EXHIBIT 10.3
AMENDMENT AGREEMENT
January 31, 2000
United Retail Group, Inc.
United Retail Incorporated
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Gentlemen:
We refer to (1) the Financing Agreement dated August 15, 1997 by and among
United Retail Group, Inc. ("URGI"), United Retail Incorporated ("URI") The
CIT Group/Business Credit, Inc. as Agent and Lender ("CITBC")and FirsTrust
Bank as Lender, as amended (the "Financing Agreement"), (2) the Guaranty
dated August 15, 1997 executed by URGI and URI in favor of the Agent and
the Lenders, as amended ("Borrower Guaranty"), and (3) the Pledge and
Security Agreement executed by URGI in favor of CITBC, as amended (the
"Collateral Pledge"). Capitalized terms used herein and defined in the
Financing Agreement shall have the meanings set forth in said Financing
Agreement unless otherwise specifically defined herein.
URGI has advised CITBC that it has formed a wholly owned indirect
subsidiary named Cloudwalkers, Inc. ("Cloudwalkers") and has requested that
CITBC extend Revolving Loans to Cloudwalkers and/or assist Cloudwalkers in
opening Letters of Credit under the Financing Agreement on the same terms
as Revolving Loans and Letters of Credit are made available to the
Companies thereunder.
Subject to and in accordance with the terms, provisions and conditions
hereof, the Agent and the Lenders have agreed to extend such Revolving
Loans and Letters of Credit to Cloudwalkers. In furtherance thereof, the
Financing Agreement shall be, and hereby is, amended as follows:
(1) Effective immediately, the term "Companies" as used in the
Financing Agreement shall also include without limitation
Cloudwalkers. Cloudwalkers by its signature below hereby
adopts, ratifies, confirms, agrees to be bound by and comply
with all of the terms, provisions and conditions of the
Financing Agreement as if Cloudwalkers had been an original
signatory thereto;
(2) CITBC specifically confirms its agreement to: (a) make
Revolving Loans to Cloudwalkers subject to and in accordance
with all of the terms, provisions, conditions and limitations
of Section 3, Paragraph 1 of the Financing Agreement; and (b)
assist Cloudwalkers in opening Letters of Credit subject to and
in accordance with all of the terms, provisions, conditions and
limitations of Section 4, Paragraph 1 of the Financing
Agreement.
(3) Cloudwalkers specifically confirms:
(a) its grant to the Agent for the benefit of the Lenders of
a lien upon and security interest in all of Cloudwalkers
now owned and hereafter acquired Collateral, including
but not limited to, all Inventory, Accounts, Documents of
Title, and Other Collateral, all in accordance with the
terms and provisions of Section 5 of the Financing
Agreement;
(b) its agreement to be bound by and comply with each of the
representations, warranties and covenants contained in
Section 6 of the Financing Agreement;
(c) its agreement to pay interest on its Obligations under
the Financing Agreement at the rate set forth in Section
7 of the Financing Agreement, and further confirms its
agreement to pay all other fees and/or expenses as more
fully described in said Section;
(d) its agreement to grant to the Agent for the benefit of the
Lenders all of the powers set forth in Section 8 of the
Financing Agreement;
(e) its agreement to grant to the Agent for the benefit of
the Lenders all of the rights and remedies enumerated
under Sections 9 and 10 of the Financing Agreement; and
(f) its agreement to the various provisions and waivers more
fully set forth in Section 11 of the Financing Agreement.
(4) It is further agreed that:
(a) The term "Obligations" as used in the Financing Agreement
shall also include, without limitation, all indebtedness,
liabilities and obligations of Cloudwalkers to the Agent
and the Lenders.
(b) All Obligations of Cloudwalkers shall be and hereby are
secured by a lien upon and security interest in all
Collateral (as defined in the Financing Agreement).
(c) The extension of Revolving Loans and/or Letters of Credit
to Cloudwalkers shall be conditioned upon:
(i) Cloudwalkers signing below to confirm that
Cloudwalkers shall be, and hereby is, added as a
signatory to the Borrower Guaranty, and that all
references therein to "Companies" and/or "the
undersigned" shall also include Cloudwalkers. By
its signature below Cloudwalkers specifically
adopts, ratifies and confirms the Borrower Guaranty
in all respects as if Cloudwalkers had been an original
signatory thereto and further confirms its guaranty of
payment of the Obligations of and URI and URGI to the
Agent and the Lenders, all in accordance with the terms
and provisions of said Borrower Guaranty.
(ii) URGI and URI signing below to confirm that the term
"Obligations" as defined in the Borrower Guaranty
shall also include without limitation all
indebtedness, liabilities and obligations of
Cloudwalkers to the Agent and the Lenders.
(iii) URGI signing below to confirm that the term
"Secured Obligations" as used in the Collateral
Pledge and any other pledge and/or security
agreements executed by URGI in favor of the Agent
and the Lenders shall also include, without
limitation, all indebtedness, liabilities and
obligations of Cloudwalkers to the Agent and the
Lenders.
(iv) The Agent shall have received tax, judgment and
Uniform Commercial Code searches satisfactory to
the Agent for all locations presently occupied or
used by Cloudwalkers.
(v) Cloudwalkers shall have delivered to the Agent
evidence satisfactory to the Agent that casualty
insurance policies listing the Agent as loss payee
or mortgagee, as the case may be, with respect to
the Collateral of Cloudwalkers are in full force
and effect, all as set forth in Section 6,
Paragraph 5 of the Financing Agreement.
(vi) Any documents (including without limitation,
financing statements) required to be filed in order
to create, in favor of the Agent for the benefit of
the Lenders a first and exclusive perfected
security interest in the Collateral of Cloudwalkers
(subject only to Permitted Encumbrances) with
respect to which a security interest may be
perfected by a filing under the U.C.C. shall been
properly filed in each office in each jurisdiction
required in order to create in favor of the Agent
for the benefit of the Lenders a perfected lien on
the Collateral of Cloudwalkers. The Agent shall
have received acknowledgment copies of all such
filings (or, in lieu thereof, the Agent shall have
received other evidence satisfactory to the Agent
that all such filings have been made); and the
Agent shall have received evidence that all
necessary filing fees and all taxes or other
expenses related to such filings have been paid in
full.
(vii) The Agent shall have received a copy of the resolutions
of Cloudwalkers authorizing the execution, delivery an
performance of (x) this Amendment Agreement, and (y)
any related agreements, certified by the Secretary or
Assistant Secretary of Cloudwalkers as of the date
hereof, together with a certificate of the
Secretary or Assistant Secretary of Cloudwalkers as
to the incumbency and signature of the officers of
Cloudwalkers executing such agreements and
certificate or other documents to be delivered by
them pursuant hereto, together with evidence of the
incumbency of such Secretary or Assistant
Secretary.
(viii) The Agent shall have received (x) a copy of the
Articles of Organization of Cloudwalkers certified
by the Secretary of State of its organization, and
(y) a copy of the Bylaws (as amended through the
date hereof) of Cloudwalkers certified by its
Secretary or Assistant Secretary.
(ix) The Agent shall have received an executed Officer's
Certificate of the Companies satisfactory in form
and substance to the Agent, certifying that (i) the
representations and warranties contained herein are
true and correct in all material respects on and as
of the date hereof; (ii) the Companies are in
compliance with all of the terms and provisions set
forth herein; and (iii) no Default or Event of
Default has occurred.
(x) No Default, Event of Default or material adverse
change in the financial condition, business,
prospects, profits, operations or assets of
Cloudwalkers or the other Companies shall have
occurred.
(xi) The Agent shall have completed to the satisfaction
of the Agent an examination and verification of the
Accounts, Inventory, books and records of
Cloudwalkers.
(xii) Cloudwalkers shall have executed and delivered to
the Agent a Revolving Loan Promissory Note.
(xiii) All parties to the Amended and Restated Letter of
Credit Agreement shall have executed an amendment
and consent to the inclusion of Cloudwalkers
thereunder.
(xiv) The Agent shall have received an opinion of counsel
to Cloudwalkers, and the other Companies (in form
and substance satisfactory to the Agent) opining,
inter alia, that, subject to the i) filing,
priority and remedies provisions of the Uniform
Commercial Code, ii) the provisions of the
Bankruptcy Code, insolvency statutes or other like
laws, iii) the equity powers of a court of law and
iv) such other matters as may be agreed upon with
the Agent; (A)(a) this Amendment to Financing
Agreement, and (b) all other loan documents of
Cloudwalkers and the Companies are x) valid,
binding and enforceable according to their terms,
y) are duly authorized and z) do not violate any
terms, provisions, representations or covenants in
the articles of organization, charter or by-laws of
Cloudwalkers and the Companies or, to the best
knowledge of such counsel, of any loan agreement,
mortgage, deed of trust, note, security or pledge
agreement or indenture to which Cloudwalkers or the
Companies is a signatory or by which they or their
assets are bound.
Except as set forth herein no other waiver of or change in the terms or
provisions of the Financing Agreement, Borrower Guaranty, or the Collateral
Pledge is intended or implied. If the foregoing is in accordance with your
understanding of our agreement, kindly so indicate by signing and returning
the enclosed copy of this letter.
Very truly yours,
THE CIT GROUP/BUSINESS CREDIT, INC., as
Agent and Lender
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Title: Vice President
FIRSTRUST BANK, as Lender
By: /s/ Xxxx Xxxxxx
---------------------------------------
Title: Vice President
Read and Agreed to:
UNITED RETAIL GROUP, INC.
By: /s/ Xxx Xxxxxxxx
------------------------------
Title: Vice President - Finance
UNITED RETAIL INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: President
CLOUDWALKERS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Title: President
