Obligations, as said agreements or documents may be amended,
modified, restated or replaced from time to time.
"SPE" shall mean one or more Delaware
corporations, each of which is being established
as a single purpose entity for the purpose of
engaging in a Mortgage Transaction, and its
successors and assigns, and any surviving,
resulting or transferee corporation.
"Subject Assets" shall mean the parcels of real
property identified in Annex V hereto and
the equipment (including fixtures) located on
such parcels of real property, to the extent such
real property and equipment are sold as part of a
Mortgage Transaction.
"Subsidiary" of any Person shall mean (i)
any corporation of which more than 50% of the
outstanding shares of capital stock of any class
or classes having ordinary voting power for the
election of directors (irrespective of whether or
not at the time stock of any class or classes of
such corporation shall have or might have voting
power by reason of the happening of any
contingency) is now or hereafter owned directly
or indirectly by such Person, by such Person and
one or more of its Subsidiaries, or by one or
more of such Person's other Subsidiaries, and
(ii) any partnership, association, limited
liability company, joint venture or other entity
in which such Person, directly or indirectly
through Subsidiaries, is either a general partner
or has a 50% or more equity interest at the time.
"Subsidiary Guaranty" shall mean the
Subsidiary Guaranty dated December 21, 1995
entered into by each of the Subsidiary
Guarantors, in favor of Northern, as agent for
the benefit of the Banks, as reaffirmed as of the
Effective Date by each such Subsidiary Guarantor
in favor of the Administrative Agent hereunder
for the benefit of the Banks. Notwithstanding the
foregoing, for so long as any Indebtedness
described in subsection (e) of Section 6.3
remains outstanding, each of the SPEs shall for
all purposes of this Agreement be deemed not to
be a "Subsidiary Guarantor".
"Subsidiary Guarantor" shall mean each of
Bravokilo, Inc., Southwest Dining, Inc., Full
Service Dining, Inc., Grayling Corporation,
GAGLC, Inc., Grady's American Grill Restaurant
Corporation, Grady's Inc. and Grady's American
Grill, LP and each other Person which shall
hereafter be or become a WhollyOwned Subsidiary
of QDI and shall become a party to the Subsidiary
Guaranty.
"Termination Date" shall mean the date which
is the earlier of (a) October 31, 2002, or such
later date as may be established pursuant to
Section 2.14, or (b) the date upon which the
obligation of the Banks to make Advances is
terminated pursuant to Section 2.1(c).
"Unfunded Obligations" shall mean at any
time the obligations of the Borrowers to CBT in
respect of undrawn amounts of Letters of Credit.
Each Unfunded Obligation will be deemed to be in
an amount equal to the undrawn amount of the
relevant Letter of Credit.
"Unused Portion" shall mean, as of any date,
the excess of the aggregate Commitments on such
date over the sum of the aggregate outstanding
principal amount of the Advances and the
aggregate stated amount of the outstanding
Letters of Credit on such date.
"Voting Stock" shall mean stock or similar
interests of any class or classes (however
designated), the holders of which are generally
and ordinarily, in the absence of contingencies,
entitled to vote for the election of the
directors (or Persons performing similar
functions) of a corporation or other business
entity.
"Wholly-Owned Subsidiary" shall mean a
Subsidiary in which all voting shares (except for
directors' qualifying shares, if any) are owned
by QDI and/or one or more Wholly Owned
Subsidiaries of QDI.
Other terms defined herein shall have the
meanings ascribed to them herein.
ARTICLE II.
THE ADVANCES
2.1. Advances.
(a) Commitments. Each Bank severally agrees,
subject to the terms and conditions hereinafter
set forth, to make an advance (each an "Advance")
to the Borrowers from time to time on any
Business Day during the period from the date
hereof and ending on the Termination Date;
provided, however, that no Bank shall be required
to make any Advance if, after giving effect to
such Advance, the aggregate outstanding principal
amount of all Advances made by such Bank would
exceed such Bank's Commitment. Each borrowing
under this Section 2.1(a) shall consist of
Advances made on the same day by the Banks
ratably in accordance with their respective
Commitments. Within the limits set forth above,
the Borrowers may borrow, prepay and reborrow
pursuant to this Section 2.1(a). Each Advance
shall be in an aggregate minimum amount of
$500,000.00.
(b) Reduction of Commitments.
(i) The Borrowers, or either of them, at any
time on at least three (3) Business Days' prior
written notice to the Administrative Agent (which
shall promptly notify each Bank),may reduce the
Commitments pro rata among the Banks permanently
in a minimum aggregate amount of $100,000.00;
provided, however, that the Borrowers may not
reduce any such Commitments below an amount equal
to the sum of the principal amount then
outstanding on the Notes plus the aggregate amount of the Letters of
Credit issued and outstanding.
(ii) The aggregate Commitments of the Banks shall
be automatically and permanently reduced pursuant
to Section 2.1(h)(ii) hereof.
(c) Termination. The obligation of the Banks to
make Advances shall terminate:
(i) Upon written notice by the Borrowers to the
Administrative Agent (which shall promptly notify
each Bank) at any time when no amount is
outstanding on the Notes and no Letters of Credit
are outstanding hereunder;
(ii) Immediately and without further action upon
the occurrence of an Event of
Default described in clauses (f) and (g) of
Section 7.1; or
(iii) Immediately when any Event of Default
(other than of the nature specified in clauses
(f) and (g) of Section 7.1) shall have occurred
and be continuing and either: (A) the Required
Banks shall have demanded payment of the Notes or
(B) the Required Banks shall soelect by giving
written notice to the Borrowers for purposes of
this clause. (d) Manner of Borrowing. Either Borrower may
request an Advance by delivering to the
Administrative Agent in respect of each requested
Advance a written Notice of Borrowing (which may
be transmitted by telecopier) or by oral notice
to the Administrative Agent confirmed by a
written Notice of Borrowing (which may be
transmitted by telecopier), indicating thereon
the amount of the Advance requested, by not later
than 10:00 a.m. (Houston, Texas time) on the
Business Day preceding the Business Day on which
an Advance is to be made; provided, however, if
such Advance is to be made as a LIBOR Base Loan,
such Borrower shall give such Notice of Borrowing
to the Administrative Agent by not later than
10:00 a.m. (Houston, Texas time) on the third
Business Day preceding the Business Day on which
an Advance is to be made. Any such Notice of
Borrowing given by a Borrower shall be
irrevocable. Upon receipt of such Notice of
Borrowing, the Administrative Agent shall
promptly notify each Bank thereof. By not later
than 2:00 p.m. (Houston, Texas time) on the
requested Business Day of an Advance, each Bank
shall make available to the Administrative Agent,
at its address referred to in Section 10.3, in
immediately available funds, the amount of such
Bank's Advance. After (and subject to) the
Administrative Agent's receipt of such funds and
upon satisfaction of the applicable conditions
set forth in Article III, the Administrative
Agent shall make such Advance available to the
requesting Borrower by transferring the amount
thereof in immediately available funds for credit
to an account (other than a payroll account)
maintained by such Borrower at the Administrative
Agent, or otherwise as directed by such Borrower.
If the Administrative Agent shall receive less
than all the amounts payable by the Banks in
accordance with this Section 2.1, the
Administrative Agent shall make available to the
requesting Borrower such amount as it shall
actually have received. Unless the Administrative
Agent shall have been notified by any Bank prior
to the date of an Advance that such Bank does not
intend to make available to the Bank its portion
of such Advance, the Administrative Agent may
assume that each Bank has made such amount
available to the Administrative Agent on the date
of such Advance and the Administrative Agent may,
in reliance upon such assumption, make available
to the requesting Borrower a corresponding
amount. If and to the extent any Bank shall not
have made available its Advance to the
Administrative Agent on the date of any Advance,
the Administrative Agent shall notify such Bank
and CBT of such Bank's failure and, if such Bank
fails to make its Advance, CBT may in its sole
discretion make an Advance (the "OverAdvance") to
repay the Administrative Agent
forthwith on demand a corresponding amount and
the Bank which failed to make its Advance agrees
to repay CBT forthwith on demand a corresponding
amount together with interest thereon, for each
day from the date such amount is made available
to the Borrowers until the date such amount is
repaid to CBT at the interest rate applicable
during such period to the Advances and the
principal amount repaid by such Bank shall
constitute such Bank's Advance for purposes of
this Agreement. In the event any Bank fails to
make available its Advance to the Administrative
Agent on the date of any Advance and CBT elects
not to make an OverAdvance, such Bank and the
Borrowers severally agree to repay to the
Administrative Agent forthwith upon demand such
corresponding amount together with interest
thereon for each day from the date such amount is
made available by the Administrative Agent to the
date such amount is repaid to the Administrative
Agent at the rate applicable to such Advance. If
CBT makes any Over-Advance, CBT's and such other
Bank's relevant Commitments shall be temporarily
increased and decreased, respectively, by the
amount of the Over-Advance and any payments
allocable to such other Bank shall be paid to CBT
until the principal of and interest on the Over-
Advance shall be paid in full. The failure of any
Bank to make any Advance to be made by it shall
not relieve any other Bank of its obligation, if
any, hereunder to make its Advance on the date of
such Advance. No Bank shall be responsible for
the failure of any other Bank to make an Advance
to be made by such Bank on the date of any such
Advance. The Administrative Agent shall promptly
give the Borrowers notice of any Bank's failure
to make its Advance. Each request for an Advance
shall be deemed a representation and warranty by
the Borrowers, binding upon each of the
Borrowers, that all conditions precedent to such
Advance under Article III are satisfied as of the
date of such request and as of the date of such
Advance.
(e) Revolving Credit Notes. The Advances (other
than any OverAdvance) made by a Bank shall be
evidenced by, and be payable in accordance with
the terms of, the Note made by the Borrowers
payable to the order of such Bank in a principal
amount equal to the Commitment of such Bank;
subject, however, to the provisions of such Note
to the effect that the principal amount payable
thereunder at any time shall not exceed the then
unpaid principal amount of the Advances made by
such Bank. Each of the Borrowers hereby
irrevocably authorizes each Bank to make or cause
to be made, at or about the time of each Advance
made by such Bank, an appropriate notation on the
records of such Bank, reflecting the principal
amount of such Advance, and such Bank shall make
or cause to be made, on or about the time of
receipt of payment of any principal of any
Advance, an appropriate notation on its records
reflecting such payment and such Bank will, prior
to any transfer of any of such Note, endorse on
the reverse side thereof the outstanding
principal amount of the Advances evidenced
thereby. Failure to make any such notation shall
not affect the Borrowers' obligations in respect
of such Advances. The aggregate amount of all
Advances set forth on the records of such Bank
shall be rebuttable presumptive evidence of the
principal amount owing and unpaid on such Bank's
Note. The aggregate amount of all Over-Advances
set forth on the records of CBT shall be
rebuttable presumptive evidence of the principal
amount owing and unpaid on the OverAdvances.
Upon request of the Borrowers, or either of them,
each Bank agrees to provide the Borrowers with a
written summary of the records maintained by it
under this Section 2.1(e).
(f) Interest on Advances. The Borrowers agree
to pay interest on the aggregate outstanding
principal amount of the Advances as follows:
(A) with respect to any Advance constituting a
Base Rate Loan, at a fluctuating rate per annum
equal to the Base Rate; and
(B) with respect to any Advance constituting a
LIBOR Base Loan, at a rate per annum equal at all
times during the Interest Period relating to such
LIBOR Base Loan to the sum of the Adjusted LIBOR
Rate, plus the Applicable Margin (as determined
in accordance with Section 2.1(g)).
The Borrowers agree to pay interest on any
overdue installment of principal of or interest
on any Advance from the due date thereof until
paid, (i) in the case of any Base Rate Loan, at a
rate per annum at all times equal to the sum of
the rate in effect thereon plus 1.50% per annum
and (ii) in the case of any LIBOR Base Loan, at a
rate per annum equal to the sum of 1.50% plus the
rate of interest in effect thereon at the time of
such default until the end of the Interest Period
then applicable thereto and thereafter at a rate
per annum equal to the sum of 1.50% per annum
plus the Base Rate from time to time in effect.
Interest accrued on each Advance shall be
payable (A) with respect to each Base Rate Loan,
on each Monthly Payment Date; and (B) with
respect to each LIBOR Base Loan, on the last day
of each Interest Period applicable thereto and in
the case of any Interest Period in excess of
three (3) months, on each date occurring at three
(3) month intervals after the first day of such
Interest Period. Interest accrued after the
Termination Date shall be payable upon demand.
No provision of this Agreement or the Notes shall
require the payment or permit the collection of
interest in excess of the rate permitted by
applicable law. Interest shall be calculated for
actual days elapsed on the basis of a 360 day
year.
(g) Determination of Applicable Margin.
(i) The Applicable Margin in respect of any
LIBOR Base Loan shall be determined by reference
to the table set forth below on the basis of the
Indebtedness Ratio determined by reference to the
most recent financial statements delivered
pursuant to Section 5.1(a) or 5.1(b).
Indebtedness Ratio Applicable Margin
- ------------------------ -----------------------
Greater than 4.50:1.00 3.00%
Less than or equal to 4.50:100
but greater than 4.00:100 2.75%
Less than or equal to 4.00:1.00
but greater than 3.50:100 2.50%
Less than or equal to 3.50:1.00
but greater than 3.00:100 2.25%
Less than or equal to 3.00:1.00
but greater than 2.50:100 1.75%
Less than or equal to 2.50:100 1.25%
(ii) Upon receipt of the financial statements
delivered pursuant to Section 5.1(a)
or Section 5.1(b), as applicable, the Applicable
Margin shall be adjusted, such adjustment being
effective on the tenth Business Day after receipt
of such financial statements and the Compliance
Certificate to be delivered in connection
therewith; provided, however, if the Borrowers
shall not have timely delivered such financial
statements in accordance with Section 5.1(a) or
Section 5.1(b), as applicable, beginning with the
date upon which such financial statements should
have been delivered and continuing until such
financial statements are delivered, the
Applicable Margin shall equal the Applicable
Margin for the prior period; provided further,
however, that if upon delivery of such financial
statements the Applicable Margin is adjusted
upwards, the adjustment of the Applicable Margin
shall be retroactive to the date upon which such
financial statements should have been delivered.
(h) Prepayment. (i) The Borrowers shall have
the right, by giving written notice to the
Administrative Agent by not later than 11:00 a.m.
(Houston, Texas time) on the second Business Day
preceding the date of such prepayment, to prepay
all or any portion of an Advance, without premium
or penalty; provided, that any Base Rate Loan may
be prepaid in whole or in part at any time and
any LIBOR Base Loan may be prepaid in whole or in
part on the last day of the Interest Period
applicable thereto; provided further, that each
partial prepayment shall be in an aggregate
principal amount of not less than $100,000.00 and
shall be accompanied by accrued interest to the
date of prepayment on the amount prepaid. No
voluntary prepayment of any LIBOR Base Loan prior
to the last day of the Interest Period applicable
thereto shall be made.
(ii) Concurrently with the consummation of a
sale, in a transaction or a series of related
transactions, of all or a portion of the assets
of the Borrowers and their Subsidiaries
(including without limitation the capital stock
of any Subsidiary of QDI but excluding the assets
sold in any Permitted Disposition described in
clauses (i), (ii), (iii) and (iv) of the
definition of Permitted Disposition) the
aggregate Net Proceeds of which exceed
$10,000,000 (the "Excess Proceeds"), the
Borrowers shall (i) prepay the Loans in a
principal amount equal to the Net Proceeds of
such sale and (ii) permanently and automatically
reduce the Commitments of the Banks in an amount
equal to the Excess Proceeds.
(iii) At any time that the sum of the
aggregate outstanding principal balance of the
Loans and the aggregate stated amount of
outstanding Letters of Credit exceeds the
aggregate Commitments, the Borrowers shall
immediately prepay the outstanding principal
amount of the Loans in an amount equal to such
excess.
2.2. Election by Borrower. The Borrowers, or
either of them, may elect in accordance with this
Section 2.2 to obtain and maintain all or any
portion of an Advance as a Base Rate Loan or all
or any portion of an Advance which is in an
integral multiple of $500,000.00 as a LIBOR
Base Loan. In addition, the Borrowers, or either
of them, may elect in accordance with this
Section 2.2 to convert all or any portion of any
Advance from one type of Loan to another type of
Loan; provided however, that (a) any conversion
to a LIBOR Base Loan shall be only in an integral
multiple of $500,000.00, (b) any conversion of
any LIBOR Base Loan into a Base Rate Loan shall
be made on, and only on, the last day of the
Interest Period then applicable thereto and (c)
no Loan may be obtained, continued as, or
converted into, a LIBOR Base Loan when any
Default or Event of Default has occurred and is
continuing. Subject to the provisions of the
prior sentence, the Borrowers, or either of them,
may convert a LIBOR Base Loan into a Base Rate
Loan upon one Business Day's prior written notice
to the Administrative Agent of the Borrower's
election to do so. A Borrower, not less than
three (3) Business Days prior to the date on
which (i) a LIBOR Base Loan is to be obtained, (ii) a
Base Rate Loan is to be converted into a LIBOR
Base Loan or (iii) any LIBOR Base Loan is to be
continued as a LIBOR Base Loan at the end of the
Interest Period then applicable thereto, shall
give written notice to the Administrative Agent
of such Borrower's election to do so; said notice
shall specify the amount of such LIBOR Base Loan
and the first day and duration of the Interest
Period pertaining thereto. If, upon the
expiration of any Interest Period, the Borrowers
shall fail to elect the duration of a new
Interest Period for any LIBOR Base Loan or to
designate a Base Rate Loan in accordance with
this Section 2.2, the Borrowers shall be deemed
to have elected automatically to convert such
LIBOR Base Loan into a Base Rate Loan on the last
day of the Interest Period then applicable
thereto. On the date on which the aggregate
unpaid principal amount of any LIBOR Base Loan
shall be reduced, by payment or prepayments or
otherwise, to less than an integral multiple of
$500,000.00, such LIBOR Base Loan shall
automatically convert into a Base Rate Loan at
the end of the Interest Period then applicable
thereto. Each of the Borrowers hereby irrevocably
authorizes each Bank to make, or cause to be
made, an appropriate notation on the records of
such Bank, reflecting the date and original
principal amount of each Advance made by such
Bank, the dates for each period when such Advance
is being maintained as a Base Rate Loan or a
LIBOR Base Loan, the interest rate for each such
period and the dates of principal and interest
payments on such Advance. Failure to make any
such notation shall not affect the Borrowers'
obligations in respect of such Advances.
Each Bank's records shall be rebuttable
presumptive evidence of the matters stated
therein. Upon request by the Borrowers, or
either of them, each Bank agrees to provide the
Borrowers with a written summary of the records
maintained by it under this Section 2.2.
2.3. Increased Costs; Capital Adequacy.
(a) Increased Costs. If (i) as a result of any
Regulatory Change (A) any reserve (other than the
amount of such reserve as has been included in
the computation of the Adjusted LIBOR Rate),
special deposit or similar requirements relating
to any extension of credit or other assets of or
any deposits with or other liabilities of, any
Bank which affects the making or maintaining by
such Bank of any loans (including the Loans) or
letters of credit (including the Letters of
Credit) are imposed, modified or deemed
applicable; or (B) any other condition affecting
this Agreement or the making or maintaining by
any Bank of any loans (including the Loans) or
letters of credit (including the Letters of
Credit) is imposed on such Bank; or (ii) other
circumstances arise affecting any Bank or the
position of any Bank in the relevant market, and
such Bank reasonably determines that, by reason
thereof, the cost to such Bank of making or
maintaining any loans (including the Loans) or letters of credit
(including the Letters of Credit) is increased as
a result of such change in circumstances, or any
amount receivable hereunder in respect of any
Loan or Letter of Credit is reduced (and such
Bank shall not have been compensated for such
increase or reduction by an increase in interest
or otherwise by Regulatory Change), then such
Bank shall promptly notify the
Borrowers in writing and the Borrowers shall pay
upon request such additional amount or amounts
(which shall be specified in such request) as
will (in the reasonable determination of such
Bank) compensate such Bank for such additional
cost or reduction; provided, however, that the
Borrowers' liability for additional amounts
computed in accordance with this Section 2.3(a)
shall be neither changed nor waived by any
failure to give such notice.
(b) Capital Adequacy. If any Regulatory Change
imposes, modifies or deems applicable any capital
adequacy, capital maintenance or similar
requirement (including a request or requirement
which affects the manner in which any Bank
allocates capital resources to its commitments,
including its Commitment hereunder) and as a
result thereof, the rate of return on any Bank's
capital as a consequence of its Commitment
hereunder or the making or maintaining of
any Loans or Letters of Credit hereunder is
reduced to a level below that which such Bank
could reasonably have achieved but for such
circumstances, then and in each such case upon
notice from time to time by a Bank to the
Borrowers, the Borrowers shall pay to such Bank
such additional amount or amounts as shall
compensate such Bank for such reduction in rate
of return; provided, however, that the Borrowers'
liability for additional amounts computed in accordance with
this Section 2.3(b) shall be neither changed nor
waived by any failure to give such notice.
(c) Taxes. If any Regulatory Change shall
subject any Bank or any Loan or Letter of Credit
to any tax (including, without limitation, any
United States interest equalization tax or
similar tax however named applicable to the
acquisition or holding of debt obligations and
any interest or penalties with respect thereto),
duty, charge, stamp tax, fee, deduction or
withholding in respect of this Agreement or any
Loan or Letter of Credit, except such taxes as
may be measured by the overall net income of such
Bank and imposed by the jurisdiction, or any
political subdivision or taxing authority
thereof, in which such Bank's principal executive
office or its lending branch is located and such
Bank in good faith determines that the result
thereof is to increase the cost (whether by incurring
a cost or adding to a cost) to such Bank of making or
maintaining any Loan or Letter of Credit
hereunder or to reduce the amount of principal or
interest received by such Bank (without benefit
of, or credit for, any prorations, exemptions,
credits or other offsets available under any such
laws, treaties, regulations, guidelines or
interpretations thereof), then such Bank shall
promptly notify in writing the Borrowers and the
Borrowers shall pay, upon request, such
additional amount or amounts as will (in the
reasonable determination of such Bank) compensate
such Bank for such additional cost or reduction;
provided, however, that the Borrowers' liability
for additional amounts computed in accordance
with this Section 2.3(c) shall be neither changed
nor waived by any failure to give such notice.
(d) Applicable Tax Forms. On or prior to the
Effective Date in the case of each Bank which is
a party hereto as of the Effective Date, and on
the date of the delivery to the Administrative
Agent of the Assignment Agreement pursuant to
which it became a Bank in the case of each other
Bank, each Bank organized under the laws of a
jurisdiction outside the United States shall
provide the Administrative Agent and the
Borrowers with the forms prescribed by the
Internal Revenue Service of the United States
certifying that such Bank is exempt from United
States withholding taxes with respect to
all payments to be made to such Bank hereunder
and under the Notes. Each Bank which so delivers
such a form further undertakes to deliver to
each of the Borrowers and the Administrative
Agent additional copies of such form (or a
successor form)on or before the date that such
form expires or becomes obsolete or after the
occurrence of any event requiring a change in
the most recent forms so delivered by it, and
such amendments thereto or extensions or
renewals thereof as may be reasonably requested
by the Borrowers or the Administrative Agent, in
each case certifying that such Bank is entitled
to receive payments under this Agreement and the
Notes without deduction or withholding of any
United States federal income taxes. If for any
reason during the term of this Agreement, any
Bank becomes unable to submit the forms referred
to above or the information or representations
contained therein are no longer accurate in any
material respect, such Bank shall promptly
notify the Administrative Agent and the
Borrowers in writing to that effect. Unless the
Borrowers and the Administrative Agent have
received forms or other documents satisfactory
to them indicating that payments hereunder or
under any Note are not subject to United States
withholding tax, the Borrowers or the
Administrative Agent shall withhold taxes from
such payments at the applicable statutory rate
in the case of payments to or for any
Bank organized under the laws of a jurisdiction
outside the United States.
(e) Change in Lending Office. Any Bank claiming
any additional amounts payable pursuant to this
Section 2.3 shall use its best efforts (consistent
with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its
lending office or branch if the making of such
change would avoid the need for, or reduce the
amount of, any such additional amounts which may
thereafter accrue and would not, in the reasonable
judgment of such Bank, be otherwise
disadvantageous to such Bank.
(f) Conclusive and Binding; Survival. With
respect to any additional amount or amounts owing
by the Borrowers pursuant to this Section 2.3, a
statement of a Bank as to any such additional
amount or amounts shall, in the absence of
manifest error, be conclusive and binding on the
Borrowers. In determining such amount, a Bank may
use any method of averaging and attribution that
it (in its sole and absolute discretion) shall
deem applicable. The obligations of the Borrowers
under this Section 2.3 shall survive the
termination of this Agreement.
2.4. Liquidation Fee. Each of the Borrowers
understands that upon the request for a LIBOR Base
Loan for an Interest Period, each Bank intends to
enter into funding arrangements with third parties
on terms and conditions which could result in
substantial losses to such Bank if such LIBOR Base
Loan is not made or does not remain outstanding
for the entire Interest Period.
Therefore, if either (a) after a Borrower requests
a LIBOR Base Loan, the LIBOR Base Loan is not made
on the first day of the specified Interest Period
for any reason (including, but not limited to, the
failure of the Borrowers to comply with one or
more of the conditions precedent to any
Advance under this Agreement) other than a
wrongful failure by such Bank to make the LIBOR
Base Loan, or (b) any LIBOR Base Loan is repaid in
whole or in part prior to the last day of its
Interest Period (whether as a result of
acceleration, operation of law or otherwise), the
Borrowers agree to indemnify such Bank for any
loss, cost and expense incurred by it resulting therefrom, including
without limitation any loss of profit and any loss
or cost in liquidating or employing deposits
acquired to fund or maintain the LIBOR Base Loan.
2.5. Basis for Determining LIBOR Rate Inadequate
or Unfair. If with respect to any
Interest Period:
(a) a Bank is advised that deposits in lawful
money of the United States of America (in the
applicable amounts) are not being offered to such
Bank in the eurodollar market for the relevant
Interest Period, or a Bank otherwise determines
(which determination shall be binding and
conclusive on all parties) that by reason of
circumstances affecting the relevant market or the
position of such Bank in such market adequate and
reasonable means do not exist for ascertaining the
Adjusted LIBOR Rate; or
(b) a Bank determines that the Adjusted LIBOR
Rate will not adequately and fairly reflect the
cost to such Bank of maintaining or funding a
LIBOR Base Loan for the relevant Interest Period, or
that the making or funding of a LIBOR Base Loan has become
impracticable as a result of an event occurring
after the date of this Agreement which in the
opinion of such Bank materially affects such LIBOR
Base Loan; or
(c) a Bank determines in good faith that any
Regulatory Change makes it unlawful or
impracticable for such Bank to make or continue to
maintain any LIBOR Base Loan;
then such Bank shall promptly notify the Borrowers
of such circumstances and then so long as such
circumstances shall continue: (i) the obligation
of such Bank to make a LIBOR Base Loan and to
convert any Loan into a LIBOR Base Loan shall be
terminated and (ii) all LIBOR Base Loans of such
Bank then outstanding shall automatically be
converted into Base Rate Loans on the last day of
the Interest Period then applicable thereto,
provided that if it shall become unlawful or
impracticable for such Bank to maintain any LIBOR
Base Loan, such Loan shall automatically and
immediately be converted into a Base Rate Loan.
2.6. Payments. Any other provision of this
Agreement to the contrary notwithstanding, the
Borrowers shall make each payment of interest on
and principal of the Notes and fees and other
payments due under this Agreement in immediately
available funds to the Administrative Agent at its
office referred to in Section 10.3 hereof not
later than 11:00 a.m. (Houston, Texas time) on the
date when due. Each of the Borrowers hereby
authorizes and directs the Administrative Agent
and agrees that on the Business Day on which any
payment of principal, interest and/or fees are
due, the Administrative Agent may automatically
charge one or more demand deposit accounts of the
Borrowers maintained with the Administrative
Agent. All payments by the Borrowers under this
Agreement shall be made without offset,
counterclaim or other deduction and in such
amounts as may be necessary in order that all such
payments shall not be less than the amounts
otherwise specified to be paid under this
Agreement and the Notes. The Administrative Agent
will promptly thereafter distribute like funds
ratably to each Bank (unless such amount is not to
be shared ratably in accordance with the terms
hereof).
2.7. Setoff; etc. Upon the occurrence and during
the continuance of an Event of Default, each Bank is
hereby authorized at any time and from time to
time, without notice to the Borrower (any such
notice being expressly waived by the Borrowers),to
set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank to or
for the credit or the account of the Borrowers, or
either of them, including specifically any amounts
held in any account maintained at such Bank,
against any and all amounts which may be owed to
the Administrative Agent or the Banks, or any of
them, by the Borrowers, or either of them, in
connection with this Agreement or any Loan
Document. The rights of the Banks under this
Section 2.7 are in addition to other rights and
remedies (including, without limitation, other
rights of setoff) which the Banks may have. Each
of the Borrowers agrees that any holder of a Note
or of any participation in a Note may, to the
fullest extent permitted by law, exercise
all its rights of payment (including set-off) with
respect to such participation as fully as if such
holder were the direct creditor of such Borrower
in the amount of such participation. Each Bank
agrees to use reasonable efforts to notify the
Borrowers of any exercise of its rights pursuant
to this Section 2.7, provided, however, that
failure to provide such notice shall not affect
the Bank's rights under this Section 2.7 or the
effectiveness of any action taken pursuant hereto.
2.8. Sharing. If any Bank shall obtain any
payment (whether voluntary, involuntary, by
application of offset or otherwise) on account of
the Loans made by it in excess of such Bank's
ratable share of payments on account of the Loans
obtained by all the Banks, such Bank shall
purchase from the other Banks such participations
in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess
payment ratably with each of them; provided,
however, that if all or any portion of the excess
payment is thereafter recovered from such
purchasing Bank, the purchase shall be rescinded
and the purchase price restored pro rata according
to the extent of such recovery, but without
interest. Each of the Borrowers agrees that any
Bank so purchasing a participation from another
Bank pursuant to this Section 2.8 may, to the
fullest extent permitted by law, exercise all its
rights of payment (including the right to setoff)
with respect to such participation as fully as if
such Bank were the direct creditor of such
Borrower in the amount of such participation.
2.9. Commitment Fee. (a) The Borrowers agree,
jointly and severally, to pay a commitment fee
(the "Commitment Fee") for the period (including,
without limitation, any portion thereof when the
Banks' obligations to lend shall be suspended by
reason of the Borrowers' inability to satisfy the
conditions of Article III) commencing on the Monthly
Payment Date immediately preceding the Effective Date and
continuing through the Termination Date in an
amount equal to the Applicable Fee Percentage (as
determined in accordance with subsection (b)of
this Section 2.9) per annum of the Unused Portion.
Such Commitment Fee shall be payable to the Agent
for the ratable benefit of the Banks in arrears on
each Monthly Payment Date occurring after the
Effective Date.
(b) The Applicable Fee Percentage shall be
determined by reference to the table set forth
below on the basis of the Indebtedness Ratio
determined by reference to the most recent
financial statements delivered pursuant to
Section 5.1(a) or 5.1(b).
Indebtedness Ratio Applicable Fee Percentage
- ------------------ -------------------------
Greater than 4.00:1.00 0.50%
Less than or equal to 4.00:100
but greater than 3.00:100 0.375%
Less than or equal to 3.00:100 0.25%
Upon receipt of the financial statements delivered
pursuant to Section 5.1(a) or Section 5.1(b), as
applicable, the Applicable Fee Percentage shall be
adjusted, such adjustment being effective on the
tenth Business Day after receipt of such financial
statements and the Compliance Certificate to be
delivered in connection therewith; provided,
however, if the Borrowers shall not have timely
delivered such financial statements in accordance
with Section 5.1(a) or Section 5.1(b), as
applicable, beginning with the date upon which
such financial statements should have been
delivered and continuing until such financial
statements are delivered, the Applicable Fee
Percentage shall equal the Applicable Fee
Percentage for the prior period; provided further,
however, that if upon delivery of such financial
statements the Applicable Fee Percentage is
adjusted upwards, the adjustment of the Applicable
Fee Percentage shall be retroactive to the date
upon which such financial statements should have
been delivered.
2.10. Amendment Fees. The Borrowers agree to
pay on the Effective Date to the Administrative
Agent for the ratable benefit of the Banks which are
party hereto a nonrefundable amendment fee pursuant
to the terms of a letter dated April 20, 1999 (the "Fee
Letter"), between the Borrowers and the Administrative Agent.
2.11. Lending Branch. Subject to the
provisions of Section 2.3(e), each Bank may, at
its option, elect to make, fund or maintain its
Loans hereunder at the branch or office specified
on the signature pages hereto or such other of its
branches or offices as such Bank may from time to
time elect.
2.12. Letters of Credit.
(a) Subject to all of the terms and conditions
hereof (including Section 2.1(a) hereof, assuming
the Borrowers had requested an Advance in the
amount of the stated amount of the Letter of
Credit), at the written request of a Borrower,
CBT will on or after the date hereof issue
standby letters of credit ("Letters of Credit")
for the account or benefit of such Borrower
expiring on or before the Termination Date;
provided, however, CBT shall not be required to
issue a Letter of Credit if, after giving effect
thereto, (i) the aggregate stated amount of all
outstanding Letters of Credit, plus unreimbursed
reimbursement obligations, would exceed
$5,000,000 or (ii) the sum of the aggregate
outstanding principal amount of all Advances and
the aggregate stated amount of all outstanding
Letters of Credit would exceed the aggregate
amount of the Commitments. The aggregate stated
amount of any and all Letters of Credit shall
count against and reduce the available
Commitments hereunder on a pro rata basis.
(b) Immediately upon the issuance of each Letter
of Credit hereunder, each Bank shall be deemed to
have automatically, irrevocably and
unconditionally purchased and received from CBT
an undivided interest and participation in and to
such Letter of Credit, the obligations of the
Borrowers in respect thereof, and the liability
of CBT thereunder in an amount equal to the
amount available for drawing under such Letter of
Credit multiplied by such Bank's Percentage. The
Administrative Agent will notify each Bank
promptly (a) upon the issuance of any Letter of
Credit and (b) upon any draw under a Letter of
Credit. On or before the Business Day on which
CBT makes payment of any draw on a Letter of
Credit, on demand of CBT (which demand shall not
require payment prior to the Business Day such
payment is required to be made under the Letter
of Credit), each Bank shall make payment to the
Administrative Agent for the account of CBT, in
immediately available funds an amount equal to
such Bank's Percentage of the amount of such
payment or draw. The obligation of each Bank to
reimburse the Administrative Agent for the
account of CBT shall be unconditional,
continuing, irrevocable and absolute. In the
event that any Bank fails to make payment to the
Administrative Agent for the account of CBT of
any amount due hereunder, the Administrative
Agent shall be entitled to receive, retain and
apply against such obligation the principal and
interest otherwise payable to such Bank hereunder
until the Administrative Agent receives such
payment from such Bank on behalf of CBT or such
obligation is otherwise fully satisfied;
provided, however, that nothing contained in this
sentence shall relieve such Bank of its obligation
to reimburse the Administrative Agent on behalf of
CBT for such amount in accordance with this Section 2.12.
(c) If and to the extent a drawing is at any
time made under such a Letter of Credit, the
Borrowers agree to pay to the Administrative
Agent, for the account of CBT and the Banks
immediately and unconditionally upon demand in
lawful money of the United States, an amount
equal to each amount which shall be so drawn; and
the Administrative Agent shall have the right to
convert automatically the reimbursement
obligation of the Borrowers arising out of any
such drawing into an Advance made under this
Agreement (each of the Borrowers hereby
irrevocably authorizing the Administrative Agent
to refinance without notice to the Borrowers the
reimbursement obligation of the Borrowers arising
out of any such drawing into such an Advance and
to take all action on behalf of the Borrowers
required pursuant to Section 2.1(d) hereof to
request such Advance), and such Advance to be
evidenced by the Notes and for all purposes of
this Agreement although without regard to the
conditions precedent to making any such Advance
and any requirement of this Agreement that each
Advance under this Agreement be in a minimum
amount. If and to the extent any such Letter of
Credit expires or otherwise terminates in a
manner satisfactory to CBT without having been
drawn upon, the available Commitments of the
Banks shall to such extent be reinstated.
(d) The Borrowers agree to pay (i) monthly, in
arrears, to the Administrative Agent for the
ratable benefit of the Banks a letter of credit
fee, computed at an annual rate equal to the
Applicable Margin in effect from time to time
applied to the aggregate amount available for
drawing under all of the Letters of Credit issued for the
account of the Borrowers, or either of them, from
the date of issuance of each Letter of Credit
until the expiration thereof, and (ii) to CBT
directly for its benefit as issuing bank, all
customary fees (including fronting fees) and
other issuance, amendment, document examination,
negotiation and presentment expenses and related
charges in connection with the issuance,
amendment, presentation of drafts, and the like
customarily charged by CBT with respect to
standby letters of credit, payable at the time of
invoice of such amounts.
(e) (i) In addition to amounts payable as
elsewhere provided in this Agreement, each of the
Borrowers hereby agrees to protect, indemnify,
pay and save harmless the Administrative Agent,
each Bank and CBT from and against any and all
liabilities and costs which the Administrative
Agent, any Bank or CBT may incur or be subject to
as a consequence, direct or indirect, of the
issuance of any Letter of Credit other than, in
the case of CBT, as a result of (A) its gross
negligence or willful misconduct, as determined
by the final judgment of a court of competent
jurisdiction, in determining whether documents
presented under any Letter of Credit comply with
the terms thereof, or (B) the failure of CBT to
honor a drawing under such Letter of Credit as a
result of any act or omission, whether rightful
or wrongful, of any present or future de
jure or de facto governmental authority (all such
acts or omissions herein called "Governmental
Acts").
(ii) As among the Borrowers, the Banks, CBT and
the Administrative Agent, the Borrowers assume
all risks of the acts and omissions of, or misuse
of such Letter of Credit by, the beneficiary of
any Letter of Credit. In furtherance and not in
limitation of the foregoing, subject to the
provisions of the Letter of Credit applications
and Letter of Credit reimbursement agreements
executed by the Borrowers, or either of them, at
the time of request for any Letter of Credit,
CBT, the Administrative Agent and the Banks shall
not be responsible: (A) for the form, validity,
sufficiency, accuracy, genuineness or legal
effect of any document submitted by any party in
connection with the application for and issuance
of the Letters of Credit, even if it should in
fact prove to be in any or all respects invalid,
insufficient , inaccurate, fraudulent or forged;
(B) for the validity or sufficiency of any
instrument transferring or assigning or
purporting to transfer or assign a Letter of
Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any
reason; (C) for failure of the beneficiary of a
Letter of Credit to comply with conditions
required in order to draw upon such Letter of
Credit; (D) for errors, omissions, interruptions
or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, or
other similar form of teletransmission or
otherwise; (E) for errors in interpretation of technical
trade terms; (F) for any loss or delay in the
transmission or otherwise of any document
required in order to make a drawing under any
Letter of Credit or of the proceeds thereof; (G)
for the misapplication by the beneficiary of a
Letter of Credit of the proceeds of any drawing
under such Letter of Credit; and (H) for any
consequences arising from causes beyond the
control of the Administrative Agent, CBT and the
Banks.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove
set forth, any action taken or omitted by CBT
under or in connection with Letters
of Credit issued on behalf of the Borrowers, or
either of them, or any related certificates shall
not, in the absence of gross negligence or willful
misconduct of CBT, as determined by the final
judgment of a court of competent jurisdiction, in
determining whether documents presented under any
Letter of Credit comply with the terms thereof,
put CBT, the Agent or any Bank under any
resulting liability to the Borrowers or relieve
the Borrowers of any of their obligations
hereunder to any such Person.
(iv) Without prejudice to the survival of any
other agreement of the Borrowers hereunder, the
agreements and obligations of the Borrowers
contained in this Section 2.12(e) shall survive
the payment in full of principal and interest
hereunder, the termination of the Letters of
Credit and termination of this Agreement.
2.13. Application of Payments and Collections.
(a) Subject to the provisions of subsection (b)
below or any agreement of the Administrative
Agent and the Banks to the contrary, all payments
and prepayments and any other amounts received by
the Administrative Agent from or for the benefit
of the Borrowers shall be applied, first, to pay
principal of and interest on any portion of the
Advances which the Administrative Agent may have
advanced on behalf of any Bank for which the
Administrative Agent has not then been reimbursed
by such Bank or the Borrowers, second, to pay all
other obligations in respect of fees, expenses,
reimbursements or indemnities then due and
payable, third, to pay interest then due in
respect of the Loans, and fourth, to pay the
principal of the Loans then due and payable.
(b) After the occurrence of an Event of Default
and while the same is continuing, the
Administrative Agent shall, unless the
Administrative Agent and the Banks shall agree
otherwise, apply all payments and prepayments in
respect of any Obligations hereunder in the
following order:
FIRST, to pay interest on and then principal of
any portion of the Advances which the Administrative
Agent may have advanced on behalf of any Bank for
which the Administrative Agent has not then been
reimbursed by such Bank or the Borrowers;
SECOND, to pay Obligations in respect of any
fees, expense reimbursements or
indemnities then due to the Administrative Agent;
THIRD, to pay Obligations in respect of any
fees, expenses, reimbursements or indemnities
then due to the Banks;
FOURTH, to the payment of interest accrued
on the Loans and any amounts due pursuant to
Section 2.3, to be allocated among the Banks pro
rata based on the respective
aggregate amounts of such accrued interest and
amounts owed to them; and
FIFTH, to the payment of the outstanding
principal amounts of the Loans and to the
provision of cash collateral for Unfunded
Obligations, to be allocated among the Banks and
CBT pro rata based on the respective outstanding
principal amounts of the Loans and the aggregate
outstanding Unfunded Obligations.
(c) Each of the Banks hereby irrevocably
designates the Administrative Agent its attorney in fact for the
purpose of receiving any and all payments to be
made to such Bank in respect of Obligations held
by it, and hereby directs each payor of any such
payment to make such payment to the
Administrative Agent; and each of the Banks
hereby further agrees that if, notwithstanding
the foregoing, it should receive any such
payment, it shall hold such payment in trust for,
and promptly deliver such payment to, the
Administrative Agent.
(d) Whenever any portion of any payment received
or amount realized by the Administrative Agent is
applied pursuant to FIFTH of clause (b) above,
the part thereof allocated to Unfunded
Obligations shall be held by the Administrative
Agent for the benefit of CBT and the Banks. Upon
any draw on a Letter of Credit, the
Administrative Agent shall pay the amounts
allocated in respect of such Unfunded Obligation
to CBT. Pending distribution of such amounts,
the Administrative Agent shall hold such amounts
in a cash collateral account. Upon cancellation
or termination of a Letter of Credit without its
being fully drawn, the Administrative Agent shall
reapply the amounts allocated in respect of such
Unfunded Obligation as provided in clause (a) or
(b) above, as applicable, as if such portion had
then been paid to the Administrative Agent by the
Borrowers for application pursuant to said
clause.
(e) The Administrative Agent shall promptly
distribute to each Bank at its primary address
set forth on the appropriate signature page
hereof or at such other address as a Bank may
request in writing, such funds as such Bank may
be entitled to receive.
2.14. Extension of Termination Date. At
least 90 but not more than 120 days prior to each
anniversary of the date hereof, the Borrowers may
request the Banks, by written notice to the
Administrative Agent, to consent to a one-year
extension of the Termination Date. Each Bank
shall, in its sole discretion, determine whether
to consent to such request and shall notify the
Administrative Agent of its determination within
30 days of such Bank's receipt of notice of such
request. If any Bank shall not have consented to
such request during such 30-day period, the
Termination Date shall not be extended. If such
request shall have been consented to by the
Administrative Agent and all the Banks, the
Administrative Agent shall notify the Borrowers
in writing of such consent, and such extension
shall become effective upon the delivery by the
Borrowers to the Administrative Agent and each
Bank, on or prior to such anniversary date, of
(i)a certificate of a duly authorized officer of
the Borrowers, dated such date, as to the
accuracy, both before and after giving effect to
such proposed extension, of the representations
and warranties set forth in Article IV and as to
the absence, both before and after giving effect
to such proposed extension, of any Default or
Event of Default, (ii) certified copies of all
corporate and governmental approvals, if any,
required to be obtained by the Borrowers, or
either of them, or any of the Subsidiary Guarantors
in connection with such extension and (iii) an opinion
or opinions of counsel to the Borrowers and the Subsidiary
Guarantors as to the matters set forth in Exhibit
C after giving effect to such extension and such
other matters as any Bank, through the
Administrative Agent, may reasonably request.
ARTICLE III.
CONDITIONS PRECEDENT
3.1. Conditions Precedent to Effectiveness.
The effectiveness of this Agreement and the
obligation of each of the Banks to make any
Advance hereunder or of CBT to issue any Letter
of Credit hereunder is subject to the following
conditions precedent:
(a) The Administrative Agent shall have received
copies (in sufficient number for each of the
Banks to receive a copy) of all of the
following, each in form and substance reasonably
satisfactory to the Administrative Agent and the
Banks, unless waived by each of the Banks:
(i) This Agreement, appropriately completed and
duly executed by the parties hereto;
(ii) Reaffirmation of Subsidiary Guaranty, duly
executed and delivered by each of the Subsidiary
Guarantors;
(iii) A certificate of the secretary of each
of the Borrowers, certifying that (i) a correct
and complete copy of its Articles of Incorporation, with all
amendments thereto, is attached to the
certificate, (ii) a correct and complete copy of
its Bylaws, with all amendments thereto, is
attached to the certificate, (iii) a correct and
complete copy of the resolutions of its Board of
Directors authorizing the execution, delivery and
performance of the Loan Documents to which it is
a party are attached to the certificate, and such
resolutions have not been subsequently modified
or repealed and (iv) there are no proceedings
pending or contemplated as to the merger,
consolidation, liquidation or dissolution of such
Borrower;
(iv) A certificate of the secretary of each
Subsidiary Guarantor, certifying that (i) with
respect to each Subsidiary Guarantor which is a
corporation, (A) there have been no changes to
its Articles of Incorporation or By-laws since
the date of certification thereof to the
Banks, (B) if there have been any changes to such
Subsidiary Guarantor's Articles of Incorporation
or By-laws, a correct and complete copy of its
Articles of Incorporation, certified by the
Secretary of State of its state of incorporation,
or Bylaws, as applicable, is attached to the
certificate and (C) a correct and complete copy of the
resolutions of its Board of Directors authorizing
the execution, delivery and performance of the
Loan Documents to which it is a party are
attached to the certificate, and such resolutions
have not been subsequently modified or repealed,
(ii) with respect to each Subsidiary Guarantor which is a
limited partnership, (A) there has been no change
to such Subsidiary Guarantor's agreement of
limited partnership since the date of
certification thereof to the Banks, or if there
has been any such change, a correct and complete
copy of the agreement of limited partnership,
with all amendments thereto, is attached to the
certificate and (B) all action on behalf of the
partnership and the partners necessary to
authorize the execution, delivery and performance
of the Loan Documents to which it is a party have
been taken, and (iii) there are no proceedings
pending or contemplated as to the merger,
consolidation, liquidation or dissolution of such
Subsidiary Guarantor;
(v) A certified copy of all documents evidencing
any necessary consent or governmental approvals
(if any) with respect to the execution, delivery
and performance of the Loan Documents and the consummation of the
transactions contemplated hereby;
(vi) A certificate executed by the secretary or
any assistant secretary of each of the Borrowers
certifying the names of the officers of such
Borrower authorized to sign the Loan Documents
and to give notices and other communications in
connection with this Agreement and
the transactions contemplated hereby, together
with a sample of the true signature of such
officers;
(vii) A certificate executed by the secretary
or an assistant secretary of each of the
Subsidiary Guarantors certifying the names of the
officers of such Subsidiary authorized to sign
the Subsidiary Guaranty or the Reaffirmation of
Subsidiary Guaranty, as applicable, together with
a sample of the true signature of such officers;
(viii) A favorable opinion of
counsel to the Borrowers and the Subsidiary
Guarantors substantially in the form of Exhibit C
attached hereto;
(ix) A closing certificate (the "Closing
Certificate"), executed by the president, senior
vice president or chief financial officer of QDI,
certifying that (i) the representations and
warranties contained in this Agreement and each
other Loan Document are true and accurate in all
material respects, (ii) no Default or Event of
Default has occurred and is continuing and
(iii)except as disclosed therein, there has been
no change to the insurance maintained by QDI and
its Subsidiaries as set forth in the evidence of
insurance delivered to the Banks in connection
with execution and delivery of the Existing
Credit Agreement; and
(x) Such other approvalsor documents as the
Administrative Agent or the
Required Banks may reasonably request;
(b) Application of the proceeds of the Mortgage
Transactions to the repayment of the Loans
outstanding in a principal amount of not less
than $45,000,000, together with the accrued
interest thereon, plus, in the event that such
prepayment results in the prepayment of a LIBOR
Base Loan, any amounts which are payable under
Section 2.4 hereof;
(c) Payment by QDI to the Administrative Agent
for the ratable benefit of the Banks of a
nonrefundable amendment fee in accordance with
the provisions of Section 2.10 hereof; and
(d) Payment by the Borrowers of all costs and
expenses of the Administrative Agent's special
counsel (including, without limitation, legal
fees and expenses) incurred in connection with
the preparation and execution of the Loan
Documents and incident to all proceedings in
connection with, transactions contemplated by,
and documents relating to this Agreement and the Loan
Documents.
Upon the making of the initial Advance hereunder,
the foregoing conditions shall be deemed to be
satisfied; provided, however, that the making of
such Advance shall not constitute a waiver by the
Administrative Agent or any Bank of any right
which the Administrative Agent or such Bank may
have in the event that any certificate, financial
statement or other document delivered pursuant to
this Section 3.1 or otherwise in connection with
the transactions contemplated by this Agreement
shall prove to have been false or misleading in
any material respect.
3.2. Conditions Precedent to All Advances. The
obligation of each of the Banks to make any
Advance hereunder or of CBT to issue any Letters
of Credit shall be further subject to the
satisfaction of each of the following conditions,
unless waived in writing by each of the Banks:
(a) In the case of an Advance, a Notice of
Borrowing appropriately completed and duly
executed by a Borrower and, in the case of a
Letter of Credit, an application for a letter of
credit, in form and substance satisfactory to CBT,
appropriately completed and duly executed by a
Borrower;
(b) The representations and warranties set forth
in Article IV hereof and in each of the other
Loan Documents are true and correct on the
Effective Date and on the date of and after
giving effect to the making of the Advance or the
issuance of the Letter of Credit, except that the
representations and warranties set forth in
Section 4.5 as to the financial statements of QDI
shall be deemed a reference to the audited and
unaudited financial statements of QDI, as the
case may be, most recently delivered to the Banks
pursuant to Section 5.1;
(c) No Default or Event of Default and no
Material Adverse Occurrence shall then have
occurred and be continuing on
the date of the making of the Advance or the
issuance of the Letter of Credit; and
(d) The making of the Advance by such Bank is
not in violation of any applicable law, rule or
regulation or any directive, request or order of
any court or governmental authority having
jurisdiction over such Bank. The delivery of the
Notice of Borrowing or the application for the
issuance of a Letter of Credit by a Borrower
shall constitute a certification by the
Borrowers, binding upon each of the Borrowers, as
to the matters set forth in subsections (b) and
(c) above.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Each of the Borrowers represents and warrants to
the Administrative Agent and each of the Banks that
as of the date hereof, as of the Effective Date,
and as of the date of each Advance and each
issuance of a Letter of Credit, as follows:
4.1. Organization; etc. Each of the Borrowers is
a corporation validly organized and existing and
in good standing under the laws of the state of
its organization, has full power and authority to
own its property and conduct its business as
conducted by it and is duly qualified to do
business and is in good standing as a foreign
corporation in each jurisdiction where the nature
of its business or the character of its property
makes such qualification or licensing necessary.
A list of jurisdictions in which each of the
Borrowers is qualified to do business is set
forth in Annex I. Each of the Borrowers has full
power and authority to enter into and to perform
its obligations under the Loan Documents and to
request Advances under the Agreement. Each of
the Borrowers has all licenses, permits and
Franchises necessary to carry on its business as
now being conducted and to own and operate its
Property, except for permits, licenses and
Franchises the failure of which to obtain will
not result in a Material Adverse Occurrence.
4.2. Due Authorization. The execution, delivery
and performance by each of the Borrowers and of
each of the Subsidiary Guarantors of the Loan
Documents to which it is a party have been duly
authorized by all necessary corporate action, do
not require any approval or consent of, or any
registration, qualification or filing with, any
governmental agency or authority or any approval
or consent of any other Person, do not and will
not conflict with, result in any violation of or
constitute any default under, any provision of
the articles of incorporation or bylaws of either
of the Borrower or any of the Subsidiary
Guarantors, any agreement binding on or
applicable to the Borrowers, or either of them,
any of the Subsidiary Guarantors or any of their
respective Property, or any law or governmental
regulation or court decree or order binding upon
or applicable to the Borrowers, or either of
them, any of the Subsidiary Guarantors or any of
their respective Property and will not result in
the creation or imposition of any Lien on any of
their respective Property pursuant to the
provisions of any agreement binding on or
applicable to the Borrowers, either of them, any
of the Subsidiary Guarantors or any of their
respective Property.
4.3. Subsidiaries. Neither of the Borrowers has
any Subsidiaries except those listed on Annex II,
which correctly sets forth the name of each
Subsidiary, the jurisdiction of its incorporation
and the percentage ownership of each Subsidiary
which is owned, of record or beneficially, by
each Borrower and/or one or more of its
Subsidiaries. Each of the Borrowers and QDI's
Subsidiaries has good and marketable title to all
of the shares or other equity interests it
purports to own of each of its Subsidiaries, free
and clear of any Lien and all such shares
havebeen duly issued and are fully paid and
nonassessable. Each Subsidiary has been duly
organized and is validly existing and in good
standing under the laws of its jurisdiction of
incorporation or organization and is duly
licensed or qualified and in good standing as a
foreign corporation in each other jurisdiction
where the nature of the business transacted by it
or the character of its properties owned or
leased makes such qualification or licensing
necessary. A list of the jurisdictions in
which each Subsidiary is qualified to do business
is set forth on the attached Annex II. Each
Subsidiary has full power and authority to own
and operate its properties, to carry on its
business as now conducted and, as to each
Subsidiary Guaranty, to enter into and perform
the Subsidiary Guaranty. Each Subsidiary has all
licenses, permits and Franchises necessary to
carry on its business as not being conducted and to own and
operate its properties, except for permits,
licenses and Franchises the failure of which to
obtain will not result in a Material Adverse
Occurrence.
4.4. Validity of the Agreement; etc. Each Loan
Document is the legal, valid and binding
obligation of each of the Borrowers and of each
of the Subsidiary Guarantors which are a party
thereto and is enforceable in accordance with its
terms.
4.5. Financial Statements. The consolidated
balance sheets of QDI and its Subsidiaries as of
October 25, 1998, October 26, 1997 and October
27, 1996 and the related consolidated statements
of income, stockholders' equity and cash flows
for the three years ended October 25, 1998,
October 26, 1997 and October 27, 1996 certified
by PricewaterhouseCoopers LLC, QDI's independent public
accountants, copies of which have heretofore been delivered
to the Banks, were prepared in accordance with generally
accepted accounting principles consistently
applied throughout the periods involved and
present fairly the financial condition and
results of operations and cash flows of QDI and
its Subsidiaries for and as of the end of each of
such years. The unaudited consolidated balance
sheet of QDI and its Subsidiaries as of February
14, 1999 and the unaudited statements of
operations for the sixteen week period ended on
said date, copies of which have heretofore been
delivered to the Banks, have been prepared in
accordance with GAAP, present fairly in all
material respects the financial position of QDI
and its Subsidiaries, on a consolidated basis, as
of said date and the result of operations and
cash flows of QDI and its Subsidiaries, on a
consolidated basis, for said period, subject to
customary year-end adjustments.
4.6. Litigation; etc. Except as disclosed in
QDI's Quarterly Report on Form 10-Q for the
quarter ended February 14, 1999, there is no
action, suit or proceeding at law or equity, or
before or by any federal, state, local or other
governmental department, commission, board,
bureau, agency or instrumentality, domestic or
foreign, pending, or to the knowledge of the
Borrowers threatened, against the Borrowers or
any of QDI's Subsidiaries or any of their
respective Property, which if determined
adversely would be a Material Adverse Occurrence
or would affect the ability of the Borrowers or
any of QDI's WhollyOwned Subsidiaries to perform
their respective obligations under the Loan
Documents; and neither of the Borrowers nor any
of QDI's Subsidiaries is in default with respect to
any final judgment, writ, injunction, decree,
rule or regulation of any court or federal,
state, local or other governmental department,
commission, board, bureau, agency or
instrumentality, domestic or foreign, where the
effect of such default would be a Material
Adverse Occurrence.
4.7. Compliance with Law. Neither of the
Borrowers nor any of QDI's Subsidiaries is (a) in
default with respect to any order, writ,
injunction or decree of any court, governmental
authority or arbitration board or tribunal to
which it is a named party or (b) in violation of
any law, rule, regulation, ordinance or order relating to
its or their respective business, the violation
of which would result in a Material Adverse
Occurrence.
4.8. ERISA Compliance. The Internal Revenue
Service has issued a determination that each Plan
(except for any Plan which is unfunded and
maintained primarily for the purpose of providing
deferred compensation for a select group of
management or highly compensated employees) is
qualified under Section 401(a) and related
provisions of the Code, as amended by ERISA, and
that each related trust or custodial account is
exempt from taxation under Section
501(a) of the Code. All Plans comply in all
material respects with ERISA and other applicable
laws. There exist with respect to the Borrowers,
or either of them, or any of QDI's Subsidiaries
no "multi-employer plans," as defined in the
Multi-employer Pension Plan Amendments Act of
1980, for which a material withdrawal or termination
liability may be incurred. There exist with
respect to all Plans or trusts: (a) no material
accumulated funding deficiency within the meaning
of ERISA; (b) no termination of any Plan or trust
which would result in any material liability to
the PBGC or any "reportable event," as that term
is defined in ERISA, which is likely to constitute grounds for
termination of any Plan or trust by the PBGC; and
(c) no "prohibited transaction," as that term is
defined in ERISA, which is likely to subject any
Plan, trust or party dealing with any Plan or
trust to any material tax or penalty on
prohibited transactions imposed by Section 4975
of the Code.
4.9. Title to Assets. Each of the Borrowers and
each of QDI's Subsidiaries has good and
marketable fee simple title to all of its
Property constituting real property and good and
marketable title to and ownership of all of its
Property and assets constituting personal
property, in each case as disclosed on the
consolidated financial statements of QDI as of
and for the period ending February 14, 1999
(except for any such Property disposed of by the
Borrowers or any of QDI's Subsidiaries in the
ordinary course of business), free and clear of
all Liens except for Liens and other encumbrances
permitted pursuant to Section 6.4.
4.10. Indebtedness. Except for Indebtedness
listed in Annex III, neither of the Borrowers nor
any of QDI's Subsidiaries has any Indebtedness.
4.11. Use of Proceeds. The proceeds of the
Advances will be used by the Borrowers to fund
the working capital requirements of the Borrowers
and for other general corporate purposes.
4.12. Margin Stock. No part of any Advance
shall be used at any time by the Borrowers, or
either of them, to purchase or carry margin stock
(within the meaning of Regulation U) or to extend
credit to others for the purpose of purchasing or
carrying any margin stock. Neither of the
Borrowers nor any of QDI's Subsidiaries is
engaged principally, or as one of its important
activities, in the business of extending credit
for the purposes of purchasing or carrying any
such margin stock. No part of the proceeds of
any Advance will be used by the Borrowers, or
either of them, for any purpose which violates,
or which is inconsistent with, any regulations
promulgated by the Board of Governors of the
Federal Reserve System.
4.13. Investment Company Act. Neither of the
Borrowers nor any of QDI's Subsidiaries is an
"investment company," or an "affiliated person"
of, or a "promoter" or "principal underwriter"
for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as
amended. The making of the Advances, the
application of the proceeds and repayment thereof
by the Borrowers and the performance of the
transactions contemplated by the Agreement will
not violate any provision of said Act, or any
rule, regulation or order issued by the
Securities and Exchange Commission thereunder.
4.14. Unregistered Securities. Neither of the
Borrowers nor any of QDI's Subsidiaries has (a)
issued any unregistered securities in violation
of the registration requirements of Section 5 of
the Securities Act of 1933, as amended, or any
other law; or (b) violated any rule, regulation
or requirement under the Securities Act of 1933,
as amended, or the Securities Exchange Act of
1934, as amended.
4.15. Public Utility Holding Company Act.
Neither of the Borrowers nor any of QDI's
Subsidiaries is a "holding company," or a
"subsidiary company" of a "holding company," or
an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company,"
within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
4.16. Accuracy of Information. All
information heretofore or herewith furnished by
or on behalf of the Borrowers to the
Administrative Agent or the Banks for purposes of
or in connection with the Agreement or any
transaction contemplated by the Agreement is, and
all other such information hereafter furnished by
or on behalf of the Borrowers to the
Administrative Agent or the Banks will be, true
and accurate in every material respect on the
date as of which such information is dated or
certified and no such information contains any
material misstatement of fact or omits to state a
material fact or any fact necessary to make the
statements contained therein not misleading.
4.17. Tax Returns; Audits. Each of the
Borrowers and QDI's Subsidiaries has filed all
federal, state and local income tax returns and
other reports which are required to be filed, and
has paid all taxes as shown on said returns and
on all assessments received by any such Person
(except for any assessments which are being
contested in good faith by appropriate
proceedings that will prevent a forfeiture or
sale of any property and for which an adequate
book reserve in accordance with GAAP shall have
been set aside), to the extent that such taxes
have become due or has obtained extensions with
respect to the filing of such returns and has
made provision for the payment of taxes
anticipated to be payable in connection with such
returns. Each of the Borrowers and QDI's
Subsidiaries has made all required withholding
deposits. The Borrowers do not have
knowledge of any objections to or claims for
additional taxes by federal, state or local
taxing authorities against it or any of its
Subsidiaries which would be a Material Adverse
Occurrence.
4.18. Environmental and Safety Regulations.
Each of the Borrowers and each of QDI's
Subsidiaries are in compliance with all
requirements of applicable federal, state and
local environmental, pollution control, health
and safety statutes, laws and regulations except
for any noncompliance which, individually or in
the aggregate, could not result in a Material
Adverse Occurrence with respect to such Borrower
or such Subsidiary and are not the subject of any
federal or state investigation evaluating whether any
remedial action is needed to respond to a release
of any toxic or hazardous waste or substance into
the environment. Each of the Borrowers further
represents and warrants that (i) the Real
Property and its intended use complies with all
applicable laws, governmental regulations and the
terms of any enforcement action by any federal,
state, regional or local governmental agency, including,
without limitation, all applicable federal, state
and local laws pertaining to air and water
quality, hazardous waste, waste disposal and
other environmental matters (including, but not
limited to, the Clean Water, Clean Air, Federal Water Pollution
Control, Solid Waste Disposal, Resource
Conservation and Recovery and Comprehensive
Environmental Response, Compensation, and
Liability Acts, as said acts may be amended), and
the rules, regulations and ordinances of all
applicable federal, state and local agencies and
bureaus, except in each case for any
noncompliance which, individually or in the
aggregate, could not result in a Material Adverse
Occurrence and (ii) no notice, demand, request
for information, citation, summons or order has
been issued, no complaint has been filed, no
penalty has been assessed and no investigation or
review is pending or threatened by any governmental or
other entity with respect to any alleged
failure by the Borrowers, or either of them,
or any of QDI's Subsidiaries to comply in any
respect with any of such environmental laws
except for any such liability for which an
adequate book reserve in accordance with GAAP
shall have been set aside in respect thereto.
4.19. Forecasts. The forecasts of QDI and
its Subsidiaries, furnished to the Administrative
Agent and each of the Banks, consisting of
consolidated balance sheets, consolidated cash
flow statements and consolidated income
statements of QDI and its Subsidiaries after
giving effect to the making of the Advances
hereunder and the application of the proceeds
thereof, together with appropriate supporting
details and a statement of underlying
assumptions, have been prepared in the light of
the past business history of QDI and its
Subsidiaries and on the basis of the assumptions
set forth therein, which assumptions are in the
opinion of the Borrowers reasonable. Such
forecasts have been prepared in good faith and
represent the good faith opinion of the Borrowers
as to the most probable course of business of QDI
and its Subsidiaries on the basis of the
assumptions which are set forth therein.
4.20. Solvency. After giving effect to the
transactions contemplated by this Agreement, each
of the Borrowers and QDI's Subsidiaries has
capital sufficient to carry on its business, is
solvent and is able to pay its debts and
obligations as they mature in the ordinary
course. After giving effect to the consummation
of the transactions contemplated by this
Agreement, each of the Borrowers and QDI's
Subsidiaries now owns property having a value,
both at fair valuation and at present fair
saleable value, greater than the amount required
to pay its debts, obligations and contingent
liabilities.
4.21. No Default. As of the date hereof, no
Default or Event of Default has occurred and is
continuing.
4.22. Subsidiary Guarantors. Each of the
Wholly-Owned Subsidiaries of QDI have executed
the Subsidiary Guaranty and the Security
Agreement, except for any SPE (for so long as
such SPE remains a single purpose entity engaged
solely in a Mortgage Transaction) and except for
Wholly-Owned Subsidiaries of QDI (other than any
SPE) which do not in the aggregate have assets in
excess of $500,000. Grady's Inc. does not have
assets in excess of $225,000.
4.23. Year 2000 Compliance. (a) Each of the
Borrowers has conducted, and have caused each of
their respective Subsidiaries to conduct, an
analysis of all of its products, services,
businesses and operations, including without
limitation surveys of Systems (as defined below)
and surveys of and discussions with customers,
suppliers and vendors, to determine the extent to
which a Borrower or its Subsidiaries may be
adversely affected by its failure to be Year 2000
Compliant (as defined below). The Borrowers and
their respective Subsidiaries have developed a
plan (the "Year 2000 Plan") to become Year 2000
Compliant and remedy any material loss it may
suffer if it fails to be Year 2000 Compliant on a
timely basis. Each of the Borrowers and their
respective Subsidiaries have implemented and
continue to proceed with the Year 2000 Plan
materially in accordance with its terms and
timetables.
(b) Each of the Borrowers reasonably
believes that the Year 2000 Plan, if implemented in accordance with
its terms, will result in the Borrowers and their
respective Subsidiaries being Year 2000 Compliant
on a timely basis.
(c) Each of the Borrowers reasonably
believe that each of such Borrowers' and its Subsidiaries'
customers, suppliers and vendors whose failure to
be Year 2000 Compliant could result in a Material
Adverse Occurrence, is Year 2000 Compliant or has
developed a plan to become Year 2000 Compliant
and remedy any material loss such person may
suffer if it fails to be Year 2000 Compliant on a
timely basis with respect to all of its own
computer systems and applications.
The term "Year 2000 Compliant" means that all of such person(s)
computer systems and applications, including
without limitation software and hardware
("Systems"), will function prior to, during, and
after the calendar year 2000, and that no change
in or to such calendar year will have a material
effect on the performance of the Systems or on
the functioning of the business of any of the
Borrowers or their respective Subsidiaries.
ARTICLE V.
CERTAIN AFFIRMATIVE COVENANTS
Each of the Borrowers agrees with the
Administrative Agent and each of the Banks that,
from the date hereof and thereafter for so long
as any portion of any Advance or any Letter of
Credit shall be outstanding or any Bank shall
have any Commitment hereunder, unless the
Required Banks shall otherwise consent in writing:
5.1. Financial Information; etc. The Borrowers
will furnish to the Administrative Agent and each
of the Banks copies of the following financial
statements, reports and information:
(a) as soon as available and in any event within ninety (90)
days after the end of each fiscal year of QDI, a
copy of its annual consolidated audited report,
including balance sheet, related statements of
income, statements of stockholders' equity and
statements of cash flows of QDI and its
consolidated Subsidiaries for such fiscal year,
with comparative figures for the preceding fiscal
year, prepared in accordance with GAAP certified
without qualification or exception by a
nationally recognized firm of independent public
accountants which are reasonably acceptable to
the Administrative Agent and the Required Banks;
(b) as soon as available and in any event within
forty-five (45) days after the end of each of the
first three (3) fiscal quarterly periods of each
fiscal year of QDI, consolidated statements of
income, stockholders' equity and cash flows of
QDI and its consolidated Subsidiaries
for such period and for the period from the
beginning of the respective fiscal year to the
end of such period, and the related consolidated
balance sheets as at the end of such period,
setting forth in each case in comparative form
the corresponding consolidated figures for the
corresponding period in the preceding fiscal
year, accompanied by a certificate of a senior
financial officer of QDI which shall state that
said financial statements fairly present the
consolidated financial condition and results of
operations of QDI and its Subsidiaries in
accordance with GAAP for such period;
(c) with each financial statement required by
Section 5.1(a) and (b) to be delivered to the
Administrative Agent and each of the Banks, (i) a
certificate ("Compliance Certificate") in a form
acceptable to the Administrative Agent and the
Required Banks signed by the president, the
senior vice president or the chief financial
officer of QDI (i) stating that, to the best of his knowledge
after reasonable investigation, no Default or
Event of Default has occurred and is continuing,
or if a Default or an Event of Default has
occurred and is continuing, a statement of the
nature thereof and the action which the Borrowers
propose to take with respect thereto, and (ii)
setting forth, in sufficient detail, the
information and computations required to
establish whether or not the Borrowers were in
compliance with the requirements of Sections 6.1
through 6.3, inclusive, during the periods
covered by the financial reports then being
furnished and as of the end of such periods;
(d) with each financial statement required by
Section 5.1(a) to be delivered to the
Administrative Agent and each of the Banks for a
fiscal year, a separate written statement of the
independent public accountant which certified
such financial statements that (i) such
accountants have obtained no knowledge of any Default or
Event of Default having occurred and continuing,
or if such accountants have obtained knowledge of
any such Default or Event of Default, the
accountants shall disclose such Defaults or
Events of Default and the nature thereof and (ii)
that such accountants have reviewed the
Compliance Certificate to be delivered by QDI for
and as of the end of such fiscal year and found the
calculations contained therein to be accurate and
in agreement with such financial statements;
(e) promptly upon their becoming available,
copies of all registration statements and reports
(including without limitation reports on Forms 10-
K, 10-Q and 8-K) which QDI shall have filed with
the Securities and Exchange Commission;
(f) promptly upon the mailing thereof to the
stockholders of QDI, copies of all financial
statements, reports and proxy statements so mailed;
(g) promptly after a Borrower knows or has
reason to know that any Default has occurred, a
notice of such Default describing the same in
reasonable detail and a description of the action
that the Borrowers have taken and propose to take
with respect thereto;
(h) promptly after receipt thereof, all letters
and reports to management of QDI prepared by its
independent certified public accountants and the
response of the management of QDI thereto;
(i) promptly following the commencement of any
litigation, suit, administrative proceeding or
arbitration relating to the Borrowers, or either
of them, or any of QDI's Subsidiaries relating to
the transactions contemplated by this Agreement
or which if adversely determined
could be a Material Adverse Occurrence, a notice
thereof describing the allegations of such
litigation, suit, administrative proceeding or
arbitration and such Borrower's or such
Subsidiary's response thereto;
(j) promptly upon learning thereof, a notice of
any "reportable event" or "prohibited
transaction" or the imposition of a withdrawal or
termination liability within the meaning of ERISA
in connection with any Plan and, when known, any
action taken by the Internal Revenue Service,
Department of Labor or PBGC with respect thereto;
and
(k) such other information with respect to the
financial condition and operations of the
Borrowers or any of QDI's Subsidiaries as the
Administrative Agent or any Bank may reasonably
request.
5.2. Maintenance of Corporate Existence; etc.
Except as permitted by Section 6.7, each of the
Borrowers shall maintain and preserve, and cause
each of their respective Subsidiaries to maintain
and preserve, its corporate existence and
qualification and good standing in all states in
which such qualification and good standing are
required in order to conduct its business and own
its property as conducted and owned in such
states.
5.3. Payment of Taxes; etc. Each of the
Borrowers shall pay and discharge, and shall
cause each of their respective Subsidiaries to
pay and discharge, as the same may become due and
payable, all taxes, assessments and other
governmental charges or levies against or on any
of its Property, as well as claims of any kind
which, if unpaid, might become a Lien upon any of
its Property; provided, however, that the
foregoing shall not require the Borrowers or any
of their Subsidiaries to pay any such tax,
assessment, charge, levy or Lien so long as the
validity thereof shall be contested in good faith
by appropriate proceedings that will prevent a
forfeiture or sale of any Property and an adequate
book reserve in accordance with GAAP shall have been
set aside with respect thereto. Each of the Borrowers
shall make, and shall cause each of their
respective Subsidiaries to make, all required
withholding deposits.
5.4. Compliance with Laws. Each of the Borrowers
shall carry on, and shall cause each of their
respective Subsidiaries to carry on, its business
activities in substantial compliance with all
applicable federal or state laws and all
applicable rules, regulations and orders of all
governmental bodies and offices having power to
regulate or supervise its business activities,
including, without limitation, all applicable
environmental, pollution control, health and
safety statutes, laws and regulations. Each of
the Borrowers shall maintain, and shall cause each of their
respective Subsidiaries to maintain, all material
rights, liens, franchises, permits, certificates
of compliance or grants of authority required in
the conduct of its business. Each of the
Borrowers agrees that the Real Property and its
intended use will comply at all times with all
applicable laws, governmental regulations and the
terms of any enforcement action now or hereafter
commenced by any federal, state, regional or
local governmental agency, including, without
limitation, all applicable federal, state and
local laws pertaining to air and water quality,
hazardous waste, waste disposal and other
environmental matters (including, but not limited
to, the Clean Water, Clean Air, Federal Water
Pollution Control, Solid Waste Disposal, Resource
Conservation and Recovery and Comprehensive
Environmental Response, Compensation, and
Liability Acts, as said acts may be amended from
time to time), and the rules, regulations and
ordinances of all applicable federal, state and
local agencies and bureaus. 5.5. Books and
Records; etc. Each of the Borrowers shall keep,
and shall cause each of their respective
Subsidiaries to keep, books and records
reflecting all of its business affairs and
transactions in accordance with GAAP and permit
the Administrative Agent and each of the Banks
and their respective representatives, at
reasonable times and intervals and upon
reasonable notice to the Borrowers, to visit the
offices of Borrowers and their Subsidiaries,
discuss financial matters with officers of the
Borrowers or their Subsidiaries and with its
independent public accountants (and by this provision
each of the Borrowers authorizes its independent public
accountants to participate in such discussions)
and examine any of the Borrowers' or any of its
Subsidiaries' books and other corporate records.
5.6. Insurance. Each of the Borrowers will
maintain, and will cause each of their respective
Subsidiaries to maintain, insurance coverage in
such forms and amounts and against such risks
including without limitation insurance with
respect to its Property, the operation thereof
and its business against casualties,
contingencies and risks and insurance against
loss or damage from such hazard and risks to the
person or property of others, as are customary
for corporations similarly situated and engaged
in the same or a similar business and owning and
operating similar properties. All such insurance
shall be carried with financially sound and
reputable insurers.
5.7. Conduct of Business. Each of the Borrowers
shall maintain and keep, and shall cause each of
their respective Subsidiaries to maintain and
keep, its assets, property and equipment in good
repair, working order and condition and from time
to time make or cause to be made all needed
renewals, replacements and repairs.
5.8. Maintain Business. Each of the Borrowers
shall continue to engage primarily, and shall
cause each of their respective Subsidiaries to
continue to engage primarily, in the business or
businesses being conducted on the date of this
Agreement.
5.9. ERISA.
(a) Each of the Borrowers agrees that all
assumptions and methods used to determine the
actuarial valuation of employee benefits, both
vested and unvested, under any Plan, and each
such Plan, will comply in all material respects
with ERISA and other applicable laws.
(b) Neither of the Borrowers will at any time
permit any Plan to:
(i) engage in any "prohibited transaction" as
such term is defined in Section 4975 of the Code
or in Section 406 of ERISA;
(ii) incur any "accumulated funding deficiency"
as such term is defined in Section 302 of ERISA,
whether or not waived; or
(iii) be terminated under circumstances which
are likely to result in the imposition of a lien
on the property of the Borrowers, or either of
them, or any of QDI's Subsidiaries pursuant to
Section 4068 of ERISA, if and to the extent such
termination is within the control of the
Borrower;
if the event or condition described in (i), (ii)
or (iii) above is likely to subject the
Borrowers, or either of them, or any Subsidiary
or ERISA Affiliate to a Material AdverseOccurrence.
(c) Upon the request of the Administrative Agent
or any Bank, the Borrowers will furnish a copy of
the annual report of each Plan (Form 5500)
required to be filed with the Internal Revenue
Service. Copies of annual reports shall be
delivered no later than thirty (30) days after
the date the copy is requested.
5.10. Changes to GAAP. In the event that the
Borrowers, or either of them, makes any changes to the
generally accepted accounting principles used in
the preparation of such Borrower's books and/or
financial statements such that such principles
are not applied consistently with any
such principles applied during any prior period,
(a) such change shall be in accordance with the
generally accepted accounting principles in
effect at the time of such change and shall be
concurred in by the certified public accountants
certifying the financial statements of QDI and
its Subsidiaries, and (b) the Borrowers shall
give the Administrative Agent thirty (30) days
prior written notice thereof. The Required Banks are
hereby authorized, in consultation with the
Borrowers, to adjust the financial covenants of
this Agreement to reflect the effect of such
changes.
5.11. Use of Proceeds. The Borrowers will
use the proceeds of the Advances only for lawful
purposes and in accordance with Sections 4.11
and 4.12 hereof.
5.12. Subsidiary Guaranty. QDI hereby agrees
to cause each Person which is or may hereafter
become a Wholly-Owned Subsidiary of QDI (other
than (i) GAGHC and (ii) WhollyOwned Subsidiaries
of QDI which in the aggregate have assets of less
than $500,000) to execute, deliver and perform
the Subsidiary Guaranty. At the time that any
Wholly-Owned Subsidiary becomes a party to the
Subsidiary Guaranty, the Borrowers shall have
delivered to theAdministrative Agent copies (in
sufficient number for each of the Banks to receive a
copy) of each of the following documents in form and substance
reasonably satisfactory to the Administrative
Agent and the Banks:
(a) Counterpart signature page to the Subsidiary
Guaranty, duly executed by such Subsidiary;
(b) A copy of the articles of incorporation (or
similar charter document), including all
amendments thereto, of such Subsidiary, certified
by the Secretary of State of the state of its
incorporation;
(c) A copy of (i) the By-laws (or similar
charter document) of such Subsidiary and (ii) the
resolutions of the Board of Directors and of the
shareholders (if required) of such Subsidiary
authorizing the execution, delivery and
performance of the Subsidiary Guaranty, each
certified as true and complete by the secretary
or assistant secretary of such Subsidiary;
(d) An incumbency certificate executed by the
secretary or assistant secretary of such
Subsidiary, certifying the names of the officers
authorized to execute the Subsidiary Guaranty,
together with a sample of the true signatures of
such officers;
(e) Certificates of good standing (or the
substantial equivalent thereof) for such
Subsidiary certified by the Secretaries of State
of the state of its incorporation and each other
state in which it is required to be qualified;
and
(f) a favorable opinion of counsel to such
Subsidiary in form and substance reasonably
satisfactory to the Administrative Agent.
Notwithstanding the foregoing, for so long as any
SPE remains a single purpose entity engaged solely in
a Mortgage Transaction, such SPE shall not be
required to execute, deliver and perform the
Subsidiary Guaranty.
5.13. Security Documents. (a) If at any time
either Borrower or any Subsidiary of a Borrower
acquires an ownership interest in or creates an
entity which is or becomes a Subsidiary, such
Borrower shall, or shall cause its Subsidiaries,
to take all such action and execute such
agreements, documents and instruments, including
without limitation execution and delivery of a
counterpart signature page in the form of Annex I
to the Pledge Agreement and Annex I to the
Security Agreement, that may be necessary or
desirable to grant to the Administrative Agent,
for the benefit of the Banks, a first priority,
perfected security interest in all of the assets
of and all of the capital stock of such new Subsidiary.
Notwithstanding the foregoing, (i) the Borrowers
shall not be required to, or be required to cause
its Subsidiaries to, pledge the assets or capital
stock of any Subsidiary if QDI and/or any of its
Subsidiaries is subject to any contractual
obligation which prohibits the pledge of the
assets or capital stock of such Subsidiary
pursuant to the Pledge Agreement or the Security
Agreement; provided that QDI and/or its
Subsidiaries shall use reasonable efforts to
obtain any necessary waivers, consents or
amendments to permit such pledge or to obtain
reasonably equivalent security and (ii) the
Borrowers and their Subsidiaries shall not
be obligated to pledge the assets or capital
stock of a Subsidiary, provided that the
aggregate value of the assets and the capital
stock of the Subsidiaries that have not been
pledged to theAdministrative Agent for the
benefit of the Banks shall not at any time exceed
$500,000.
(b) At the time that any Borrower or any
Subsidiary or Affiliate thereof becomes a party
to a Security Document, the Borrowers shall have
delivered to the Administrative Agent copies (in
sufficient number for each of the Banks to
receive a copy) of each of the following
documents in form and substance reasonably
satisfactory to the Administrative Agent and the
Banks:
(i) (A) Counterpart signature page to the Pledge
Agreement, duly executed by such Borrower or such
Subsidiary and (B) counterpart signature page to
the Security Agreement, duly executed by the applicable Pledgor.
(ii) A copy of (A) the articles of incorporation
(or similar charter document), including all
amendments thereto, of each Pledgor, (B) the By-
laws (or similar charter document)
of each Pledgor and (C) the resolutions of the
Board of Directors and of the shareholders (if
required) of each Pledgor authorizing the
execution, delivery and performance of each such
Security Document, each certified as true and
complete by the secretary or assistant secretary
of such Pledgor;
(iii) An incumbency certificate executed by
the secretary or assistant secretary of each
Pledgor, certifying the names of the officers
authorized to execute each such Security
Document, together with a sample of the true
signatures of such officers;
(iv) A favorable opinion of counsel to each
Pledgor in form and substance reasonably
satisfactory to the Administrative Agent;
(v) Delivery of stock certificates, stock
powers, irrevocable proxies, instructions or
other instruments or documents required to be
delivered pursuant to the applicable Security Document; and
(vi) UCC-1 Financing Statements in form
acceptable to the Administrative Agent
appropriately completed, duly executed by the
applicable Pledgor and filed in all places that
the Administrative Agent, in its sole judgment,
deems necessary or desirable.
Notwithstanding the foregoing, for so long as any
SPE remains a single purpose entity engaged
solely in a Mortgage Transaction, such SPE shall
not be required to execute, deliver and perform
any Security Documents.
5.14. Year 2000 Compliance. The Borrowers
shall, and shall cause each of their respective
Subsidiaries to, take all action necessary or
desirable in order to implement the Year 2000
Plan in all material respects and in order to
ensure that the Borrowers and their Subsidiaries
are Year 2000 Compliant on a timely basis. The
Borrowers shall, and shall cause each of their
respective Subsidiaries to, monitor the progress
of their respective customers, suppliers and
vendors to assure that such Persons are Year 2000
Compliant on a timely basis and take all action
necessary to remedy any potential material loss
which the Borrowers and their Subsidiaries could
suffer if such Persons fail to be Year 2000
Compliant on a timely basis. The Borrowers shall
notify the Administrative Agent promptly upon
learning of any failure, or prospective failure,
of the Borrowers or their respective
Subsidiaries, or of any customer, supplier or
vendor to the Borrowers or their Subsidiaries, to
be Year 2000 Compliant on a timely basis which
could result in a Material Adverse Occurrence.
5.15. Survival of Warranties and
Representations. Each of the Borrowers
covenants, warrants and represents to the
Administrative Agent and each Bank that all
representations and warranties of the Borrowers
contained in this Agreement and in the other Loan
Documents shall be true at the time of Borrowers'
execution of this Agreement and shall survive the
execution, delivery and acceptance hereof and
thereof by the parties thereto and the closing of
the transactions described herein and therein or
related hereto and thereto and any investigation
at any time made by or on behalf of the
Administrative Agent or any of the Banks shall
not diminish their rights to rely thereon.
ARTICLE VI.
CERTAIN FINANCIAL COVENANTS AND NEGATIVE
COVENANTS
Each of the Borrowers agrees with the
Administrative Agent and each of the Banks that,
from the date hereof and thereafter for so long
as any portion of any Advance or any Letter of
Credit shall be outstanding or any Bank shall
have any Commitment hereunder, unless the
Required Banks shall otherwise consent in
writing:
6.1. Fixed Charge Coverage Ratio. (a) For each
twelve-month period ending on the last day of
each fiscal quarter of QDI, the Borrowers shall
maintain a ratio of Earnings Available for Fixed
Charges to Fixed Charges of not less than the
ratio set forth below:
Applicable Fiscal Quarter Minimum Fixed Charge Coverage Ratio
- -------------------------- -----------------------------------
Each fiscal quarter of 1999 fiscal year 1.35:1.00
Each fiscal quarter of 2000 fiscal year 1.40:1.00
Each fiscal quarter of 2001 fiscal year 1.45:1.00
Each fiscal quarter thereafter 1.55:1.00
(b) Neither of the Borrowers will, nor permit any
of its Subsidiaries to, enter into any Operating
Lease if after giving effect thereto on a pro forma
basis the ratio of Earnings Available for Fixed
Charges to Fixed Charges would be less than the
ratio set forth above for the applicable period.
6.2. Ratio of Funded Debt to Pro Forma Consolidated
Cash Flow. For each twelve-month period ending on
the last day of each fiscal quarter of QDI, the
Borrowers shall maintain a ratio of Funded Debt of
QDI and its Subsidiaries, on a consolidated basis,
as of the last day of such fiscal quarter to Pro
Forma Consolidated Cash Flow for the twelvemonth
period ending on such date, of not more than the
ratio set forth below:
Maximum Ratio of Funded
Debt to Pro Forma Consolidated
Applicable Fiscal Quarter Cash Flow
- --------------------------------------- ------------------------------
First, second and third fiscal quarters
of 1999 fiscal year 5.00:1.00
Fourth fiscal quarter of 1999 fiscal
year and each fiscal quarter of 2000
fiscal year 4.75:1.00
Each fiscal quarter of 2001 fiscal year 4.50:1.00
First and second fiscal quarters
of 2002 fiscal year 4.25:1.00
Each fiscal quarter thereafter 3.75:1.00
6.3. Limitations on Indebtedness. Neither of
the Borrowers will, nor will permit any of its
Subsidiaries to, create, issue, guarantee or
otherwise become liable in respect of any
Indebtedness, except:
(a) Capital Lease Obligations existing on the
date hereof and disclosed on Annex III hereto;
(b) Capital Lease Obligations incurred after
April 26, 1996, provided that, after taking into
account the incurrence of such Capital Lease
Obligations, (x) the aggregate outstanding
Capital Lease Obligations incurred pursuant to
this clause (b) shall not exceed $5,000,000 and
(y) no Default or Event of Default shall exist;
(c) Indebtedness represented by the Notes or
outstanding under the Subsidiary Guaranty or any
other Loan Document;
(d) Indebtedness owing to QDI or any of its
Wholly-Owned Subsidiaries (other than
any SPE);
(e) Rate Hedging Obligations permitted by
Section 6.15 hereof; and
(f) For so long as any SPE remains a single
purpose entity engaged solely in a
Mortgage Transaction, Indebtedness incurred by
such SPE in connection with such Mortgage
Transaction, provided that aggregate principal
amount incurred by the SPEs pursuant to this
clause (e) shall not exceed $45,000,000; and
provided further that none of QDI and its
Subsidiaries shall have entered into any guarantee of,
or otherwise be liable (other than as a lessee of Subject
Assets in a Mortgage Transaction or as a guarantor of
any lessee's obligations under a lease entered
into in connection with a Mortgage Transaction) on,
such Indebtedness.
6.4. Liens. Neither of the Borrowers will, nor
will permit any of its Subsidiaries to,
create, incur or permit to exist any Lien on its
Property, whether now owned or hereafter
acquired, or upon any income or profits therefrom, or own
or acquire or agree to acquire Property of any
kind subject to any Lien, except the following:
(a) Liens securing taxes, assessments or
governmental charges or levies or the claims
or demands of contractors,
materialmen, mechanics, carriers, warehousemen,
landlords and other like Persons, provided the
payment thereof is not at the time required by
Section 5.3 hereof;
(b) Liens incurred or deposits made in the
ordinary course of business (A) in
connection with workmen's compensation,
unemployment insurance, social security and other
like laws or (B) to secure the performance of letters
of credit, bids, tenders, sales contracts,
leases, statutory obligations, surety, appeal and
performance bonds and other similar obligations
not incurred in connection with the borrowing of
money, the obtaining of advances or the payment
of the deferred purchase price of Property;
(c) attachments, judgment and other similar
Liens arising in connection with court
proceedings, provided the execution or other
enforcement of such Liens is effectively stayed
and the claims secured thereby are being actively
contested in good faith and by appropriate
proceedings in such manner as not to have the
Property subject to such Liens forfeitable;
(d) easements, rights-of-ways, reservations,
exceptions, minor encroachments, restrictions and similar
charges created or incurred in the ordinary
course of business which in the aggregate do not
materially interfere with the business operations
of the Borrowers, or either of
them, or any of their respective Subsidiaries;
(e) Liens securing Capital Lease Obligations
existing on April 26, 1996 and disclosed
on Annex III hereto;
(f) Liens securing Capital Lease Obligations
incurred pursuant to Section 6.3(b)hereof;
(g) Liens on tangible personal property at any
site which secure Capital Lease Obligations or
obligations under Operating Leases in respect of
such site, in each case existing on the date
hereof and disclosed on Annex III hereto;
(h) Liens in favor of QDI or a Subsidiary
Guarantor;
(i) Liens in favor of the Administrative Agent
for the benefit of the Banks;
(j) Liens on QDI's equity interest in Six Edison
Lakes, L.L.C., a limited liability company ("Six
Edison"), to secure the performance of QDI's
obligations under the Lease, dated September 19,
1996, between QDI and Six Edison regarding the
office building at QDI's headquarters; and
(k) Liens on the Subject Assets to secure
Indebtedness incurred pursuant to Section 6.3(e)
hereof.
For purposes of this Section 6.4, all Liens of a
Person which becomes a Subsidiary and which are
outstanding as of the date such Person becomes a
Subsidiary shall be deemed to have been incurred
as of such date.
6.5. Dividends, Stock Purchases and Restricted
Payments. Neither of the Borrowers will, nor
permit any of its Subsidiaries to, except as
hereinafter provided: (a) declare or pay any
dividends, either in cash or Property, on any
shares of its capital stock of any class (except
dividends payable by QDI solely in shares of
common stock of QDI and dividends payable solely
to QDI or a Wholly-Owned Subsidiary of QDI, other
than any SPE); or (b) directly or indirectly, or
through any Subsidiary, purchase, redeem, retire,
or otherwise acquire any shares of its capital
stock, or other equity interests therein, of any
class or any warrants, rights or options to
purchase or acquire any shares of its capital
stock, or other equity interests therein (except
for any such purchases, redemptions, retirements
or other acquisitions payable solely in shares of
common stock of QDI); or (c) make any other
distribution, either directly or indirectly or
through any Subsidiary, in respect of its capital
stock, or other equity interests therein (such
declarations or payments of dividends, purchases,
redemptions or retirements of stock and warrants,
rights or options, and all such other
distributions being herein collectively called
"Restricted Payments"); provided that,
notwithstanding the foregoing, QDI may repurchase
shares of its capital stock outstanding if (i)
after giving effect thereto, the aggregate
cumulative amount of all Restricted Payments made
in respect of such repurchases in any fiscal year does not exceed
$5,000,000, (ii) after giving effect thereto, the
aggregate cumulative amount of all Restricted
Payments made in respect of such repurchases
since May 9, 1999 does not exceed the Restricted
Payments Basket, (iii) as of the date of payment
of such Restricted Payment the ratio of Funded
Debt of QDI and its Subsidiaries, on a
consolidated basis, as of the last day of the
preceding fiscal quarter of QDI to Pro Forma
Consolidated Cash Flow of QDI for the twelve-
month period ending on such date, after giving
effect to such Restricted Payment (and any
Indebtedness incurred in connection therewith),
is less than (x) in respect of any such
repurchase during fiscal year 1999, 4.25 to 1.00,
and (y) in respect of any repurchase during
fiscal year 2000 and thereafter, 4.00 to 1.00 and
(iv) at the time of payment of such Restricted Payment
no Default or Event of Default exists and, after giving effect
to such Restricted Payment, no Default or an
Event of Default would exist; and provided,
further, that the restrictions set forth in this
Section 6.5 shall not apply to any Rights nor to
any shares of Series B Participating Cumulative
Preferred Stock distributed or issued pursuant to
the Rights Agreement, dated as of March 27, 1997,
between QDI and ChaseMellon Shareholder Services,
L.L.C., as successor Rights Agent (the "Rights
Agreement"). As used herein, the term "Rights" shall
have the same meaning ascribed to it in the Rights Agreement.
For purposes of this Section 6.5, the amount of
any Restricted Payment which is payable or
distributable in Property other than cash or
shares of capital stock of QDI shall be deemed to
be the fair market value (as determined in good
faith by the Board of Directors of QDI) of such
Property as of the date of the payment of such
Restricted Payment.
6.6. Sales of Assets. Neither of the Borrowers
will, nor permit any of its Subsidiaries
to, sell, lease, transfer or otherwise dispose of
assets (including without limitation the capital
stock of any Subsidiary), other than (i) Permitted
Dispositions and (ii) the sale of the Subject
Assets to a SPE in connection with a Mortgage Transaction.
6.7. Mergers and Consolidations. Neither of the
Borrowers will, nor permit any of its
Subsidiaries to, consolidate with or merge into
any other Person or permit any other Person to
consolidate with or merge into it (except that a
Subsidiary may consolidate with or merge into
QDI or a Wholly-Owned Subsidiary of QDI, other
than any SPE); provided that the foregoing
restriction does not apply to the merger or
consolidation of QDI with another corporation if:
(i) the corporation which results from such
merger or consolidation (the "surviving
corporation") is organized under the laws of the
United States of America or a jurisdiction
thereof;
(ii) the due and punctual payment of the
principal of and premium, if any, and interest on
the Notes, according to their tenor, and the due
and punctual performance and observance of all of
the covenants in the Notes and this Agreement to
be performed or observed by
QDI, are expressly assumed in writing by the
surviving corporation; and
(iii) immediately after the consummation of
the transaction and after giving effect thereto, no
condition or event shall exist which constitutes
a Default, an Event of Default or a Change of Control.
6.8. Preferred Stock of Subsidiaries. The
Borrowers will not permit any Subsidiary of QDI
to issue Preferred Stock, any security
convertible into Preferred Stock or options,
warrants or rights to purchase Preferred Stock of
any Subsidiaries of QDI except shares held by QDI
or a WhollyOwned Subsidiary of QDI (other than
any SPE) and shares of Preferred Stock held by
others at the time such Subsidiary becomes a
Subsidiary of QDI, provided that such shares of
Preferred Stock are not issued or transferred by
QDI or any Subsidiary to others in contemplation
of, or in connection with, such Subsidiary
becoming a Subsidiary.
6.9. Disposition of Securities of a Subsidiary.
Neither of the Borrowers will, nor permit any of
its Subsidiaries to, sell or otherwise dispose of
any shares of the stock or other equity interests
therein (or any options or warrants to purchase
stock or other equity interests therein or other
securities convertible or exchangeable therefor)
of a Subsidiary (said stock, options, warrants
and other securities herein called "Subsidiary
Stock"), nor will either of the Borrowers permit
any of its Subsidiaries to issue, sell or
otherwise dispose of any shares of its own
Subsidiary Stock, if the effect of the
transaction would be to reduce the proportionate
interest of such Borrower and its other
Subsidiaries in the outstanding Subsidiary Stock
of the Subsidiary whose shares are the subject of
the transaction, provided that the foregoing
restrictions shall not apply to:
(a) the issue of directors' qualifying shares; or
(b) the sale for cash consideration to a Person
in a single transaction (other than directly or
indirectly to an Affiliate) of the entire
investment (whether represented by stock, debt,
claims or otherwise) of such Borrower and its
other Subsidiaries in any Subsidiary (other than
GAGHC), if all of the following conditions are
met:
(i) the sale or other disposition of the assets
of such Borrower and its other
Subsidiaries is permitted by Section 6.6;
(ii) in the opinion of such Borrower's Board of
Directors, the sale is for fair value and is in
the best interests of such Borrower;
(iii) the Subsidiary being disposed of has no
continuing investment in any other Subsidiary not
being simultaneously disposed of or in the
Borrowers; and
(iv) immediately after the consummation of the
transaction and after giving effect thereto, no
condition or event shall exist which constitutes
a Default or an Event of
Default.
Notwithstanding the foregoing, (i) GAGHC
shall at all times remain a Wholly-Owned
Subsidiary of QDI and (ii) neither QDI nor any
Subsidiary may dispose of any Subsidiary Stock to
any SPE.
6.10. Investments. Neither of the Borrowers
will, nor permit any of its Subsidiaries to, make
or permit to exist any Investment other than
Permitted Investments.
6.11. Transactions with Affiliates. Neither
of the Borrowers will, nor permit any of its
Subsidiaries to, enter into any material
transaction (including, without limitation, the
purchase, sale or exchange of Property, the
rendering of any service, the making of any
material investment in an Affiliate or the
repayment of any indebtedness owed to an
Affiliate) with an Affiliate (other than a
Borrower or a Subsidiary Guarantor (other than Grady's Inc.)),
except in the ordinary course of business and pursuant to
the reasonable requirements of such Borrower's or
such Subsidiary's business, upon terms which are
fair and reasonable to such Borrower or such
Subsidiary and which are not less favorable to
such Borrower or such Subsidiary than would be
obtained in a comparable transaction with a
Person not an Affiliate.
6.12. Capital Expenditures.
The Borrowers shall not, and shall not permit any
of their Subsidiaries to, expend or contract to
expend any amount for Capital Expenditures during
any fiscal year if as a result thereof the
Consolidated Capital Expenditures for such fiscal
year shall exceed the sum of (i) the amount
specified below opposite such fiscal year plus
(ii) the aggregate amount, if positive, of the
Maximum Consolidated Capital Expenditures set
forth below for each of the preceding fiscal
years, commencing with fiscal year 1999, on a
cumulative basis, less the actual aggregate
amount of Consolidated Capital Expenditures made
in such prior fiscal years, on a cumulative
basis:
Fiscal Year Maximum Consolidated
Capital Expenditures
- --------------- --------------------
1999 $11,500,000
2000 $17,500,000
2001 $17,500,000
2002 $18,000,000
6.13. Acquisitions. The Borrowers shall not,
nor permit any of their respective Subsidiaries
to, make any Acquisitions, other than an
Acquisition relating to the operation and
development of Burger King restaurants and/or
Chili's Grill and Bar restaurants.
6.14. SPE. No SPE shall engage
in any activity or conduct any business other
than a Mortgage Transaction.
6.15. Rate Hedging Obligations. Neither of
the Borrowers will, nor permit any of its
Subsidiaries to, create, incur, guarantee or
otherwise become liable on or in respect of any
Rate Hedging Obligations, except for any such
Rate Hedging Obligations entered into on
commercially reasonable terms with a commercial
or investment bank or other financial institution
in the ordinary course of business and not for
speculative purposes.
6.16. Franchise Agreements. Neither of the
Borrowers will, nor permit any of its
Subsidiaries to, terminate or agree to terminate
any Franchise Agreement to which such Person is a
party, or amend, modify or grant a waiver of any
material provisions of any such Franchise
Agreement, if such termination, amendment,
modification or waiver results in a Material
Adverse Occurrence.
ARTICLE VII.
EVENTS OF DEFAULT
7.1. Events of Default. The term "Event of
Default" shall mean any of the following
events:
(a) A default in the payment when due of the
principal of the Notes;
(b) A default in the payment when due of any
interest on the Notes or of fees under this
Agreement and such default shall continue
unremedied for five (5) days;
(c) A default in the due performance and
observance of any of the covenants contained
in Sections 5.2, 5.6, 6.1 through 6.16,
inclusive;
(d) A default (other than those defaults
described in other subsections of this Section
7.1) by the Borrowers, or either of them, in the
due performance and observance of any of
the covenants contained in this Agreement and
such default shall continue unremedied for a
period of thirty (30) days after notice from the
Administrative Agent or any Bank to either of the
Borrowers thereof;
(e) A default by the Borrowers, or either of
them, or any of their respective Subsidiaries on
any Indebtedness or any event shall occur or any
condition shall exist in respect of any
Indebtedness of such Borrower or such Subsidiary,
or under any agreement securing or relating to
such Indebtedness, the effect of which is (i) to
result in the failure to pay when due at least
$500,000 in aggregate principal amount of such
Indebtedness or (ii) to cause or permit any
holder of such Indebtedness or a trustee to cause
at least $500,000 in aggregate principal amount
of such Indebtedness to become due prior to its
stated maturity or prior to its regularly
scheduled dates of payment;
(f) An involuntary case under any applicable
federal or state bankruptcy laws shall be
commenced against either of Borrowers or any of
QDI's Subsidiaries and the petition shall not be
dismissed, stayed, bonded or discharged within
sixty (60) days after the commencement of the
case; the entry of a decree or order by a court
having jurisdiction in the premises in respect of
either of the Borrowers or any of QDI's
Subsidiaries under the federal bankruptcy laws,
as now or hereafter constituted, or any other
applicable federal or state bankruptcy,
insolvency or other similar law; or the entry of
a decree or order by a court having jurisdiction
in the premises appointing a receiver,
liquidator, assignee, trustee, sequestrator or
other similar official of either of the Borrowers
or any of QDI's Subsidiaries or of any
substantial part of the property of either of the
Borrowers or any of QDI's Subsidiaries, or
ordering the winding up or liquidation of its
affairs, and the continuance of any such
decree or order unstayed and in effect for a
period of sixty (60) consecutive days;
(g) The commencement by either of the Borrowers
or any of QDI's Subsidiaries of a voluntary case
under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other
similar law or the consent by it to the
appointment of a receiver, liquidator, assignee,
trustee, sequestrator or other similar official
of the Borrower or any of QDI's Subsidiaries or
of any substantial part of the property of either
of the Borrowers or any of QDI's Subsidiaries, or
the making by it of an assignment for the benefit
of creditors, or the failure by either of the
Borrowers or any of QDI's Subsidiaries to pay its
debts generally as they become due, or the taking
of any action by either of the Borrowers or any
of QDI's Subsidiaries in furtherance thereof;
(h) Any judgments, writs, warrants of
attachment, executions or similar process (to the
extent not covered by insurance) shall be issued
or levied against either of the Borrowers or any
of QDI's Subsidiaries or any of the assets of
either of the Borrowers or any of QDI's
Subsidiaries where the amount of such judgments,
writs, warrants of attachment, executions or
similar process exceeds $500,000 in the aggregate
and where such judgments, writs, warrants of
attachment, executions or similar process are not
released, vacated, suspended, stayed, abated or
fully bonded prior to any sale and in any event
within thirty (30) days after its issue or levy;
(i) Any representation or warranty set forth in
this Agreement or any other Loan Document shall
be untrue in any material respect on the date as
of which the facts set forth are stated or
certified;
(j) Default shall occur in the observance or
performance by any Subsidiary of any provision,
covenant or agreement of the Subsidiary Guaranty;
(k) The Subsidiary Guaranty shall cease to be in
full force and effect or any Subsidiary
shall so state in writing;
(l) A Change of Control shall occur; or
(m) Any Security Document shall cease to be in
full force and effect or any Pledgor shall so
state in writing; or the Administrative Agent,
for the benefit of the Banks, shall cease to have
a first priority, perfected security interest on
all or any portion of the collateral subject or
purported to be subject to any Security Document.
7.2. Action If Event of Default.
If an Event of Default described in Section
7.1(f) or (g) shall occur, the full unpaid
principal amount of the Note and all other
amounts due and owing hereunder shall
automatically be due and payable without any
declaration, notice, presentment, protest or
demand of any kind (all of which are hereby
waived) and the obligation of the Banks to
make additional Advances or to issue Letters of
Credit shall automatically terminate. If any
other Event of Default shall occur and be continuing,
the Required Banks, upon written notice to the
Borrowers, may terminate the Banks' obligation to
make additional Advances and CBT's obligation to
issue Letters of Credit and may declare the
outstanding principal amount of the Notes
and all other amounts due and owing hereunder to
be due and payable without other notice to the Borrowers,
presentment, protest or demand of any kind (all
of which are hereby waived), whereupon the full
unpaid amount of the Notes and any and all other
amounts, which shall be so declared due and
payable shall be and become immediately due and
payable.
7.3. Remedies. The Administrative Agent,
personally or by attorney, may in its discretion,
proceed to protect and enforce its rights by
pursuing any available remedy including a suit or
suits in equity or at law, whether for damages or
for the specific performance of any obligation,
covenant or agreement contained in this Agreement
or in the Notes, or in aid of the execution of
any power herein or therein granted, or for the
enforcement of any other appropriate legal or
equitable remedy, as the Administrative Agent
shall deem most effectual to collect the payments
then due and thereafter to become due on the
Notes or under this Agreement, to enforce
performance and observance of any obligation,
agreement or covenant of the Borrowers hereunder
or under the Notes or to protect and enforce any
of the Administrative Agent's or any Bank's
rights or duties hereunder.
(b) No remedy herein conferred upon or reserved
to the Administrative Agent or any Bank is
intended to be exclusive of any other remedy or
remedies, and each and every such remedy shall be
cumulative, and shall be in addition to every
other remedy given hereunder or under any other
Loan Document now or hereafter existing at law,
in equity or by statute.
(c) Each Bank agrees that it will not take any
action, nor institute any actions or proceedings,
against the Borrowers hereunder or under any Loan
Document, without the prior written consent of
the Required Banks or, as may be provided in this
Agreement or the other Loan Documents, at the
direction of the Administrative Agent.
ARTICLE VIII.
THE AGENT
8.1. Appointment and Authorization. Each Bank
hereby irrevocably appoints CBT as the
administrative agent of such Bank and authorizes
the Administrative Agent to act on such Bank's
behalf to the extent provided herein or under any
of the other Loan Documents or in connection
therewith, and to take such other action and
exercise such other powers as may be reasonably
incidental thereto. Notwithstanding the use of
the term "Agent," it is expressly understood and
agreed that the Administrative Agent shall not
have any fiduciary responsibilities to any Bank
by reason of this Agreement and that the
Administrative Agent is merely acting as the
representative of the Banks with only those
duties as are expressly set forth in this
Agreement and the other Loan Documents. In its
capacity as the Banks' contractual
representative, the Administrative Agent (i) does
not hereby assume any fiduciary duties to any of
the Banks and (ii) is acting as an independent contractor, the
rights and duties of which are limited to those
expressly set forth in this Agreement and the
other Loan Documents. Each of the Banks hereby
agrees to assert no claim against the
Administrative Agent on any agency theory or any
other theory of liability for breach of
fiduciary duty, all of which claims each Bank
hereby waives.
8.2. Power. The Administrative Agent shall have
and may exercise such powers under this Agreement and
any other Loan Documents as are specifically
delegated to the Administrative Agent by the
terms hereof or thereof, together with such
powers as are reasonably incidental thereto. As
to any matters not expressly provided for by the
Loan Documents (including, without limitation,
enforcement or collection of the Notes), the
Administrative Agent shall not be required to
exercise any discretion or take any action, but
shall be required to act or to refrain from
acting (and shall be fully protected in so
acting or refraining from acting) upon the
instructions of the Required Banks, and such
instructions shall be binding upon all Banks and
all holders of the Notes; provided, however,
that the Administrative Agent shall not be
required to take any action which exposes the
Administrative Agent to personal liability or
which is contrary to any Loan
Document or applicable law. The Administrative
Agent shall not have any implied duties or any
obligation to take any action under this
Agreement or any other Loan Document except such
action as is specifically provided by this
Agreement or any other Loan Document to be taken
by the Administrative Agent. The Administrative
Agent shall act as an independent contractor in
performing its obligations as Administrative
Agent hereunder and nothing contained herein
shall be deemed to create a fiduciary
relationship among or between the Administrative
Agent and the Borrowers or among or between the
Administrative Agent and any Bank.
8.3. Employment of Counsel; etc. The
Administrative Agent may execute any of its
duties under this Agreement or any other Loan
Document, and any instrument, agreement or
document executed, issued or delivered pursuant
hereto or connection herewith, by or through
employees, agents and attorneys-infact and shall
not be answerable for the default or misconduct
of any such employee, agent or attorney-infact
selected by it with reasonable care. The
Administrative Agent shall be entitled to rely on
advice of counsel (including counsel who are the
employees of the Administrative Agent) selected
by the Administrative Agent concerning all
matters pertaining to the agency hereby created
and its duties under any of the Loan Documents.
8.4. Reliance. The Administrative Agent shall be
entitled to rely upon and shall not be under a
duty to examine or pass upon the validity,
effectiveness, genuineness of any notice,
consent, waiver, amendment, certificate,
affidavit, letter, telegram, statement, paper,
document or writing believed by it to be genuine and to have
been signed or sent by the proper Person or
Persons, and the Administrative Agent shall be
entitled to assume that the same are valid,
effective and genuine and what they purport to be.
8.5. General Immunity. Neither the
Administrative Agent nor any of the
Administrative Agent's directors, officers,
agents, attorneys or employees shall be liable to
any Bank for any action taken or omitted to be
taken by it or them under the Loan Documents or
in connection therewith except that the
Administrative Agent shall be obligated on the
terms set forth herein for performance of its
express obligations hereunder and except that no
Person shall be relieved of any liability imposed
by law for willful misconduct or gross
negligence. Without limitation on the generality
of the foregoing, the Administrative Agent: (a)
shall not be responsible to any Bank for any
recitals, statements, warranties or representations under
the Loan Documents or any agreement or document
relative thereto or for the financial condition
of the Borrowers; (b) shall not be responsible
for the authenticity, accuracy, completeness,
value, validity, effectiveness, due execution,
legality, genuineness, enforceability or
sufficiency of any of the Loan Documents;
(c) shall not be responsible for the validity,
genuineness, creation, perfection or priority of
any of the liens created or reaffirmed by any of the
Loan Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency
of any collateral or other security; (d) shall
not be bound to ascertain or inquire as to the
performance or observance of any of the terms,
covenants or conditions of any of the Loan
Documents on the part of the Borrowers or of any
of the terms of any such agreement by any party
thereto and shall have no duty to inspect the
property (including the books and records) of the
Borrowers; (e) shall incur no liability under or
in respect of any of the Loan Documents or any
other document or Collateral by acting upon any
notice, consent, certificate or other instrument
or writing (which may be by telegram, cable or
telex) believed by the Administrative Agent to be
genuine and signed or sent by the proper party;
and (f) may consult with legal counsel (including
counsel for the Borrowers), independent public
accountants and other experts selected by the
Administrative Agent and shall not be liable for
any action taken or omitted to be taken in good
faith in accordance with the advice of such
counsel, accountants or experts.
8.6. Credit Analysis. Each Bank has made, and
shall continue to make, its own independent
investigation or evaluation of the operations,
business, property and condition, financial and
otherwise, of the Borrowers in connection with
the making of its commitments hereunder and has
made, and will continue to make, its own
independent appraisal of the creditworthiness of
the Borrowers. Without limiting the generality of
the foregoing, each Bank acknowledges that prior
to the execution of this Agreement, it had this
Agreement and all other Loan Documents and such
other documents or matters as it deemed
appropriate relating thereto reviewed by its own
legal counsel as it deemed appropriate, and it is
satisfied with the form of this Agreement and all
other Loan Documents. Each Bank agrees and
acknowledges that neither the Administrative
Agent nor any of its directors, officers,
attorneys or employees makes any representation
or warranties about the creditworthiness of the
Borrowers or with respect to the due
execution, legality, validity, genuineness,
effectiveness, sufficiency or enforceability of
this Agreement or any other Loan Documents, or
the validity, genuineness, execution, perfection
or priority of Liens created or reaffirmed by any
of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or
sufficiency of any collateral or other security.
Each of the Banks shall use its best efforts to
provide the other Banks with any credit or other
material information which comes into the
possession of such Bank on or before a Default or
Event of Default or at any time thereafter with
respect to the operations, business, property
condition or creditworthiness of the Borrowers
but no Bank shall have any liability to any other
Bank for its inadvertent failure to do so. Each
Bank, upon the request of another Bank, shall
deliver to such other bank any financial
statement, report, certificate or other document
required to be delivered to the Banks
pursuant to Section 5.1 which the requesting Bank
did not receive. Except as explicitly provided
herein, neither the Administrative Agent nor any
Bank has any duty or responsibility, either
initially or on a continuing basis, to provide
any other Bank with any credit or other
information with respect to such operations,
business, property, condition or
creditworthiness, whether such information comes
into its possession on or before a Default or an
Event of Default or at any time thereafter.
8.7. Agent and Affiliates. With respect to the
Loans made by it and the Notes issued to it, each
Agent, in its individual capacity, shall have the
same rights and powers under the Loan Documents
as any other Bank and may exercise the same as
though it were not an Agent; and the
term "Bank" or "Banks" shall, unless otherwise
expressly indicated, include each Agent in its
individual capacity. Each Agent, in its
individual capacity, and its Affiliates may
accept deposits from, lend money to, act as
trustee under indentures of, and generally engage
in any kind of business with, the Borrowers, or
either of them, and any person or entity who may
do business with or own securities of the
Borrowers, or either of them, all as if it were
not an Agent and without any duty to account
therefor to the Banks.
8.8. Indemnification. The Banks jointly and
severally agree to indemnify and hold harmless
the Administrative Agent and its officers,
directors, employees and agents (to the extent
not reimbursed by the Borrowers), ratably
according to their respective Commitments, from
and against any and all claims, liabilities,
obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever
which may be imposed on, incurred by, or asserted against the
Administrative Agent or any of its officers,
directors, employees or agents, in any way
relating to or arising out of any investigation,
litigation or proceeding concerning or relating
to the transaction contemplated by this Agreement
or any of the other Loan Documents, or any of
them, or any action taken or omitted by the
Administrative Agent or any of its officers,
directors, employees or agents, under any of the
Loan Documents; provided, however, that no Bank
shall be liable for any portion of such claims,
liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the
gross negligence or willful misconduct of the
Administrative Agent or any of its officers,
directors, employees or agents. Without
limitation of the foregoing, each Bank agrees to
reimburse the Administrative Agent promptly upon
demand for such Bank's proportionate share of any
out-ofpocket expenses (including counsel fees)
incurred by Administrative Agent or its officers,
directors, employees or agents in connection with
the preparation, execution, administration, or
enforcement of, or legal advice in respect of
rights or responsibilities under any of, the Loan
Documents, to the extent that the Administrative
Agent is not reimbursed for such expenses by the
Borrowers.
8.9. Successor Administrative Agent. The
Administrative Agent may resign at any time as
Administrative Agent under the Loan Documents by
giving thirty (30) days' prior written notice
thereof to the Banks and the Borrowers. Upon any
such resignation, the Required Banks shall have
the right to appoint a successor Administrative
Agent hereunder; provided that prior to the
occurrence of a Default the Borrowers
shall consent (which consent shall not be
unreasonably withheld) thereto. If no successor
Administrative Agent shall have been so appointed
by the Required Banks, and shall have accepted
such appointment, within 30 days after the
retiring Administrative Agent's giving of notice
of resignation, then the retiring Administrative
Agent may, on behalf of the Banks, appoint a
successor Administrative Agent, which shall be a
commercial bank organized under the laws of the
United States or of any state thereof and having
a combined capital and surplus of at least
$200,000,000.00. Upon the acceptance of any
appointment as Administrative Agent under the
Loan Documents by a successor Administrative
Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its
duties and obligations under the Loan Documents.
After any retiring Administrative Agent's
resignation or removal as Administrative Agent
under the Loan Documents, the provisions of this
Article VIII shall inure to its benefit as to any
actions taken or omitted to be taken by it while
it was Administrative Agent under the Loan
Documents. 8.10. Agents' Fees. The Borrowers
agree to pay to CBT, for its own account, the
fees agreed to by QDI and CBT pursuant to the Fee
Letter, or as otherwise agreed from time to time.
8.11. Collateral Matters. The Administrative
Agent is authorized on behalf of all the Banks,
without the necessity of any notice to or further
consent from the Banks, from time to time to take
any action with respect to the Security Documents
or any collateral thereunder which may
be necessary to perfect and maintain perfected
the security interest in and Liens upon the
collateral granted pursuant to the Security
Documents. The Banks irrevocably authorize the
Administrative Agent, at its option and in its
discretion, to release any Lien granted to or
held by the Administrative Agent upon any
collateral (i) upon termination of the
Commitments and payment in full of all Loans and all
other obligations of the Borrowers known to the
Administrative Agent and payable under this Agreement
or any other Loan Document; (ii) constituting property
sold or to be sold or disposed of as part of or in
connection with any disposition permitted
hereunder; (iii) consisting of an instrument
evidencing Indebtedness or other debt instrument,
if the Indebtedness evidenced thereby has been
paid in full; or (iv) if approved, authorized or
ratified in writing by all the Banks. Upon
request by the Administrative Agent at any time
the Banks will confirm in writing the
Administrative Agent's authority to release
particular types or items of
collateral pursuant to this Section 8.11,
provided that the absence of any such
confirmation for whatever reason shall not affect
the Administrative Agent's rights under this Section 8.11.
ARTICLE IX.
AMENDMENT AND RESTATEMENT
9.1. Amendment and Restatement of Existing Credit
Agreement. The Borrowers, the Banks, and the
Agents agree that, upon the execution and
delivery by each of the parties hereto of this
Agreement and satisfaction of the conditions set
forth in Article III, the terms and provisions
of the Existing Credit Agreement shall be and
hereby are amended, superseded and restated in
their entirety by the terms and provision of this
Agreement. It is the intention of the parties to
this Agreement that this Agreement not constitute a
novation of the obligations under the Existing
Credit Agreement and shall not operate as a
novation, waiver of any right, power or remedy of the Administrative
Agent or any Bank nor constitute an amendment or
a waiver of any provision of the Loan Documents,
except as expressly set forth herein and shall be
limited to the particular instance expressly set
forth herein. All Loans made and Obligations
incurred under the Existing Credit Agreement
which are outstanding on the Effective Date shall
continue as Loans and Obligations under (and
shall be governed by the terms of) this
Agreement. From and after the Effective Date,
the Existing Credit Agreement shall be amended
and restated hereby and all references herein to
"hereunder," "hereof," or words of like import
and all references in any other Loan Document to
the "Credit Agreement" or words of like import
shall mean and be a reference to the Existing
Credit Agreement as amended and restated hereby.
9.2. Master Assignment. Prior to the Effective
Date, the Commitment of each of the Existing
Banks under the Existing Credit Agreement are
equal to the amounts set forth opposite the
Bank's name in Part A to Schedule I. As of the
Effective Date, each of the Banks' Commitments
shall equal the amounts set forth opposite such
Bank's name in Part B of Schedule I and each such
Banks' outstanding Obligations and rights and
duties hereunder shall be allocated ratably
according to its new Percentage. To effect such
reallocation, the parties hereto agree as
follows:
(a) Assignment and Assumption. Each of the Banks
whose Percentage on the Effective Date is less
than its Percentage prior to the Effective Date
(the "Assignors") hereby sell and assign to the
other Banks (the "Assignees"), and each of the
Assignees hereby purchases and assumes from the
Assignors, as of the Effective Date an interest
in and to the Assignors' rights and obligations
under the Agreement (including without limitation
the Assignor's Commitment, outstanding Loans and
other Obligations and rights and obligations with
respect to Letters of Credit), such that after
giving effect to such assignment, the Commitment
of each of the Assignees and each of the
Assignors shall equal the amounts set forth in
Part B of Schedule I opposite such Bank's name.
As of the Effective Date, each of the Assignees
shall have the rights and obligations
of a Bank under the Loan Documents with respect
to the rights and obligations assigned to the
Assignees hereunder by the Assignors and each of
the Assignors shall relinquish its rights and be
released from its Obligations under this
Agreement with respect to the rights and
obligations assigned to the Assignees hereunder.
From and after the Effective Date, any Existing
Bank which shall not have a Commitment as of the
Effective Date shall no longer constitute a
"Bank" for purposes of this Agreement, but shall
retain its rights as an Assignor against the
Assignees pursuant to paragraphs (b) and (e)
hereof. The Administrative Agent hereby waives
the processing fee for the assignments pursuant to this Section
9.2 provided for in Section 10.10(b) of this Agreement.
(b) Payment Obligations. On and after the
Effective Date, each of the Assignees shall be
entitled to receive from the Administrative Agent
all payments of principal, interest and fees with
respect to the interest assigned hereby. Each of
the Assignees shall advance funds directly to
the Administrative Agent with respect to all
Advances and reimbursement payments made on or
after the Effective Date with respect to the
interest assigned hereby. In consideration for
the sale and assignment of Loans hereunder, the
Assignees shall pay on the Effective Date to the
Administrative Agent for the ratable account of
the Assignors an amount for each Assignee equal
to the principal amount of the portion of all
Loans assigned to such Assignee hereunder. Each
of the Assignees will also promptly remit to the
Administrative Agent for the ratable benefit of
the Assignors any amounts of interest on Loans
and fees received from the Administrative Agent
which relate to the portion of the Loans assigned
to the Assignees hereunder for periods prior to
the Effective Date and not previously paid by the
Assignees to the Assignors. In the event that any
party hereto receives any payment to which any
other party hereto is entitled, then the party
receiving such amount shall promptly remit it to
the Administrative Agent on behalf of the other
party hereto. In no event will the Effective
Date occur if the payments required to be made by
each of the Assignees to the Administrative Agent
for the account of the Assignors under this
paragraph (b) are not made on the proposed
Effective Date.
(c) Representations of the Assignors; Limitation
of the Assignors' Liability. Each of the
Assignors represents and warrants that with
respect to its interest assigned hereby, it is
the legal and beneficial owner of the interest
being assigned by it hereunder and that such
interest is free and clear of any adverse claim
created by the respective Assignor. It is
understood and agreed that the assignment and
assumption hereunder are made without recourse to
the Assignors and that the Assignors make no
other representation or warranty of any kind to
the Assignees. Neither the Assignors nor any of
their respective, officers, directors, employees,
agents or attorneys shall be responsible for (i)
the due execution, legality, validity,
enforceability, genuineness, sufficiency or
collectability of any Loan Documents, (ii) any
representation, warranty or statement made in or
in connection with any of the Loan Documents,
(iii) the financial condition or creditworthiness
of the Borrowers or any guarantor, (iv) the
performance of or compliance with any of the terms or
provisions of any of the Loan Documents, (v) inspecting
any of the property, books or records of the Borrowers,
or (vi) any mistake, error of judgment, or action
taken or omitted to be taken in connection with
the Loans, Letters of Credit or the Loan
Documents.
(d) Representations of the Assignees. Each of
the Assignees (only as to itself)
(i) confirms that as of the Effective Date, it is
a Bank under this Agreement and has received a
copy of the Agreement and the other Loan
Documents, together with copies of the financial
statements requested by such Assignee and such
other documents and information as it has
deemed appropriate to make its own credit
analysis and decision to enter into the
Agreement; (ii) agrees that it will, independently and
without reliance upon CBT or the Assignors or any
other Bank and based on such documents and information
as it shall deem appropriate at the time,
continue to make its own credit decisions in
taking or not taking action under the Loan
Documents; and (iii) confirms that none of the
funds, monies, assets or other consideration being
used to make the purchase and assumption
hereunder are "plan assets" as defined under
ERISA and that its rights, benefits and interests
in and under the Loan Documents will not be "plan assets" under ERISA.
(e) Indemnity. Each of the Assignees severally
agrees to indemnify and hold harmless the
Assignors against any and all losses, cost and
expenses (including, without limitation,
reasonable attorneys' fees) and liabilities
incurred by it in connection with or arising in
any manner from such Assignee's nonperformance of
the obligations assumed under this Section 9.2.
(f) Subsequent Assignments. After the Effective
Date, each of the Banks shall have the rights
pursuant to Section 10.10 of this Agreement to
assign the rights which are assigned to such
Assignee hereunder to any entity or person,
provided that, unless the prior written consent
of the Assignors is obtained, the Assignee is not
thereby released from its obligations to the
Assignors hereunder, if any remain unsatisfied,
including, without limitation, its obligations
under paragraphs (b) and (e) hereof.
9.3. Replacement Notes. The Borrowers shall
execute and deliver replacement Notes to each of
the Banks. Each of the Notes amends and restates
and is issued in substitution for each of the
Existing Notes. On the Effective Date: (a) each
of the Existing Banks shall return its Existing
Note to the Borrowers; (b) each of the Banks
shall receive a new Note in the principal amount
of such Bank's Commitment; and (c) all loans made
pursuant to the Existing Credit Agreement
outstanding on such date shall be deemed to be
Loans hereunder by the Banks, ratably in
accordance with their respective Commitments,
shall be evidenced by the Notes, and shall be
entitled to all of the benefits and bear all of
the obligations of this Agreement.
9.4. Security Documents. Each of the Borrowers
hereby acknowledges and agrees that the
Obligations, including the Notes, all Advances
now outstanding or hereafter made hereunder and
all amounts now or hereafter owing to the
Administrative Agent and the Banks under or
pursuant to this Agreement or any other Loan
Document and all Rate Hedging Obligations owing
by the Borrowers and/or their Subsidiaries to the
Bank or any Bank, shall be secured under and
pursuant to the Note Pledge Agreement, the Pledge
Agreement, the Security Agreement and each and
every other Security Document and that all
references therein to the "Credit Agreement"
shall be deemed a reference to this Agreement and
all capitalized terms not otherwise defined
therein shall have the meanings ascribed thereto
in this Agreement.
9.5. Release of Subject Assets. Each of the Banks
hereby authorizes the Administrative Agent, upon
the later of the Effective Date or the
consummation of a Mortgage Transaction, to
release any and all security interests or liens
granted to the Administrative Agent, for the
benefit of the Banks, under any Security
Documents in the Subject Assets which are being
disposed of in a Mortgage Transaction and to
execute such other documents and instruments as
may be necessary to evidence such release.
ARTICLE X.
MISCELLANEOUS
10.1. Waivers, Amendments; etc. The
provisions of this Agreement, including the
closing conditions set forth herein, may from
time to time be amended, modified or waived, if
such amendment, modification or waiver is in
writing and consented to by the Borrowers and the
Required Banks; provided, that no amendment,
waiver or consent shall, unless in writing and
signed by all the Banks, do any of the following:
(a) waive any of the conditions specified in
Article III, (b) increase the Commitments of the
Banks or subject the Banks to any additional
obligations, (c) reduce the principal of, or
interest on, the Notes or any fees or other
amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or
interest on, the Notes or any fees or other
amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the
number of Banks, which shall be required for the
Banks or any of them to take any action
hereunder, or (f) amend this Section 10.1 or (g)
except as specifically permitted hereby or
thereby, release or impair the security interest
in any of the collateral granted to the
Administrative Agent, for the benefit of the
Banks, under the Security Documents or discharge
any Subsidiary Guarantor; provided, further,
that no amendment, waiver or consent shall,
unless in writing and signed by the
Administrative Agent in addition to the Banks
required above to take such action, affect the
rights or duties of the Administrative Agent
under this Agreement or any Note.
No failure or delay on the part of the
Administrative Agent, any Bank or the holder of any Note in
exercising any power or right under this
Agreement or any Note shall operate as a waiver
thereof, nor shall any single or
partial exercise of any such power or right
preclude any other or further exercise thereof or
the exercise of any other power or right. No
notice to or demand on the Borrowers in any case
shall entitle it to any notice or demand in
similar or other circumstances.
10.2. Payment Dates. Whenever any payment to
be made hereunder by or to the Banks or to the
holder of any Note shall otherwise be due on a
day which is not a Business Day, such payment
shall be made on the next succeeding Business
Day, and such extension of time shall be included
in computing the fees or interest payable on such
next succeeding Business Day.
10.3. Notices. All communications and
notices provided under this Agreement shall be in
writing by mail, telecopy or personal delivery
and if to the Borrowers addressed or delivered to
QDI at its address shown on the signature page
hereof or if to the Administrative Agent or the
Banks delivered to it at the address shown on the
signature page hereof, or to any party at such
other address as may be designated by such party
in a notice to the other parties. Any notice, if
mailed properly addressed, shall be deemed given
upon the third Business Day after the placing
thereof in the United States mail, postage
prepaid; any notice shall be deemed given when
transmitted by telecopier or when personally
delivered.
10.4. Costs and Expenses. The Borrowers
agree to pay, or reimburse, the Administrative
Agent for all reasonable expenses for the
preparation of this Agreement, including
exhibits, and the Loan Documents and any
amendments hereto or thereto or consents or
waivers hereunder or thereunder as
may from time to time hereafter be required
thereby or by the transactions contemplated
hereby, including, but not limited to, the fees
and out-ofpocket expenses of the Administrative
Agent, charges and disbursements of special
counsel to the Administrative Agent from time to
time incurred in connection with the preparation
and execution of this Agreement and any document
relevant to this Agreement, including the Loan
Documents, any amendments hereto or thereto, or
consents or waivers hereunder or thereunder, and
the consideration of legal questions relevant
hereto and thereto. The Borrowers agree to pay,
or reimburse, the Administrative Agent and each Bank
upon demand for all reasonable costs and expenses
(including attorneys', auditors' and accountants'
fees and expenses) arising out of the
transactions contemplated by this Agreement and
the Loan Documents, in connection with any work-
out or restructuring of the transactions
contemplated hereby and by the Loan Documents and
any collection or enforcement of the obligations
of the Borrowers hereunder or thereunder, whether
or not suit is commenced, including, without limitation,
reasonable attorneys' fees and legal expenses in connection
with any appeal of a lower court's order or
judgment. The obligations of the Borrowers under
this Section 10.4 shall survive any termination of
this Agreement.
10.5. Indemnification. In consideration of
the execution and delivery of this Agreement by
the Administrative Agent and the Banks, the
Borrowers agree to indemnify, exonerate and hold
the Administrative Agent, each Bank and their
respective officers, directors, employees and
agents (the "Indemnified Parties") free and
harmless from and against any and all actions,
causes of action, suits, losses, claims, damages,
penalties, judgments, liabilities and damages,
and expenses in connection therewith, including, without
limitation, reasonable attorneys' fees and
disbursements and all expenses of litigation or
preparation therefor whether or not the Administrative
Agent or such Bank is a party thereto (the "Indemnified
Liabilities"), incurred by the Indemnified
Parties or any of them as a result of, or arising
out of, or relating to:
(a) any transaction financed or to be financed
in whole or in part directly or indirectly with
proceeds of any Advance, or
(b) the execution, delivery, performance or
enforcement of this Agreement, the Loan Documents
or any document executed pursuant hereto or
thereto by any of the Indemnified Parties,
except for any such Indemnified Liabilities arising on
account of such Indemnified Party's breach of
contract or such Indemnified Party's gross
negligence or willful misconduct in violation of
law or in tort. The provisions of this Section
10.5 shall survive termination of this Agreement
and payment in full of the Notes.
10.6. Severability. Any provision of this
Agreement or the Notes executed pursuant hereto
which is 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 of this Agreement or the
Notes or affecting the validity or enforceability
of such provision in any other jurisdiction.
10.7. Cross-References. References in this
Agreement to any Section or Article are, unless
otherwise specified, to such Section or Article
of this Agreement.
10.8. Headings. The various headings of this
Agreement are inserted for convenience only and
shall not affect the meaning or interpretation of
this Agreement or any provisions hereof.
10.9. Governing Law. This Agreement and the
Notes shall each be deemed to be a contract made
under and governed by the internal laws (and not
the law of conflicts) of the State of Indiana.
10.10. Successors and Assigns. (a) This
Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their
respective successors and assigns except that:
(i)neither of the Borrowers may assign or
transfer its rights hereunder without the prior
written consent of each of the Banks; and (ii)
any assignment by a Bank must be made in
compliance with subsection (b) below.
Notwithstanding clause (ii) of this subsection
(a), any Bank may at any time, without the
consent of Borrowers or the Administrative Agent,
assign all or any portion of its rights under
this Agreement and its Notes to a Federal Reserve
Bank; provided, however, that no such assignment
shall release the transferor Bank from its
obligations hereunder. Except to the extent
otherwise required by its context, the word
"Bank" where used in this Agreement shall mean
and include any such assignee and such assignee
shall be bound by and have the benefits of this
Agreement the same as if such holder had been a
signatory hereto.
(b) Any Bank may, in the ordinary course of its
business and in accordance with applicable law,
at any time assign to one or more banks or other
entities ("Purchasers") all or a portion of its
rights and obligations under this Agreement
(including, without limitation, its Commitments,
all Loans owing to it, all of its participation
interests in existing Letters of Credit, and its
obligation to participate in additional Letters
of Credit hereunder) in accordance with the
provisions of this subsection (b). Each
assignment shall be of a constant, and not a
varying, ratable percentage of all of the
assigning Bank's rights and obligations under
this Agreement. Such assignment shall be
substantially in the form of Exhibit D hereto and
shall not be permitted hereunder unless (i) such
assignment is for all of such Bank's rights and
obligations under the Loan Documents or (ii) the
amount of the Commitment assigned by the
assigning Bank pursuant to each assignment shall
be at least $10,000,000 and the amount of the
Commitment retained by the assigning Bank shall be
at least $10,000,000. The consent of the Administrative
Agent (which consent shall not be unreasonably withheld or
delayed) shall be required prior to an assignment
becoming effective with respect to a transferee
which is not a Bank or an Affiliate thereof if at
the time of such assignment no Event of Default
shall have occurred and is continuing. In
addition, the consent of the Borrowers shall be
required (which consent shall not be unreasonably
withheld or delayed) prior to an assignment
becoming effective if such assignment is at a
time when no Default or Event of Default has
occurred and is continuing. Upon (i) delivery to
the Administrative Agent of an executed
Assignment Agreement, together with any required
consents and (ii) payment of a $2,000 fee to the
Administrative Agent for processing such assignment,
such assignment shall become effective on the effective
date specified in such Assignment Agreement. On and
after the effective date of such assignment, such
transferee, if not already a Bank, shall for all
purposes be a Bank party to this Agreement and
any other Loan Documents executed by the Banks
and shall have all the rights and obligations of
a Bank under the Loan Documents, to the same
extent as if it were an original party hereto,
and no further consent or action by the
Borrowers, the Banks or the Administrative Agent
shall be required to release the transferor Bank
with respect to the percentage of the Commitment,
Loans and Letter of Credit participations
assigned to such transferee Bank. Upon the
consummation of any assignment pursuant to this
Section 10.10, the Administrative Agent and the
Borrowers shall make appropriate arrangements so
that replacement Notes are issued to such
transferor Bank and new Notes or, as appropriate,
replacement Notes, are issued to such transferee
Bank, in each case in principal amounts
reflecting their Commitment, as adjusted pursuant
to such assignment.
(c) Each Bank may, without the consent of the
Borrowers or the Administrative Agent, sell
participations to one or more banks or other
entities in all or a portion of its rights and
obligations under this Agreement (including all
or a portion of its Commitment, the Loans owing
to it, its interest as an issuer with respect to
Letters of Credit, its participations in Letters
of Credit and its obligation to participate in
additional Letters of Credit hereunder);
provided, however, that (i) such Bank's
obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the
performance of such obligations, (iii) the
participating banks or other entities shall be
entitled to the benefit of the cost protection
provisions contained in Section 2.3 to the extent
of the Bank selling such participation and the
Borrowers' aggregate obligations with respect to
Section 2.3 shall not be increased by reason of
such participation, and (iv) the Borrowers, the
Administrative Agent and the other Banks shall
continue to deal solely and directly with such
Bank in connection with such Bank's rights and
obligations under this Agreement, and such Bank
shall retain the sole right (and shall not limit
its rights) to enforce the obligations of the
Borrowers relating to the Loans and to approve
any amendment, modification or waiver of any
provision of this Agreement (other than
amendments, modifications or waivers with respect
to any fees payable hereunder (to the extent such
participants are entitled to such fees) or the
amount of principal of or the rate at which
interest is payable on the Loans, or the dates
fixed for payments of principal of or interest on
the Loans).
10.11. Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate
counterparts, each of which when so executed
shall be deemed to be an original and all of
which taken together shall constitute one and
the same agreement.
10.12. Joint and Several Liability. The
obligations of the Borrowers to make payment of
the Obligations hereunder and under the Notes
are joint and several. The Administrative Agent
may proceed directly against either or both of
the Borrowers to obtain performance of and to
collect and recover the full amount, or any
portion, of the Obligations, without first
proceeding against the other Borrower or any
other Person, or against any security or
collateral for the Obligations.
10.13. Financial Information. Each Borrower
assumes responsibility for keeping itself
informed of the financial condition of the other
Borrower and any and all endorsers and/or other
guarantors of all or any part of the Obligations,
and of all other circumstances bearing upon the
risk of nonpayment of the Obligations, or any
part thereof, that diligent inquiry would reveal,
and such Borrower agrees that the Administrative
Agent and the Banks shall have no duty to advise
such Borrower of information known to them
regarding such condition or any such
circumstances.
10.14. Consent to Jurisdiction. EACH OF THE
BORROWERS HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY INDIANA STATE OR FEDERAL
COURT SITTING IN SOUTH BEND, INDIANA, OVER ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE NOTES OR ANY OTHER LOAN
DOCUMENT AND EACH OF THE BORROWERS HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH ILLINOIS STATE OR FEDERAL
COURT. EACH OF THE BORROWERS HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO
THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
EACH OF THE BORROWERS IRREVOCABLY CONSENTS TO THE
SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT
AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING BY
UNITED STATES CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, OF COPIES OF SUCH PROCESS TO THE
BORROWER'S ADDRESS SPECIFIED IN SECTION 10.3.
EACH OF THE BORROWERS AGREES THAT A JUDGMENT,
FINAL BY APPEAL OR EXPIRATION OF TIME TO APPEAL
WITHOUT AN APPEAL BEING TAKEN, IN ANY SUCH ACTION
OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS SECTION 10.14 SHALL AFFECT THE
RIGHT OF THE ADMINISTRATIVE AGENT OR ANY BANK TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR AFFECT THE RIGHT OF THE ADMINISTRATIVE
AGENT OR ANY BANK TO BRING ANY ACTION OR
PROCEEDING AGAINST THE BORROWERS OR EITHER OF
THEM, OR THEIR RESPECTIVEPROPERTY IN THE COURTS
OF ANY OTHER JURISDICTION.
10.15. Waiver of Jury Trial. EACH OF THE
BORROWERS, THE AGENT AND THE BANKS HEREBY
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY NOTE,
OR ANY OTHER INSTRUMENT OR DOCUMENT DELIVERED
HEREUNDER OR THEREUNDER.
[The rest of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed
by their respective officers thereunto duly
authorized as of the day and year first above
written.
QUALITY DINING,INC.
Address: 4220 Edison Lakes Parkway
Mishawaka, Indiana 46545
Attention: John C.
Firth Executive Vice President, General
Counsel and Secretary
with a copy to: David M. Findlay,
Senior Vice President Finance
By:_______________________
John C. Firth
Executive Vice President,
General Counsel and
Secretary
GAGHC, INC.
By:______________________
David M. Findlay
Vice President
CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, in its individual
capacity and as Administrative Agent
Address: 712 Main Street
Houston, Texas
77002-8059
Attention: Manager, Franchise System Finance
By:__________________________
Name:________________________
Title:_______________________
NBD BANK, N.A., in its individual capacity
and as Documentation Agent
Address: One Indiana Square Suite 7028
Indianapolis, IN 46266
Attention: John C. Otteson
By:_________________________
Name:_______________________
Title:______________________
LASALLE BANK N.A.
(formerly, LaSalle National Bank)
Address: 120 S. LaSalle Street
Chicago, IL 60603
Attention: David Knapp
By:________________________
Name:______________________
Title:_____________________
NATIONSBANK, N.A., in its individual capacity
and as Co-Agent
Address: 600 Peachtree Street, NE, 19th Floor
Atlanta, GA 30308
Attention: Michelle Sommerset-Brown
By:_________________________
Name:_______________________
Title:______________________
THE NORTHERN TRUST COMPANY
Address: 50 S.LaSalle
Street, B-2
Chicago, IL 60675
Attention: Art Fogel
By:_________________________
Name:_______________________
Title:______________________
KEYBANK NATIONAL ASSOCIATION
(successor in interest to SOCIETY NATIONAL BANK)
Address: 127 Public Square OH-01-27-0606
Cleveland, OH 44114
Attention: Mark LoSchiavo
By:_______________________
Name:_______________________
Title:______________________
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
Address: c/o SunTrust Banks, Inc.
201 Fourth Avenue North
3rd Floor
Nashville, TN 37219
Attention: Vipul H. Patel
Vice President
By:________________________
Name:______________________
Title:_____________________
SCHEDULE I
PART A
EXISTING COMMITMENTS
Bank Commitment Percentage
- ---------------------------------------- -------------- ----------
Chase Bank of Texas National Association $26,000,000.00 20.00%
NBD Bank, N.A. $26,000,000.00 20.00%
LaSalle Bank N.A. $21,666,666.67 16.67%
NationsBank, N.A. $17,333,333.33 13.33%
SunTrust Bank, Central Florida, N.A. $17,333,333.33 13.33%
The Northern Trust Company $13,000,000.00 10.00%
Key Bank N.A. $ 8,666,666.67 6.67%
PART B
COMMITMENTS AS OF EFFECTIVE DATE
Bank Commitment Percentage
- ---------------------------------------- -------------- ----------
Chase Bank of Texas National Association $16,000,000.00 20.00%
NBD Bank, N.A. $15,000,000.00 18.75%
NationsBank, N.A. $15,000,000.00 18.75%
LaSalle Bank N.A. $13,336,000.00 16.67%
SunTrust Bank, Central Florida,N.A. $10,664,000.00 13.33%
The Northern Trust Company $10,000,000.00 12.50%
Key Bank N.A. --0-- 0 %
ANNEX I
LIST OF JURISDICTIONS IN WHICH THE BORROWER IS
QUALIFIED TO DO BUSINESS
See attached
ANNEX II
LIST OF SUBSIDIARIES; JURISDICTION OF
INCORPORATION AND STOCK OWNERSHIP
See attached
ANNEX III
INDEBTEDNESS; LIENS
See attached
ANNEX IV
INVESTMENTS
See attached
ANNEX V
DESCRIPTION OF REAL PROPERTY
See attached
EXHIBIT A
[Form of Note]
PROMISSORY NOTE
$__________ __________, 199_ Mishawaka,Indiana
FOR VALUE RECEIVED, QUALITY
DINING, INC., an Indiana corporation, and
GAGHC, Inc., a Delaware corporation (collectively
together with their successors and assigns, the
"Borrowers"), hereby promise, jointly and
severally, to pay to ____________________ (the
"Holder"), the principal sum of __________
DOLLARS ($__________), or such lesser amount as
shall equal the aggregate unpaid principal amount
of the Advances (as defined in the hereinafter
defined Credit Agreement) made by the Holder to
the Borrowers, or either of them, under the
Credit Agreement, on the Termination Date (as
defined in the Credit Agreement) and to pay
interest on the unpaid principal amount of each
Advance, for the period commencing on the date of
such Advance until such Advance shall be paid in
full, at the rates per annum and on
the dates provided in the Credit Agreement.
Both principal and interest are payable in
lawful money of the United States of America and
in immediately available funds to the
Administrative Agent (as defined in the Credit
Agreement) to such domestic account as the
Administrative Agent may designate. The date,
amount and type of each Advance made by the
Holder to the Borrowers, or either of them, and
each payment made on account of the principal
thereof, shall be recorded by the Holder on its
books and, prior to any transfer of this Note,
endorsed by the Holder on the schedule attached
hereto or any continuation thereof; provided
that the Holder's failure to make any such
recordation or notation shall not affect the
Obligations of the Borrowers hereunder or under
the Credit Agreement.
This Note is one of the Notes referred to in the
Third Amended and Restated Revolving Credit Agreement
(as amended from time to time, the "Credit Agreement")
dated as of May 11, 1999 by and between the Borrowers, the banks
party thereto (the "Banks"), Chase Bank of Texas
National Association, as administrative agent
(the "Administrative Agent"), NBD Bank, N.A., as
documentation agent, and NationsBank, N.A.
(South), as CoAgent, which amends and
restates the Second Amended and Restated
Revolving Credit Agreement dated as of September
11, 1998 by and between the Borrowers, the banks
party thereto and Chase Bank of Texas National
Association, as administrative agent for the
Banks and NBD Bank, N.A., as documentation agent
(the "Existing Credit Agreement"). This Note
amends and restates and is issued in substitution
for a Promissory Note dated September 11, 1998
(the "Existing Note") issued by the Borrowers
pursuant to the Existing Credit Agreement and
evidences Advances made thereunder. This Note
does not constitute a novation of the obligations
of the Borrowers under the Existing Note.
Capitalized terms used in this Note have the
respective meanings assigned to them in the
Credit Agreement.
The Credit Agreement provides for
the acceleration of the maturity of the Advances
evidenced by this Note upon the occurrence of
certain events and for prepayments of Advances
upon the terms and conditions specified therein.
This Note is secured by a Subsidiary Guaranty issued
by certain Wholly-Owned Subsidiaries of Quality Dining, Inc. in
favor of the Administrative Agent for the benefit
of the Banks, by certain assets of the Borrowers
and their respective Subsidiaries pursuant to the
Pledge Agreement, the Security Agreement and the
Note Pledge Agreement and may now or hereafter be
secured by one or more other security agreements,
pledge agreements, assignments,mortgages,
guaranties, instruments or agreements of the
Borrowers or any other Person.
The Borrowers hereby waivedemand, presentment, protest and notice of
nonpayment and protest.
THIS NOTE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF INDIANA.
QUALITY DINING, INC.
By:_________________________
John C. Firth
Executive Vice President,
General Counsel and
Secretary
GAGHC, INC.,
By:___________________
David M. Findlay
Vice President
Schedule to Promissory Note
Date Principal
Date of Advance Amount of Advance Type of Advance of Advance Repaid
- --------------- ----------------- --------------- -----------------
EXHIBIT B
NOTICE OF BORROWING
CHASE BANK OF TEXAS NATIONAL ASSOCIATION, as
Administrative Agent
712 Main Street
Houston, Texas 77002-8059
Attention: ________, 19__
(Date of Notice)
Ladies and Gentlemen:
The undersigned, [Quality
Dining, Inc., an Indiana corporation] [GAGHC,
Inc., a Delaware corporation], refers to the
Third Amended and Restated Revolving Credit
Agreement, dated as of May 11, 1999 (said Third
Amended and Restated Revolving Credit Agreement,
as amended, modified or supplemented from time to
time being the "Agreement") by and between
Quality Dining, Inc. and GAGHC, Inc., as
borrowers, the banks party thereto, Chase Bank of
Texas National Association, as administrative
agent, NBD Bank, N.A., as documentation agent,
and NationsBank, N.A. (South), as Co-Agent. The
terms used herein shall have the meanings
ascribed thereto in the Agreement. Pursuant to
the terms of the Agreement the undersigned hereby
requests an Advance under the Agreement, and in
that connection sets forth below the information
relating to such Advance (the "Proposed
Advance"):
(i) The borrowing date (which shall be a
Business Day) of the Proposed Advance is
__________, 19__.
(ii) The aggregate amount of the Proposed Advance
is $_________.
(iii) The Proposed Advance is to be made as the following type(s) of Loan:
(A) $______________Base Rate Loan; or
(B) $______________LIBOR Base Loan.
(iv) If the Proposed Advance is to be made as a
LIBOR Base Loan, the Interest Period
applicable thereto is________months.
The undersigned confirms that
the conditions precedent set forth in Article
III of the Agreement are satisfied as of the date hereof.
[QUALITY DINING, INC.]
[GAGHC, INC.]
By:__________________________________ ___
Its: ________________________________
EXHIBIT C
LEGAL OPINION OF COUNSEL
The opinion of counsel for the Borrowers shall be
addressed to the Agents and each of
the Banks and shall be to the effect that:
1. Each of the Borrowers and the
Subsidiary Guarantors (other than Grady's, Inc.
as to which I express no opinion and Grady's
American Grill, LP and GAGLC, Inc. (the "Texas
Entities") which are addressed in paragraph 2
below) is a corporation organized and validly
existing in good standing under the laws of its
jurisdiction of incorporation, and has all
requisite corporate power and authority to carry
on the business now being conducted by it and to
own its property and to enter into and perform
the Credit Agreement and the Reaffirmation of
Subsidiary Guaranty to which it is a party.
2. Grady's American Grill,
LP is a limited partnership organized and validly
existing in good standing under the laws of the
State of Texas and has all requisite power and
authority to carry on the business now being
conducted by it and to enter into and perform the
Subsidiary Guaranty. GAGLC, Inc. is a
corporation organized and validly existing in
good standing under the laws of the State of
Texas and has all requisite corporate power and
authority to carry on the business now being
conducted by it and to own its property and to
enter into and perform the Reaffirmation of
Subsidiary Guaranty. In expressing the opinions
set forth in this paragraph 2, I have relied on
the opinions of Munsch Hardt Kopf Harr & Dinan,
P.C. dated December 20, 1995
and October 31, 1997 (the "Texas Opinions").
3. Each of the Borrowers and each
of the Subsidiary Guarantors (other than Grady's, Inc. as to which
I express no opinion) is duly qualified and in
good standing as a foreign corporation in the
jurisdictions enumerated in Annex I and Annex
attached to this opinion and such jurisdictions
are all of the jurisdictions where the nature of
their business or the character of their
properties makes such qualification or licensing
necessary.
4. Each of the Credit Agreement and the Reaffirmation of
Subsidiary Guaranty have been duly authorized by
proper corporate (or partnership) action on the
part of the Borrowers and the Subsidiary
Guarantors (other than Grady's, Inc. as to which
I express no opinion) which are
party thereto and have been duly executed and
delivered by an authorized officer (or general
partner) of each of such Borrowers and Subsidiary
Guarantors. Each of the Credit Agreement and the
Reaffirmation of Subsidiary Guaranty constitutes
the legal, valid and binding obligations
of the Borrowers and the Subsidiary Guarantors
which are a party thereto, enforceable in
accordance with their respective terms, except to
the extent that enforcement thereof may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws of
general application relating to or affecting the
enforcement of the rights of creditors or by
equitable principles (regardless of whether
enforcement is sought in a proceeding in equity
or at law). In expressing the opinions set forth
in this paragraph 4 that relate to the Texas
Entities, I have relied on the Texas Opinions. I
am not aware of changes in business or operations
of the Texas Entities since December 20, 1995
which could affect such opinions.
4. Each of the Security Documents creates an
enforceable security interest in favor of the
Administrative Agent for the benefit of the Banks
in the collateral described therein, which is
subject to Article 9 of the Indiana Uniform
Commercial Code as security for the payment, to
the extent set forth therein, of the Obligations.
5. No authorization, approval or consent of any
governmental or regulatory body is necessary or
required in connection with the lawful execution,
delivery and performance by the Borrowers and the
Subsidiary Guarantors (other than Grady's, Inc.
as to which I express no opinion) of the Credit
Agreement and the Reaffirmation of Subsidiary
Guaranty.
6. The execution and delivery of the Credit
Agreement and the Reaffirmation of Subsidiary
Guaranty and compliance with the terms thereof by
the Borrowers and the Subsidiary Guarantors will
not conflict with, or result in any breach of any
of the provisions of, or constitute a default
under, or result in the creation or imposition of
any Lien upon any of the Property of the
Borrowers or the Subsidiary Guarantors pursuant
to the provisions of the articles of
incorporation, by-laws or other charter document
of the Borrowers or the Subsidiary Guarantors or
any loan agreement under which Borrowers or the
Subsidiary Guarantors are bound, or other
agreement or instrument under which the Borrowers
or the Subsidiary Guarantors or their
Property is bound.
7. There are no actions, suits or proceedings
pending or, to the best of my knowledge after due
inquiry, threatened against, or affecting the
Borrowers or the Subsidiary Guarantors at law or
in equity or before or by any federal, state,
municipal or other governmental department,
commission, board, bureau, agency or
instrumentality, domestic or foreign, which (i)
would contest or affect the execution, validity or
performance of any of the Loan Documents, or
(ii) could result, either individually or
collectively, in a Material Adverse Occurrence,
except as disclosed in Quality Dining, Inc.'s
Report on Form 10-Q for the quarter ended
February 14, 1999.
8. Each of the Borrowers and the Subsidiary
Guarantors have all franchises, permits, licenses
and other authority as are material to enable
them to carry on their business as
now being conducted and as proposed to be
conducted, and they are not in default under any
of such franchises, permits, licenses or other
authority, which defaults could, individually or
in the aggregate, result in a Material Adverse
Occurrence.
9. The execution and delivery of the Credit
Agreement and the Reaffirmation of Subsidiary Guaranty and the
performance thereof by the Borrowers and the
Subsidiary Guarantors will not result in a breach
or violations of any of the terms, conditions, or
provisions of any law or regulation (including
any usury laws), order, writ, injunction or
decree of any court or governmental authority
applicable to the Borrowers or the Subsidiary
Guarantors.
10. None of the Borrowers or Subsidiary
Guarantors is (i) a "public utility company" or a
"holding company," or an "affiliate" or a
"subsidiary company" of a "holding company" or an
"affiliate" of such a "subsidiary company," as
such terms are defined in the Public Utility
Holding Company Act of 1935, as amended, or (ii)
a "public utility" as defined in the Federal
Power Act, as amended, or (iii) an "investment
company" or an "affiliated person" thereof or an
"affiliated person" of any such "affiliated
person", as such terms are defined in the
Investment Company Act of 1940, as amended.
11. All of the issued and outstanding shares of
capital stock of each of the Subsidiary
Guarantors (other than Grady's Inc. as to which I
express no opinion) have been duly and validly
issued, are fully paid and nonassessable and are
owned by Quality Dining, Inc., and/or a
subsidiary of Quality Dining, Inc. as reflected
on Annex II attached to this opinion free and
clear of any lien or encumbrance. The general partner
and limited partner of Grady's American Grill, LP
are Grady's American Grill Restaurant Corporation
and GAGHC, Inc., respectively.
EXHIBIT D
FORM OF ASSIGNMENT AGREEMENT
Reference is made to the Third Amended and
Restated Revolving Credit Agreement dated as of
May 11, 1999 (the "Credit Agreement") among
Quality Dining, Inc. an Indiana corporation, and
GAGHC, Inc., a Delaware corporation (collectively
the "Borrowers"), the Banks party thereto (the
"Banks"), Chase Bank of Texas, National
Association, as administrative agent (in such
capacity, the "Administrative Agent"), NBD Bank,
N.A., as documentation agent, and NationsBank,
N.A., as co-agent. Terms defined in the Credit
Agreement are used herein with the same meanings.
___________________________________ __ (the
"Assignor") and
___________________________________ _______ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns
to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, a ___%
interest in and to the Assignor's rights and
obligations under the Credit Agreement and the
other Loan Documents as of the Effective Date (as
defined below) (including, without limitation,
such percentage interest in the Commitment, such
percentage interest of the Assignor's
participations in Letters of Credit on the
Effective Date and such percentage interest in
each Loan owing to the Assignor outstanding on the
Effective Date, together with such percentage interest in
all unpaid interest and Commitment Fees accrued
to the Effective Date).
2. The Assignor represents that as of the date
hereof (without giving effect to
assignments thereof which have not yet become
effective): (i) its Commitment is $__________,
(ii) the outstanding principal balance (unreduced
by any assignments thereof which have not yet
become effective) of its Note is
$________________ and the stated amount of its
participations in Letters of Credit is $______________. The
Assignor (i) makes no representation or warranty
and assumes no responsibility with respect to any
statements, warranties or representations made in
or in connection with the Credit Agreement or the
execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit
Agreement, any other Legal Document or any
other instrument or document furnished pursuant
thereto, other than that it is the legal and
beneficial owner of the interest being assigned
by it hereunder and that such interest is free
and clear of any adverse claim; and (ii) makes no
representation or warranty and assumes no
responsibility with respect to the financial
condition of the Borrowers or any of their
Subsidiaries or the performance or observance by
the Borrowers or any of their Subsidiaries of any
of their respective obligations under the Credit
Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto
or thereto.
3. The Assignee (i) represents and warrants
that it is legally authorized to enter into this
Assignment Agreement; (ii) confirms that it has
received a copy of the Credit Agreement, together
with copies of the most recent financial statements
delivered pursuant to Section 5.1 thereof and such other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter
into this Assignment Agreement; (iii) agrees that
it will, independently and without reliance upon
the Administrative Agent, the Assignor or any
other person which has become a Bank and based on such
documents and information as it shall deem
appropriate at the time, continue to make its own
credit decisions in taking or not taking action
under the Credit Agreement; (iv) appoints and
authorizes the Administrative Agent to take such
action as agent on its behalf and to exercise
such powers under the Credit Agreement as is
delegated to the Administrative Agent by the
terms thereof, together with such powers as are
reasonably incidental thereto and (v) agrees that
it will be bound by the provisions of the Credit
Agreement and will perform in accordance with
their terms all the obligations which by the
terms of the Credit Agreement are required to be
performed by it as a Bank.
4. The effective date of
this Assignment and Acceptance shall be
_______________ (the "Effective Date").
5. From and after the Effective Date, (i)
the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this
Assignment Agreement, have the rights and
obligations of a Bank thereunder and under the
Loan Documents and (ii) the Assignor shall, to
the extent provided in this Assignment Agreement,
relinquish its rights and be released from its
obligations under the
Credit Agreement.
6. This Assignment and Acceptance shall
be governed by and construed in
accordance with the internal laws (and not the
law of conflicts) of the State of Illinois.
[NAME OF ASSIGNOR],
by
___________________________________
Title:
[NAME OF ASSIGNEE],
by ____________________________________
Title:
The Effective Date must be at least five
Business Days after the delivery of the executed
Assignment Agreement to the Agent.