Exhibit 10.39
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (the "Fourth
Amendment"), dated effective as of the 4th day of September, 1996,
by and among CATHERINES, INC., a Delaware corporation (the
"Company"), CATHERINES STORES CORPORATION, a Tennessee corporation
(successor by merger to Catherines Stores Corporation, a Delaware
corporation) (the "Parent"), CATHERINES OF PENNSYLVANIA, INC., a
Tennessee corporation ("PA Co."), CATHERINES OF CALIFORNIA, INC.,
a California corporation ("RT Co."), CATHERINES PARTNERS, L.P., a
Tennessee limited partnership ("Intex"), FIRST AMERICAN NATIONAL
BANK ("FANB") individually and in its capacity as Agent (as defined
in the Agreement) (the "Agent"), HIBERNIA NATIONAL BANK
("Hibernia"), and THE HONGKONG AND SHANGHAI BANKING CORPORATION
LIMITED ("Hongkong") (FANB, Hibernia and Hongkong, together with
their respective successors, transferees and assigns from time to
time parties hereto referred to collectively as the "Banks" and
each individually referred to as a "Bank").
RECITALS
The Company, Parent and Banks (together with Added Dimensions,
Inc., Xxxxx Xxxxx-Large Size Factory Outlet, Inc., and The Answer -
The Elegant Large Size Discounter, Inc. which have been merged into
Virginia Specialty Stores, Inc. ("VSS") and VSS which has been
merged into the Company) are parties to that certain Credit
Agreement dated as of March 31, 1994 (the "Credit Agreement").
Hibernia and Hongkong became parties to the Credit Agreement
by virtue of that certain Commitment Transfer Supplement dated of
even date with the Credit Agreement.
PA Co., RT Co. and Intex (together with CSC Sub, Inc. which
was the predecessor corporation of Parent) became Credit Parties to
the Credit Agreement and said Credit Agreement was amended by the
Credit Parties by virtue of that certain First Amendment to Credit
Agreement (the "First Amendment") dated as of January 29, 1995.
The Credit Agreement was amended by virtue of that certain
Second Amendment to Credit Agreement (the "Second Amendment") dated
as of December 6, 1995.
The Credit Agreement was further amended by virtue of that
certain Third Amendment to Credit Agreement dated as of ________,
199__ (the "Third Amendment") (the Credit Agreement, the First
Amendment, the Second Amendment and the Third Amendment referred to
collectively as the "Agreement").
The Credit Parties have requested that the Banks (a) extend
the Swingline Loan Termination Date and the Working Capital
Termination Date to March 15, 1999 and (b) make certain changes to
the financial covenants of the Agreement.
The Banks consent to and approve the foregoing request of the
Credit Parties, subject to the terms and conditions of the Fourth
Amendment.
All corporate actions required for the execution, delivery and
performance of the obligations hereunder incurred have been duly
taken.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties agree as follows:
SECTION ONE: DEFINITIONS
1.01 Defined Terms. Except as otherwise herein specifically
defined, all defined terms shall have the meanings stated in the
Agreement.
1.02 Definition of Fixed Charge Coverage Ratio. The
definition of "Fixed Charge Coverage Ratio" is hereby deleted in
its entirety.
1.03 Amended Definitions. Each of the following definitions
contained in Section 1 of the Agreement is hereby deleted and the
following definitions substituted in lieu thereof:
"Basic Documents" shall mean, collectively, the Credit
Agreement (including all schedules and exhibits thereto), as
amended by the First Amendment, the Second Amendment, the Third
Amendment and the Fourth Amendment (including all schedules and
exhibits hereto and thereto), the Working Capital Notes, the Term
Notes, the Swingline Note, the Security Documents, the First
Amendment Security Documents, the Second Amendment Security
Documents and the Fourth Amendment Security Documents.
"Swingline Loan Termination Date" shall mean the earlier
of (i) March 15, 1999 or (ii) such date as the Swingline Commitment
shall terminate hereunder.
"Swingline Note" shall mean the Swingline Note as
modified by the First Amendment to Swingline Note.
"Working Capital Notes" shall mean the First Amended and
Restated Working Capital Notes, as modified by the First Amendment
to the First Amended and Restated Working Capital Notes,
individually, a "Working Capital Note".
"Working Capital Termination Date" shall mean the earlier
of (i) March 15, 1999 or (ii) such date as the Working Capital
Commitment shall terminate hereunder.
1.04 New Definitions. Each of the following definitions are
hereby added to Section 1 of the Agreement:
"First Amendment to First Amended and Restated Working
Capital Note" shall mean the amendment to the First Amended and
Restated Working Capital Notes of the Company in favor of each of
the Banks, substantially in the form of Exhibit "A" to the Fourth
Amendment, individually, a First Amendment to First Amended and
Restated Working Capital Note.
"First Amendment to Swingline Note" shall mean the
amendment to the Swingline Note of the Company in favor of
Swingline Lender, substantially in the form of Exhibit "B" to the
Fourth Amendment.
"Fourth Amendment Security Documents" shall mean,
collectively, the Fourth Amendment; the First Amendments to First
Amended and Restated Working Capital Note, the First Amendment to
Swingline Note, the Second Modification and Extension of Leasehold
Deed of Trust; and the Second Modification and Extension of Deed of
Trust.
"Second Modification and Extension of Deed of Trust"
shall mean the modification to the Deed of Trust of The Industrial
Development Board of the City of Memphis and County of Shelby,
Tennessee, substantially in the form of Exhibit "C" to the Fourth
Amendment.
"Second Modification and Extension of Leasehold Deed of
Trust" shall mean the modification to the Leasehold Deed of Trust
of the Company and Parent, substantially in the form of Exhibit "D"
to the Fourth Amendment.
SECTION TWO: AMENDMENTS.
2.01 Amendment to Section 9.9. Section 9.9 of the Agreement
providing a negative covenant with respect to the Fixed Charge
Coverage Ratio is hereby deleted in its entirety.
2.02 The following Section 9.9 is hereby added to the
Agreement:
9.9 Capital Expenditures. Permit Capital Expenditures
to exceed an aggregate of $11,000,000.00 in any Fiscal Year.
2.03 Amendment to Section 9.10. Section 9.10 of the Agreement
is hereby deleted in its entirety and the following substituted
therefor:
9.10 Debt Coverage Ratio. Permit the Debt Coverage
Ratio, in each case for the period of four (4) fiscal quarters
ending on the last day of each fiscal quarter commencing with the
fiscal quarter ending July 31, 1996, to be less than 2.0 to 1.0.
SECTION THREE: CONDITIONS PRECEDENT.
3.01 Conditions to the Execution of the Fourth Amendment. The
obligation of the Banks to enter into the Fourth Amendment shall be
subject to the following conditions to the satisfaction of the
Agent:
(a) Fourth Amendment and Notes. Each Bank shall have
received an original of the Fourth Amendment duly executed by a
duly authorized officer of each of the Credit Parties and a First
Amendment to First Amended and Restated Working Capital Note, each
duly executed by a duly authorized officer of the Company.
Swingline Lender shall have received an original of the First
Amendment to Swingline Note duly executed by a duly authorized
officer of the Company.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on the date of the
Fourth Amendment. No Event of Default (or condition which would
constitute an Event of Default with the giving of notice, the lapse
of time, or both) under material (in the reasonable opinion of the
Company and the Agent) contracts of the Credit Parties such as, but
not limited to, agreements with respect to capital stock, financing
documents and lease agreements shall have occurred and be
continuing on the date of the Fourth Amendment.
(c) Amendment Fee. Agent shall have received an amendment
fee of $14,000.00 which shall be distributed on a pro rata basis to
the Banks by Agent.
(d) First Amendment to First Amended and Restated Working
Capital Note. Each Bank shall have received an original of a First
Amendment to First Amended and Restated Working Capital Note, each
duly executed by a duly authorized officer of the Company.
(e) Legal Opinions of Counsel to the Credit Parties. Each
Bank shall have received a counterpart of an opinion, dated the
date of the Fourth Amendment, of Waring Xxx, counsel to the Credit
Parties, in substantially the form of Exhibit "E".
(f) Regulation U of Federal Reserve System. Each Bank shall
have received a counterpart of Federal Reserve Form U-1 executed by
each Credit Party.
(g) Corporate Proceedings. Each Bank shall have received an
execution copy of the resolutions of the Boards of Directors of the
applicable Credit Parties authorizing the execution, delivery and
performance of the Fourth Amendment and the Fourth Amendment
Security Documents certified by the Secretary or Assistant
Secretary of the relevant Credit Parties as of the date of the
Fourth Amendment, which certificate shall state that the
resolutions thereby certified have not been amended, modified,
revoked or rescinded as of the date of the Fourth Amendment.
(h) Additional Documents to be Delivered. Each Bank shall
have received a counterpart of each of the Fourth Amendment
Security Documents (except for the First Amendment to the First
Amended and Restated Working Capital Note and the First Amendment
to the Swingline Note which shall be delivered in accordance with
the terms of subsection 3.01(a)), each duly executed and delivered
by the applicable Credit Party thereto and each of which shall be
in full force and effect.
(i) Representations and Warranties. The representations,
warranties and disclosures made by the Credit Parties in the
Agreement, as amended by the Fourth Amendment, or in any Basic
Document or made by any of the Credit Parties in any certificate,
document or financial or other statement furnished in connection
herewith or therewith, shall be true and correct in all material
respects on and as of the date of the Fourth Amendment with the
same effect as if made on such date.
SECTION FOUR: REPRESENTATIONS AND WARRANTIES.
4.01 Entity Existence; Compliance with Law.
(a) Each of the corporate Credit Parties (i) is duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation, (ii) has the corporate power
and authority and the legal right to own or lease and operate its
property, and to conduct the business in which it is currently
engaged, (iii) is duly qualified as a foreign corporation and in
good standing under the laws of each jurisdiction where failure so
to qualify and remain in good standing would materially and
adversely affect its ability to own or lease and operate its
property or to conduct the business in which it is currently
engaged or intends to engage in the future and (iv) is in
compliance with all Requirements of Law, except where noncompliance
would not have material adverse effect on the business, operations,
assets or financial conditions of each such Credit Party.
(b) Intex (i) is duly organized, validly existing and in good
standing under the laws of Tennessee, (ii) has the partnership
power and authority and the legal right to own or lease and operate
its property, and to conduct the business in which it is currently
engaged, (iii) is duly qualified as a foreign limited partnership
and in good standing under the laws of each jurisdiction where
failure so to qualify and remain in good standing would materially
and adversely affect its ability to own or lease and operate its
property or to conduct the business in which it is currently
engaged or intends to engage in the future and (iv) is in
compliance with all Requirements of Law, except where noncompliance
would not have material adverse effect on the business, operations,
assets or financial conditions of Intex.
4.02 Entity Power; Authorization; Enforceable Obligations.
(a) Each of the corporate Credit Parties has the corporate
power and authority, and Intex has the partnership power and
authority, to make, deliver and perform all of its respective
obligations in connection with the Agreement and the Fourth
Amendment Security Documents to which each is a party; each
corporate Credit Party has taken all necessary corporate action,
and Intex has taken all necessary partnership action, to authorize
the Fourth Amendment Security Documents, and to authorize the
execution, delivery and performance by each of the Fourth Amendment
Security Documents to which each is a party. No consent or
authorization of, filing with, or other act by or in respect of,
any other Person is required in connection with the execution,
delivery or performance by each of the Credit Parties or the
validity of or enforceability against each of the Credit Parties,
of the Fourth Amendment Security Documents to which each is a party
(except such filings as are necessary in connection with perfection
of the Liens created by such documents, which filings have been
duly made and/or obtained and are in full force and effect). Each
Fourth Amendment Security Document to which each Credit Party is a
party has been duly executed and delivered on behalf of each such
Credit Party. Each Fourth Amendment Security Document to which it
is a party constitutes a legal, valid and binding obligation of
each Credit Party, enforceable against each such Credit Party in
accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, moratorium or other similar
laws affecting creditors' rights generally, and except as
enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
4.03 No Legal Bar. The execution, delivery and performance by
each of the Credit Parties of each Fourth Amendment Security
Document to which it is a party do not and will not violate any
Requirement of Law or any Contractual Obligation applicable to or
binding upon the Credit Parties or any of their properties or
assets, except where noncompliance would not have a material effect
on the business, operations, property, assets or financial
condition of the Credit Parties taken as a whole and will not
result in the creation or imposition of any Lien on any such
properties or assets pursuant to the provisions of any Requirement
of Law or any Contractual Obligations other than the Lien of the
Security Documents.
4.04 No Default. None of the Credit Parties is in default in
the payment or performance of any of its Contractual Obligations in
any respect that is material to the Credit Parties, and no Default
or Event of Default has occurred and is continuing. None of the
Credit Parties is in default in any respect that is material to it
under any order, award or decree of any Governmental Authority or
arbitrator binding upon or affecting it or by which any of its
properties or assets may be bound or affected.
4.05 Fourth Amendment Security Documents. The property which
is subject to the Liens of the Security Documents, the First
Amendment Security Documents, the Second Amendment Security
Documents and the Fourth Amendment Security Documents constitutes
substantially all the property of any nature of the Credit Parties
other than Inventory, Excluded Leases, Equipment,(including
proceeds of Inventory, Excluded Leases and Equipment), "Assets to
be Sold" as defined in the HSB Purchase Agreement and rights under
the Company Merchant Services Agreement, the VSS Merchant Services
Agreement and the HSB Purchase Agreement.
4.06 Margin Regulations. None of the Credit Parties are
engaged, nor will they engage, principally or as one of their
important activities, in the business of extending credit for the
purpose of "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U
or Regulation G of the Board of Governors of the Federal Reserve
System as now and from time to time hereinafter in effect. No part
of the proceeds of any Loan will be used for "purchasing" or
"carrying" "margin stock" as defined in Regulation U of such Board
of Governors.
SECTION FIVE: MISCELLANEOUS.
5.01 Governing Law; No Third-Party Rights. THIS AGREEMENT AND
THE RIGHTS AND DUTIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF TENNESSEE.
5.02 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
5.03 No Other Amendments. All other terms and provisions of
the Agreement not modified or amended hereby shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Fourth
Amendment to Credit Agreement as of the day and year first above
written.
CATHERINES, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxx, Executive Vice
President
CATHERINES STORES CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxx, Executive Vice
President
CATHERINES OF PENNSYLVANIA, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxx, Executive Vice
President
CATHERINES OF CALIFORNIA, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxx, Executive Vice
President
CATHERINES PARTNERS, L.P.
By: CATHERINES, INC., its general partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxx, Executive
Vice President
FIRST AMERICAN NATIONAL BANK,
individually and as Agent
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
HIBERNIA NATIONAL BANK
By: /s/ Xxxxxxx Xxxx
------------------------------------
Xxxxxxx Xxxx
Title: Vice President
THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED
By: /s/ Xxxxx Xxxxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxxxx
Title: AVP
EXHIBIT A
FIRST AMENDMENT
TO
FIRST AMENDED AND RESTATED
WORKING CAPITAL NOTE
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED WORKING
CAPITAL NOTE (the "First Amendment") is made and entered into
effective as of the 31st day of July, 1996, by and between
CATHERINES, INC., a Delaware Corporation (the "Company") and FIRST
AMERICAN NATIONAL BANK, a national banking association with a place
for the conduct of business in Memphis, Tennessee, its successors
transferees and assigns (the "Bank").
WHEREAS, the Company executed a certain Working Capital Note
dated as of March 31, 1994, in the original principal sum of Eight
Million and No/100 Dollars ($8,000,000.00) payable to the order of
Bank as amended and restated by that certain First Amended and
Restated Working Capital Note (collectively, the "Working Capital
Note") dated as of March 31, 1994, in the principal sum of Ten
Million and no/100 Dollars ($10,000,000.00) executed by Company and
payable to the order of Bank; and
WHEREAS, the Working Capital Note is one of the Working
Capital Notes referred to in the Credit Agreement dated as of March
31, 1994, among the Company, the Credit Parties referred to therein
and the Banks referred to therein, as amended by First Amendment to
Credit Agreement dated as of January 29, 1995, Second Amendment to
Credit Agreement dated as of December 6, 1995, Third Amendment to
Credit Agreement dated as ______________, 19___, and by Fourth
Amendment to Credit Agreement dated of even date herewith (as the
same may from time be amended, supplemented or otherwise modified,
the "Credit Agreement"); and
WHEREAS, the parties hereto by means of this First Amendment
desire to modify the terms of the Working Capital Note for the
purpose of reflecting certain modifications to the Credit
Agreement.
NOW, THEREFORE, for mutual consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Amendment to Working Capital Termination Date. The
"Working Capital Termination Date" as used in the Working Capital
Note, shall be amended to extend same from March 15, 1998 to March
15, 1999.
2. Legend and Attachment. This First Amendment shall be
physically attached to the Working Capital Note and the following
legend shall be placed on the face of the Working Capital Note:
This Working Capital Note has been amended by
First Amendment to First Amended and Restated
Working Capital Note dated as of July 31,
1996, the original of which is attached
hereto.
3. Reaffirmation of Obligations. All terms and provisions
of the Working Capital Note not herein specifically modified or
amended shall remain in full force and effect as if this First
Amendment had not been executed and all such terms and provisions
are hereby reaffirmed by the parties hereto. The execution and
delivery of his First Amendment does not constitute payment,
cancellation, satisfaction, discharge, release, extinguishment or
novation of the principal indebtedness evidenced by the Working
Capital Note.
IN WITNESS WHEREOF, this First Amendment is executed as of the
day and year first above written.
COMPANY:
CATHERINES, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxx
Title: Executive Vice-President
BANK:
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
EXHIBIT B
FIRST AMENDMENT
TO
SWINGLINE NOTE
THIS FIRST AMENDMENT TO SWINGLINE NOTE (the "First Amendment")
is made and entered into effective as of the 31st day of July,
1996, by and between CATHERINES, INC., a Delaware Corporation (the
"Company") and FIRST AMERICAN NATIONAL BANK, a national banking
association with a place for the conduct of business in Memphis,
Tennessee, its successors, transferees and assigns (the "Bank").
WHEREAS, the Company executed a certain Swingline Note dated
December 6, 1995, in the original principal sum of Three Million
and No/100 Dollars ($3,000,000.00) payable to the order of Bank
(the "Swingline Note"); and
WHEREAS, the Swingline Note is referred to in the Credit
Agreement dated as of March 31, 1994, among the Company, the Credit
Parties referred to therein and the Banks referred to therein, as
amended by First Amendment to Credit Agreement dated as of January
29, 1995, Second Amendment to Credit Agreement dated as of December
6, 1995, Third Amendment to Credit Agreement dated as of _________,
19___, and by Fourth Amendment to Credit Agreement dated of even
date herewith (as the same may from time be amended, supplemented
or otherwise modified, the "Credit Agreement"); and
WHEREAS, the parties hereto by means of this First Amendment
desire to modify the terms of the Swingline Note for the purpose of
reflecting certain modifications to the Credit Agreement.
NOW, THEREFORE, for mutual consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Amendment to Swingline Loan Termination Date. The
"Swingline Loan Termination Date" as used in the Swingline Note,
shall be amended to extend same from March 15, 1998 to March 15,
1999.
2. Legend and Attachment. This First Amendment shall be
physically attached to the Swingline Note and the following legend
shall be placed on the face of the Swingline Note:
This Swingline Note has been amended by First
Amendment to Swingline Note dated as of July
31, 1996, the original of which is attached
hereto.
3. Reaffirmation of Obligations. All terms and provisions
of the Swingline Note not herein specifically modified or amended
shall remain in full force and effect as if this First Amendment
had not been executed and all such terms and provisions are hereby
reaffirmed by the parties hereto. The execution and delivery of
this First Amendment does not constitute payment, cancellation,
satisfaction, discharge, release, extinguishment or novation of the
principal indebtedness evidenced by the Swingline Note.
IN WITNESS WHEREOF, this First Amendment is executed as of the
day and year first above written.
COMPANY:
CATHERINES, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxx
Title: Executive Vice-President
BANK:
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
MAXIMUM PRINCIPAL INDEBTEDNESS FOR TENNESSEE RECORDING TAX PURPOSES
IS $0. TRANSFER TAX WAS PREVIOUSLY PAID IN THE REGISTER'S OFFICE
OF SHELBY COUNTY, TENNESSEE UNDER INSTRUMENT NOS. EG 4391 AND FM
6558.
Prepared By and Return to:
Xxxx X. Xxxxxxx
Xxxxxxxx Xxxxx, PLLC
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
(000) 000-0000
SECOND MODIFICATION AND EXTENSION OF TENNESSEE
DEED OF TRUST WITH SECURITY AGREEMENT AND FIXTURE FILING
THIS Second Modification and Extension of Tennessee Deed of
Trust with Security Agreement and Fixture Filing (this
"Modification Agreement") is entered into as of the 4th day of
September, 1996, by and among THE INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF MEMPHIS AND COUNTY OF SHELBY, TENNESSEE (hereinafter
called "Board"), XXXX X. XXXXXXX and XXXXX X. MAY, TRUSTEES
(hereinafter called "Trustees"), FIRST AMERICAN NATIONAL BANK
(hereinafter called "FANB"), HIBERNIA NATIONAL BANK (hereinafter
called "Hibernia"), and THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED (hereinafter called "Hongkong") (FANB, Hibernia
and Hongkong are hereinafter collectively called "Banks").
W I T N E S S E T H:
WHEREAS, on the 31st day of March, 1994, CATHERINES, INC., a
Delaware corporation (hereinafter called "Borrower"), FANB,
CATHERINES STORES CORPORATION, a Tennessee corporation (successor
by merger to Catherines Stores Corporation, a Delaware corporation)
(hereinafter called "Parent"), and others therein named, executed
that certain Credit Agreement (the "Credit Agreement"); and
WHEREAS, Hibernia and Hongkong became parties to the Credit
Agreement by virtue of that certain Commitment Transfer Supplement
of even date with the Credit Agreement; and
WHEREAS, also on the 31st day of March, 1994, the Board
executed that certain Tennessee Deed of Trust with Security
Agreement and Fixture Filing (the "Tennessee Deed of Trust") which
conveyed to Trustees for the benefit of FANB certain real property
(the "Property") located in the County of Shelby, State of
Tennessee, as more particularly described in the Tennessee Deed of
Trust, which was recorded under Instrument No. EG 4391 in the
Register's Office of Shelby County, Tennessee; and
WHEREAS, as of the 6th day of December, 1995, the Tennessee
Deed of Trust was modified and extended by virtue of a First
Modification and Extension of Tennessee Deed of Trust with Security
Agreement and Fixture Filling (the "First Amendment") (the
Tennessee Deed of Trust and First Amendment are hereinafter
collectively referred to as the "Deed of Trust"); and.
WHEREAS, the Deed of Trust secures certain Obligations, as
defined in the Deed of Trust; and
WHEREAS, the Banks are the holders of the Obligations in
accordance with their ratable interest pursuant to the Credit
Agreement, as amended; and
WHEREAS, Borrower and Parent as lessees of the Property have
requested that the Board join in the execution of this Modification
Agreement for the purpose of reflecting certain modifications to
the Credit Agreement which was last amended by that certain Second
Amendment to Credit Agreement dated as of even date herewith; and
WHEREAS, the parties hereto by means of this Modification
Agreement desire to modify the terms of the Deed of Trust for the
purpose of extending the lien of the Deed of Trust from March 15,
1998, until March 15, 1999, as reflected by certain modifications
to the Credit Agreement, without, however, releasing or affecting
the priority of the Deed of Trust;
NOW, THEREFORE, for mutual considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Working Capital Notes and Swingline Note. Each of the
Working Capital Notes and the Swingline Note secured by the Deed of
Trust have been modified and amended as of the date hereof to
extend the maturity dates thereof to March 15, 1999.
2. Extension of Lien of Deed of Trust. The lien of the Deed
of Trust is hereby extended to March 15, 1999.
3. Joinder of the Board. The Board joins in the execution
of this Modification Agreement, at the request of Borrower, Parent
and Banks, as the holder of the fee title to the Property for the
sole purpose of agreeing to the modification and extension of the
Deed of Trust. The Board does not assume any liability for the
indebtedness described herein or any obligations under the Deed of
Trust and shall have no liability in connection therewith.
Borrower hereby indemnifies the Board against any and all loss,
damages and claims associated with the Board's execution of this
Modification Agreement at Borrower' s request.
4. Joinder of Borrower and Parent. Borrower and Parent join
in the execution of this Modification Agreement in order to affirm
the aforesaid modifications and amendments to the Credit Agreement
and to request that the Board join in the execution of this
Modification Agreement for the reasons aforementioned.
5. Reaffirmation of Obligations. All terms and provisions
of the Deed of Trust not herein specifically modified or amended
shall remain in full force and effect as if this Modification
Agreement had not been executed and all such terms and provisions
are hereby reaffirmed by the parties hereto. The execution and
delivery of this Modification Agreement does not constitute
payment, cancellation, satisfaction, discharge, release,
extinguishment or novation of the principal indebtedness evidenced
by the Notes.
6. Counterparts. This Modification Agreement may be
executed by one or more of the parties to this Modification
Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and
the same instrument.
IN WITNESS WHEREOF, this Modification Agreement is executed as
of the day and year first above written.
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF MEMPHIS AND COUNTY OF SHELBY,
TENNESSEE
ATTEST:
______________________ By: _______________________________
Secretary (Treasurer) Chairman
________________________
Xxxx X. Xxxxxxx, Trustee
________________________
Xxxxx X. May, Trustee
FIRST AMERICAN NATIONAL BANK
By: __________________________
Title:________________________
HIBERNIA NATIONAL BANK
By: __________________________
Title:________________________
THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED
By: __________________________
Title:________________________
CATHERINES, INC., a Delaware
corporation
By: __________________________
Xxxxx X. Xxxxxx
Title: Executive Vice President
CATHERINES STORES CORPORATION,
a Tennessee corporation
By: __________________________
Xxxxx X. Xxxxxx
Title: Executive Vice President
STATE OF TENNESSEE
COUNTY OF SHELBY
Personally appeared before me, ______________________, a
Notary Public, ___________________ and ____________________ with
whom I am personally acquainted, and who acknowledged that they
executed the within instrument for the purposes therein contained,
and who further acknowledged that they are the (Vice) Chairman and
the Secretary (Treasurer), respectively, of the maker THE
INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF MEMPHIS AND THE COUNTY
OF SHELBY, TENNESSEE, or a constituent of the maker and are
authorized by the maker or by its constituent, the constituent
being authorized by the maker, to execute this instrument on behalf
of the maker.
WITNESS my hand, at office, this ___ day of __________, 1996.
_____________________________
NOTARY PUBLIC
My Commission Expires:
______________________
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, a Notary Public in and for said State and County,
duly commissioned and qualified, personally appeared XXXX X.
XXXXXXX, TRUSTEE, to me known to be the person described in and who
executed the foregoing instrument and acknowledged that she
executed the same for the purposes therein contained.
WITNESS my hand and Notarial Seal at office this _____day of
______________, 1996.
__________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, _________________, a Notary Public in and for said
State and County, duly commissioned and qualified, personally
appeared XXXXX X. MAY, TRUSTEE, to me known to be the person
described in and who executed the foregoing instrument and
acknowledged that she executed the same for the purposes therein
contained.
WITNESS my hand and Notarial Seal at office this day of 1996.
___________________________
NOTARY PUBLIC
My Commission Expires:
______________________
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, a Notary Public within and for said State and
County, duly commissioned and qualified, personally appeared
______________________, with whom I am personally acquainted, and
who upon oath acknowledged himself to be the _________________ of
FIRST AMERICAN NATIONAL BANK, the within named bargainor, and that
he as such _______________, being authorized so to do, executed the
foregoing instrument for the purposes therein contained by signing
the name of FIRST AMERICAN NATIONAL BANK by himself as __________.
WITNESS MY HAND and Notarial Seal at office this ___ day of
____________, 1996.
____________________________
NOTARY PUBLIC
My Commission Expires:
______________________
STATE OF _________
COUNTY OF ________
Before me, a Notary Public within and for said State and
County, duly commissioned and qualified, personally appeared
_________________, with whom I am personally acquainted, and who
upon oath acknowledged herself to be the ____________ of HIBERNIA
NATIONAL BANK, the within named bargainor, and that she as such
_______________, being authorized so to do, executed the foregoing
instrument for the purposes therein contained by signing the name
of HIBERNIA NATIONAL BANK by herself as _________________.
WITNESS MY HAND and Notarial Seal at office this ______ day of
___________, 1996.
____________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
STATE OF _______
COUNTY OF ________
Before me, a Notary Public within and for said State and
County, duly commissioned and qualified, personally appeared
________________, with whom I am personally acquainted, and who
upon oath acknowledged himself to be the _________________of THE
HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, the within named
bargainor, and that he as such _____________________, being
authorized so to do, executed the foregoing instrument for the
purposes therein contained by signing the name of THE HONGKONG AND
SHANGHAI BANKING CORPORATION LIMITED by himself as ____________.
WITNESS MY HAND and Notarial Seal at office this ____ day of
_____________, 1996.
_____________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, a Notary Public within and for said State and
County, duly commissioned and qualified, personally appeared Xxxxx
X. Xxxxxx, with whom I am personally acquainted, and who upon oath
acknowledged himself to be the Executive Vice-President of
CATHERINES, INC., a Delaware corporation, the within named
bargainor, and that he as such Executive Vice-President, being
authorized so to do, executed the foregoing instrument for the
purposes therein contained by signing the name of the corporation
by himself as Executive Vice-President.
WITNESS MY HAND and Notarial Seal at office this ____ day of
______________, 1996.
____________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, a Notary Public within and for said State and
County, duly commissioned and qualified, personally appeared Xxxxx
X. Xxxxxx, with whom I am personally acquainted, and who upon oath
acknowledged himself to be the Executive Vice-President of
CATHERINES STORES CORPORATION, a Tennessee corporation, the within
named bargainor, and that he as such Executive Vice-President,
being authorized so to do, executed the foregoing instrument for
the purposes therein contained by signing the name of the
corporation by himself as Executive Vice-President.
WITNESS MY HAND and Notarial Seal at office this ____ day of
__________, 1996.
____________________________
NOTARY PUBLIC
My Commission Expires:
______________________
MAXIMUM PRINCIPAL INDEBTEDNESS FOR TENNESSEE RECORDING TAX PURPOSES
IS $0. TRANSFER TAX WAS PREVIOUSLY PAID IN THE REGISTER'S OFFICE
OF SHELBY COUNTY, TENNESSEE UNDER INSTRUMENT NOS. EG 4391 and FM
6558.
Prepared By and Return to:
Xxxx X. Xxxxxxx
Xxxxxxxx Xxxxx, PLLC
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
(000) 000-0000
SECOND MODIFICATION AND EXTENSION OF TENNESSEE LEASEHOLD
DEED OF TRUST WITH SECURITY AGREEMENT AND FIXTURE FILING
THIS Second Modification and Extension of Tennessee Leasehold
Deed of Trust with Security Agreement and Fixture Filing (this
"Modification Agreement") is entered into as of the 4th day of
September, 1996, by and among CATHERINES, INC., a Delaware
corporation (hereinafter called "Borrower"), CATHERINES STORES
CORPORATION, a Tennessee corporation (successor by merger to
Catherines Stores Corporation, a Delaware corporation) (hereinafter
called "Parent"), XXXX X. XXXXXXX and XXXXX X. MAY, TRUSTEES
(hereinafter called "Trustees"), FIRST AMERICAN NATIONAL BANK
(hereinafter called "FANB"), HIBERNIA NATIONAL BANK (hereinafter
called "Hibernia"), and THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED (hereinafter called "Hongkong") (FANB, Hibernia
and Hongkong are hereinafter collectively called "Banks").
W I T N E S S E T H:
WHEREAS, on the 31st day of March, 1994, Borrower, FANB,
Parent, and others therein named, executed that certain Credit
Agreement (the "Credit Agreement"); and
WHEREAS, Hibernia and Hongkong became parties to the Credit
Agreement by virtue of that certain Commitment Transfer Supplement
of even date with the Credit Agreement; and
WHEREAS, also on the 31st day of March, 1994, Borrower
executed that certain Tennessee Leasehold Deed of Trust with
Security Agreement and Fixture Filing (the "Leasehold Deed of
Trust") which conveyed to Trustees for the benefit of FANB a
leasehold interest in certain real property (the "Property")
located in the County of Shelby, State of Tennessee, as more
particularly described in the Leasehold Deed of Trust, which was
recorded under Instrument No. EG 4392 in the Register's Office of
Shelby County, Tennessee; and
WHEREAS, on the 29th day of January, 1995, Borrower and Parent
executed that certain Assignment of Real Property Lease Agreement
("Assignment") which was recorded under Instrument No. EX 1066 in
said Register's Office pursuant to which Borrower made a partial
assignment of the Primary Lease, as defined in the Deed of Trust,
to Parent and pursuant to which Parent assumed the obligations of
Borrower under the Primary Lease relating to the Assigned Property,
as defined in the Assignment; and
WHEREAS, on December 6, 1995, the parties modified and
extended the Leasehold Deed of Trust by virtue of a certain First
Modification and Extension of Tennessee Leasehold Deed of Trust
with Security Agreement and Fixture Filing (the "First
Modification") (the Leasehold Deed of Trust and the First
Modification herein collectively referred to as the "Deed of
Trust"); and
WHEREAS, the Deed of Trust secures certain Obligations, as
defined in the Deed of Trust; and
WHEREAS, the Banks are the holders of the Obligations in
accordance with their ratable interest pursuant to the Credit
Agreement, as amended; and
WHEREAS, the parties hereto by means of this Modification
Agreement desire to modify the Deed of Trust for the purpose of
extending the lien of the Deed of Trust from March 15, 1998, until
March 15, 1999, as reflected by certain modifications to the Credit
Agreement which was last amended by that certain Fourth Amendment
to Credit Agreement dated as of even date herewith, without,
however, releasing or affecting the priority of the Deed of Trust;
NOW, THEREFORE, for mutual considerations, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Working Capital Notes and Swingline Note. Each of the
Working Capital Notes and the Swingline Note secured by the Deed of
Trust have been modified and amended as of the date hereof to
extend the maturity dates thereof to March 15, 1999.
2. Extension of Lien of Deed of Trust. The lien of the Deed
of Trust is hereby extended to March 15, 1999.
3. Reaffirmation of Obligations. All terms and provisions
of the Deed of Trust not herein specifically modified or amended
shall remain in full force and effect as if this Modification
Agreement had not been executed and all such terms and provisions
are hereby reaffirmed by the parties hereto. The execution and
delivery of this modification Agreement does not constitute
payment, cancellation, satisfaction, discharge, release,
extinguishment or novation of the principal indebtedness evidenced
by the Notes.
4. Counterparts. This Modification Agreement may be
executed by one or more of the parties to this Modification
Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and
the same instrument.
IN WITNESS WHEREOF, this Modification Agreement is executed as
of the day and year first above written.
CATHERINES, INC., a Delaware corporation
By: ____________________________
Xxxxx X. Xxxxxx
Title: Executive Vice-President
CATHERINES STORES CORPORATION, a Tennessee
corporation
By: ____________________________
Xxxxx X. Xxxxxx
Title: Executive Vice-President
______________________________
Xxxx X. Xxxxxxx, Trustee
______________________________
Xxxxx X. May, Trustee
FIRST AMERICAN NATIONAL BANK
By: ____________________________
Title: _________________________
HIBERNIA NATIONAL BANK
By: __________________________
Title: _______________________
THE HONGKONG AND SHANGHAI BANKING
CORPORATION LIMITED
By: ___________________________
Title: ________________________
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, a Notary Public within and for said State and
County, duly commissioned and qualified, personally appeared Xxxxx
X. Xxxxxx, with whom I am personally acquainted, and who upon oath
acknowledged himself to be the Executive Vice-President of
CATHERINES, INC., a Delaware corporation, the within named
bargainor, and that he as such Executive Vice-President, being
authorized so to do, executed the foregoing instrument for the
purposes therein contained by signing the name of the corporation
by himself as Executive Vice-President.
WITNESS MY HAND and Notarial Seal at office this ____ day of
__________________, 1996.
____________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, a Notary Public within and for said State and
County, duly commissioned and qualified, personally appeared Xxxxx
X. Xxxxxx, with whom I am personally acquainted, and who upon oath
acknowledged himself to be the Executive Vice-President of
CATHERINES STORES CORPORATION, a Tennessee corporation, the within
named bargainor, and that he as such Executive Vice-President,
being authorized so to do, executed the foregoing instrument for
the purposes therein contained by signing the name of the
corporation by himself as Executive Vice-President.
WITNESS MY HAND and Notarial Seal at office this ___ day of
__________, 1996.
_____________________________
NOTARY PUBLIC
My Commission Expires:
______________________
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, a Notary Public in and for said State and County,
duly commissioned and qualified, personally appeared XXXX X.
XXXXXXX, TRUSTEE, to me known to be the person described in and who
executed the foregoing instrument and acknowledged that she
executed the same for the purposes therein contained.
WITNESS my hand and Notarial Seal at office this ___ day of
_________________, 1996.
_____________________________
NOTARY PUBLIC
My Commission Expires:
______________________
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, a Notary Public in and for said State and County,
duly commissioned and qualified, personally appeared XXXXX X. MAY,
TRUSTEE, to me known to be the person described in and who executed
the foregoing instrument and acknowledged that she executed the
same for the purposes therein contained.
WITNESS my hand and Notarial Seal at office this ____ day of
______________, 1996.
_____________________________
NOTARY PUBLIC
My Commission Expires:
_____________________
STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, a Notary Public within and for said State and
County, duly commissioned and qualified, personally appeared
______________ with whom I am personally acquainted, and who upon
oath Acknowledged himself to be the ____________________ of FIRST
AMERICAN NATIONAL BANK, the within named bargainor, and that he as
such ___________________, being authorized so to do, executed the
foregoing instrument for the purposes therein contained by signing
the name of FIRST AMERICAN NATIONAL BANK by himself as _________.
WITNESS MY HAND and Notarial Seal at office this ___ day of
____________, 1996.
________________________
NOTARY PUBLIC
My Commission Expires:
______________________
STATE OF ______________
COUNTY OF _____________
Before me, a Notary Public within and for said State and
County, duly commissioned and qualified, personally appeared
__________________, with whom I am personally acquainted, and who
upon oath acknowledged herself to be the _____________ of HIBERNIA
NATIONAL BANK, the within named bargainor, and that she as such
_____________________, being authorized so to do, executed the
foregoing instrument for the purposes therein contained by signing
the name of HIBERNIA NATIONAL BANK by herself as _______________.
WITNESS MY HAND and Notarial Seal at office this ___ day of
_________________, 1996.
________________________
NOTARY PUBLIC
My Commission Expires:
______________________
STATE OF ____________
COUNTY OF ____________
Before me, a Notary Public within and for said State and
County, duly commissioned and qualified, personally appeared
___________________, with whom I am personally acquainted, and who
upon oath acknowledged himself to be the _______________of THE
HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, the within named
bargainor, and that he as such _________________, being authorized
so to do, executed the foregoing instrument for the purposes
therein contained by signing the name of THE HONGKONG AND SHANGHAI
BANKING CORPORATION LIMITED by himself as ___________________.
WITNESS MY HAND and Notarial Seal at office this ____ day of
__________________, 1996.
______________________
NOTARY PUBLIC
My Commission Expires:
_______________________
