AMENDMENT NO. 10 TO FINANCING AGREEMENTS
December 12, 2001
One Price Clothing Stores, Inc.
0000 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
One Price Clothing of Puerto Rico, Inc.
0000 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx 00000
Gentlemen:
Congress Financial Corporation (Southern) ("Lender"), One Price
Clothing Stores, Inc. ("One Price") and One Price Clothing of Puerto Rico, Inc.
("One Price PR"; and together with One Price, individually referred to as a
"Borrower" and collectively as the "Borrowers") have entered into certain
financing arrangements pursuant to the Loan and Security Agreement, dated March
25, 1996, between the Lender and Borrowers (the "Loan Agreement"), as amended by
Amendment No. 1 to Financing Agreements, dated May 16, 1997, Amendment No. 2 to
Financing Agreements, dated June 17, 1997, Amendment No. 3 to Financing
Agreements, dated February 19, 1998, Amendment No. 4 to Financing Agreements,
dated January 31, 1999, Amendment No. 5 to Financing Agreements, dated February
23, 2000, Amendment No. 6 to Financing Agreements, dated June 30, 2000,
Amendment No. 7 to Financing Agreements, dated February 9, 2001, Amendment No. 8
to Financing Agreements, dated September 13, 2001, and Amendment No. 9 to
Financing Agreements, dated November 12, 2001, together with various other
agreements, documents and instruments at any time executed and/or delivered in
connection therewith or related thereto (as the same now exist or may hereafter
be amended, modified, supplemented, extended, renewed, restated or replaced,
collectively, the "Financing Agreements"). All capitalized terms used herein and
not herein defined shall have the meanings given to them in the Financing
Agreements.
Borrowers have requested that Lender agree to amend certain provisions
of the Loan Agreement. Lender is willing to do so on the terms and conditions
and to the extent set forth herein.
In consideration of the foregoing, the mutual agreements and covenants
contained herein and other good and valuable consideration, the parties hereto
agree as follows:
1. Interpretation. For purposes of this Amendment, unless otherwise defined
herein, all terms used herein, including, but not limited to, those terms
used and/or defined in the recitals above, shall have the respective
meanings assigned to such terms in the Loan Agreement.
2. Amendments to Loan Agreement.
Definition of Adjusted Net Worth. Section 1.3 of the Loan Agreement is hereby
deleted in its entirety and the following substituted therefor:
""Adjusted Net Worth" shall mean as to any Person, at any
time, in accordance with GAAP (except as otherwise
specifically set forth below), on a consolidated basis for
such Person and its subsidiaries (if any), the amount equal to
the difference between: (a) the aggregate net book value of
all assets of such Person and its subsidiaries, calculating
the book value of inventory for this purpose as the lower of
cost, on a first-in-first-out average cost basis, or market
value computed under the retail method of accounting, after
deducting from such book values all appropriate reserves in
accordance with GAAP (including all reserves for doubtful
receivables, obsolescence, depreciation and amortization),and
(b) the aggregate amount of the indebtedness and other
liabilities of such Person and its subsidiaries (including tax
and other proper accruals); provided, that, as to Borrowers,
for purposes of calculating compliance with Section 9.14
hereof, the SFAS 109 Reserves of Borrowers and their
consolidated subsidiaries shall not be considered in computing
the aggregate net book value of assets. For purposes of this
definition, the term "SFAS 109 Reserves" shall mean as to any
Person, at any time, in accordance with GAAP, on a
consolidated basis for such Person and its subsidiaries (if
any), the amount equal to all non-cash accounting reserves
established against deferred income tax assets under Statement
of Financial Accounting Standards Number 109."
3. Conditions Precedent. The effectiveness of the amendments set forth
herein are further conditioned upon the satisfaction of each of the
following conditions precedent in a manner satisfactory to Lender:
(a) No Event of Default, or act, condition or event which with notice or
passage of time or both would constitute an Event of Default shall
exist or have occurred;
(b) Lender shall have received an original of the consent letter, duly
authorized and delivered by Enhanced Retail Funding, LLC, in form and
substance satisfactory to Lender, agreeing to its consent to this
Amendment; and
(c) Lender shall have received an original of this Amendment, duly
authorized, executed and delivered by Borrowers and One Price VI.
4. Additional Representations, Warranties and Covenants. Each Borrower
represents, warrants and covenants with and to Lender as follows,
which representations, warranties and covenants are continuing and
shall survive the execution and delivery hereof, and the truth and
accuracy of, or compliance with each, together with the
representations, warranties and covenants in the other Financing
Agreements, being a continuing condition of the making of Loans by
Lender to Borrower:
(a) No Event of Default or act, condition or event which with notice or
passage of time or both would constitute an Event of Default exists or
has occurred as of the date of this Amendment (after giving effect to
the amendments to the Financing Agreements made by this Amendment);
and
(b) This Amendment has been duly executed and delivered by each Borrower
and is in full force and effect as of the date hereof and the
agreements and obligations of each Borrower contained herein
constitute legal, valid and binding obligations of such Borrower
enforceable against such Borrower in accordance with their respective
terms.
5. Miscellaneous.
(a) Entire Agreement; Ratification and Confirmation of the Financing
Agreements. This Amendment contains the entire agreement of the
parties with respect to the subject matter hereof and supersedes all
prior or contemporaneous term sheets, proposals, discussions,
negotiations, correspondence, commitments and communications between
or among the parties concerning the subject matter hereof. This
Amendment may not be modified or any provision waived, except in
writing signed by the party against whom such modification or waiver
is sought to be enforced. Except for those provisions specifically
modified or waived pursuant hereto, the Financing Agreements are
hereby ratified, restated and confirmed by the parties hereto as of
the effective date hereof. To the extent of conflict between the terms
of this Amendment and the Financing Agreements, the terms of this
Amendment shall control.
(b) Governing Law. This Amendment and the rights and obligations hereunder
of each of the parties hereto shall be governed by and interpreted and
determined in accordance with the internal laws of the State of
Georgia, without regard to principles of conflicts of law.
(c) Binding Effect. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors
and assigns.
(d) Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute
but one and the same agreement. In making proof of this Amendment it
shall not be necessary to produce or account for more than one
counterpart thereof signed by each of the parties hereto.
By the signature hereto of each of their duly authorized officers, all
of the parties hereto mutually covenant and agree as set forth herein.
Very truly yours,
CONGRESS FINANCIAL CORPORATION
(SOUTHERN)
By: /s/ Xxxxx X. Xxxxx
Title: Vice President
AGREED AND ACCEPTED:
ONE PRICE CLOTHING STORES, INC.
By: /s/ C. Xxxx Xxxxx
Title: Vice President & Treasurer
ONE PRICE CLOTHING OF PUERTO RICO, INC.
By: /s/ C. Xxxx Xxxxx
Title: Vice President & Treasurer
CONSENTED TO AND AGREED:
ONE PRICE CLOTHING - U.S. VIRGIN ISLANDS, INC.
By: /s/ C. Xxxx Xxxxx
Title: Vice President & Treasurer