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EXHIBIT - 10.65
ASSUMPTION AND CONSENT AGREEMENT
THIS ASSUMPTION AND CONSENT AGREEMENT ("Agreement") is entered into as
of the _16th__ day of December, 1998 by and between GOODY'S FAMILY CLOTHING,
INC., a Tennessee corporation, GOODY'S MS, L.P., a Tennessee limited
partnership, GOODY'S IN, L.P., a Tennessee limited partnership, GFCTX, L.P., a
Tennessee limited partnership, GFCTN, L.P., a Tennessee limited partnership,
GFCGA, L.P., a Tennessee limited partnership, (the "Borrowers"), TREBOR of TN,
INC., a Tennessee corporation, SYDOOG, INC., a Delaware corporation, GOFAMCLO,
INC., a Delaware corporation (collectively, the "Guarantors"), GFCFS, LLC, a
Delaware limited liability company ("GFCFS, LLC"), and FIRST TENNESSEE BANK
NATIONAL ASSOCIATION, a national banking association with offices in Knoxville,
Tennessee, as administrative agent under the hereinafter defined Credit
Agreement (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement dated May 25, 1995
between Goody's Family Clothing, Inc. ("GFC"), the Administrative Agent, and the
Lenders named therein, as amended and restated by that certain Amended and
Restated Credit Agreement dated as of October 31, 1996 between GFC, GOODY'S MS,
L.P., GOODY'S IN, L.P., the Guarantors, the Administrative Agent, and the
Lenders named therein, and as further amended by that certain Amendment
Agreement dated May 16, 1997 between GFC, GOODY'S MS, L.P., GOODY'S IN, L.P.,
the Guarantors, the Administrative Agent and the Lenders named therein, that
certain Second Amendment Agreement dated September 23, 1997 between GFC, GOODY'S
MS, L.P., GOODY'S IN, L.P., GFCTX, L.P., the Guarantors, the Administrative
Agent and the Lenders named therein, and that certain Third Amendment Agreement
dated May 26, 1998 between GFC, GOODY'S MS, L.P., GOODY'S IN, L.P., GFCTX, L.P.,
GFCTN, L.P., GFCGA, L.P., and GFC FS, Inc., the Guarantors, the Administrative
Agent and the Lenders named therein (collectively, the "Credit Agreement"), the
Lenders have committed to make loans to the Borrowers in the principal amount of
$130,000,000 (the "Loans") pursuant to the terms and provisions thereof;
WHEREAS, pursuant to the Credit Agreement, the Borrowers have delivered
a Third Amended and Restated Promissory Note dated May 26, 1998 to each Lender
(collectively, the "Notes") in the amount of such Lender's Commitment (as
defined in the Credit Agreement);
WHEREAS, GFC FS, Inc. has merged with and into GFCFS, LLC and GFCFS,
LLC wishes to assume the obligations of GFC FS, Inc. under the Credit Agreement
and Notes;
WHEREAS, all terms capitalized herein and not otherwise defined shall
have the meanings ascribed to them in the Credit Agreement;
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NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Assumption of Obligations. GFCFS, LLC hereby assumes and
agrees to perform and/or pay all of GFC FS, Inc.'s liabilities, debts, duties
and obligations under the Credit Agreement and Notes.
2. Consent by Administrative Agent. The Administrative Agent, on
behalf of and with the consent of the Lenders, hereby consents to the merger of
GFC FS, Inc. into GFCFS, LLC and to the assumption by GFCFS, LLC of GFC FS,
Inc.'s liabilities and obligations under the Credit Agreement and the Notes.
3. Representations and Warranties. GFCFS, LLC hereby represents
and warrants as follows:
(a) GFCFS, LLC is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware; and GFCFS, LLC has the power to own and operate its
properties, to carry on its business as now conducted and to enter into
and to perform its obligations under this Agreement.
(b) The execution and delivery of this Agreement are
within the powers of GFCFS, LLC and have been duly authorized by all
necessary action properly taken, have received all necessary
governmental approvals, if any were required, and do not and will not
contravene or conflict with any provision of law, any applicable
judgment, ordinance, regulation or order of any court or governmental
agency, the operating agreement of GFCFS, LLC, or any agreements
binding upon GFCFS, LLC or its properties. The persons executing this
Agreement are duly authorized to act on behalf of GFCFS, LLC.
(c) This Agreement is the legal, valid and binding
obligation of GFCFS, LLC, enforceable in accordance with its terms,
subject to bankruptcy and similar creditor right's laws and principles
of judicial discretion and equity.
(d) There are no actions, suits or proceedings pending,
or, to the knowledge of GFCFS, LLC, threatened, against or affecting
GFCFS, LLC involving the validity or enforceability of this Agreement
or the assumption of the obligations and liabilities of GFC FS, Inc.
under the Credit Agreement and Notes, at law or in equity, or before
any governmental or administrative agency.
4. Agreement of Borrowers and Guarantors. The Borrowers and
Guarantors acknowledge that the assumption by GFCFS, LLC of the liabilities of
GFC FS, Inc. pursuant to this Agreement does not release the obligations of the
Borrowers and Guarantors under the Credit Agreement or Notes.
5. Continuing Effect of Documents. Except as expressly modified
by or provided for in this Agreement, the terms and provisions of the Credit
Agreement and all other documents relating to the Loans shall remain in full
force and effect as originally executed.
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6. Completeness and Modification. This Agreement constitutes the
entire agreement between the parties hereto as to the transactions contemplated
hereby and supersedes all prior discussions, understandings or agreements
between the parties hereto.
7. Successors and Assigns. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective successors and assigns.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
BORROWERS:
GOODY'S FAMILY CLOTHING, INC.
By: /s/ Xxxxx X. Call
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Title: President and COO
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GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
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Title: President and COO
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GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
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Title: President and COO
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GFCTX, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
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Title: President and COO
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GFCTN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
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Title: President and COO
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GFCGA, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
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Title: President and COO
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GUARANTORS:
SYDOOG, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Title: President
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GOFAMCLO, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Title: President
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TREBOR OF TN, INC., a Tennessee corporation
By: /s/ Xxxxx X. Call
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Title: President and COO
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GFCFS, LLC
GFCFS, LLC
By: /s/ Xxxxx X. Call
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Title: President and COO
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ADMINISTRATIVE AGENT
FIRST TENNESSEE BANK NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx
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Title: Senior Vice President
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