UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended May 3, 1997
--------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________________ to ________________
Commission file number 0-19526
Goody's Family Clothing, Inc.
(Exact name of registrant as specified in its charter)
Tennessee 62-0793974
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
400 Goody's Lane, Knoxville, Tennessee 37922
(Address of principal executive offices) (Zip Code)
(423) 966-2000
(Registrant's telephone number, including area code)
(Former name, former address and former fiscal year, if changed since
last report.)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common Stock, no par value, 16,226,182 shares outstanding
as of June 10, 1997.
<PAGE>
Goody's Family Clothing, Inc.
Index to Form 10-Q
May 3, 1997
Part I - Financial Information:
Item 1 - Financial Statements
Consolidated Statements of Operations............................ 3
Consolidated Balance Sheets...................................... 4
Consolidated Statements of Cash Flows............................ 5
Notes to Consolidated Financial Statements....................... 6
Independent Accountants' Review Report........................... 7
Item 2 - Management's Discussion and Analysis of Financial Condition and
Results of Operations.................................. 8-10
Part II - Other Information.............................................. 11
-----------------
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 3. Defaults upon Senior Securities
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. (a) Exhibits
Item 6. (b) Reports on Form 8-K
Signatures................................................................ 12
<PAGE>
PART 1 - FINANCIAL INFORMATION
- -------------------------------------------------------------------------------
Item 1 - Financial Statements
Goody's Family Clothing, Inc. and Subsidiaries
Consolidated Statements of Operations
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
----------------------------------------
Thirteen Weeks Ended
----------------------------------------
May 3, 1997 May 4, 1996
------------------- -----------------
(unaudited) (unaudited)
<S> <C> <C>
Sales $190,057 $150,766
Cost of sales and occupancy expenses 135,080 108,121
----------------- -----------------
Gross profit 54,977 42,645
Selling, general and administrative expenses 47,245 39,275
----------------- -----------------
Earnings from operations 7,732 3,370
Interest expense 125 87
Investment income 486 272
----------------- -----------------
Earnings before income taxes 8,093 3,555
Provision for income taxes 3,035 1,351
----------------- -----------------
Net earnings $5,058 $2,204
----------------- -----------------
Earnings per common share $0.30 $0.14
================= =================
Weighted average common shares outstanding 16,629 16,125
================= =================
</TABLE>
See accompanying Notes to Consolidated Financial Statements and Independent
Accountants' Review Report.
<PAGE>
Goody's Family Clothing, Inc. and Subsidiaries
Consolidated Balance Sheets
(Dollars in thousands)
<TABLE>
<CAPTION>
------------ ---------------- ------------
May 3, 1997 February 1, 1997 May 4, 1996
(unaudited) (unaudited)
------------ ---------------- ------------
<S> <C> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents $29,579 $43,316 $22,901
Investments 1,461 1,453 1,403
Inventories 142,315 107,495 111,209
Accounts receivable and other current assets 13,152 9,689 9,725
--------------- ------------- --------------
Total current assets 186,507 161,953 145,238
Property and equipment, net 88,850 88,955 86,458
Other assets 3,445 3,439 3,438
--------------- ------------- --------------
Total assets $278,802 $254,347 $235,134
============== ============= ==============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Accounts payable $95,477 $75,900 $86,303
Accrued expenses 36,546 34,841 26,989
Income taxes payable 4,063 6,957 2,164
Current portion of long- term debt 239 239 217
-------------- ------------- --------------
Total current liabilities 136,325 117,937 115,673
Long-term debt 871 871 1,110
Other long-term liabilities 2,621 2,578 2,290
Deferred income taxes 9,552 9,385 7,982
-------------- ------------- --------------
Total liabilities 149,369 130,771 127,055
-------------- ------------- --------------
Commitments and Contingencies
Shareholders' Equity
Preferred stock $1.00 par value;
Authorized 2,000,000 shares; issued and outstanding - none Class B Common
stock no par value;
Authorized - 50,000,000 shares; issued and outstanding - none Common stock
no par value; authorized - 50,000,000 shares
Issued - 16,421,982, 16,364,832 and 16,325,212 shares
Outstanding - 16,221,982, 16,164,832 and 16,125,212 shares 27,016 26,466 26,040
Paid-in capital 3,508 3,259 3,135
Retained earnings 102,011 96,953 82,006
Treasury stock, at cost - 200,000 shares (3,102) (3,102) (3,102)
--------------- ------------- -------------
Total shareholders' equity 129,433 123,576 108,079
--------------- ------------- -------------
Total liabilities and shareholders' equity $278,802 $254,347 $235,134
=============== ============= =============
</TABLE>
See accompanying Notes to Consolidated Financial Statements and Independent
Accountants' Review Report.
<PAGE>
Goody's Family Clothing, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(In thousands)
<TABLE>
<CAPTION>
----------------------------------------
Thirteen Weeks Ended
----------------------------------------
May 3, 1997 May 4, 1996
------------------ ------------------
(unaudited) (unaudited)
<S> <C> <C>
Cash Flows from Operating Activities:
Net earnings $5,058 $2,204
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Depreciation and amortization 2,614 2,290
Net loss on asset disposals and write-down 141 42
Changes in assets and liabilities:
Inventories (34,820) (32,942)
Accounts payable 17,187 21,373
Income taxes (3,543) 709
Other assets & liabilities (173) 2,750
----------------- -----------------
Cash used in operating activities (13,536) (3,574)
----------------- -----------------
Cash Flows from Investing Activities:
Acquisitions of property and equipment (2,654) (3,133)
Proceeds from sale of property and equipment 4 58
----------------- -----------------
Cash used in investing activities (2,650) (3,075)
----------------- -----------------
Cash Flows from Financing Activities:
Exercise of stock options 550 -
Changes in cash management accounts 1,899 (3,437)
----------------- -----------------
Cash provided by (used in) financing activities 2,449 (3,437)
----------------- -----------------
Cash and cash equivalents:
Net decrease for the period (13,737) (10,086)
Balance, beginning of period 43,316 32,987
----------------- -----------------
Balance, end of period $29,579 $22,901
================= =================
Supplemental Disclosures:
Interest payments $89 $50
Income tax payments $6,631 $868
</TABLE>
See accompanying Notes to Consolidated Financial Statements and Independent
Accountants' Review Report.
<PAGE>
Goody's Family Clothing, Inc. and Subsidiaries
Notes to Consolidated Financial Statements
(Unaudited)
(1) Unaudited financial information
In the opinion of the Company's management, the accompanying unaudited
consolidated financial statements of Goody's Family Clothing, Inc. and
subsidiaries (the "Company") include all adjustments, consisting primarily of
normal and recurring adjustments, necessary for a fair presentation of the
Company's financial position, results of operations and cash flows for the
interim periods presented. Due to the seasonal nature of the Company's business,
the results of operations for the interim periods are not necessarily indicative
of the results that may be achieved for the entire year. These financial
statements should be read in conjunction with the audited consolidated financial
statements and the notes thereto contained in the Company's 1996 Annual Report
on Form 10-K.
(2) Credit arrangements
The Company has a credit agreement with a consortium of banks for an unsecured
revolving line of credit which provides for cash borrowings for general
corporate purposes as well as for the issuance of letters of credit of up to
$100,000,000. On May 16, 1997, the Company amended its credit agreement to
increase its unsecured revolving line of credit to $120,000,000 and extend its
expiration date to May 31, 1999. The Company is committed to pay (i) interest on
the cash borrowings at a fluctuating base rate or LIBOR plus an applicable
margin, as defined, (ii) letter of credit fees based on the number of days a
letter of credit is outstanding times the applicable fee and (iii) an annual
commitment fee payable quarterly in advance. The terms of this credit facility
require, among other things, maintenance of minimum levels of shareholders'
equity and compliance with certain financial ratios and place restrictions on
additional indebtedness, asset disposals, investments, capital expenditures and
payment of dividends.
(3) Earnings per share
Weighted average common shares outstanding for the first quarter of fiscal 1997
includes common equivalent shares to account for the dilutive effect of stock
options. Common equivalent shares were not materially dilutive in the first
quarter of fiscal 1996 and therefore were not included in the earnings per share
computations for such period.
In February 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128, "Earnings per Share" ("SFAS No. 128").
This Statement establishes new standards for computing and presenting earnings
per share ("EPS") information. SFAS No. 128 simplifies the computation of
earnings per share currently required by Accounting Principles Board Opinion No.
15, "Earnings per Share" and its related interpretations. The new Statement
replaces the presentation of "primary" (and when required "fully diluted")
earnings per share with "basic" and "diluted" earnings per share. This new
Statement is effective for financial statements issued for periods ending after
December 15, 1997, including interim periods; earlier application is not
permitted. The Company's computation of basic and diluted EPS under SFAS No. 128
for the thirteen-week periods ended May 3, 1997 and May 4, 1996 will not be
materially different than EPS currently reported for those periods.
(4) Reclassifications
Certain reclassifications have been made to the financial statements of prior
periods to conform to the current period presentation.
<PAGE>
INDEPENDENT ACCOUNTANTS' REVIEW REPORT
Board of Directors and Shareholders of
Goody's Family Clothing, Inc.
Knoxville, Tennessee
We have reviewed the accompanying condensed consolidated balance sheets of
Goody's Family Clothing, Inc. and subsidiaries as of May 3, 1997 and May 4, 1996
and the related consolidated statements of operations and cash flows for the
thirteen-week periods then ended. These financial statements are the
responsibility of the Company's management.
We conducted our reviews in accordance with standards established by the
American Institute of Certified Public Accountants. A review of interim
financial information consists principally of applying analytical procedures to
financial data and of making inquiries of persons responsible for financial and
accounting matters. It is substantially less in scope than an audit conducted in
accordance with generally accepted auditing standards, the objective of which is
the expression of an opinion regarding the financial statements taken as a
whole. Accordingly, we do not express such an opinion.
Based on our reviews, we are not aware of any material modifications that should
be made to such financial statements for them to be in conformity with generally
accepted accounting principles.
We have previously audited, in accordance with generally accepted auditing
standards, the condensed consolidated balance sheet of Goody's Family Clothing,
Inc. and subsidiaries as of February 1, 1997, and the related condensed
consolidated statements of operations, shareholders' equity, and cash flows for
the year then ended (not presented herein); and in our report dated March 19,
1997, we expressed an unqualified opinion on those financial statements. In our
opinion, the information set forth in the accompanying condensed consolidated
balance sheet as of February 1, 1997 is fairly stated, in all material respects,
in relation to the condensed consolidated balance sheet from which it has been
derived.
/s/ Deloitte & Touche LLP
Atlanta, Georgia
May 19, 1997
<PAGE>
Item 2. - Management's Discussion and Analysis of Financial Condition and
Results of Operations
General
During the first quarter of fiscal 1997, the Company opened seven new stores,
relocated two stores and closed one store, bringing the total number of stores
in operation at quarter end to 209, compared with 193 at the end of the first
quarter of fiscal 1996. In the corresponding period of the previous fiscal year,
nine new stores were opened and one store was relocated.
Net earnings for the first quarter of fiscal 1997 were $5,058,000, or 2.7% of
sales, compared with $2,204,000, or 1.5% of sales, for the first quarter of
fiscal 1996.
Results of Operations
The following table sets forth unaudited results of operations as a percent of
sales for the periods indicated:
<TABLE>
<CAPTION>
-------------------------------
Thirteen Weeks Ended
May 3, 1997 May 4, 1996
-------------------------------
<S> <C> <C>
Sales 100.0% 100.0%
Cost of sales and occupancy expenses 71.1 71.7
------- -------
Gross profit 28.9 28.3
Selling, general and administrative expenses 24.8 26.0
------- -------
Earnings from operations 4.1 2.3
Interest expense 0.1 0.1
Investment income 0.3 0.2
-------- -------
Earnings before income taxes 4.3 2.4
Provision for income taxes 1.6 0.9
-------- -------
Net earnings 2.7% 1.5%
======== =======
</TABLE>
Sales - Sales for the first quarter of fiscal 1997 were $190,057,000, a 26.1%
increase over the $150,766,000 for the first quarter of fiscal 1996. This
increase of $39,291,000 consisted of (i) a 14.9% increase in comparable store
sales of $21,598,000 from the corresponding period of the previous fiscal year
and (ii) additional sales from new and transition stores of $17,693,000. Sales
for the quarter were driven by favorable customer reaction to certain brand-name
and private label merchandise as well as strong promotions of spring and summer
fashion merchandise.
Gross Profit - Gross profit for the first quarter of fiscal 1997 was
$54,977,000, or 28.9% of sales, a $12,332,000 increase over the $42,645,000, or
28.3% of sales, in gross profit for the first quarter of the previous fiscal
year. The 0.6% increase in gross profit, as a percent of sales, consists of (i)
a decrease in cost of sales by 0.3% as a result of well-positioned inventories
at the beginning of fiscal 1997 which allowed the Company to realize higher
gross margins and (ii) a decrease in occupancy costs by 0.3% due to the
excellent sales for the quarter.
Selling, General and Administrative Expenses - Selling, general and
administrative expenses for the first quarter of fiscal 1997 were $47,245,000,
or 24.8% of sales, an increase of $7,970,000 from $39,275,000, or 26.0% of
sales, for the first quarter of the previous fiscal year. Selling, general and
administrative expenses decreased by 1.2%, as a percent of sales, for the first
quarter of fiscal 1997 compared with the first quarter of the previous fiscal
year and is comprised of (i) a 0.1% decrease in payroll expenses, (ii) a 0.9%
decrease in advertising and promotional expenses and (iii) a 0.2% decrease in
depreciation and amortization expenses.
Interest Expense - Interest expense for the first quarter of fiscal 1997
increased by $38,000 compared with the first quarter of the previous fiscal
year.
Investment Income - Investment income for the first quarter of fiscal 1997
increased by $214,000 compared with the first quarter of the previous fiscal
year primarily as a result of an increase in invested funds during the period.
Income Taxes - The provision for income taxes for the first quarter of fiscal
1997 was $3,035,000, for an effective tax rate of 37.5% of earnings before
income taxes, compared with $1,351,000, for an effective tax rate of 38% of
earnings before income taxes, for the first quarter of the previous fiscal year.
The decrease in the effective tax rate is primarily due to a decrease in the
overall effective state income tax rate.
Liquidity and Capital Resources
Financial Position - The Company's primary sources of liquidity are cash flows
from operations, including credit terms from vendors, and borrowings under its
credit agreement with a consortium of banks. At May 3, 1997, the Company's
working capital was $50,182,000 compared with $29,565,000 at May 4, 1996. At the
end of the first quarter of fiscal 1997 compared with the first quarter of the
previous fiscal year, (i) cash, cash equivalents and investment securities
increased by $6,736,000 and property and equipment increased by $2,392,000 and
(ii) inventories and accounts payable increased by $31,106,000 and $9,174,000,
respectively, in anticipation of the summer selling season as well as an
increase in the number of stores and a strategic build-up of primarily basic
inventory items. Trade payables, as a percent of inventories, were 67.1% at May
3, 1997 compared with 77.6% at May 4, 1996.
At May 3, 1997, the Company had an unsecured revolving line of credit from a
consortium of banks which provides for cash borrowings for general corporate
purposes as well as for the issuance of letters of credit of up to $100,000,000.
On May 16, 1997, the Company amended its credit agreement to increase its
unsecured line of credit to $120,000,000 and extend its expiration date to May
31, 1999. At May 3, 1997, the Company had no cash borrowings under this credit
facility and $62,035,000 was in use for outstanding letters of credit compared
with no cash borrowings and $24,163,000 utilized for outstanding letters of
credit at May 4, 1996. In addition, there were no cash borrowings during the
first quarter of fiscal 1997 and 1996, respectively. Letters of credit
outstanding averaged $38,571,000 during the first quarter of fiscal 1997
compared with $15,884,000 during the corresponding period of the previous fiscal
year. The highest balance of letters of credit outstanding during the first
quarter of fiscal 1997 and 1996 was $62,035,000 (in May 1997) and $24,316,000
(in May 1996), respectively. See Note 2 to Notes to Financial Statements.
Cash Flows - Operating activities used cash of $13,536,000 in the first quarter
of fiscal 1997 compared with $3,574,000 in the first quarter of the previous
fiscal year. Cash used in operating activities during the first quarter of
fiscal 1997 for seasonal inventory increases was $34,820,000 compared with
$32,942,000 for the first quarter of the previous fiscal year. Accounts payable
provided cash of $17,187,000 in the first quarter of fiscal 1997 compared with
$21,373,000 for the first quarter of the previous fiscal year. Depreciation and
amortization amounted to $2,614,000 in the first quarter of fiscal 1997 compared
with $2,290,000 for the first quarter of the previous fiscal year.
Cash flows from investing activities for the first quarter of fiscal 1997
reflected a net use of cash amounting to $2,650,000 compared with $3,075,000 for
the first quarter of the previous fiscal year. The cash was used primarily to
fund capital expenditures incurred relating to new stores opened during the
first quarter of fiscal 1997 and 1996.
Cash provided by financing activities for the first quarter of fiscal 1997 was
$2,449,000 compared with cash used by financing activities of $3,437,000 for the
first quarter of the previous fiscal year. The cash management program used by
the Company provided cash of $1,899,000 in the first quarter of fiscal 1997
compared with cash used of $3,437,000 in the corresponding period of the
previous fiscal year. During the first quarter of fiscal 1997, the Company
received $550,000 from the issuance of common stock on the exercise of stock
options.
Outlook - The Company plans to open 15 to 17 new stores, relocate seven stores
and expand or remodel three stores during the remainder of fiscal 1997, bringing
the total number of stores in operation at the end of fiscal 1997 to
approximately 224. Management estimates that capital expenditures of
approximately $20,300,000 will be required to open new stores, upgrade existing
stores, purchase computer systems and equipment and for other capital
expenditure requirements for the remainder of fiscal 1997.
The Company's primary needs for capital resources are for the purchase of store
inventories, capital expenditures and for normal operating purposes. Management
believes that cash flows from operations, including credit terms from vendors,
and the borrowings available under its credit facility will be sufficient to
meet the Company's operating and capital expenditure requirements.
<PAGE>
This Quarterly Report contains certain forward-looking statements which are
based upon current expectations, plans and estimates and involve material risks
and uncertainties including, but not limited to, customer demand and trends in
the apparel and retail industry and to the acceptance of merchandise acquired
for sale by the Company, the effectiveness of planned advertising and
promotional events, the impact of competitors' pricing, individual store
performance, including new stores, adverse weather conditions, and the general
economic conditions within the Company's markets. The Company does not undertake
to publicly update or revise its forward-looking statements even if experience
or future changes make it clear that any projected results expressed or implied
therein will not be realized. Additional information on factors that could
potentially affect the Company's financial results may be found in the Company's
other filings with the Securities and Exchange Commission.
Seasonality and Inflation
The Company's business is seasonal by nature. The Christmas season (beginning on
the Sunday before Thanksgiving and ending on the first Saturday after
Christmas), the back-to-school season (beginning approximately the first week of
August and continuing through the first week of September) and the Easter season
(beginning approximately two weeks before Easter Sunday and ending on the
Saturday preceding Easter) collectively accounted for approximately 35.5% of the
Company's annual sales, based on the Company's last three fiscal years ended
February 1, 1997. In general, sales volume varies directly with customer
traffic, which is heaviest during the third and fourth quarters of a fiscal
year.
The Company does not believe inflation has had a material effect on its results
of operations during the past three fiscal years. However, there can be no
assurance that the Company's business will not be affected by inflation in the
future.
<PAGE>
PART II - OTHER INFORMATION
Item 1 - Legal Proceedings - None
- ----------------------------
Item 2. - Changes in Securities - None
Item 3. - Defaults Upon Senior Securities - None
Item 4. - Submission of Matters to a Vote of Security Holders - None
- ---------------------------------------------------------------
Item 5. - Other Information - None
Item 6. - Exhibits and Reports on Form 8-K
a) Exhibits -
10.45 Amended Agreement dated May 16, 1997 between the
Registrant, GOODY's MS, L.P. and GOODY's IN, L.P.
as borrowers, TREBOR of TN, Inc., SYDOOG, Inc. and
GOFAMCLO, Inc. as guarantors, Lenders as identified
therein and First Tennessee Bank National Association
as Administrative Agent
15 - Accountants' Awareness Letter
27 - Financial Data Schedule
b) Reports on Form 8-K - None
<PAGE>
GOODY'S FAMILY CLOTHING, INC.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
GOODY'S FAMILY CLOTHING, INC.
(Registrant)
Date: June 10, 1997 /s/ Harry M. Call
---------------------
Harry M. Call
Director, President and
Chief Operating Officer
Date: June 10, 1997 /s/ Edward R. Carlin
-----------------------
Edward R. Carlin
Executive Vice President,
Chief Financial Officer and
Secretary
(Principal Financial Officer)
Date: June 10, 1997 /s/ David G. Peek
---------------------
David G. Peek
Corporate Controller and
Chief Accounting Officer
(Principal Accounting Officer)
<PAGE>
Exhibit 15
Goody's Family Clothing, Inc.
Knoxville, Tennessee
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim financial
information of Goody's Family Clothing, Inc. for the periods ended May 3, 1997
and May 4, 1996, as indicated in our report dated May 19, 1997; because we did
not perform an audit, we expressed no opinion on that information.
We are aware that our report referred to above, which is included in your
Quarterly Report on Form 10-Q for the quarter ended May 3, 1997, is incorporated
by reference in Registration Statements Nos. 33-51210, 33-68520, 333-00052 and
333-09595 on Form S-8.
We also are aware that the aforementioned report, pursuant to Rule 436(c) under
the Securities Act of 1933, is not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ Deloitte & Touche LLP
Atlanta, Georgia
May 19, 1997
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial information extracted from
the consolidated balance sheet as at May 3, 1997 and the related
consolidated statement of operations for the thirteen weeks ended on
May 3, 1997 and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<CIK> 0000879123
<NAME> Goody's Family Clothing, Inc.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> Jan-31-1998
<PERIOD-START> Feb-02-1997
<PERIOD-END> May-03-1997
<CASH> 29,579
<SECURITIES> 1,461
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 142,315
<CURRENT-ASSETS> 186,507
<PP&E> 134,666
<DEPRECIATION> 45,816
<TOTAL-ASSETS> 278,802
<CURRENT-LIABILITIES> 136,325
<BONDS> 871
0
0
<COMMON> 27,016
<OTHER-SE> 102,417
<TOTAL-LIABILITY-AND-EQUITY> 278,802
<SALES> 190,057
<TOTAL-REVENUES> 190,057
<CGS> 135,080
<TOTAL-COSTS> 47,245
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 125
<INCOME-PRETAX> 8,093
<INCOME-TAX> 3,035
<INCOME-CONTINUING> 5,058
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,058
<EPS-PRIMARY> 0.30
<EPS-DILUTED> 0.30
<PAGE>
</TABLE>
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) Robert M. Goodfriend 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/ Harry M. Call
Title: President
<PAGE>
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
GUARANTORS:
SYDOOG, INC., a Delaware corporation
By: /s/ Francis B. Jacobs
Title: President
GOFAMCLO, INC., a Delaware corporation
By: /s/ Francis B. Jacobs
Title: President
TREBOR OF TN, INC., a Tennessee corporation
By: /s/ Harry M. Call
Title: President
[LENDERS' SIGNATURE PAGES FOLLOW]
<PAGE>
[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/ James H. Atchley
Title: Vice President
Address: First Tennessee Bank National Association
Corporate Lending Group
Plaza Tower
800 S. Gay Street
Knoxville, Tennessee 37929
Attn: James H. Atchley
Telecopy No. 423-971-2883
<PAGE>
[Lender's Signature Page to Amendment Agreement dated May 16, 1997]
FIRST AMERICAN NATIONAL BANK, as a Lender
By: /s/ Eric V. Schwarzentraub
Title: SVP
Address: 505 S. Gay Street, Mezzanine
Knoxville, Tennessee 37902
Attn: Eric V. Schwarzentraub
Telecopy No. 615-521-5352
<PAGE>
[Lender's Signature Page to Amendment Agreement dated May 16, 1997]
AMSOUTH BANK OF ALABAMA, as a Lender
By: /s/ Donald M. Sinclair
Title: Vice President
Address: 1900 5th Avenue North, 7th floor
Birmingham, Alabama 35203
Attn: Donald M. Sinclair
Telecopy No. 205-583-4436
<PAGE>
[Lender's Signature Page to Amendment Agreement dated May 16, 1997]
SOUTHTRUST BANK OF ALABAMA, N.A., as a Lender
By: /s/ James T. Chester, III
Title: AVP
Address: 420 North 20th Street
Birmingham, Alabama 35203
Attn: James T. Chester, III
Telecopy No. 205-254-8270
<PAGE>
[Lender's Signature Page to Amendment Agreement dated May 16, 1997]
FIRST UNION NATIONAL BANK OF TENNESSEE,
as a Lender
By: /s/ Timothy B. Fouts
Title: SVP
Address: 150 Fourth Avenue North
First Union Tower, 2nd Floor
Nashville, Tennessee 37219
Attn: Timothy B. Fouts
Telecopy No. 615-251-0894
<PAGE>
[Lender's Signature Page to Amendment Agreement dated May 16, 1997]
WACHOVIA BANK OF GEORGIA, N.A., as a Lender
By: /s/ John Tibe
Title: AVP
Address: 191 Peachtree Street, NE, 29th floor
Atlanta, Georgia 30303
Attn: John Tibe
Telecopy No. 404-332-5016
1025716
<PAGE>
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.
<PAGE>
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/ Harry M. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
1026145.01
<PAGE>
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.
<PAGE>
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/ Harry M. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
1026146.01
<PAGE>
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.
<PAGE>
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/ Harry M. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
1026516.01
<PAGE>
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.
<PAGE>
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/ Harry M. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
1026143.01
<PAGE>
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.
<PAGE>
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/ Harry M. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
1026144.01
<PAGE>
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.
<PAGE>
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/ Harry M. Call
Title: President
GOODY'S MS, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
GOODY'S IN, L.P.
By: TREBOR of TN, Inc., General Partner
By: /s/ Harry M. Call
Title: President
1026147.01
<PAGE>
