AMENDMENT NO. 6 AND WAIVER TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 5, 2001
AMENDMENT NO. 6 AND WAIVER (this "Amendment and Waiver") to
the Credit Agreement (as defined herein) among Quality Stores, Inc., a Delaware
corporation (formerly known as "Central Tractor Farm & Country, Inc.") (the
"Borrower"), QSI Holdings, Inc., a Delaware corporation (formerly known as "CT
Holding, Inc.") ("Holding"), certain of the banks, financial institutions and
other institutional lenders listed on the signature pages hereof the "Lenders"),
and Fleet National Bank ("Fleet"), as administrative agent (the "Administrative
Agent") for the Lender Parties (as defined in the Credit Agreement).
PRELIMINARY STATEMENTS
(1) The Borrower, Holding, the Initial Lenders, the Initial Issuing
Bank, the Swing Line Bank and the Agent have entered into a Second Amended and
Restated Credit Agreement dated as of May 7, 1999, as amended by Amendment No. 1
dated as of March 31, 2000, Amendment No. 2 and Waiver dated as of September 22,
2000, Amendment No. 3 dated as of September 27, 2000, Amendment No. 4 dated as
of December 4, 2000 and Amendment No. 5 dated as of January 16, 2001 (as so
amended, the "Credit Agreement"). Capitalized terms defined in the Credit
Agreement and not otherwise defined in this Amendment and Waiver are used herein
as therein defined.
(2) The Borrower will be unable to comply with certain covenants
contained in Section 5.04 of the Credit Agreement and has requested that the
Required Lenders amend such covenants and waive any Defaults or Events of
Default as a result of the breach of such covenants on January 31, 2001.
(3) The Required Lenders have agreed to amend the Credit Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
SECTION 1. Amendment of the Credit Agreement. The Credit
Agreement is, upon the Effective Date (as hereinafter defined), hereby amended
as follows:
(a) Section 1.01 is hereby amended as follows:
(i) The definition of "Debt to EBITDA Ratio" is
amended by inserting the following proviso at the end thereof:
"; provided, however, that for the fiscal quarters ending on
or about July 31, 2001 and October 31, 2001, Consolidated
EBITDA shall be the actual Consolidated
2
EBITDA for such number of complete fiscal quarters that have
elapsed in the Fiscal Year ending in 2002 multiplied by a
fraction the numerator of which is four and the denominator of
which is such number of complete fiscal quarters that have
elapsed in the Fiscal Year ending in 2002."
(ii) The definition of "Fixed Charge Coverage Ratio"
is amended in full to read as follows:
" `Fixed Charge Coverage Ratio' means, at
any date of determination, the ratio of (a) (i)
Consolidated EBITDA of Holding and its Subsidiaries
less (ii) the amount of cash Capital Expenditures
made by Holding and its Subsidiaries less (iii) the
amount of cash income taxes paid by Holding and its
Subsidiaries to (b) the sum of (i) cash interest
payable on all Debt for Borrowed Money plus (ii)
scheduled principal amounts of all Debt for Borrowed
Money required to be repaid by Holding and its
Subsidiaries (in the case of Advances other than
Advances under the Term Facilities, only to the
extent accompanied by a permanent reduction in the
related Commitments), in each case for the most
recently completed four fiscal quarters of Holding or
its Subsidiaries; provided, however, that for the
fiscal quarters ending on or about July 31, 2001 and
October 31, 2001, the amounts described in clauses
(a)(i), (a)(ii), (a)(iii), (b)(i) and (b)(ii) above
shall be the actual amounts for such number of
complete fiscal quarters that have elapsed in the
Fiscal Year ending in 2002."
(iii) The definition of "Senior Debt" is amended by
inserting after the words "Letter of Credit" the words "issued
and".
(iv) The definition of "Net Cash Proceeds" is
amended:
(A) by deleting the parenthetical after the word
"interest" where first occurring and
substituting for such parenthetical the
parenthetical "(except the sale for cash of
capital stock of Holding to some or all of
the Equity Investors and other persons for
$15,000,000 in accordance with Section 4(d)
of the Amendment No. 2 and Waiver to the
Second Amended and Restated Credit Agreement
("Amendment No. 2"), the additional sale for
cash of capital stock of Holding to some or
all of the Equity Investors and other
persons for $2,500,000 in accordance with
Section 6.01(q) hereof and a further sale
for cash of capital stock of Holding to some
or all of the Equity Investors and other
persons for $15,000,000 in accordance with
Section 6.01(r) hereof and Section 3(g) of
Amendment No. 6 and Waiver to the Second
Amended and Restated Credit Agreement
("Amendment No. 6"))",
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(B) by inserting after the expression "Section
5.02(e)(viii)" the words "and from the sale
of any equipment or inventory located at
such distribution center in connection
therewith";
(C) by inserting in clause (B) of the proviso
after the expression "Section 5.02(e)(ix)"
the words "and, for the period commencing on
the Effective Date of Amendment No. 6 until
January 31, 2003, the Net Cash Proceeds from
the sale of inventory resulting from store
closures, inventory liquidations or going
out of business sales pursuant to Section
5.02(e)(i)(C)"; and
(D) by inserting at the end of the proviso a new
clause (D) as follows:
"and (D) through the period commencing on
the Effective Date of Amendment No. 6 until
January 31, 2002, there shall be no
deduction from cash received in connection
with a transaction described above for
income taxes as specified in clause (c)
above."
(b) Section 2.06(b)(ii) is hereby amended by:
(A) inserting after the word "Subsidiaries"
where it first occurs the parenthetical
"(except the first $291,000 of Net Cash
Proceeds received following the Effective
Date of Amendment No. 6)"; and
(B) deleting the phrase "pursuant to clause (i)
of Section 5.02(e) except the sale, lease,
transfer or other disposition of assets
following the closure of a store which is
not a Permitted Closed Store" and
substituting for such phrase the phrase
"pursuant to clauses (i)(A), (i)(B),
(i)(C)(but only for dispositions occurring
after January 31, 2003 resulting from the
closure of a store which is a Permitted
Closed Store), (i)(D) and (i)(E) of Section
5.02(e)".
(c) Section 5.01(m) is hereby amended in full to read as
follows:
"(m) Deposit Accounts. In the case of the Borrower and its
Subsidiaries, (i) use their reasonable best efforts to deliver letter
agreements in a form reasonably satisfactory to the Administrative
Agent (A) on or before May 15, 2001, from the banks at which 50% of the
deposit accounts are maintained, (B) on or before June 30, 2001, from
the banks at which 90% of the deposit accounts are maintained and (C)
as soon as available thereafter, from the banks at which the remaining
deposit accounts are maintained and (ii) cause to have transferred from
each bank at which a deposit account is maintained to a main cash
concentration account, an amount, in ACH funds, equal to the collected
balance (less a reserve for returned items and service charges) of such
deposit account at the end of each Business Day."
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(d) Section 5.02(e)(i) is hereby amended by (A) deleting the
words "including sales of inventory resulting from store closures" and
substituting for such words the words "other than sales of inventory
resulting from store closures, (C) inventory liquidations, going out of
business sales and other inventory sales associated with store
closures", (B) by deleting the words "which is not a Permitted Closed
Store" and (C) renumbering clauses "(C)" and "(D)" as clauses "(D)" and
"(E)" respectively.
(e) Section 5.02(p) is hereby amended by (A) deleting the
figure "$17,500,000" where it appears next to the words "Fiscal Year
Ending in 2002" and substituting for such figure the figure
"$5,000,000" and (B) deleting the expression "$20,000,000 plus Positive
EBITDA" where it appears next to the words "Fiscal Year Ending in 2003"
and substituting for such expression the figure "$5,000,000 plus 2/3
multiplied by Positive EBITDA".
(f) Section 5.02(q) is hereby amended by deleting the date
"July 31, 2001" and substituting for such date the date "January 31,
2002".
(g) Section 5.02(r) is hereby amended by deleting the words
"which has delivered a consent, in the form attached hereto as Exhibit
K" and substituting for such words the words "which has delivered a
letter agreement in a form reasonably satisfactory to the
Administrative Agent".
(h) Section 5.02(s) is hereby amended in full to read as
follows:
"(s) Equity and Management Fees. For the Fiscal Year
ending in 2002, make, or permit any of its Subsidiaries to
make, any cash payment of equity fees or management fees
(other than reasonable out of pocket expenses) to the Equity
Investors or other persons, and thereafter make, or permit any
of its Subsidiaries to make, any cash payment of equity fees
or management fees (other than reasonable out of pocket
expenses) to the Equity Investors or other persons while ever
there shall exist a Default or an Event of Default.".
(i) Section 5.03 is hereby amended by inserting new
subsections (s) and (t) as follows:
"(s) Asset Dispositions. As soon as practicable and
in any event at least 15 days prior to the closure of a store
or the sale or disposal of inventory or equipment pursuant to
Section 5.02(e)(i)(B) or Section 5.02(e)(ii), notice of such
prospective closure or sale and, as soon as available
thereafter, a schedule setting forth the amount of any
proceeds realized from such sale.
(t) Interest Payments. As soon as practicable and in
any event at least 15 days prior to the payment of any
interest in respect of the Permanent Debt, notice of such
prospective payment together with a schedule setting forth the
amount of any such payment."
5
(j) Section 5.04(a) is hereby amended by:
(A) inserting after the word "Holding" where
first occurring the words "set forth below";
(B) deleting the words "for the most recently
completed four fiscal quarters of Holding
and its Subsidiaries",
(C) deleting from the heading of the table the
words "Four Fiscal Quarters " and
substituting for such words the words
"Fiscal Quarter"; and
(D) deleting the lines:
Fiscal Quarter Ratio
-------------- -----
April 30, 2001 0.87
July 31, 2001 1.03
October 31, 2001 1.05
January 31, 2002 1.05
and replacing them with the following:
Fiscal Quarter Ratio
-------------- -----
July 31, 2001 1.00
October 31, 2001 1.00
January 31, 2002 1.00
(k) Section 5.04(b) is hereby amended by:
(A) inserting after the word "Holding" where
first occurring the words "set forth below";
(B) inserting after the words "such fiscal
quarter" the following proviso:
"; provided, however, that for the fiscal
quarters ending on or about July 31, 2001
and October 31, 2001, Consolidated EBITDA
and cash interest payable on all Debt shall
be the actual Consolidated EBITDA and the
actual cash interest payable on all Debt, as
the case may be, for such number of complete
fiscal quarters that have elapsed in the
Fiscal Year ending in 2002."; and
(C) deleting the lines:
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Fiscal Quarter Ratio
-------------- -----
April 30, 2001 1.85
July 31, 2001 1.85
October 31, 2001 1.95
January 31, 2002 2.05
April 30, 2002 2.10
July 31, 2002 2.15
and replacing them with the following:
Fiscal Quarter Ratio
-------------- -----
July 31, 2001 1.65
October 31, 2001 1.65
January 31, 2002 1.70
April 30, 2002 1.85
July 31, 2002 2.05
(l) Section 5.04(c) is hereby amended by (A) deleting the
words "quarter of Holding" and substituting for such words the words
"period of Holding set forth below" and (B) deleting the lines:
Four Fiscal Quarters Ending Closest To Ratio
-------------------------------------- -----
April 30, 2001 5.15
July 31, 2001 5.00
October 31, 2001 4.60
January 31, 2002 4.20
April 30, 2002 4.20
July 31, 2002 4.10
October 31, 2002 4.00
and replacing them with the following:
Period Ratio
------ -----
Two fiscal quarters ending July 31, 2001 5.85
Three fiscal quarters ending October 31, 2001 5.90
Four fiscal quarters ending closest to:
January 31, 2002 5.70
April 30, 2002 5.15
July 31, 2002 4.60
October 31, 2002 4.30
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(m) Section 5.04(d) is hereby amended by deleting the lines:
Period Amount
January 12, 2001 - February 16, 2001 $121,200,000
February 17, 2001 - February 28, 2001 $93,500,000
June 15, 2001 - August 15, 2001 $115,000,000
December 15, 2001 - February 15, 2002 $95,000,000
June 15, 2002 - August 15, 2002 $105,000,000
December 15, 2002 - February 15, 2003 $85,000,000
June 15, 2003 - August 15, 2003 $100,000,000
December 15, 2003 - February 15, 2004 $80,000,000
June 15, 2004 - August 15, 2004 $100,000,000
and replacing them with the following:
Period Amount
February 5, 2001 - The date of the February 2001 Equity Contribution (as
defined below) $126,600,000
The date of the February 2001 Equity Contribution (as defined below) -
March 31, 2001 $150,000,000
April 1, 2001 - April 30, 2001 $150,000,000
May 1, 2001 - May 31, 2001 $150,000,000
June 1, 2001 - June 30, 2001 $150,000,000
July 1, 2001 - September 30, 2001 $130,000,000
(n) Section 5.04(e) is hereby amended by:
(A) deleting the words "on the dates or period set
forth below" and substituting for such words the words "at the
end of each fiscal month or fiscal quarter of Holding ending
on or about the date set forth below"; and
(B) deleting the lines:
Date Ratio
---- -----
January 15, 2001 - February 16, 2001 0.90
February 28, 2001 0.90
March 31, 2001 0.87
April 30, 2001 0.86
May 31, 2001 0.85
June 30, 2001 0.83
July 31, 2001 0.82
August 31, 2001 0.84
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September 30, 2001 0.82
October 31, 2001 0.82
November 30, 2001 0.82
December 31, 2001 0.80
January 31, 2002 0.82
April 30, 2002 0.79
July 31, 2002 0.75
October 31, 2002 0.74
January 31, 2003 and thereafter 0.70
and replacing them with the following:
Date Ratio
---- -----
February 28, 2001 0.98
March 31, 2001 0.92
April 30, 2001 0.90
May 31, 2001 0.91
June 30, 2001 0.96
July 31, 2001 0.96
August 31, 2001 0.93
September 30, 2001 0.90
October 31, 2001 0.89
November 30, 2001 0.83
December 31, 2001 0.89
January 31, 2002 0.95
February 28, 2002 0.95
March 31, 2002 0.83
April 30, 2002 0.80
May 31, 2002 0.74
June 30, 2002 0.83
July 31, 2002 0.88
October 31, 2002 0.75
January 31, 2003 0.84
Quarterly thereafter 0.70
(o) Section 5.04(f) is hereby amended by deleting the lines:
Period Amount
------ ------
Fiscal Year Ending 2002 $97,000,000
Fiscal Year Ending 2003 $100,000,000
Fiscal Year Ending 2004 $104,000,000
and replacing them with the following:
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Period Amount
------ ------
Fiscal Year Ending 2002 $71,000,000
Fiscal Year Ending 2003 $85,000,000
Fiscal Year Ending 2004 $101,000,000
(p) Section 6.01(r) is hereby amended in full to read as
follows:
"(r) Holding shall have failed to receive (after the Effective
Date of Amendment No. 6) cash proceeds of at least $12,500,000 (not
including the $2,500,000 contributed pursuant to Section 3(g) of
Amendment No. 6) from the sale of common stock or convertible preferred
stock (not subject to mandatory redemption) of Holding (the "February
2001 Equity Contribution") on or before February 14, 2001."
(q) Schedule I to the Credit Agreement is amended by deleting
the figure "$20,000,000" representing the aggregate Letter of Credit
Commitments and substituting for such figure the expression
"$15,000,000 until January 31, 2003 and $20,000,000 thereafter".
SECTION 2. Waiver. Subject to the occurrence of the Effective
Date the Required Lenders hereby agree to waive the requirements of Section
5.04(a) through (f) for the period of four fiscal quarters ending closest to
January 31, 2001.
SECTION 3. Conditions of Effectiveness of this Amendment and
Waiver. This Amendment and Waiver shall become effective as of the date first
above written on the Business Day when, and only when, the following conditions
shall have been satisfied (such date being, for purposes hereof, the "Effective
Date"):
(a) The Administrative Agent shall have received counterparts
of (i) this Amendment and Waiver executed by the Borrower, Holding and
the Required Lenders or, as to any of the Lender Parties, advice
satisfactory to the Administrative Agent that such Lender Party has
executed this Amendment and Waiver and (ii) the consent dated as of the
date hereof (a copy of which is attached hereto) (the "Consent",
together with this Amendment and Waiver, the "Amendment Documents"),
executed by each of the Loan Parties.
(b) Certified copies of (i) the resolutions of the Board of
Directors of (A) the Borrower approving this Amendment and Waiver and
the matters contemplated hereby and thereby and (B) each other Loan
Party evidencing approval of the Consent and the matters contemplated
hereby and thereby and (ii) all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
this Amendment, the Consent and the matters contemplated hereby and
thereby.
(c) A certificate of the Secretary or an Assistant Secretary
of the Borrower and each other Loan Party certifying the names and true
signatures of the officers of the
10
Borrower and such other Loan Party authorized to sign this Amendment,
the Consent and the other documents to be delivered hereunder and
thereunder.
(d) The Administrative Agent shall have received a favorable
opinion of Xxxxxxxx & Worcester, counsel for the Borrower and Holding,
in form and substance satisfactory to the Administrative Agent.
(e) On the Effective Date (and giving effect thereto), (i) the
representations and warranties contained in each of the Loan Documents
(including, without limitation, in Section 4 of this Amendment and
Waiver) shall be correct in all material respects as though made on and
as of the Effective Date (other than any such representations or
warranties that, by their terms, refer to a specific date other than
the Effective Date, in which case as of such specific date) and (ii) no
event shall have occurred and be continuing that would constitute a
Default.
(f) The Administrative Agent shall have received a certificate
of the Chief Financial Officer of the Borrower confirming satisfaction
of the conditions specified in paragraph (e) above and paragraph (g)
below.
(g) The Administrative Agent shall have received written
evidence that some or all of the Equity Investors along with other
persons, have invested in Holding after February 1, 2001 not less than
$2,500,000 through the purchase for cash of common stock or convertible
preferred stock (not subject to mandatory redemption) of Holding to be
used for the operation of the business of the Loan Parties.
(h) The Administrative Agent shall have received from the
Borrower, on or before the Effective Date, an amendment fee equal to
$400,000 payable to those Lenders which have signed this Amendment and
Waiver by the later of (i) 5:00 pm on February 5, 2001 and (ii) the
date on which the Required Lenders have signed this Amendment and
Waiver according to the pro rata share of the Commitments of each such
Lender, provided, that the Administrative Agent may, in the exercise of
its discretion, pay to any Lender who signs this Amendment and Waiver
after 5:00 pm on February 5, 2001 its pro rata share of the amendment
fee.
(i) All of the reasonable accrued and unpaid fees and expenses
of counsel and accountants for the Administrative Agent shall have been
paid in full, including, without limitation, the fees and expenses of
FTI/Xxxxxxxx & Xxxxx, L.L.C. and Shearman & Sterling, provided that
following the payment of such fees and expenses the balance of the
retainer held by Shearman & Sterling for application against future
fees and expenses shall be $75,000 and the balance of the retainer held
by FTI/Xxxxxxxx & Xxxxx, L.L.C. for application against future fees and
expenses shall be $50,000.
(j) The Borrower shall have paid in full all of the reasonable
accrued and unpaid fees and expenses of Great American Group, or such
other appraisal firm hired by
11
the Administrative Agent, with respect to the appraisal of real
property conducted by them.
The effectiveness of this Amendment and Waiver is further conditioned
upon the accuracy of all of the factual matters described herein. This Amendment
and Waiver is further subject to the provisions of Section 9.01 of the Credit
Agreement.
SECTION 4. Representations and Warranties. Each of Holding and
the Borrower hereby represents and warrants as follows:
(a) The execution, delivery and performance by each Loan Party
of any of the Amendment Documents and Loan Documents to which it is a
party, as amended hereby, and the consummation of the transactions
contemplated hereby and thereby, are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action,
and do not (i) contravene such Loan Party's charter or bylaws, (ii)
violate any law (including, without limitation, the Securities Exchange
Act of 1934), rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree, determination or award
applicable to such Loan Party, (iii) conflict with or result in the
breach of, or constitute a default under, any contract, loan agreement,
indenture (including without limitation the Indenture), mortgage, deed
of trust, lease or other instrument binding on or affecting any Loan
Party, any of its Subsidiaries or any of their properties other than as
specified in the Credit Agreement, or (iv) except for Liens created
under the Collateral Documents, as amended hereby, result in or require
the creation or imposition of any Lien upon or with respect to any of
the properties of any Loan Party or any of its Subsidiaries. No Loan
Party or any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or
breach of which is reasonably expected to have a Material Adverse
Effect.
(b) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required to be obtained by the Loan Parties
in connection with the execution and delivery, or performance by any
Loan Party of any of its obligations under, any Amendment Document to
which it is a party.
(c) Each Amendment Document has been duly executed and
delivered by each Loan Party party thereto, and is the legal, valid and
binding obligation of such Loan Party, enforceable against such Loan
Party in accordance with its terms except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or limiting creditors' rights or by equitable principles
generally.
(d) No Loan Party has an existing claim against any Lender
Party arising out of, relating to or in connection with the Loan
Documents.
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(e) No Loan Party is in breach of, or in default under, the 10
5/8 % Senior Notes due 2007 issued by the Borrower, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument, binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties, where the consequence of such
default is to confer rights upon any person against the Borrower or any
of its Subsidiaries which, if exercised, can be reasonably expected to
have a Material Adverse Effect.
SECTION 5. Waiver and Release. The Borrower and Holding hereby
waive and agree not to assert any claims or causes of action against the
Administrative Agent, the Syndication Agent, the Documentation Agent, any Lender
Party or any of their Affiliates, or any of their respective officers,
directors, employees, attorneys and agents, on any theory of liability, whether
known or unknown, matured or contingent, including, without limitation, for
special, indirect, consequential or punitive damages, in each case to the extent
arising on or before the date hereof, out of or otherwise relating to, or in
connection with, the Amendment Documents, the Facilities, the actual or proposed
use of the proceeds of the Advances or the Letters of Credit, the Loan Documents
or any of the transactions entered into in connection therewith.
SECTION 6. Reference to and Effect on the Loan Documents.
(a) On and after the Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the Credit Agreement, and each reference in
the Notes and the other Loan Documents to "the Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement, as
amended and otherwise modified hereby.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, except to the extent of the amendments and other
modifications specifically provided above, are and shall continue to be
in full force and effect and are hereby in all respects ratified and
confirmed. Without limiting the generality of the foregoing, the
Collateral Documents and all of the Collateral described therein do and
shall continue to secure the payment of all Obligations of the Loan
Parties under and in respect of the Loan Documents, as amended and
otherwise modified by this Amendment and Waiver.
(c) The execution, delivery and effectiveness of this
Amendment and Waiver shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender Party
or any Agent under any of the Loan Documents, nor constitute a waiver
of any provision of any of the Loan Documents.
SECTION 7. Costs and Expenses. The Borrower hereby agrees to
pay, upon demand, all costs and expenses of the Administrative Agent (including,
without limitation, the reasonable fees and expenses of counsel and financial
advisors for the Administrative Agent) in connection with the preparation,
execution, delivery, administration, syndication, modification and amendment of
this Amendment and Waiver and the other documents, instruments and agreements to
be delivered hereunder, all in accordance with the terms of Section 9.04 of the
13
Credit Agreement. The Borrower also agrees to pay, upon demand, all costs and
expenses of the Administrative Agent and the reasonable out-of-pocket expenses
incurred by any Lender appointed to a steering committee by the Administrative
Agent, in connection with inventory appraisals, field examinations and related
examinations of the inventory, equipment, real property and leases and any
meetings of the steering committee or with the management of any of the Loan
Parties.
SECTION 8. Execution in Counterparts. This Amendment and
Waiver 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. Delivery of an executed counterpart of a signature page to this
Amendment and Waiver by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment and Waiver.
SECTION 9. Governing Law. This Amendment and Waiver shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 10. Waiver of Jury Trial. Each of the Borrower, the
Subsidiary Guarantors, the Administrative Agent and the Lender Parties
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Amendment and Waiver or the actions of the Administrative Agent
or any Lender Party in the negotiation, administration, performance or
enforcement thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
QUALITY STORES, INC. (FORMERLY KNOWN
AS CENTRAL TRACTOR FARM & COUNTRY, INC.)
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Senior Vice-President, Finance
and Chief Financial Officer
QSI HOLDINGS, INC. (FORMERLY KNOWN AS
CT HOLDING, INC.)
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Senior Vice-President, Finance
and Chief Financial Officer
FLEET NATIONAL BANK,
as Administrative Agent and Lender
By: /s/
Title: Vice President
LENDERS
BANK OF AMERICA, N.A.
By: /s/
Title: Principal
XXXXX XXX & XXXXXXX CLO I LTD.,
By: Xxxxx Xxx & Farnham Incorporated
as Portfolio Manager
By: /s/ Xxxxx X. Xxxxxxx
Title: Sr. Vice President & Portfolio
Manager
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
Title: Senior Vice President / Director
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
THE HUNTINGTON NATIONAL BANK
By: /s/
Title: Senior Vice President
XXXXXX FINANCIAL, INCORPORATED
By: /s/
Title: Assistant Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/
Title: Vice President
COMERICA BANK
By: /s/
Title: Vice President
KEY CORPORATE CAPITAL
By: /s/
Title: Vice President
BHF (USA) CAPITAL CORPORATION
By: /s/ Xxxxxxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxx Xxxx
Title: Associate
UNION BANK OF CALIFORNIA, N.A.
By: /s/
Title: Vice President
FIRSTAR BANK, NATIONAL ASSOCIATION
By: /s/
Title: Vice President
NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Xxxxx Xxxxx
Title: Senior Vice President & Senior
Team Leader
STATE STREET BANK AND TRUST COMPANY,
as Trustee for GENERAL MOTORS EMPLOYEES
GLOBAL GROUP PENSION TRUST
By: ______________________________________
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee for GENERAL MOTORS WELFARE
BENEFITS TRUST
By: ______________________________________
Title:
SEQUILS PILGRIM - I LTD.
By: Pilgrim Investments, Inc., as its
Investment Manager
By: /s/ Xxxxxxx X. XxXxxxx, CFA
Title: Vice President
PERSEUS CDO I, LIMITED
By: Massachusetts Mutual Life Insurance
Company as its Collateral Manager
By: /s/ Xxxxxx X. Xxxx
Title: Second Vice President and
Associate General Counsel
XXXXX XXX FLOATING RATE LIMITED LIABILITY
COMPANY
By: /s/ Xxxxx X. Xxxxxxx
Title: Senior Vice President
Xxxxx Xxx & Farnham
Incorporated, as Advisor to the
Xxxxx Xxx Floating Rate Limited
Liability Company
SAAR HOLDINGS CDO LIMITED
By: Massachusetts Mutual Life Insurance
Company as its Collateral Manager
By: /s/ Xxxxxx X. Xxxx
Title: Second Vice President and
Associate General Counsel
KZH CYPRESSTREE - 1 LLC
By: /s/ Xxxxx Xxx
Title: Authorized Agent
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, L.P.
as Collateral Manager
By: /s/
Title: Executive Vice President
Highland Capital Management L.P.
BALANCED HIGH YIELD FUND II, LTD.
By: BHF (USA) Capital Corporation, as its
attorney-in-fact
By: /s/ Xxxxxxxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxx Xxxx
Title: Associate
CYPRESSTREE INSTITUTIONAL FUND, LLC
By: CypressTree Investment Management
Company, as Portfolio Manager
By: ______________________________________
Title:
NORTH AMERICAN SENIOR FLOATING RATE FUND
By: CypressTree Investment Management
Company, as Portfolio Manager
By: ______________________________________
Title:
SANKATY HIGH YIELD PARTNERS II, L.P.
By: /s/ Xxxxx X. Exeter
Title: Executive Vice President
Portfolio Manager
Sankaty Advisors, Inc. as Collateral Manager
for XXXXX POINT CBO 1999-1, LTD., as Term
Lender
By: /s/ Xxxxx X. Exeter
Title: Executive Vice President
Portfolio Manager
Sankaty Advisors, Inc. as Collateral Manager
for XXXXX POINT II CBO 2000-1, LTD., as Term
Lender
By: /s/ Xxxxx X. Exeter
Title: Executive Vice President
Portfolio Manager
Sankaty Advisors, Inc. as Collateral Manager
for GREAT POINT CLO 1999-1 LTD., as Term
Lender
By: /s/ Xxxxx X. Exeter
Title: Executive Vice President
Portfolio Manager
MONUMENT CAPITAL LTD., as Assignee
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management Corporation,
as General Partner
By: /s/ Sverker X.X. Xxxxxxxxx
Title: Vice President
KZH WATERSIDE LLC
By: /s/ Xxxxx Xxx
Title: Authorized Agent
ELC (CAYMAN) LTD. 1999-III
By: /s/ X. X. Xxxxxxxx, III
Title: Managing Director
IDM
ELC (CAYMAN) LTD. 2000-I
By: /s/ X. X. Xxxxxxxx, III
Title: Managing Director
IDM
PILGRIM CLO 1999-1 LTD.
By: Pilgrim Investments, Inc., as its
Investment Manager
By: /s/ Xxxxxxx X. XxXxxxx, CFA
Title: Vice President
GLENEAGLES TRADING LLC
By: /s/ Xxx X. Xxxxxx
Title: Asst. Vice President
BANKERS TRUST COMPANY
as Trustee for EIF 2-Blue Square Funding
By: /s/
Title: Vice President
FIFTH THIRD BANK
By: /s/
Title:
CONSENT
Dated as of February 5, 2001
Reference is made to (a) Amendment No. 6 to the Second Amended
and Restated Credit Agreement dated as of May 7, 1999 as amended by Amendment
No. 1 dated as of March 31, 2000, Amendment No. 2 and Waiver dated as of
September 22, 2000, Amendment No. 3 dated as of September 27, 2000, Amendment
No. 4 dated as of December 4, 2000 and Amendment No. 5 dated as of January 16,
2001 (as so amended, the "Credit Agreement") among Quality Stores, Inc., a
Delaware corporation (formerly known as "Central Tractor Farm & Country, Inc.")
(the "Borrower"), QSI Holdings, Inc., a Delaware corporation (formerly known as
"CT Holding, Inc.") ("Holding"), the banks, financial institutions and other
institutional lenders listed on the signature pages thereof, and Fleet National
Bank ("Fleet"), as administrative agent (the "Administrative Agent") for the
Lender Parties (as defined in the Credit Agreement) and (b) the other Loan
Documents referred to therein. Capitalized terms defined in the Credit Agreement
and not otherwise defined in this Consent are used herein as therein defined.
Each of the undersigned, in its capacity as (a) a Grantor
under the Security Agreement, (b) a Grantor under the Intellectual Property
Security Agreement, (c) a Pledgor under the Pledge Agreement, and/or (d) a
Subsidiary Guarantor under the Subsidiary Guaranty, as the case may be, hereby
consents to the execution and delivery of the Amendment and Waiver and the
performance of the Amendment and Waiver and agrees that:
(A) each of the Security Agreement, the Intellectual Property
Security Agreement, the Pledge Agreement and the Subsidiary Guaranty to
which it is a party is, and shall continue to be, in full force and
effect and is hereby in all respects ratified and confirmed on the
Effective Date, except that, on and after the Effective Date, each
reference to "the Credit Agreement", "thereunder", "thereof", "therein"
or words of like import referring to the Credit Agreement shall mean
and be a reference to the Credit Agreement, as amended and otherwise
modified by the Amendment and Waiver; and
(B) as of the Effective Date, the Security Agreement, the
Intellectual Property Security Agreement and the Pledge Agreement to
which it is a party and all of the Collateral of such Person described
therein, and the Subsidiary Guaranty and the guaranty provided
thereunder, do, and shall continue to, secure the payment of all of the
Secured Obligations.
This Consent shall be governed by, and construed in accordance
with, the laws of the State of New York.
Delivery of an executed counterpart of a signature page of
this Consent by telecopier shall be effective as the delivery of a manually
executed counterpart of this Consent.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
QUALITY STORES, INC. (FORMERLY KNOWN
AS CENTRAL TRACTOR FARM & COUNTRY, INC.)
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Senior Vice-President, Finance
and Chief Financial Officer
QSI HOLDINGS, INC. (FORMERLY KNOWN AS
CT HOLDING, INC.)
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Senior Vice-President, Finance
and Chief Financial Officer
COUNTRY GENERAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Senior Vice-President, Finance
and Chief Financial Officer
QUALITY FARM & FLEET, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Senior Vice-President, Finance
and Chief Financial Officer
QUALITY INVESTMENTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Senior Vice-President, Finance
and Chief Financial Officer
QSI TRANSPORTATION, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Senior Vice-President, Finance
and Chief Financial Officer
VISION TRANSPORTATION, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Senior Vice-President, Finance
and Chief Financial Officer
QUALITY STORES SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Title: Senior Vice-President, Finance
and Chief Financial Officer
