Congress Financial Corporation
(Southern)
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
November 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
Re: Amendment No. 9 to Financing Agreements
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 and Amendment
No. 8 to Financing Agreements dated September 13, 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.
Xxxxxxxx has requested that Congress agree, subject to the terms of the
Financing Agreements, to reduce the Excess Availability requirement on a
temporary basis, and Congress has agreed to Xxxxxxxx's request, subject to the
terms and conditions hereof. Accordingly, subject to the terms and conditions
hereof, the Financing Agreements shall be amended as follows:
1. At all times prior to the payment of all Obligations arising in respect of
the Second Supplemental Loans, Borrowers shall, for the period commencing
from the Closing Date maintain Excess Availability of at least
$1,500,000.00, except, that, for the period commencing November 12, 2001
through December 22, 2001, for any day on which the Loan to Value
Percentage does not exceed ninety-two percent (92%) measured on a daily
basis (provided, that Borrowers shall have two (2) days to cure any failure
to maintain such Loan to Value Percentage) , Borrowers shall maintain
Excess Availability of at least $1,000,000.00. For purposes of this
section, the Loan to Value Percentage shall mean the percentage obtained by
dividing (x) the amount of all then outstanding and unpaid Obligations
(including all Revolving Loans and the Second Supplemental Loan) by (y) the
Net Recovery Cost Percentage multiplied by the Cost of the Eligible
Inventory of Borrower minus Availability Reserves (not including that
portion of Availability Reserves which reflects outstanding Letter of
Credit Accommodations).
2. Borrower confirms and agrees that (a) all representations and warranties
contained in the Financing Agreements are on the date hereof true and
correct in all material respects and (b) it is unconditionally and jointly
and severally liable for the punctual and full payment of all Obligations,
including, without limitation, all charges, fees, expenses and costs
(including attorneys' fees and expenses) under the Financing Agreements,
and that Borrower has no defenses, counterclaims or setoffs with respect to
full, complete and timely payment of all Obligations.
3. The Borrowers confirm that the Financing Agreements remain in full force
and effect without amendment or modification of any kind, except for the
amendments explicitly set forth herein. The undersigned further confirm
that no Event of Default or events which with notice or the passage of time
or both would constitute an Event of Default have occurred and are
continuing. The execution and delivery of this Amendment by Xxxxxx shall
not be construed as a waiver by Lender of any Event of Default under the
Financing Agreements. This Amendment shall be deemed to be a Financing
Agreement and, together with the other Financing Agreements, constitute the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior dealings, correspondence, conversations or
communications between the parties with respect to the subject matter
hereof. This Agreement may be executed in any number of counterparts, but
all 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.
4. This Amendment and the rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted in accordance with
Section 11.1 or 11.1.1 of the Loan Agreement, as the case may be.
5. This Amendment shall be binding upon and inure to the benefit of each of
the parties hereto and their respective successor, assigns and the
Participant.
6. In consideration of the agreement of Xxxxxx to enter into this Amendment
and the agreement of Xxxxxx's participant, Enhanced Retail Funding, LLC
("ERF") to approve this Amendment, Xxxxxxxx agrees to pay to Lender on the
date hereof, for the account of ERF, an amendment fee of $10,000 plus all
costs and expenses of ERF's counsel incurred in connection herewith.
Executed under seal on the date set forth above.
ATTEST: ONE PRICE CLOTHING STORES, INC.
By: /s/ Xxxxx X'Xxxxxx By: /s/ X. Xxxx Xxxxx
Name: X. Xxxx Xxxxx
Title: Vice President & Treasurer
ONE PRICE CLOTHING OF PUERTO RICO, INC.
By: /s/ X. Xxxx Xxxxx
Name: X. Xxxx Xxxxx
Title: Vice President & Treasurer
CONSENTED TO BY:
ONE PRICE CLOTHING US VIRGIN ISLANDS, INC.
By: /s/ X. Xxxx Xxxxx
Name: X. Xxxx Xxxxx
Title: Vice President & Treasurer
Accepted in Atlanta, Georgia
on November 12, 2001
CONGRESS FINANCIAL CORPORATION
(SOUTHERN)
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
