EXHIBIT 4-F
COLLATERAL ASSIGNMENT OF LESSEE'S INTEREST IN LEASES
THIS COLLATERAL ASSIGNMENT OF LESSEE'S INTEREST IN LEASES
(the "Assignment") is made as of July 26, 1999, by SOUTHWEST
DINING, INC., an Indiana corporation ("Lessee") to CHASE
BANK OF TEXAS, NATIONAL ASSOCIATION, a national banking
association, as Administrative Agent under the hereinafter
defined Credit Agreement (the "Agent"). Capitalized terms
used herein and not defined herein shall have the meanings
assigned thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Lessee is the tenant under certain Leases
identified on Exhibit A (as amended or modified and
including all extensions, renewals or replacements thereof,
the "Leases") between Lessee and (the "Lessor") covering the
premises identified in Exhibit A hereto (the "Premises");
WHEREAS, Quality Dining, Inc. and GAGHC, Inc. (the
"Borrowers") have entered into that certain Third Amended
and Restated Revolving Credit Agreement dated as of May 11,
1999, as amended by a First Amendment to Third Amended and
Restated Revolving Credit Agreement dated as of July 26,
1999 (said agreement as so amended and as it may be amended,
supplemented, restated or otherwise modified from time to
time in accordance with the terms thereof, the "Credit
Agreement") among the Borrowers, the Banks which are party
thereto and the Agent, pursuant to which the Banks have
agreed to make available to the Borrowers revolving credit
loans and letters of credit in accordance with the terms
thereof;
WHEREAS, it is a condition to the agreement of the Banks'
obligation to make loans under the Credit Agreement that the
Obligations are secured by the collateral as described and
as provided herein;
NOW, THEREFORE, the Lessee, for and in consideration of
these presents and the mutual agreements herein contained
and for other good and valuable consideration, the receipt
whereof is hereby acknowledged, and to secure payment and
performance of the Obligations, does hereby collaterally,
assign and transfer unto and grant a security interest in
favor of the Agent in all of Lessee's right, title and
interest, as lessee, in and to the Leases, including any and
all extensions, renewals and replacements thereof (the
"Collateral").
To protect and further the security of this Assignment, the
Lessee agrees as follows:
1. Leasehold Estate. Lessee hereby represents and
covenants:
(a) that the Leases are in full force and effect and
unmodified;
(b) that all rents (including additional rents and other
charges) reserved in the Leases have been paid to the extent
they were payable prior to the date hereof;
(c) that there is no uncured default under the Leases or in
the performance of any of the terms, covenants, conditions
or warranties thereof on the part of the Lessee to be
observed and performed. Further, no state of facts exist
under the Leases which, with the lapse of time or giving of
notice or both, would constitute a default thereunder.
This Assignment is a collateral assignment, made to secure
the Obligations and is effective immediately.
Notwithstanding anything contained herein to the contrary,
the Agent shall not be responsible or obligated to the
Lessor for any obligation, agreement or liability of the
Lessee under the Leases, unless and until Lessor elects to
assume the Leases pursuant to Section 6 hereof and delivers
to Lessor written notice of such assumption. Notwithstanding
this Assignment, the Lessee shall be and remain obligated to
the Lessor to perform all of the Lessee's obligations and
agreements under the Leases, and the Lessor shall be and
remain obligated to the Lessee to perform all of the
Lessor's obligations and agreements under the Leases.
2. Payment of Lease Expenses. The Lessee shall pay or
cause to be paid all rents, additional rents, taxes,
assessments, water rates, sewer rents, and other charges and
impositions payable by the Lessee under the Leases for which
provision has not been made hereinbefore, when and as often
as the same shall become due and payable. Lessee will in
every case deliver, or cause to be delivered, a proper
receipt for any such item so paid and will, upon request by
Agent, within ten (10) days after the time when such payment
shall be due and payable, deliver to the Agent, a copy of
the receipts for any such payments.
3. Lessee's Representations and Covenants with Respect to
Leases.
(a) Lessee is the sole owner of the entire lessee's
interest in the Lease, and has not executed and shall not
execute any other assignment of the Leases and has not
conveyed and will not convey to another or encumber any
interest it has under the Leases or in the Premises and has
not and shall not perform any acts or execute any other
instruments that might prevent Agent from fully exercising
its rights under any of the terms, covenants and conditions
of this Assignment. Lessee further agrees to defend the
leasehold estate created under the Leases for the entire
remainder of the term set forth therein, against all and
every person or persons lawfully claiming, or who may claim
the same or any part thereof, subject to the payment of the
rents in the Leases reserved and subject to the performance
and observance of all of the terms, covenants, conditions
and warranties thereof.
(b) The Leases are valid and enforceable in accordance with
their terms and have not been altered, modified, amended or
terminated and none of the terms and conditions thereof has
been waived in any manner whatsoever except in each case as
disclosed in writing to Agent.
(c) The Lessee shall at all times promptly and faithfully
keep and perform, or cause to be kept and performed, all the
covenants and conditions contained in the Leases by the
Lessee under the Leases to be kept and performed and in all
respects conform to and comply with the terms and conditions
of the Leases, and the Lessee further covenants that it
shall not do or permit anything which will impair or tend to
impair the security of the Banks and the Agent under the
Loan Documents or will be grounds for declaring a forfeiture
of the Leases, and upon any such failure aforesaid, Lessee
shall be subject to all of the rights and remedies granted
Agent under the Loan Documents.
(d) The Leases are in full force and effect. The Lessee
shall not modify, extend or in any way alter the terms of
the Leases or cancel or surrender the Leases, or waive,
execute, condone or in any way release or discharge the
Lessor of or from the obligations, covenants, conditions and
agreements by the Lessor to be done and performed; and the
Lessee does expressly release, relinquish and surrender unto
the Agent all of its rights, power and authority to cancel,
surrender, amend, modify or alter in any way the terms and
provisions of the Leases and any attempt on the part of the
Lessee to exercise any such right without the written
approval and consent of the Agent thereto being first had
and obtained shall constitute a default under the terms
hereof and under the Loan Documents.
(e) Lessee shall be deemed in default if the Lessee fails
to give the Agent immediate notice of any default under the
Leases (or any of them) or of the receipt by it of any
notice of default from the Lessor thereunder, or if the
Lessee fails to furnish to the Agent immediately any and all
information which it may request concerning the performance
by the Lessee of the covenants of the Leases, or if the
Lessee fails to permit the Agent or its representative at
all reasonable times to make investigation or examination
concerning the performance by the Lessee of the covenants of
the Leases, or if the Lessee fails to permit the Agent or
its representative at all reasonable times to make
investigation or examination concerning such performance.
The Lessee shall deliver to the Agent an original executed
copy of the Leases, an estoppel certificate from the Lessor
of the Leases within ten (10) days of request by Agent and
in such form and content as shall be reasonably satisfactory
to Agent, as well as any and all documentary evidence
received by it showing compliance by the Lessee with the
provisions of the Leases.
(f) In the event of any failure by Lessee to perform any
covenant on the part of Lessee to be observed and performed
under the Leases, the performance by Agent of behalf of
Lessee of such covenant shall not remove or waive, as
between Lessee and Agent, the corresponding default under
the terms hereof and any amount so advanced by Agent or any
costs incurred in connection therewith, with interest
thereon at an interest rate per annum equal to the Base Rate
plus 2.0%, shall constitute additional indebtedness and be
immediately due and payable.
4. Merger. So long as any of the Obligations shall remain
unpaid, unless the Agent shall otherwise in writing consent,
the fee title and the leasehold estate created under each of
the Leases shall not merge but shall always be kept separate
and distinct, notwithstanding the union of said estates
either in the Lessor or in the Lessee, as lessee, or in a
third party, by purchase or otherwise; and the Lessee
covenants and agrees that if it shall acquire the fee title,
or any other estate, title or interest in the Premises
covered by said Leases, the Leases shall be considered as
assigned or conveyed to the Agent and the lien hereof spread
to cover such estate with the same force and effect as
though specifically herein assigned or conveyed and spread.
The provisions of this paragraph shall not apply if the
Agent or any Bank acquires the fee of the Premises unless
Agent shall so elect.
5. Further Assurances and Assignments. The Lessee agrees
to execute and deliver, immediately upon the request of
Agent, all such further assurances and assignments
concerning the Leases or the Premises as Agent shall from
time to time require.
6. Exercise of Remedies. In the event of an Event of
Default, Agent may, at its option, do any of the following:
(i) cause the Leases (or any of them) to be sold at private
or public sale to the highest bidder for cash in accordance
with the provisions of the Uniform Commercial Code or other
applicable law; (ii) assume the Leases (or any of them),
designate a third party to assume the Leases (or any of
them) or assign the Leases (or any of them) to a third
party; (iii) assume the Leases (or any of them) or sublease
the Leases (or any of them) or the Premises or any part
thereof to a third party; and (iv) exercise any other right
or remedy the Agent may have by contract, at law, or in
equity. Upon demand of Agent, the Lessee agrees to surrender
to Agent and Agent (or its designee) shall be entitled to
take actual possession of the Premises or any part thereof
personally, or by its agents or attorneys. Agent is hereby
vested with full power to use all measures, legal and
equitable, deemed by it necessary or proper to enforce this
Assignment, including the right of
Agent (or its designee) with or without force or notice and
with or without process of law, to enter upon and take and
maintain possession of all or any part of the Premises,
together with all personal property, fixtures, documents,
books, records, papers and accounts of the Lessee or the
then owner of the Premises relating thereto, and may exclude
the Lessee, its agents, or servants, wholly therefrom and
may as attorney-in-fact of the Lessee, or in its own name
and under the powers herein granted, hold, operate, manage
and control the Premises and conduct the business, if any,
thereof either personally or by its agents. Lessee hereby
grants full power and authority to Agent to exercise all
rights, privileges and powers herein granted at any and all
times hereinafter, without notice to Lessee. Agent shall be
under no obligation to exercise or prosecute any of the
rights or claims assigned to in hereunder or to perform or
carry out any of the obligations of the lessee/tenant under
the Leases and does not assume any of the liabilities in
connection with or arising or growing out of the covenants
and agreements of Lessee in the Leases.
7. Indemnity. Agent shall not at any time (regardless of
any exercise by Agent, or right of Agent to exercise, any
powers herein conferred) be obligated to perform or
discharge, nor does it hereby undertake to perform or
discharge, any obligation, duty or liability under the
Leases and the Lessee shall and does hereby agree to
indemnify and hold Agent harmless from any and all
liability, loss or damage which Agent may or might incur
under or by reason of (a) the Leases, (b) the assignment
thereof, (c) any action taken by Agent or its agents
hereunder, unless constituting willful misconduct or gross
negligence, or (d) claims and demands which may be asserted
against it by reason of any alleged obligations or
undertakings on its part (or to cause the Lessee) to perform
or discharge any of the terms, covenants or agreements
contained in the Leases.
8. Power of Attorney. The Lessee does hereby appoint
irrevocably the Agent its true and lawful attorney in its
name and stead and hereby authorizes Agent, with or without
taking possession of the Premises, to take any and all
actions under the Leases, on behalf of Lessee, as it may
deem necessary. The power of attorney conferred upon Agent
pursuant to this Assignment is a power coupled with an
interest and cannot be revoked, modified or altered without
the written consent of Agent. Notwithstanding the
foregoing, the Agent agrees not to exercise any power
granted pursuant to this Section 8 except upon a default
hereunder or an Event of Default under the Credit Agreement.
9. Occurrence of Default. Agent shall not exercise any of
the rights and powers conferred upon it herein until and
unless there shall occur a default hereunder or an Event of
Default as defined in the Credit Agreement. Notwithstanding
the foregoing, Agent shall be under no obligation to
exercise its rights hereunder.
10. Election of Remedies. The provisions set forth in this
Assignment shall be deemed a special remedy given to Agent,
and shall not be deemed exclusive of any of the remedies
granted in the Credit Agreement, all of which remedies shall
be enforceable concurrently or successively. No exercise by
Agent of any of its rights hereunder shall cure, waive or
affect any default hereunder or any Default or Event of
Default under the Credit Agreement. No inaction or partial
exercise of rights by Agent shall be construed as a waiver
of any of its rights and remedies, and no waiver by Agent of
any such rights and remedies shall be construed as a waiver
by Agent of any of its other rights and remedies.
11. Notices. Any notice which any party hereto may desire
or may be required to give to any other party hereto shall
be given as set forth in the Credit Agreement.
12. Governing Law; Interpretation. This Assignment shall
be governed by the laws of the State of Indiana. Wherever
possible each provision of this Assignment shall be
interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this
Assignment shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of
this Assignment. Time is of the essence of this Assignment.
This Assignment shall be binding on the successors and
assigns of the parties hereto, however, Lessee may not
assign its rights and obligations hereunder without the
prior written consent of Agent.
13. Miscellaneous.
(a) Agent may take or release other security for the
Obligations, may release any party primarily or secondarily
liable for any of the Obligations, may grant extensions,
renewals or indulgences with respect to such Obligations and
may apply any other security therefor held by it to the
satisfaction of such Obligations without prejudice to any of
its rights hereunder.
(b) Waiver of or acquiescence by Agent in any default by
the Lessee, or failure of the Agent to insist upon strict
performance by the Lessee of any warranties or agreements in
this Assignment, shall not constitute a waiver of any
subsequent or other default or failure, whether similar or
dissimilar.
(c) The rights and remedies of Agent under this Assignment
are cumulative and are not in lieu of, but are in addition
to any other rights or remedies which Agent shall have under
the Loan Documents or any other documents executed in
connection therewith, or at law or in equity.
(d) If any term of this Assignment, or the application
thereof to any person or circumstance, shall, to any extent,
be invalid or unenforceable, the remainder of this
Assignment, or the application of such term to persons or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term
of this Assignment shall be valid and enforceable to the
fullest extent permitted by law.
(e) The terms "Agent" and "Debtor" shall be construed to
include the successors and assigns of each party. The
genders and numbers used in this assignment are used as
reference terms only and shall apply with the same effect
whether the parties are of the masculine or feminine gender
or corporate or other form, and the singular shall likewise
include the plural.
(f) This Assignment may not be amended, modified or changed
nor shall any waiver of any provision hereof be effective,
except by an instrument in writing signed by the party
against whom enforcement of any waiver, amendment, change,
modification or discharge is sought.
(g) The rights and remedies of Agent under this Assignment
are subordinate to Captec Financial Group, Inc. ("Captec")
and CNL Financial Services, Inc. ("CNL") pursuant to and in
accordance with the terms and conditions of that certain
Intercreditor Agreement dated August 3, 1999 (the
"Intercreditor Agreement") by and among Captec, CNL, Agent,
Lessee and certain affiliates of Lessee.
(h) So long as the Intercreditor Agreement is in effect,
neither Lessee nor Agent shall cause or permit any
recordation in any public records of this Assignment or any
memorandum thereof, without the prior written consent of
Captec and CNL.
IN WITNESS WHEREOF, the undersigned has caused this
agreement to
be executed as of the day and year first above written.
SOUTHWEST DINING, INC.
By:________________________________
Its:________________________________
STATE OF ______________ )
) ss:
COUNTY OF _______________ )
BE IT REMEMBERED, that on this _______ day of
____________, 1999, before me, the subscriber, an officer
duly authorized to take acknowledgments for use in the State
of ________, personally appeared ________________________,
who, I am satisfied is the person who executed the within
Instrument as the __________________ of
_____________________, the corporation named therein, and I
having first made known to [him] [her] the contents thereof,
[he] [she] did thereupon acknowledge that the said
Instrument made by the said corporation and delivered by
[him] [her] as such officer, is the voluntary act and deed
of said corporation, made by virtue of authority from its
Board of Directors, for the uses and purposes therein
expressed.
____________________________________
