SIXTH AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, effective as
of the 1st day of February, 1997 is made by and between MERCANTILE BANK NATIONAL
ASSOCIATION, successor by merger to and formerly known as Mercantile Bank of St.
Louis National Association ("Mercantile"), FIRSTAR BANK MILWAUKEE, N.A.
("Firstar"), FIRST UNION NATIONAL BANK OF FLORIDA ("First Union," and
collectively with Mercantile and Firstar referred to herein as the "Banks"),
MERCANTILE BANK NATIONAL ASSOCIATION, as Agent (in such capacity, the "Agent"),
and SHOE CARNIVAL, INC. ("Borrower").
WITNESSETH:
WHEREAS, Mercantile, Firstar, Xxxxxx Trust and Savings Bank ("Xxxxxx") and
Borrower are parties to a certain Amended and Restated Credit Agreement dated as
of November 15, 1994, as previously amended by such parties and First Union
pursuant to an Amendment to Amended and Restated Credit Agreement dated as of
November 22, 1994, as further amended by Banks, Harris, Agent and Borrower
pursuant to a Second Amendment to Amended and Restated Credit Agreement dated as
of February 10, 1995, as further amended by Banks, Harris, Agent and Borrower
pursuant to a Third Amendment to Amended and Restated Credit Agreement dated as
of June 26, 1995, as further amended by Banks, Harris, Agent and Borrower
pursuant to a Fourth Amendment to Amended and Restated Credit Agreement dated as
of November 15, 1995 and as further amended by Banks, Harris, Agent and Borrower
pursuant to a Fifth Amendment to Amended and Restated Credit Agreement dated as
of April 10, 1996 (as amended, the "Agreement"), pursuant to which Banks and
Xxxxxx have agreed to loan Borrower such sums, not to exceed $35,000,000.00
outstanding at any one time, as Borrower may request from time to time, which
obligations of Borrower are presently evidenced by the Agreement and by a
certain Amended and Restated Promissory Note dated April 10, 1996 made by
Borrower payable to the order of Mercantile in the original principal amount of
Ten Million Five Hundred Thousand Dollars ($10,500,000.00), by a certain Amended
and Restated Promissory Note dated April 10, 1996 made by Borrower payable to
the order of Firstar in the original principal amount of Ten Million Five
Hundred Thousand Dollars ($10,500,000.00), by a certain Promissory Note dated
April 10, 1996 made by Borrower payable to the order of First Union in the
original principal amount of Seven Million Dollars ($7,000,000.00) and by a
certain Amended and Restated Promissory Note dated April 10, 1996 made by
Borrower payable to the order of Xxxxxx in the original principal amount of
Seven Million Dollars ($7,000,000.00) (as amended, the "Notes");
WHEREAS, Xxxxxx has requested to terminate its participation as a lender to
Borrower under the Agreement and each of the Banks is willing to assume a
portion of the Xxxxxx' loans to the Borrower;
WHEREAS, Borrower and Banks wish to further amend the Agreement and the
Notes to reduce the maximum aggregate principal amount available thereunder to
$35,000,000.00, to change certain covenants contained in the Agreement and to
make certain other revisions to the Agreement as hereinafter set forth;
NOW, THEREFORE, in order to effect such amendments and in consideration of
the premises herein set forth, Borrower and Banks agree as follows:
1. The definition of "Commitment" in Section 1.1 of the Agreement is hereby
amended to provide as follow:
"Commitment" means Thirty-Five Million Dollars ($35,000,000.00), and with
respect to each Bank, the amount specified as such Bank's Commitment and set
forth opposite the name of such Bank on the signature pages of that certain
Sixth Amendment to Amended and Restated Credit Agreement dated as of February 1,
1997 made by and among Borrower, Agent and Banks.
2. Paragraph (b) in the definition of "Interest Period" in Section 1.1 of
the Agreement is hereby amended to provide as follows:
(b) Any Interest Period which includes March 31, 1999 shall end on such
date.
3. The definition of "Notes" in Section 1.1 of the Agreement is hereby
amended to provide as follows:
"Notes" mean the amended and restated promissory notes of Borrower in the
form of Exhibits A, B and I attached to that certain Sixth Amendment to Amended
and Restated Credit Agreement dated as of February 1, 1997, evidencing the
obligation of Borrower to repay the Loans and amounts outstanding under any
Reimbursement Agreements.
4. The Note of Borrower payable to the order of Mercantile shall hereafter
be amended and restated in the form of that Note attached to this Sixth
Amendment as Exhibit A and incorporated herein by reference. The Note of
Borrower payable to the order of Firstar shall hereafter be amended and restated
in the form of that Note attached to this Sixth Amendment as Exhibit B and
incorporated herein by reference. The Note of Borrower payable to the order of
First Union shall hereafter be amended and restated in the form of that Note
attached to this Sixth Amendment as Exhibit I and incorporated herein by
reference. The Note of Borrower payable to the order of Xxxxxx has been
terminated and Exhibit C to the Agreement is hereby deleted and is left blank
intentionally. Hereafter, all references in the Agreement, in any other
documents or agreements executed in connection with the Agreement or securing
Borrower's Obligations thereunder and herein to the "Notes" shall be amended and
deemed to refer only to the Amended and Restated Promissory Notes of Borrower in
favor of Mercantile, Firstar and First Union as attached hereto, as the same may
be amended, modified, renewed or restated hereafter.
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5. The definition of "Term" in Section 1.1 of the Agreement is hereby
amended to provide as follows:
"Term" means the period from the Effective Date up to and including March
31, 1999; except that (i) all, but not less than all, of the Banks may, in their
sole discretion, extend such Term for additional one-year periods by notifying
Borrower of each such extension at least 12 months prior to the expiration of
the then current Term end of their intention to extend the Term by an additional
year; and (ii) Agent may terminate Banks' obligations hereunder at any time
prior to such stated maturity date or any extension thereof pursuant to Article
6 herein.
6. Section 5.1(e)(i) of the Agreement is hereby amended to provide as
follows:
(e) Financial Covenants. Borrower will:
(i) Have a ratio of Total Liabilities to Net Worth of not more than 0.80 to
1 as of the end of each fiscal quarter during the Term hereof. For purposes of
this subsection (i) only, "Total Liabilities" shall mean total liabilities,
determined in accordance with generally accepted accounting principles,
consistently applied.
7. Section 5.1(e)(ii) of the Agreement is hereby deleted in its entirety
and is left blank intentionally.
8. Section 5.1(e)(iii) of the Agreement is hereby amended to provide as
follows:
(iii) Have a Net Worth of not less than $63,000,000.00 as of the end of
each fiscal quarter during the Term hereof.
9. Section 5.1(e)(iv) of the Agreement is hereby amended to provide as
follows:
(iv) Have a ratio of Funded Debt to EBITDA of not more than 2.0 to 1.0 at
each fiscal quarter-end during the Term hereof. As used herein, the term
"EBITDA" shall mean Borrower's net income before taxes, plus interest expense,
plus depreciation, plus amortization, as determined in accordance with generally
accepted accounting principles consistently applied, for the four fiscal quarter
period ending on the date of such calculation. As used herein, the term "Funded
Debt" shall mean all Indebtedness of Borrower for borrowed money, including, but
not limited to, all liabilities of Borrower under any Capitalized Leases.
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10. Section 5.1(e)(v) of the Agreement is hereby deleted in its entirety
and is left blank intentionally.
11. Section 5.2(m) of the Agreement is hereby amended to provide as
follows:
(m) Capital Expenditures. Borrower shall not make or incur any obligation
to make any Capital Expenditures or enter into any Capitalized Leases in excess
of Twelve Million Dollars ($12,000,000.00) in the aggregate for all such
obligations during any fiscal year during the Term hereof.
12. The Compliance Certificate (as defined in the Agreement) attached as
Exhibit D to the Agreement, shall be amended and restated in the form of that
certain Compliance Certificate attached hereto as Exhibit D. All references in
the Agreement to the "Compliance Certificate" and other references of similar
import shall hereafter be amended and deemed to refer to the Compliance
Certificate in the form of that attached hereto as Exhibit D, which shall be
submitted by Borrower to Banks as required in the Agreement.
13. Borrower hereby represents and warrants to Agent and to Banks that:
(a) The execution, delivery and performance by Borrower of this Sixth
Amendment are within the corporate powers of Borrower, have been duly authorized
by all necessary corporate action and require no action by or in respect of, or
filing with, any governmental or regulatory body, agency or official. The
execution, delivery and performance by Borrower of this Sixth Amendment do not
conflict with, or result in a breach of the terms, conditions or provisions of,
or constitute a default under or result in any violation of, and Borrower is not
now in default under or in violation of, the terms of the Articles of
Incorporation or Bylaws of Borrower, any applicable law, any rule, regulation,
order, writ, judgment or decree of any court or governmental or regulatory
agency or instrumentality, or any agreement or instrument to which Borrower is a
party or by which it is bound or to which it is subject;
(b) This Sixth Amendment has been duly executed and delivered and
constitutes the legal, valid and binding obligation of Borrower enforceable in
accordance with its terms; and
(c) As of the date hereof, all of the covenants, representations and
warranties of Borrower set forth in the Agreement are true and correct and no
"Event of Default" (as defined therein) under or within the meaning of the
Agreement, as hereby amended, has occurred and is continuing.
14. The Agreement, as hereby amended, and the Notes, as hereby amended, are
and shall remain the binding obligations of Borrower, and except to the extent
amended by this Sixth Amendment, all of the terms, provisions, conditions,
agreements, covenants, representations, warranties and powers contained in the
Agreement and the Notes shall be and remain in full force and effect and the
same are hereby ratified and confirmed. This Sixth Amendment amends the
Agreement and is not a novation thereof.
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15. All references in the Agreement to "this Agreement" and to the "Notes"
and any other references of similar import shall henceforth mean the Agreement
or the Notes, as the case may be, as amended by this Sixth Amendment. All
references in the Notes or other documents to "the Agreement" and to the "Notes"
and any other references of similar import shall henceforth mean the Agreement
or the Notes, as the case may be, as amended by this Sixth Amendment.
16. This Sixth Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, except that
Borrower may not assign, transfer or delegate any of its rights or obligations
hereunder.
17. This Sixth Amendment is made solely for the benefit of Borrower, Agent
and Banks as set forth herein, and is not intended to be relied upon or enforced
by any other person or entity.
18. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT BORROWER, AGENT AND BANKS FROM
ANY MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWER,
AGENT AND BANKS COVERING SUCH MATTERS ARE CONTAINED IN THIS SIXTH AMENDMENT, THE
NOTES AND THE AGREEMENT, WHICH CONSTITUTE A COMPLETE AND EXCLUSIVE STATEMENT OF
THE AGREEMENTS BETWEEN BORROWER, AGENT AND BANKS EXCEPT AS BORROWER, AGENT AND
BANKS MAY LATER AGREE IN WRITING TO MODIFY. THIS SIXTH AMENDMENT, THE NOTES AND
THE AGREEMENT EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES
HERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS (ORAL OR WRITTEN)
RELATING TO THE SUBJECT MATTER HEREOF.
19. This Sixth Amendment shall be governed by and construed in accordance
with the internal laws of the State of Missouri.
20. In the event of any inconsistency or conflict between this Sixth
Amendment and the Agreement or the Notes, the terms, provisions and conditions
of this Sixth Amendment shall govern and control.
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IN WITNESS WHEREOF the parties hereto have executed this Sixth Amendment to
Amended and Restated Credit Agreement and Promissory Notes as of the day and
year first above written on this 1st day of February, 1997.
SHOE CARNIVAL, INC.
By: /s/ W. Xxxxx Xxxxxxx
W. Xxxxx Xxxxxxx, Vice President,
Chief Financial Officer and Treasurer
Commitment: MERCANTILE BANK
Facility A: $12,500,000.00 (35.714%) NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxx, Xx., Vice President
Commitment: FIRSTAR BANK MILWAUKEE, N.A.
Facility A: $10,000,000.00 (28.572%)
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Vice President
Commitment: FIRST UNION NATIONAL BANK OF FLORIDA
Facility A: $12,500,000.00 (35.714%)
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Vice President
MERCANTILE BANK
NATIONAL ASSOCIATION, AS AGENT
By: /s/ Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxx, Xx., Vice President
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EXHIBIT A
AMENDED AND RESTATED
PROMISSORY NOTE
$12,500,000.00 St. Louis, Missouri
February 1, 1997
FOR VALUE RECEIVED, SHOE CARNIVAL, INC., an Indiana corporation (formerly a
Delaware corporation) ("Borrower"), hereby promises to pay to the order of
Mercantile Bank National Association, a national banking association ("Bank") on
March 31, 1999, the lesser of (a) Twelve Million Five Hundred Thousand Dollars
($12,500,000.00), or (b) the aggregate unpaid principal amount of all Loans made
by Bank to Borrower in accordance with the terms and conditions hereof and of
that certain Amended and Restated Credit Agreement dated as of November 15,
1994, made by and between Borrower, Mercantile Bank National Association,
formerly known as Mercantile Bank of St. Louis National Association, as Agent
(the "Agent") and the Banks named therein, as from time to time amended (as
amended, the "Credit Agreement") and the unreimbursed amount of any draws under
any Letters of Credit issued for the account of Borrower in accordance with the
terms and conditions of the Credit Agreement and the Reimbursement Agreements
(as defined in the Credit Agreement). The aggregate principal amount which Bank
may have outstanding hereunder at any one time for all Loans shall not exceed
the lesser of (i) Twelve Million Five Hundred Thousand Dollars ($12,500,000.00)
minus the face amount of all Letters of Credit then outstanding under Section
2.1(a) of the Credit Agreement, or (ii) Thirty-Five and 714/1,000ths Percent
(35.714%) of the then current Borrowing Base, which amounts may be borrowed,
paid, reborrowed and repaid, in full or in part, prior to March 31, 1999 subject
to the terms and conditions hereof and of the Credit Agreement. If at any time
the aggregate principal amount of all Loans outstanding under this Note should
exceed the amount set forth in the preceding sentence, whether as a result of a
reduction in the Borrowing Base or otherwise, Borrower shall be automatically
required (without demand or notice of any kind by Bank, all of which are hereby
expressly waived by Borrower), to immediately repay the Loans in an amount
sufficient to reduce such aggregate principal amount of Loans outstanding under
this Note to the amount set forth in the preceding sentence.
Additionally, Borrower promises to pay to the order of Bank all accrued
interest owing on the principal amount of all Loan advances and Letter of Credit
reimbursement obligations outstanding hereunder. Advances hereunder shall bear
interest at the rate per annum equal to such of the following as Borrower, at
its option, shall select:
(a) the interest rate announced from time to time by Agent as its "Prime
Rate" on commercial loans, which rate shall fluctuate as and when said Prime
Rate shall change, or
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(b) the London Interbank Offered Rate plus Eurocurrency Margin (as defined
in the Credit Agreement) for the applicable Interest Period,
determined in each case as of the date of a Prime Rate Loan made hereunder, or
the commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest at a
rate per annum equal to three percent (3%) in excess of the interest rate
announced from time to time by Agent as its "Prime Rate" on commercial loans,
which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year for the actual
number of days elapsed for all Loans made hereunder. Payments of principal,
interest and fees shall be made in lawful money of the United States of America
in immediately available funds at the office of Agent situated at 000 Xxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 or at such other place as the holder of this
Note may designate, and such payments shall be applied to the payment of
interest or principal (or any combination of the foregoing) owing on this Note
in such order as Bank (or such holder) shall determine.
All advances and all principal payments made hereunder and all Interest
Periods and interest rates applicable to Eurocurrency Loans may be endorsed by
the Bank on its records or the sheet attached to this Note, which information so
endorsed or recorded shall constitute prima facie evidence thereof; provided,
however that the obligation of Borrower to repay each advance made hereunder
shall be absolute and unconditional, notwithstanding any failure of Bank to
endorse or record or any mistake by Bank in connection with any recordation or
with any endorsement on the sheet attached to this Note or to give to Borrower
or receive from Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in part the principal
outstanding hereunder; provided, however, that (subject to the right of Bank to
accelerate payment hereunder) any Eurocurrency Loan may be prepaid only at the
expiration of the applicable Interest Period; and provided further, however,
that on any such prepayment, Borrower shall also pay all interest accrued on the
principal amount being prepaid to and including the date of such prepayment. Any
payment of a Eurocurrency Loan other than on the last day of the applicable
Interest Period in contravention of this paragraph shall obligate Borrower to
pay to Bank the amount of any funding losses or other breakage costs which may
be incurred by Bank as set forth in Section 2.10 of the Credit Agreement.
Consistent with the terms of this Note, the Agent shall determine each
interest rate applicable to the advances hereunder, which determination shall be
conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit Agreement, which
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the occurrence of certain stated events and also for
prepayments on account of principal hereof and interest hereon prior to the
maturity hereof upon the terms and conditions specified therein. Terms defined
in the Credit Agreement are used herein with the same meanings.
- 8 -
In the event that any payment due hereunder shall not be paid when due,
whether by reason of demand or otherwise, and this Note shall be placed in the
hands of an attorney for collection hereof, Borrower agrees to pay in addition
to all other amounts due hereon the costs and expenses of collection, including
reasonable attorneys' fees and expenses, whether or not litigation is commenced
in aid thereof. Borrower hereby waives presentment, demand, protest, notice of
protest and notice of dishonor.
This Note shall be governed by and construed in accordance with the
internal laws of the State of Missouri.
This Note is a renewal, restatement and continuation of the obligations due
Bank as evidenced by a prior amended and Restated Promissory Note dated April
10, 1996 from Borrower to Bank, and is not a novation thereof. All interest
evidenced by the prior Note being renewed by this instrument shall continue to
be due and payable until paid.
SHOE CARNIVAL, INC.
By: /s/ W. Xxxxx Xxxxxxx
W. Xxxxx Xxxxxxx, Vice President,
Chief Financial Officer and Treasurer
STATE OF INDIANA )
) SS.
COUNTY OF Vanderburgh )
On this 24th day of February, 1997, before me appeared W. Xxxxx Xxxxxxx, to
me personally known, who being by me duly sworn, did say that he is the Vice
President, Chief Financial Officer and Treasurer of Shoe Carnival, Inc., an
Indiana corporation, and that said instrument was signed in behalf of said
corporation by authority of its Board of Directors; and said W. Xxxxx Xxxxxxx
acknowledged said instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
(Seal)
Notary Public /s/ Xxxxx X. Xxxxxx
My Commission Expires: 6/23/97
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EXHIBIT B
AMENDED AND RESTATED
PROMISSORY NOTE
$10,000,000.00 St. Louis, Missouri
February 1, 1997
FOR VALUE RECEIVED, SHOE CARNIVAL, INC., an Indiana corporation (formerly a
Delaware corporation) ("Borrower"), hereby promises to pay to the order of
Firstar Bank Milwaukee, N.A., a national banking association ("Bank") on March
31, 1999, the lesser of (a) Ten Million Dollars ($10,000,000.00), or (b) the
aggregate unpaid principal amount of all Loans made by Bank to Borrower in
accordance with the terms and conditions hereof and of that certain Amended and
Restated Credit Agreement dated as of November 15, 1994 made by and between
Borrower, Mercantile Bank National Association, formerly known as Mercantile
Bank of St. Louis National Association, as Agent (the "Agent") and the Banks
named therein, as from time to time amended (as amended, the "Credit Agreement")
and the unreimbursed amount of any draws under any Letters of Credit issued for
the account of Borrower in accordance with the terms and conditions of the
Credit Agreement and the Reimbursement Agreements (as defined in the Credit
Agreement). The aggregate principal amount which Bank may have outstanding
hereunder at any one time for all Loans shall not exceed the lesser of (i) Ten
Million Dollars ($10,000,000.00) minus the face amount of all Letters of Credit
then outstanding under Section 2.1(a) of the Credit Agreement, or (ii)
Twenty-Eight and 572/1,000ths Percent (28.572%) of the then current Borrowing
Base, which amounts may be borrowed, paid, reborrowed and repaid, in whole or in
part, prior to March 31, 1999 subject to the terms and conditions hereof and of
the Credit Agreement. If at any time the aggregate principal amount of all Loans
outstanding under this Note should exceed the amount set forth in the preceding
sentence, whether as a result of a reduction in the Borrowing Base or otherwise,
Borrower shall be automatically required (without demand or notice of any kind
by Bank, all of which are hereby expressly waived by Borrower), to immediately
repay the Loans in an amount sufficient to reduce such aggregate principal
amount of Loans outstanding under this Note to the amount set forth in the
preceding sentence.
Additionally, Borrower promises to pay to the order of Bank all accrued
interest owing on the principal amount of all Loan advances outstanding
hereunder. Advances hereunder shall bear interest at the rate per annum equal to
such of the following as Borrower, at its option, shall select:
(a) the interest rate announced from time to time by Agent as its "Prime
Rate" on commercial loans, which rate shall fluctuate as and when said Prime
Rate shall change, or
(b) the London Interbank Offered Rate plus Eurocurrency Margin (as defined
in the Credit Agreement) for the applicable Interest Period,
- 10 -
determined in each case as of the date of a Prime Rate Loan made hereunder, or
the commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest at a
rate per annum equal to three percent (3%) in excess of the interest rate
announced from time to time by Agent as its "Prime Rate" on commercial loans,
which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year for the actual
number of days elapsed for all Loans made hereunder. Payments of principal,
interest and fees shall be made in lawful money of the United States of America
in immediately available funds at the office of Agent situated at 000 Xxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 or at such other place as the holder of this
Note may designate, and such payments shall be applied to the payment of
interest or principal (or any combination of the foregoing) owing on this Note
in such order as Bank (or such holder) shall determine.
All advances and all principal payments made hereunder and all Interest
Periods and interest rates applicable to Eurocurrency Loans may be endorsed by
the Bank on its records or the sheet attached to this Note, which information so
endorsed or recorded shall constitute prima facie evidence thereof; provided,
however that the obligation of Borrower to repay each advance made hereunder
shall be absolute and unconditional, notwithstanding any failure of Bank to
endorse or record or any mistake by Bank in connection with any recordation or
with any endorsement on the sheet attached to this Note or to give to Borrower
or receive from Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in part the principal
outstanding hereunder; provided, however, that (subject to the right of Bank to
accelerate payment hereunder) any Eurocurrency Loan may be prepaid only at the
expiration of the applicable Interest Period; and provided further, however,
that on any such prepayment, Borrower shall also pay all interest accrued on the
principal amount being prepaid to and including the date of such prepayment. Any
payment of a Eurocurrency Loan other than on the last day of the applicable
Interest Period in contravention of this paragraph shall obligate Borrower to
pay to Bank the amount of any funding losses or other breakage costs which may
be incurred by Bank as set forth in Section 2.10 of the Credit Agreement.
Consistent with the terms of this Note, the Agent shall determine each
interest rate applicable to the advances hereunder, which determination shall be
conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit Agreement, which
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the occurrence of certain stated events and also for
prepayments on account of principal hereof and interest hereon prior to the
maturity hereof upon the terms and conditions specified therein. Terms defined
in the Credit Agreement are used herein with the same meanings.
In the event that any payment due hereunder shall not be paid when due,
whether by reason of demand or otherwise, and this Note shall be placed in the
hands of an attorney for
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collection hereof, Borrower agrees to pay in addition to all other amounts due
hereon the costs and expenses of collection, including reasonable attorneys'
fees and expenses, whether or not litigation is commenced in aid thereof.
Borrower hereby waives presentment, demand, protest, notice of protest and
notice of dishonor.
This Note shall be governed by and construed in accordance with the
internal laws of the State of Missouri.
This Note is a renewal, restatement and continuation of the obligations due
Bank as evidenced by a prior amended and Restated Promissory Note dated April
10, 1996 from Borrower to Bank, and is not a novation thereof. All interest
evidenced by the prior Note being renewed by this instrument shall continue to
be due and payable until paid.
SHOE CARNIVAL, INC.
By: /s/ W. Xxxxx Xxxxxxx
W. Xxxxx Xxxxxxx, Vice President,
Chief Financial Officer and Treasurer
STATE OF INDIANA )
) SS.
COUNTY OF Vanderburgh )
On this 24th day of February, 1997, before me appeared W. Xxxxx Xxxxxxx, to
me personally known, who being by me duly sworn, did say that he is the Vice
President, Chief Financial Officer and Treasurer of Shoe Carnival, Inc., an
Indiana corporation, and that said instrument was signed in behalf of said
corporation by authority of its Board of Directors; and said W. Xxxxx Xxxxxxx
acknowledged said instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
(Seal)
Notary Public /s/ Xxxxx X. Xxxxxx
My Commission Expires: 6/23/97
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EXHIBIT I
AMENDED AND RESTATED
PROMISSORY NOTE
$12,500,000.00 St. Louis, Missouri
February 1, 1997
FOR VALUE RECEIVED, SHOE CARNIVAL, INC., an Indiana corporation (formerly a
Delaware corporation) ("Borrower"), hereby promises to pay to the order of First
Union National Bank of Florida, a national banking association ("Bank") on March
31, 1999, the lesser of (a) Twelve Million Five Hundred Thousand Dollars
($12,500,000.00), or (b) the aggregate unpaid principal amount of all Loans made
by Bank to Borrower in accordance with the terms and conditions hereof and of
that certain Amended and Restated Credit Agreement dated as of November 15, 1994
made by and between Borrower, Mercantile Bank National Association, formerly
known as Mercantile Bank of St. Louis National Association, as Agent (the
"Agent") and the Banks named therein, as amended from time to time (as amended,
the "Credit Agreement") and the unreimbursed amount of any draws under any
Letters of Credit issued for the account of Borrower in accordance with the
terms and conditions of the Credit Agreement and the Reimbursement Agreements
(as defined in the Credit Agreement). The aggregate principal amount which Bank
may have outstanding hereunder at any one time for all Loans shall not exceed
the lesser of (i) Twelve Million Five Hundred Thousand Dollars ($12,500,000.00)
minus the face amount of all Letters of Credit then outstanding under Section
2.1(a) of the Credit Agreement, or (ii) Thirty-Five and 714/1,000ths Percent
(35.714%) of the then current Borrowing Base, which amounts may be borrowed,
paid, reborrowed and repaid, in whole or in part, prior to March 31, 1999
subject to the terms and conditions hereof and of the Credit Agreement. If at
any time the aggregate principal amount of all Loans outstanding under this Note
should exceed the amount set forth in the preceding sentence, whether as a
result of a reduction in the Borrowing Base or otherwise, Borrower shall be
automatically required (without demand or notice of any kind by Bank, all of
which are hereby expressly waived by Borrower), to immediately repay the Loans
in an amount sufficient to reduce such aggregate principal amount of Loans
outstanding under this Note to the amount set forth in the preceding sentence.
Additionally, Borrower promises to pay to the order of Bank all accrued
interest owing on the principal amount of all Loan advances and Letter of Credit
reimbursement obligations outstanding hereunder. Advances hereunder shall bear
interest at the rate per annum equal to such of the following as Borrower, at
its option, shall select:
(a) the interest rate announced from time to time by Agent as its "Prime
Rate" on commercial loans, which rate shall fluctuate as and when said Prime
Rate shall change, or
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(b) the London Interbank Offered Rate plus Eurocurrency Margin (as defined
in the Credit Agreement) for the applicable Interest Period,
determined in each case as of the date of a Prime Rate Loan made hereunder, or
the commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest at a
rate per annum equal to three percent (3%) in excess of the interest rate
announced from time to time by Agent as its "Prime Rate" on commercial loans,
which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year for the actual
number of days elapsed for all Loans made hereunder. Payments of principal,
interest and fees shall be made in lawful money of the United States of America
in immediately available funds at the office of Agent situated at 000 Xxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 or at such other place as the holder of this
Note may designate, and such payments shall be applied to the payment of
interest or principal (or any combination of the foregoing) owing on this Note
in such order as Bank (or such holder) shall determine.
All advances and all principal payments made hereunder and all Interest
Periods and interest rates applicable to Eurocurrency Loans may be endorsed by
the Bank on its records or the sheet attached to this Note, which information so
endorsed or recorded shall constitute prima facie evidence thereof; provided,
however that the obligation of Borrower to repay each advance made hereunder
shall be absolute and unconditional, notwithstanding any failure of Bank to
endorse or record or any mistake by Bank in connection with any recordation or
with any endorsement on the sheet attached to this Note or to give to Borrower
or receive from Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in part the principal
outstanding hereunder; provided, however, that (subject to the right of Bank to
accelerate payment hereunder) any Eurocurrency Loan may be prepaid only at the
expiration of the applicable Interest Period; and provided further, however,
that on any such prepayment, Borrower shall also pay all interest accrued on the
principal amount being prepaid to and including the date of such prepayment. Any
payment of a Eurocurrency Loan other than on the last day of the applicable
Interest Period in contravention of this paragraph shall obligate Borrower to
pay to Bank the amount of any funding losses or other breakage costs which may
be incurred by Bank as set forth in Section 2.10 of the Credit Agreement.
Consistent with the terms of this Note, the Agent shall determine each
interest rate applicable to the advances hereunder, which determination shall be
conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit Agreement, which
Credit Agreement, among other things, contains provisions for acceleration of
the maturity hereof upon the occurrence of certain stated events and also for
prepayments on account of principal hereof and interest hereon prior to the
maturity hereof upon the terms and conditions specified therein. Terms defined
in the Credit Agreement are used herein with the same meanings.
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In the event that any payment due hereunder shall not be paid when due,
whether by reason of demand or otherwise, and this Note shall be placed in the
hands of an attorney for collection hereof, Borrower agrees to pay in addition
to all other amounts due hereon the costs and expenses of collection, including
reasonable attorneys' fees and expenses, whether or not litigation is commenced
in aid thereof. Borrower hereby waives presentment, demand, protest, notice of
protest and notice of dishonor.
This Note shall be governed by and construed in accordance with the
internal laws of the State of Missouri.
This Note is a renewal, restatement and continuation of the obligations due
Bank as evidenced by a prior amended and Restated Promissory Note dated April
10, 1996 from Borrower to Bank, and is not a novation thereof. All interest
evidenced by the prior Note being renewed by this instrument shall continue to
be due and payable until paid.
SHOE CARNIVAL, INC.
By: /s/ W. Xxxxx Xxxxxxx
W. Xxxxx Xxxxxxx, Vice President,
Chief Financial Officer and Treasurer
STATE OF INDIANA )
) SS.
COUNTY OF Vanderburgh )
On this 24th day of February, 1997, before me appeared W. Xxxxx Xxxxxxx, to
me personally known, who being by me duly sworn, did say that he is the Vice
President, Chief Financial Officer and Treasurer of Shoe Carnival, Inc., an
Indiana corporation, and that said instrument was signed in behalf of said
corporation by authority of its Board of Directors; and said W. Xxxxx Xxxxxxx
acknowledged said instrument to be the free act and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
(Seal)
Notary Public /s/ Xxxxx X. Xxxxxx
My Commission Expires: 6/23/97
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