Exhibit 10.45
AMENDMENT AGREEMENT
THIS AMENDMENT AGREEMENT ("Agreement") is entered into as of the 16th
day of May, 1997 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 (collectively, the "Borrowers"), TREBOR of
TN, INC., a Tennessee corporation, SYDOOG, INC., a Delaware corporation,
GOFAMCLO, INC., a Delaware corporation (collectively, the "Guarantors"), those
several lenders who are or become parties to the Credit Agreement (as
hereinafter defined) (collectively, the "Lenders" and, individually, a
"Lender"), and FIRST TENNESSEE BANK NATIONAL ASSOCIATION, a national banking
association with offices in Knoxville, Tennessee, as administrative agent for
the Lenders (in such capacity, 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., the Administrative Agent and the Lenders,
as amended and restated by that certain Amended and Restated Credit Agreement
dated as of October 31, 1996 between Borrowers, Lenders and the Administrative
Agent (collectively, the "Credit Agreement"), Lenders have committed to make
loans to Borrowers in the principal amount of $100,000,000 (the "Loans")
pursuant to the terms and provisions thereof;
WHEREAS, pursuant to the Credit Agreement, each Borrower delivered a
promissory note dated October 31, 1996 to each Lender (collectively, the
"Notes") in the amount of such Lender's Commitment (as defined in the Credit
Agreement);
WHEREAS, the parties wish to increase the amount of the Commitments,
revise and modify certain obligations of the parties specified in the Credit
Agreement, and extend the Termination Date of the Credit Agreement from May 31,
1998 until May 31, 1999; and
WHEREAS, all terms capitalized herein and not otherwise defined shall
have the meanings ascribed to them in the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Termination Date. The definition of Termination Date in the Credit
Agreement is hereby amended in its entirety to state as follows:
"Termination Date" shall mean May 31, 1999.
All indebtedness of the Borrowers incurred under the Credit
Agreement shall be due and payable as of the Termination Date set forth above.
2. Commitments. Section 2.1.1 is hereby amended to increase the aggregate
amount of the Commitments from $100,000,000 to $120,000,000. The Commitment and
Percentage of each Lender as set forth on the signature pages to the Credit
Agreement are hereby amended to be as follows:
Lender Commitment Percentage
First Tennessee Bank $24,000,000 20.00%
National Association
First American $18,000,000 15.00%
National Bank
AmSouth Bank of $21,000,000 17.50%
Alabama
Southtrust Bank of $21,000,000 17.50%
Alabama, N.A.
First Union National $21,000,000 17.50%
Bank of Tennessee
Wachovia Bank of $15,000,000 12.50%
Georgia, N.A.
3. Commitment Fee; Interest and Fee Margins. The following amendments are
made to the provisions of Sections 2.11.1, 2.13.1 and 2.13.2 of the Credit
Agreement:
a. Commitment Fees. Section 2.11.1 is hereby amended to change the per annum fee
for each Lender's agreement to participate in the Facilities from twenty
one-hundredths of one percent (0.20%) to fifteen one-hundredths of one percent
(0.15%).
b. Applicable LIBOR Margin. Section 2.13.1 is hereby amended to change the
Applicable LIBOR Margin from one percent (1.0%) to seventy-five one-hundredths
of one percent (.75%).
c. Applicable Commercial Letter of Credit Fee Percentage.
Section 2.13.2 is hereby amended to change the Applicable Commercial Letter of
Credit Fee Percentage from ninety one-hundredths of one percent (.90%) to
seventy one-hundredths of one percent (.70%).
4. Financial Covenants. Sections 10.1.1, 10.1.2, 10.1.3 and 10.1.4 of the
Credit Agreement are hereby amended to state as follows:
10.1.1 Current Ratio. Permit on a consolidated basis in accordance with GAAP the
Current Ratio as of the end of any Fiscal Quarter to be less than 1.05 to 1.00
or permit the Current Ratio as of the end of any Fiscal Year to be less than
1.15 to 1.00.
10.1.2. Debt to Worth Ratio. Permit on a consolidated basis in accordance with
GAAP the ratio of Total Liabilities of the Borrowers and Guarantors to
Shareholders Equity of the Borrowers and Guarantors as of the end of any Fiscal
Year to exceed 1.25 to 1.00.
10.1.3. Shareholders Equity. Permit on a consolidated basis in accordance with
GAAP the Shareholders Equity of Borrowers and Guarantors in the aggregate (a) to
be less than $123,500,000 as of February 1, 1997, (b) to be less than
$136,000,000 as of January 31, 1998, or (c) to be less than $150,000,000 as of
January 30, 1999.
10.1.4. Capital Expenditures. Permit Capital Expenditures made by Borrowers and
Guarantors in the aggregate to exceed (a) $35,500,000 in the aggregate during
the Fiscal Year ending February 3, 1996 and the Fiscal Year ending February 1,
1997, (b) $27,500,000 for the Fiscal Year ending January 31, 1998, and (c)
$32,500,000 for the Fiscal Year ending January 30, 1999.
5. Investments. Section 9.4 of the Credit Agreement is hereby amended to
add the following as Subsection (f):
(f) Any action whereby GFC (a) purchases, redeems, retires or
otherwise acquires for value any of its capital stock or any
warrants, options or other rights in respect of its capital
stock now or hereafter outstanding, or (b) segregates or sets
apart assets for a sinking or analogous fund for the purchase,
redemption, retirement or other acquisition of any shares of
its capital stock or any warrants, options or other rights in
respect of its capital stock now or hereafter outstanding.
6. Dividends. Section 9.6 of the Credit Agreement is hereby amended in its
entirety to provide as follows:
9.6 Restricted Payments. Declare, pay or make any dividends
(other than stock dividends) or other distributions with
respect to, or any other payment on account of, the capital
stock or any warrants, options or other rights in respect of
the capital stock (or partnership interests, as the case may
be) of such Borrowers or Guarantors now or hereafter
outstanding unless such dividend, distribution or payment is
made to GFC provided, however, that so long as no Default or
Event of Default exists or would result therefrom, GFC may pay
dividends or make other distributions to its shareholders in
any Fiscal Year not in excess of twenty percent (20%) of the
Net Income of GFC for the prior Fiscal Year as reflected on
GFC's audited financial statements for the prior Fiscal Year.
7. Change in Control. Section 11.1.15 of the Credit Agreement is hereby
amended in its entirety to provide as follows:
11.1.15 Change in Control. An event or series of events by
which (a) Xxxxxx X. Xxxxxxxxxx fails to hold either the
position of Chairman of the Board of Directors of GFC or the
position of Chief Executive Officer of GFC, (b) the Borrowers
(other than GFC) and Guarantors cease to be direct or indirect
wholly-owned subsidiaries of GFC, or (c) any of Borrowers or
Guarantors consolidates with or merges into another Person or
conveys, transfers or leases all or substantially all of its
assets to any Person, or any corporation consolidates with or
merges into any of Borrowers or Guarantors pursuant to a
transaction in which the outstanding securities of such
Borrower or Guarantor entitled to vote in the election of
directors are changed into or exchanged for cash, securities
or other property, other than mergers or consolidations
between two or more Borrowers and/or Guarantors, or a
transaction between the Borrowers, Guarantors and any
Subsidiary of the Borrowers or Guarantors provided, however,
that such transaction does not violate Sections 9.3 and 9.7,
and provided, further, that any merger, consolidation or
transaction allowed under this Section 11.1.15 does not result
in the termination of GFC's corporate existence.
8. New Notes. The Borrowers shall deliver to each Lender an Amended and
Restated Promissory Note substantially in the form attached to the Credit
Agreement as Exhibit 2.8 (the "New Notes") reflecting the amount of each such
Lender's Commitment as set forth above. Upon the execution and delivery of the
New Notes to the above listed Lenders, those Lenders shall return their original
Notes to the Borrowers marked "canceled".
9. 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.
10. Representations and Warranties. The representations and warranties of
the Borrowers and Guarantors in the Credit Agreement are true and correct on and
as of the date hereof as though made on this date.
11. No Default. As of the date hereof, each Borrower and Guarantor is in
full compliance with all of the terms and provisions set forth in the Credit
Agreement as amended hereby, including without limitation the covenants and
agreements set forth in Articles 8, 9 and 10 of the Credit Agreement, and all of
the instruments and documents executed in connection therewith, and no Event of
Default, as defined in Article 11 of the Credit Agreement, nor any event which,
upon notice, lapse of time or both, would constitute an Event of Default, has
occurred or is continuing.
12. 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.
13. No Novation. Except as set forth herein, this Agreement does not
constitute a discharge or novation of any promissory note existing prior to this
Agreement or any other documents executed in connection with the Loans, and such
documents shall continue in full force and effect and shall be fully binding
upon all parties hereto.
14. Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
15. 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
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
GUARANTORS:
SYDOOG, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
Title: President
GOFAMCLO, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
Title: President
TREBOR OF TN, INC., a Tennessee corporation
By: /s/ Xxxxx X. Call
Title: President
[LENDERS' SIGNATURE PAGES FOLLOW]
[Lender's Signature Page to Amendment Agreement dated May 16, 1997]
FIRST TENNESSEE BANK NATIONAL ASSOCIATION,
as a Lender and as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx
Title: Vice President
Address: First Tennessee Bank National Association
Corporate Lending Group
Plaza Tower
000 X. Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Telecopy No. 000-000-0000
[Lender's Signature Page to Amendment Agreement dated May 16, 1997]
FIRST AMERICAN NATIONAL BANK, as a Lender
By: /s/ Xxxx X. Xxxxxxxxxxxxxx
Title: SVP
Address: 000 X. Xxx Xxxxxx, Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxxxxxx
Telecopy No. 000-000-0000
[Lender's Signature Page to Amendment Agreement dated May 16, 1997]
AMSOUTH BANK OF ALABAMA, as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President
Address: 0000 0xx Xxxxxx Xxxxx, 0xx xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopy No. 000-000-0000
[Lender's Signature Page to Amendment Agreement dated May 16, 1997]
SOUTHTRUST BANK OF ALABAMA, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxxx, III
Title: AVP
Address: 000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, III
Telecopy No. 000-000-0000
[Lender's Signature Page to Amendment Agreement dated May 16, 1997]
FIRST UNION NATIONAL BANK OF TENNESSEE,
as a Lender
By: /s/ Xxxxxxx X. Xxxxx
Title: SVP
Address: 000 Xxxxxx Xxxxxx Xxxxx
First Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telecopy No. 000-000-0000
[Lender's Signature Page to Amendment Agreement dated May 16, 1997]
WACHOVIA BANK OF GEORGIA, N.A., as a Lender
By: /s/ Xxxx Xxxx
Title: AVP
Address: 000 Xxxxxxxxx Xxxxxx, XX, 00xx xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxx
Telecopy No. 000-000-0000
1025716
AMENDED AND RESTATED PROMISSORY NOTE
$24,000,000 Knoxville, Tennessee May 16, 1997
FOR VALUE RECEIVED, on or before the Termination Date, as defined in
the hereinafter described Credit Agreement, the undersigned, GOODY'S FAMILY
CLOTHING, INC., a Tennessee corporation, GOODY'S MS, L.P., a Tennessee limited
partnership, and GOODY'S IN, L.P., a Tennessee limited partnership
(collectively, the "Maker"), promises to pay to the order of FIRST TENNESSEE
BANK NATIONAL ASSOCIATION ("Payee"; Payee, and any subsequent holder[s] hereof,
being hereinafter referred to collectively as "Holder"), the principal sum of
TWENTY-FOUR MILLION AND 00/100THS DOLLARS ($24,000,000.00) or, if less, the
aggregate unpaid principal amount of all Loans advanced here against pursuant to
that certain Amended and Restated Credit Agreement dated October 31, 1996, by
and among Maker, First Tennessee Bank National Association, a national banking
association, as Administrative Agent, and the Lenders party thereto, as amended
by that certain Amendment Agreement of even date herewith (together with any
amendments thereto and/or modifications thereof, herein referred to as the
"Credit Agreement"; capitalized terms used but not otherwise defined herein
shall have the same meanings as in the Credit Agreement), together with interest
on the unpaid principal balance of the Loans evidenced hereby at the rate(s)
specified in the Credit Agreement; provided that in no event shall the interest
and loan charges payable in respect of the indebtedness evidenced hereby exceed
the maximum amounts from time to time allowed to be collected under applicable
law.
Principal and interest payable in respect of the indebtedness evidenced
by this Note shall be due and payable at the times and in the manner specified
in the Credit Agreement.
Holder hereby is authorized to record and endorse the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on a
schedule annexed to and constituting a part of this Note, which recordation and
endorsement shall constitute prima facie evidence of the respective Loans made
by Holder to Maker and payments made by Maker to Holder, absent manifest error;
provided, however, that (a) Holder's failure to make any such recordation or
endorsement shall not in any way limit or otherwise affect the obligations of
Maker or the rights and remedies of Holder under this Note or the Credit
Agreement and (b) payments to Holder of the principal of and interest on the
Loans evidenced hereby shall not be affected by the failure to make any such
recordation or endorsement thereof. In lieu of making recordation or
endorsement, Holder hereby is authorized, at its option, to record the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on its
books and records in accordance with its usual and customary practice, which
recordation shall constitute prima facie evidence of the Loans made by Holder to
Maker and payments in respect thereof made by Maker to Holder, absent manifest
error.
Upon the occurrence of an Event of Default, the entire outstanding
principal balance of the indebtedness evidenced hereby, together with all
accrued and unpaid interest thereon, may be declared, and immediately shall
become, due and payable in full, all as provided in the Credit Agreement,
subject to applicable notice and cure provisions in the said Credit Agreement.
Presentment for payment, demand, protest and notice of demand, protest
and nonpayment are hereby waived by Maker and all other parties hereto, except
as provided in the Credit Agreement.
This Note is one of the "Notes" in the aggregate principal amount of
$120,000,000 issued by Maker pursuant to the Credit Agreement, and this Note is
entitled to the benefits of the Credit Agreement and the other Loan Documents.
It is the intention of Maker and Holder to conform strictly to all laws
applicable to the Holder that govern or limit the interest and loan charges that
may be charged in respect of the indebtedness evidenced hereby. Anything in this
Note, the Credit Agreement or any of the other Loan Documents to the contrary
notwithstanding, in no event whatsoever, whether by reason of advancement of
proceeds of the Loans or the Letters of Credit, acceleration of the maturity of
the unpaid balance of any of the Obligations or otherwise, shall the interest
and loan charges agreed to be paid to any of the Lenders for the use of the
money advanced or to be advanced under the Credit Agreement exceed the maximum
amounts collectible pursuant to applicable law. Pursuant to the Credit
Agreement, Maker and the Lenders have agreed that:
(a) if for any reason whatsoever the interest or loan charges
paid or contracted to be paid by Maker to any of the Lenders in respect
of the Loans shall exceed the maximum amount collectible under the law
applicable to such Lender, then, in that event, and notwithstanding
anything to the contrary in the Credit Agreement, the Notes or any
other Loan Document (i) the aggregate of all consideration that
constitutes interest or loan charges under the law applicable to such
Lender that is contracted for, taken, reserved, charged or received
under the Credit Agreement, the Notes or any other Loan Document or
otherwise in connection with the Obligations under no circumstances
shall exceed the maximum amounts allowed by such applicable law, and
any excess paid to any Lender shall be credited by such Lender on the
principal amount of the Obligations (or, to the extent the principal
amount outstanding under the Credit Agreement, the Notes and the other
Loan Documents has been or thereby would be paid in full, refunded to
Maker), and (ii) in the event that the maturity of any or all of the
Obligations is accelerated by reason of an election of the Lenders
resulting from any Default under the Credit Agreement or otherwise, or
in the event of any required or permitted prepayment, then such
consideration that constitutes interest or loan charges under the law
applicable to any Lender may never include more than the maximum
amounts allowed by the law applicable to such Lender, and any excess
interest or loan charges provided for in the Credit Agreement or
otherwise shall be canceled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited
by such Lender on the principal amount of the Obligations (or, to the
extent the principal amount of the Obligations has been or thereby
would be paid in full, refunded by such Lender to Maker);
(b) all sums paid or agreed to be paid to the Lenders for the
use, forbearance or detention of sums due under the Credit Agreement
shall, to the extent permitted by applicable law, be prorated,
allocated and spread throughout the full term of the Obligations until
payment in full so that the rate or amount of interest and loan charges
on account of the Obligations will not exceed any applicable legal
limitation; and
(c) the right to accelerate the maturity of the Obligations
does not include the right to accelerate the maturity of any interest
or loan charges not otherwise accrued on the date of such acceleration,
and the Lenders do not intend to charge or collect any unearned
interest or loan charges in the event of any such acceleration.
This Note has been negotiated, executed and delivered in the State of
Tennessee, and is intended as a contract under and shall be construed and
enforceable in accordance with the laws of said state, without reference to the
conflicts or choice of law principles thereof, except to the extent that Federal
law may be applicable to determining the maximum amount of interest that may be
charged by Holder in respect of the indebtedness evidenced hereby.
This Note amends and restates that certain Amended and Restated Promissory
Note of Goody's Family Clothing, Inc. and those certain Promissory Notes of
Goody's MS, L.P. and Goody's IN, L.P. in favor of Payee each dated October 31,
1996 in their entirety.
IN WITNESS WHEREOF, the undersigned Maker has caused this Note to be
executed by its duly authorized officers as of the date first above written.
MAKER:
GOODY'S FAMILY CLOTHING, INC.
By: /s/ Xxxxx X. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
1026145.01
AMENDED AND RESTATED PROMISSORY NOTE
$18,000,000 Knoxville, Tennessee May 16, 1997
FOR VALUE RECEIVED, on or before the Termination Date, as defined in
the hereinafter described Credit Agreement, the undersigned, GOODY'S FAMILY
CLOTHING, INC., a Tennessee corporation, GOODY'S MS, L.P., a Tennessee limited
partnership, and GOODY'S IN, L.P., a Tennessee limited partnership
(collectively, the "Maker"), promises to pay to the order of FIRST AMERICAN
NATIONAL BANK ("Payee"; Payee, and any subsequent holder[s] hereof, being
hereinafter referred to collectively as "Holder"), the principal sum of EIGHTEEN
MILLION AND 00/100THS DOLLARS ($18,000,000.00) or, if less, the aggregate unpaid
principal amount of all Loans advanced here against pursuant to that certain
Amended and Restated Credit Agreement dated October 31, 1996, by and among
Maker, First Tennessee Bank National Association, a national banking
association, as Administrative Agent, and the Lenders party thereto, as amended
by that certain Amendment Agreement of even date herewith (together with any
amendments thereto and/or modifications thereof, herein referred to as the
"Credit Agreement"; capitalized terms used but not otherwise defined herein
shall have the same meanings as in the Credit Agreement), together with interest
on the unpaid principal balance of the Loans evidenced hereby at the rate(s)
specified in the Credit Agreement; provided that in no event shall the interest
and loan charges payable in respect of the indebtedness evidenced hereby exceed
the maximum amounts from time to time allowed to be collected under applicable
law.
Principal and interest payable in respect of the indebtedness evidenced
by this Note shall be due and payable at the times and in the manner specified
in the Credit Agreement.
Holder hereby is authorized to record and endorse the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on a
schedule annexed to and constituting a part of this Note, which recordation and
endorsement shall constitute prima facie evidence of the respective Loans made
by Holder to Maker and payments made by Maker to Holder, absent manifest error;
provided, however, that (a) Holder's failure to make any such recordation or
endorsement shall not in any way limit or otherwise affect the obligations of
Maker or the rights and remedies of Holder under this Note or the Credit
Agreement and (b) payments to Holder of the principal of and interest on the
Loans evidenced hereby shall not be affected by the failure to make any such
recordation or endorsement thereof. In lieu of making recordation or
endorsement, Holder hereby is authorized, at its option, to record the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on its
books and records in accordance with its usual and customary practice, which
recordation shall constitute prima facie evidence of the Loans made by Holder to
Maker and payments in respect thereof made by Maker to Holder, absent manifest
error.
Upon the occurrence of an Event of Default, the entire outstanding
principal balance of the indebtedness evidenced hereby, together with all
accrued and unpaid interest thereon, may be declared, and immediately shall
become, due and payable in full, all as provided in the Credit Agreement,
subject to applicable notice and cure provisions in the said Credit Agreement.
Presentment for payment, demand, protest and notice of demand, protest
and nonpayment are hereby waived by Maker and all other parties hereto, except
as provided in the Credit Agreement.
This Note is one of the "Notes" in the aggregate principal amount of
$120,000,000 issued by Maker pursuant to the Credit Agreement, and this Note is
entitled to the benefits of the Credit Agreement and the other Loan Documents.
It is the intention of Maker and Holder to conform strictly to all laws
applicable to the Holder that govern or limit the interest and loan charges that
may be charged in respect of the indebtedness evidenced hereby. Anything in this
Note, the Credit Agreement or any of the other Loan Documents to the contrary
notwithstanding, in no event whatsoever, whether by reason of advancement of
proceeds of the Loans or the Letters of Credit, acceleration of the maturity of
the unpaid balance of any of the Obligations or otherwise, shall the interest
and loan charges agreed to be paid to any of the Lenders for the use of the
money advanced or to be advanced under the Credit Agreement exceed the maximum
amounts collectible pursuant to applicable law. Pursuant to the Credit
Agreement, Maker and the Lenders have agreed that:
(a) if for any reason whatsoever the interest or loan charges
paid or contracted to be paid by Maker to any of the Lenders in respect
of the Loans shall exceed the maximum amount collectible under the law
applicable to such Lender, then, in that event, and notwithstanding
anything to the contrary in the Credit Agreement, the Notes or any
other Loan Document (i) the aggregate of all consideration that
constitutes interest or loan charges under the law applicable to such
Lender that is contracted for, taken, reserved, charged or received
under the Credit Agreement, the Notes or any other Loan Document or
otherwise in connection with the Obligations under no circumstances
shall exceed the maximum amounts allowed by such applicable law, and
any excess paid to any Lender shall be credited by such Lender on the
principal amount of the Obligations (or, to the extent the principal
amount outstanding under the Credit Agreement, the Notes and the other
Loan Documents has been or thereby would be paid in full, refunded to
Maker), and (ii) in the event that the maturity of any or all of the
Obligations is accelerated by reason of an election of the Lenders
resulting from any Default under the Credit Agreement or otherwise, or
in the event of any required or permitted prepayment, then such
consideration that constitutes interest or loan charges under the law
applicable to any Lender may never include more than the maximum
amounts allowed by the law applicable to such Lender, and any excess
interest or loan charges provided for in the Credit Agreement or
otherwise shall be canceled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited
by such Lender on the principal amount of the Obligations (or, to the
extent the principal amount of the Obligations has been or thereby
would be paid in full, refunded by such Lender to Maker);
(b) all sums paid or agreed to be paid to the Lenders for the
use, forbearance or detention of sums due under the Credit Agreement
shall, to the extent permitted by applicable law, be prorated,
allocated and spread throughout the full term of the Obligations until
payment in full so that the rate or amount of interest and loan charges
on account of the Obligations will not exceed any applicable legal
limitation; and
(c) the right to accelerate the maturity of the Obligations
does not include the right to accelerate the maturity of any interest
or loan charges not otherwise accrued on the date of such acceleration,
and the Lenders do not intend to charge or collect any unearned
interest or loan charges in the event of any such acceleration.
This Note has been negotiated, executed and delivered in the State of
Tennessee, and is intended as a contract under and shall be construed and
enforceable in accordance with the laws of said state, without reference to the
conflicts or choice of law principles thereof, except to the extent that Federal
law may be applicable to determining the maximum amount of interest that may be
charged by Holder in respect of the indebtedness evidenced hereby.
This Note amends and restates that certain Amended and Restated Promissory
Note of Goody's Family Clothing, Inc. and those certain Promissory Notes of
Goody's MS, L.P. and Goody's IN, L.P. in favor of Payee each dated October 31,
1996 in their entirety.
IN WITNESS WHEREOF, the undersigned Maker has caused this Note to be
executed by its duly authorized officers as of the date first above written.
MAKER:
GOODY'S FAMILY CLOTHING, INC.
By: /s/ Xxxxx X. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
1026146.01
AMENDED AND RESTATED PROMISSORY NOTE
$21,000,000 Knoxville, Tennessee May 16, 1997
FOR VALUE RECEIVED, on or before the Termination Date, as defined in
the hereinafter described Credit Agreement, the undersigned, GOODY'S FAMILY
CLOTHING, INC., a Tennessee corporation, GOODY'S MS, L.P., a Tennessee limited
partnership, and GOODY'S IN, L.P., a Tennessee limited partnership
(collectively, the "Maker"), promises to pay to the order of AMSOUTH BANK OF
ALABAMA ("Payee"; Payee, and any subsequent holder[s] hereof, being hereinafter
referred to collectively as "Holder"), the principal sum of TWENTY-ONE MILLION
AND 00/100THS DOLLARS ($21,000,000.00) or, if less, the aggregate unpaid
principal amount of all Loans advanced here against pursuant to that certain
Amended and Restated Credit Agreement dated October 31, 1996, by and among
Maker, First Tennessee Bank National Association, a national banking
association, as Administrative Agent, and the Lenders party thereto, as amended
by that certain Amendment Agreement of even date herewith (together with any
amendments thereto and/or modifications thereof, herein referred to as the
"Credit Agreement"; capitalized terms used but not otherwise defined herein
shall have the same meanings as in the Credit Agreement), together with interest
on the unpaid principal balance of the Loans evidenced hereby at the rate(s)
specified in the Credit Agreement; provided that in no event shall the interest
and loan charges payable in respect of the indebtedness evidenced hereby exceed
the maximum amounts from time to time allowed to be collected under applicable
law.
Principal and interest payable in respect of the indebtedness evidenced
by this Note shall be due and payable at the times and in the manner specified
in the Credit Agreement.
Holder hereby is authorized to record and endorse the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on a
schedule annexed to and constituting a part of this Note, which recordation and
endorsement shall constitute prima facie evidence of the respective Loans made
by Holder to Maker and payments made by Maker to Holder, absent manifest error;
provided, however, that (a) Holder's failure to make any such recordation or
endorsement shall not in any way limit or otherwise affect the obligations of
Maker or the rights and remedies of Holder under this Note or the Credit
Agreement and (b) payments to Holder of the principal of and interest on the
Loans evidenced hereby shall not be affected by the failure to make any such
recordation or endorsement thereof. In lieu of making recordation or
endorsement, Holder hereby is authorized, at its option, to record the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on its
books and records in accordance with its usual and customary practice, which
recordation shall constitute prima facie evidence of the Loans made by Holder to
Maker and payments in respect thereof made by Maker to Holder, absent manifest
error.
Upon the occurrence of an Event of Default, the entire outstanding
principal balance of the indebtedness evidenced hereby, together with all
accrued and unpaid interest thereon, may be declared, and immediately shall
become, due and payable in full, all as provided in the Credit Agreement,
subject to applicable notice and cure provisions in the said Credit Agreement.
Presentment for payment, demand, protest and notice of demand, protest
and nonpayment are hereby waived by Maker and all other parties hereto, except
as provided in the Credit Agreement.
This Note is one of the "Notes" in the aggregate principal amount of
$120,000,000 issued by Maker pursuant to the Credit Agreement, and this Note is
entitled to the benefits of the Credit Agreement and the other Loan Documents.
It is the intention of Maker and Holder to conform strictly to all laws
applicable to the Holder that govern or limit the interest and loan charges that
may be charged in respect of the indebtedness evidenced hereby. Anything in this
Note, the Credit Agreement or any of the other Loan Documents to the contrary
notwithstanding, in no event whatsoever, whether by reason of advancement of
proceeds of the Loans or the Letters of Credit, acceleration of the maturity of
the unpaid balance of any of the Obligations or otherwise, shall the interest
and loan charges agreed to be paid to any of the Lenders for the use of the
money advanced or to be advanced under the Credit Agreement exceed the maximum
amounts collectible pursuant to applicable law. Pursuant to the Credit
Agreement, Maker and the Lenders have agreed that:
(a) if for any reason whatsoever the interest or loan charges
paid or contracted to be paid by Maker to any of the Lenders in respect
of the Loans shall exceed the maximum amount collectible under the law
applicable to such Lender, then, in that event, and notwithstanding
anything to the contrary in the Credit Agreement, the Notes or any
other Loan Document (i) the aggregate of all consideration that
constitutes interest or loan charges under the law applicable to such
Lender that is contracted for, taken, reserved, charged or received
under the Credit Agreement, the Notes or any other Loan Document or
otherwise in connection with the Obligations under no circumstances
shall exceed the maximum amounts allowed by such applicable law, and
any excess paid to any Lender shall be credited by such Lender on the
principal amount of the Obligations (or, to the extent the principal
amount outstanding under the Credit Agreement, the Notes and the other
Loan Documents has been or thereby would be paid in full, refunded to
Maker), and (ii) in the event that the maturity of any or all of the
Obligations is accelerated by reason of an election of the Lenders
resulting from any Default under the Credit Agreement or otherwise, or
in the event of any required or permitted prepayment, then such
consideration that constitutes interest or loan charges under the law
applicable to any Lender may never include more than the maximum
amounts allowed by the law applicable to such Lender, and any excess
interest or loan charges provided for in the Credit Agreement or
otherwise shall be canceled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited
by such Lender on the principal amount of the Obligations (or, to the
extent the principal amount of the Obligations has been or thereby
would be paid in full, refunded by such Lender to Maker);
(b) all sums paid or agreed to be paid to the Lenders for the
use, forbearance or detention of sums due under the Credit Agreement
shall, to the extent permitted by applicable law, be prorated,
allocated and spread throughout the full term of the Obligations until
payment in full so that the rate or amount of interest and loan charges
on account of the Obligations will not exceed any applicable legal
limitation; and
(c) the right to accelerate the maturity of the Obligations
does not include the right to accelerate the maturity of any interest
or loan charges not otherwise accrued on the date of such acceleration,
and the Lenders do not intend to charge or collect any unearned
interest or loan charges in the event of any such acceleration.
This Note has been negotiated, executed and delivered in the State of
Tennessee, and is intended as a contract under and shall be construed and
enforceable in accordance with the laws of said state, without reference to the
conflicts or choice of law principles thereof, except to the extent that Federal
law may be applicable to determining the maximum amount of interest that may be
charged by Holder in respect of the indebtedness evidenced hereby.
This Note amends and restates that certain Amended and Restated Promissory
Note of Goody's Family Clothing, Inc. and those certain Promissory Notes of
Goody's MS, L.P. and Goody's IN, L.P. in favor of Payee each dated October 31,
1996 in their entirety.
IN WITNESS WHEREOF, the undersigned Maker has caused this Note to be
executed by its duly authorized officers as of the date first above written.
MAKER:
GOODY'S FAMILY CLOTHING, INC.
By: /s/ Xxxxx X. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
1026516.01
AMENDED AND RESTATED PROMISSORY NOTE
$21,000,000 Knoxville, Tennessee May 16, 1997
FOR VALUE RECEIVED, on or before the Termination Date, as defined in
the hereinafter described Credit Agreement, the undersigned, GOODY'S FAMILY
CLOTHING, INC., a Tennessee corporation, GOODY'S MS, L.P., a Tennessee limited
partnership, and GOODY'S IN, L.P., a Tennessee limited partnership
(collectively, the "Maker"), promises to pay to the order of SOUTHTRUST BANK OF
ALABAMA, N.A. ("Payee"; Payee, and any subsequent holder[s] hereof, being
hereinafter referred to collectively as "Holder"), the principal sum of
TWENTY-ONE MILLION AND 00/100THS DOLLARS ($21,000,000.00) or, if less, the
aggregate unpaid principal amount of all Loans advanced here against pursuant to
that certain Amended and Restated Credit Agreement dated October 31, 1996, by
and among Maker, First Tennessee Bank National Association, a national banking
association, as Administrative Agent, and the Lenders party thereto, as amended
by that certain Amendment Agreement of even date herewith (together with any
amendments thereto and/or modifications thereof, herein referred to as the
"Credit Agreement"; capitalized terms used but not otherwise defined herein
shall have the same meanings as in the Credit Agreement), together with interest
on the unpaid principal balance of the Loans evidenced hereby at the rate(s)
specified in the Credit Agreement; provided that in no event shall the interest
and loan charges payable in respect of the indebtedness evidenced hereby exceed
the maximum amounts from time to time allowed to be collected under applicable
law.
Principal and interest payable in respect of the indebtedness evidenced
by this Note shall be due and payable at the times and in the manner specified
in the Credit Agreement.
Holder hereby is authorized to record and endorse the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on a
schedule annexed to and constituting a part of this Note, which recordation and
endorsement shall constitute prima facie evidence of the respective Loans made
by Holder to Maker and payments made by Maker to Holder, absent manifest error;
provided, however, that (a) Holder's failure to make any such recordation or
endorsement shall not in any way limit or otherwise affect the obligations of
Maker or the rights and remedies of Holder under this Note or the Credit
Agreement and (b) payments to Holder of the principal of and interest on the
Loans evidenced hereby shall not be affected by the failure to make any such
recordation or endorsement thereof. In lieu of making recordation or
endorsement, Holder hereby is authorized, at its option, to record the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on its
books and records in accordance with its usual and customary practice, which
recordation shall constitute prima facie evidence of the Loans made by Holder to
Maker and payments in respect thereof made by Maker to Holder, absent manifest
error.
Upon the occurrence of an Event of Default, the entire outstanding
principal balance of the indebtedness evidenced hereby, together with all
accrued and unpaid interest thereon, may be declared, and immediately shall
become, due and payable in full, all as provided in the Credit Agreement,
subject to applicable notice and cure provisions in the said Credit Agreement.
Presentment for payment, demand, protest and notice of demand, protest
and nonpayment are hereby waived by Maker and all other parties hereto, except
as provided in the Credit Agreement.
This Note is one of the "Notes" in the aggregate principal amount of
$120,000,000 issued by Maker pursuant to the Credit Agreement, and this Note is
entitled to the benefits of the Credit Agreement and the other Loan Documents.
It is the intention of Maker and Holder to conform strictly to all laws
applicable to the Holder that govern or limit the interest and loan charges that
may be charged in respect of the indebtedness evidenced hereby. Anything in this
Note, the Credit Agreement or any of the other Loan Documents to the contrary
notwithstanding, in no event whatsoever, whether by reason of advancement of
proceeds of the Loans or the Letters of Credit, acceleration of the maturity of
the unpaid balance of any of the Obligations or otherwise, shall the interest
and loan charges agreed to be paid to any of the Lenders for the use of the
money advanced or to be advanced under the Credit Agreement exceed the maximum
amounts collectible pursuant to applicable law. Pursuant to the Credit
Agreement, Maker and the Lenders have agreed that:
(a) if for any reason whatsoever the interest or loan charges
paid or contracted to be paid by Maker to any of the Lenders in respect
of the Loans shall exceed the maximum amount collectible under the law
applicable to such Lender, then, in that event, and notwithstanding
anything to the contrary in the Credit Agreement, the Notes or any
other Loan Document (i) the aggregate of all consideration that
constitutes interest or loan charges under the law applicable to such
Lender that is contracted for, taken, reserved, charged or received
under the Credit Agreement, the Notes or any other Loan Document or
otherwise in connection with the Obligations under no circumstances
shall exceed the maximum amounts allowed by such applicable law, and
any excess paid to any Lender shall be credited by such Lender on the
principal amount of the Obligations (or, to the extent the principal
amount outstanding under the Credit Agreement, the Notes and the other
Loan Documents has been or thereby would be paid in full, refunded to
Maker), and (ii) in the event that the maturity of any or all of the
Obligations is accelerated by reason of an election of the Lenders
resulting from any Default under the Credit Agreement or otherwise, or
in the event of any required or permitted prepayment, then such
consideration that constitutes interest or loan charges under the law
applicable to any Lender may never include more than the maximum
amounts allowed by the law applicable to such Lender, and any excess
interest or loan charges provided for in the Credit Agreement or
otherwise shall be canceled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited
by such Lender on the principal amount of the Obligations (or, to the
extent the principal amount of the Obligations has been or thereby
would be paid in full, refunded by such Lender to Maker);
(b) all sums paid or agreed to be paid to the Lenders for the
use, forbearance or detention of sums due under the Credit Agreement
shall, to the extent permitted by applicable law, be prorated,
allocated and spread throughout the full term of the Obligations until
payment in full so that the rate or amount of interest and loan charges
on account of the Obligations will not exceed any applicable legal
limitation; and
(c) the right to accelerate the maturity of the Obligations
does not include the right to accelerate the maturity of any interest
or loan charges not otherwise accrued on the date of such acceleration,
and the Lenders do not intend to charge or collect any unearned
interest or loan charges in the event of any such acceleration.
This Note has been negotiated, executed and delivered in the State of
Tennessee, and is intended as a contract under and shall be construed and
enforceable in accordance with the laws of said state, without reference to the
conflicts or choice of law principles thereof, except to the extent that Federal
law may be applicable to determining the maximum amount of interest that may be
charged by Holder in respect of the indebtedness evidenced hereby.
This Note amends and restates that certain Amended and Restated Promissory
Note of Goody's Family Clothing, Inc. and those certain Promissory Notes of
Goody's MS, L.P. and Goody's IN, L.P. in favor of Payee each dated October 31,
1996 in their entirety.
IN WITNESS WHEREOF, the undersigned Maker has caused this Note to be
executed by its duly authorized officers as of the date first above written.
MAKER:
GOODY'S FAMILY CLOTHING, INC.
By: /s/ Xxxxx X. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
1026143.01
AMENDED AND RESTATED PROMISSORY NOTE
$21,000,000 Knoxville, Tennessee May 16, 1997
FOR VALUE RECEIVED, on or before the Termination Date, as defined in
the hereinafter described Credit Agreement, the undersigned, GOODY'S FAMILY
CLOTHING, INC., a Tennessee corporation, GOODY'S MS, L.P., a Tennessee limited
partnership, and GOODY'S IN, L.P., a Tennessee limited partnership
(collectively, the "Maker"), promises to pay to the order of FIRST UNION
NATIONAL BANK OF TENNESSEE ("Payee"; Payee, and any subsequent holder[s] hereof,
being hereinafter referred to collectively as "Holder"), the principal sum of
TWENTY-ONE MILLION AND 00/100THS DOLLARS ($21,000,000.00) or, if less, the
aggregate unpaid principal amount of all Loans advanced here against pursuant to
that certain Amended and Restated Credit Agreement dated October 31, 1996, by
and among Maker, First Tennessee Bank National Association, a national banking
association, as Administrative Agent, and the Lenders party thereto, as amended
by that certain Amendment Agreement of even date herewith (together with any
amendments thereto and/or modifications thereof, herein referred to as the
"Credit Agreement"; capitalized terms used but not otherwise defined herein
shall have the same meanings as in the Credit Agreement), together with interest
on the unpaid principal balance of the Loans evidenced hereby at the rate(s)
specified in the Credit Agreement; provided that in no event shall the interest
and loan charges payable in respect of the indebtedness evidenced hereby exceed
the maximum amounts from time to time allowed to be collected under applicable
law.
Principal and interest payable in respect of the indebtedness evidenced
by this Note shall be due and payable at the times and in the manner specified
in the Credit Agreement.
Holder hereby is authorized to record and endorse the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on a
schedule annexed to and constituting a part of this Note, which recordation and
endorsement shall constitute prima facie evidence of the respective Loans made
by Holder to Maker and payments made by Maker to Holder, absent manifest error;
provided, however, that (a) Holder's failure to make any such recordation or
endorsement shall not in any way limit or otherwise affect the obligations of
Maker or the rights and remedies of Holder under this Note or the Credit
Agreement and (b) payments to Holder of the principal of and interest on the
Loans evidenced hereby shall not be affected by the failure to make any such
recordation or endorsement thereof. In lieu of making recordation or
endorsement, Holder hereby is authorized, at its option, to record the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on its
books and records in accordance with its usual and customary practice, which
recordation shall constitute prima facie evidence of the Loans made by Holder to
Maker and payments in respect thereof made by Maker to Holder, absent manifest
error.
Upon the occurrence of an Event of Default, the entire outstanding
principal balance of the indebtedness evidenced hereby, together with all
accrued and unpaid interest thereon, may be declared, and immediately shall
become, due and payable in full, all as provided in the Credit Agreement,
subject to applicable notice and cure provisions in the said Credit Agreement.
Presentment for payment, demand, protest and notice of demand, protest
and nonpayment are hereby waived by Maker and all other parties hereto, except
as provided in the Credit Agreement.
This Note is one of the "Notes" in the aggregate principal amount of
$120,000,000 issued by Maker pursuant to the Credit Agreement, and this Note is
entitled to the benefits of the Credit Agreement and the other Loan Documents.
It is the intention of Maker and Holder to conform strictly to all laws
applicable to the Holder that govern or limit the interest and loan charges that
may be charged in respect of the indebtedness evidenced hereby. Anything in this
Note, the Credit Agreement or any of the other Loan Documents to the contrary
notwithstanding, in no event whatsoever, whether by reason of advancement of
proceeds of the Loans or the Letters of Credit, acceleration of the maturity of
the unpaid balance of any of the Obligations or otherwise, shall the interest
and loan charges agreed to be paid to any of the Lenders for the use of the
money advanced or to be advanced under the Credit Agreement exceed the maximum
amounts collectible pursuant to applicable law. Pursuant to the Credit
Agreement, Maker and the Lenders have agreed that:
(a) if for any reason whatsoever the interest or loan charges
paid or contracted to be paid by Maker to any of the Lenders in respect
of the Loans shall exceed the maximum amount collectible under the law
applicable to such Lender, then, in that event, and notwithstanding
anything to the contrary in the Credit Agreement, the Notes or any
other Loan Document (i) the aggregate of all consideration that
constitutes interest or loan charges under the law applicable to such
Lender that is contracted for, taken, reserved, charged or received
under the Credit Agreement, the Notes or any other Loan Document or
otherwise in connection with the Obligations under no circumstances
shall exceed the maximum amounts allowed by such applicable law, and
any excess paid to any Lender shall be credited by such Lender on the
principal amount of the Obligations (or, to the extent the principal
amount outstanding under the Credit Agreement, the Notes and the other
Loan Documents has been or thereby would be paid in full, refunded to
Maker), and (ii) in the event that the maturity of any or all of the
Obligations is accelerated by reason of an election of the Lenders
resulting from any Default under the Credit Agreement or otherwise, or
in the event of any required or permitted prepayment, then such
consideration that constitutes interest or loan charges under the law
applicable to any Lender may never include more than the maximum
amounts allowed by the law applicable to such Lender, and any excess
interest or loan charges provided for in the Credit Agreement or
otherwise shall be canceled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited
by such Lender on the principal amount of the Obligations (or, to the
extent the principal amount of the Obligations has been or thereby
would be paid in full, refunded by such Lender to Maker);
(b) all sums paid or agreed to be paid to the Lenders for the
use, forbearance or detention of sums due under the Credit Agreement
shall, to the extent permitted by applicable law, be prorated,
allocated and spread throughout the full term of the Obligations until
payment in full so that the rate or amount of interest and loan charges
on account of the Obligations will not exceed any applicable legal
limitation; and
(c) the right to accelerate the maturity of the Obligations
does not include the right to accelerate the maturity of any interest
or loan charges not otherwise accrued on the date of such acceleration,
and the Lenders do not intend to charge or collect any unearned
interest or loan charges in the event of any such acceleration.
This Note has been negotiated, executed and delivered in the State of
Tennessee, and is intended as a contract under and shall be construed and
enforceable in accordance with the laws of said state, without reference to the
conflicts or choice of law principles thereof, except to the extent that Federal
law may be applicable to determining the maximum amount of interest that may be
charged by Holder in respect of the indebtedness evidenced hereby.
This Note amends and restates that certain Amended and Restated Promissory
Note of Goody's Family Clothing, Inc. and those certain Promissory Notes of
Goody's MS, L.P. and Goody's IN, L.P. in favor of Payee each dated October 31,
1996 in their entirety.
IN WITNESS WHEREOF, the undersigned Maker has caused this Note to be
executed by its duly authorized officers as of the date first above written.
MAKER:
GOODY'S FAMILY CLOTHING, INC.
By: /s/ Xxxxx X. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
1026144.01
AMENDED AND RESTATED PROMISSORY NOTE
$15,000,000 Knoxville, Tennessee May 16, 1997
FOR VALUE RECEIVED, on or before the Termination Date, as defined in
the hereinafter described Credit Agreement, the undersigned, GOODY'S FAMILY
CLOTHING, INC., a Tennessee corporation, GOODY'S MS, L.P., a Tennessee limited
partnership, and GOODY'S IN, L.P., a Tennessee limited partnership
(collectively, the "Maker"), promises to pay to the order of WACHOVIA BANK OF
GEORGIA, N.A. ("Payee"; Payee, and any subsequent holder[s] hereof, being
hereinafter referred to collectively as "Holder"), the principal sum of FIFTEEN
MILLION AND 00/100THS DOLLARS ($15,000,000.00) or, if less, the aggregate unpaid
principal amount of all Loans advanced here against pursuant to that certain
Amended and Restated Credit Agreement dated October 31, 1996, by and among
Maker, First Tennessee Bank National Association, a national banking
association, as Administrative Agent, and the Lenders party thereto, as amended
by that certain Amendment Agreement of even date herewith (together with any
amendments thereto and/or modifications thereof, herein referred to as the
"Credit Agreement"; capitalized terms used but not otherwise defined herein
shall have the same meanings as in the Credit Agreement), together with interest
on the unpaid principal balance of the Loans evidenced hereby at the rate(s)
specified in the Credit Agreement; provided that in no event shall the interest
and loan charges payable in respect of the indebtedness evidenced hereby exceed
the maximum amounts from time to time allowed to be collected under applicable
law.
Principal and interest payable in respect of the indebtedness evidenced
by this Note shall be due and payable at the times and in the manner specified
in the Credit Agreement.
Holder hereby is authorized to record and endorse the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on a
schedule annexed to and constituting a part of this Note, which recordation and
endorsement shall constitute prima facie evidence of the respective Loans made
by Holder to Maker and payments made by Maker to Holder, absent manifest error;
provided, however, that (a) Holder's failure to make any such recordation or
endorsement shall not in any way limit or otherwise affect the obligations of
Maker or the rights and remedies of Holder under this Note or the Credit
Agreement and (b) payments to Holder of the principal of and interest on the
Loans evidenced hereby shall not be affected by the failure to make any such
recordation or endorsement thereof. In lieu of making recordation or
endorsement, Holder hereby is authorized, at its option, to record the date and
principal amount of each Loan made by it, and the amount of each payment of
principal and interest made to such Holder with respect to such Loans, on its
books and records in accordance with its usual and customary practice, which
recordation shall constitute prima facie evidence of the Loans made by Holder to
Maker and payments in respect thereof made by Maker to Holder, absent manifest
error.
Upon the occurrence of an Event of Default, the entire outstanding
principal balance of the indebtedness evidenced hereby, together with all
accrued and unpaid interest thereon, may be declared, and immediately shall
become, due and payable in full, all as provided in the Credit Agreement,
subject to applicable notice and cure provisions in the said Credit Agreement.
Presentment for payment, demand, protest and notice of demand, protest
and nonpayment are hereby waived by Maker and all other parties hereto, except
as provided in the Credit Agreement.
This Note is one of the "Notes" in the aggregate principal amount of
$120,000,000 issued by Maker pursuant to the Credit Agreement, and this Note is
entitled to the benefits of the Credit Agreement and the other Loan Documents.
It is the intention of Maker and Holder to conform strictly to all laws
applicable to the Holder that govern or limit the interest and loan charges that
may be charged in respect of the indebtedness evidenced hereby. Anything in this
Note, the Credit Agreement or any of the other Loan Documents to the contrary
notwithstanding, in no event whatsoever, whether by reason of advancement of
proceeds of the Loans or the Letters of Credit, acceleration of the maturity of
the unpaid balance of any of the Obligations or otherwise, shall the interest
and loan charges agreed to be paid to any of the Lenders for the use of the
money advanced or to be advanced under the Credit Agreement exceed the maximum
amounts collectible pursuant to applicable law. Pursuant to the Credit
Agreement, Maker and the Lenders have agreed that:
(a) if for any reason whatsoever the interest or loan charges
paid or contracted to be paid by Maker to any of the Lenders in respect
of the Loans shall exceed the maximum amount collectible under the law
applicable to such Lender, then, in that event, and notwithstanding
anything to the contrary in the Credit Agreement, the Notes or any
other Loan Document (i) the aggregate of all consideration that
constitutes interest or loan charges under the law applicable to such
Lender that is contracted for, taken, reserved, charged or received
under the Credit Agreement, the Notes or any other Loan Document or
otherwise in connection with the Obligations under no circumstances
shall exceed the maximum amounts allowed by such applicable law, and
any excess paid to any Lender shall be credited by such Lender on the
principal amount of the Obligations (or, to the extent the principal
amount outstanding under the Credit Agreement, the Notes and the other
Loan Documents has been or thereby would be paid in full, refunded to
Maker), and (ii) in the event that the maturity of any or all of the
Obligations is accelerated by reason of an election of the Lenders
resulting from any Default under the Credit Agreement or otherwise, or
in the event of any required or permitted prepayment, then such
consideration that constitutes interest or loan charges under the law
applicable to any Lender may never include more than the maximum
amounts allowed by the law applicable to such Lender, and any excess
interest or loan charges provided for in the Credit Agreement or
otherwise shall be canceled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited
by such Lender on the principal amount of the Obligations (or, to the
extent the principal amount of the Obligations has been or thereby
would be paid in full, refunded by such Lender to Maker);
(b) all sums paid or agreed to be paid to the Lenders for the
use, forbearance or detention of sums due under the Credit Agreement
shall, to the extent permitted by applicable law, be prorated,
allocated and spread throughout the full term of the Obligations until
payment in full so that the rate or amount of interest and loan charges
on account of the Obligations will not exceed any applicable legal
limitation; and
(c) the right to accelerate the maturity of the Obligations
does not include the right to accelerate the maturity of any interest
or loan charges not otherwise accrued on the date of such acceleration,
and the Lenders do not intend to charge or collect any unearned
interest or loan charges in the event of any such acceleration.
This Note has been negotiated, executed and delivered in the State of
Tennessee, and is intended as a contract under and shall be construed and
enforceable in accordance with the laws of said state, without reference to the
conflicts or choice of law principles thereof, except to the extent that Federal
law may be applicable to determining the maximum amount of interest that may be
charged by Holder in respect of the indebtedness evidenced hereby.
This Note amends and restates that certain Amended and Restated Promissory
Note of Goody's Family Clothing, Inc. and those certain Promissory Notes of
Goody's MS, L.P. and Goody's IN, L.P. in favor of Payee each dated October 31,
1996 in their entirety.
IN WITNESS WHEREOF, the undersigned Maker has caused this Note to be
executed by its duly authorized officers as of the date first above written.
MAKER:
GOODY'S FAMILY CLOTHING, INC.
By: /s/ Xxxxx X. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Xxxxx X. Call
Title: President
1026147.01
