1
EXHIBIT 10.35
AMENDMENT NO. 6 TO LOAN AND SECURITY AGREEMENT
SOLO SERVE CORPORATION
0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
May 19, 1997
Congress Financial Corporation (Southwest)
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Gentlemen:
Congress Financial Corporation (Southwest) ("Lender") and Solo Serve
Corporation ("Borrower") have entered into certain financing arrangements
pursuant to the Loan and Security Agreement, dated June 20, 1995, between
Lender and Borrower, as amended by Amendment No. 1 to Loan and Security
Agreement, dated October 27, 1995, Amendment No. 2 to Loan and Security
Agreement, dated January 31, 1996, Amendment No. 3 to Loan and Security
Agreement, dated June 26, 1996, Amendment No. 4 to Loan and Security Agreement,
dated September 16, 1996 and Amendment No. 5 to Loan and Security Agreement,
dated March 31, 1997 (and as amended hereby and as the same may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement", together with all agreements, documents and instruments at
any time executed and/or delivered in connection therewith or related thereto,
collectively, the "Financing Agreements").
Borrower has requested that Lender agree to certain amendments to the Loan
Agreement, and Lender is willing to agree to such amendments, subject to the
terms and conditions contained herein. By this Amendment, Lender and Borrower
desire and intend to evidence such amendments.
In consideration of the foregoing and the agreements and covenants
contained herein, the parties hereto agree as follows:
1. Interpretation. All capitalized terms used herein shall have the
meanings assigned thereto in the Loan Agreement, unless otherwise defined
herein.
2. Renewal Term. All References to the term "Renewal Rate" in the Loan
Agreement shall be deemed, and each such reference is hereby amended, to mean
July 31, 1999.
2
Congress Financial Corporation (Southwest)
May 19, 1997
Page 2
3. Working Capital. Section 9.14 of the Loan Agreement is hereby deleted
in its entirety and replaced with the following:
"9.14 Working Capital. Borrower shall at all times on and after March
1, 1997 maintain Working Capital of not less than $3,250,000."
4. Adjusted Net Worth. Section 9.15 of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
"9.15 Adjusted Net Worth. Borrower shall at all times on and after
March 1, 1997 maintain Adjusted Net Worth of not less than $800,000."
5. Representations, Warranties and Covenants. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrower to Lender pursuant to the Financing Agreements, Borrower
hereby 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 shall be incorporated into and made a part of
the Financing Agreements):
(a) No Event of Default exists on the date of this Amendment (after
giving effect to the amendment to the Loan Agreement made by this Amendment).
(b) This Amendment has been duly executed and delivered by Borrower
and is in full force and effect as of the date hereof, and the agreements and
obligations of Borrower contained herein constitute legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
6. Conditions Precedent. The effectiveness of the amendments contained
herein shall be subject to the satisfaction of the following conditions
precedent in a manner satisfactory to Lender and its counsel:
3
Congress Financial Corporation (Southwest)
May 19, 1997
Page 3
(a) The receipt by Lender of an original of this Amendment, duly
authorized, executed and delivered by Borrower.
(b) No Event of Default shall have occurred and be continuing and no
event shall have occurred or condition be existing and continuing which, with
notice or passage of time or both, would constitute an Event of Default (after
giving effect to the amendment to the Loan Agreement made by this Amendment).
7. Effect of this Amendment. Except as modified pursuant hereto, no
other changes or modifications to the Financing Agreements are intended or
implied and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Amendment and the other Financing Agreements, the terms of this Amendment shall
control. The Loan Agreement and this Amendment shall be read and construed as
one agreement.
8. No Waiver. Lender has not waived and is not by this Amendment
waiving, and has no intention of waiving any Event of Default which may have
occurred on or prior to the date hereof or may be continuing on the date hereof
or may occur after the date hereof, and Lender reserves the right, in its
discretion, to exercise any or all of its rights and remedies arising under the
terms of the Financing Agreements as a result of any such other Event of
Default which may have occurred on or prior to the date hereof or may be
continuing on the date hereof or may occur after the date hereof.
9. Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Amendment.
10. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in
accordance with the laws of the State of Texas (without giving effect to
principles of conflicts of law).
4
Congress Financial Corporation (Southwest)
May 19, 1997
Page 4
11. 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.
12. 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.
Please sign the enclosed counterpart of this Agreement in the space
provided below, whereupon this Amendment, as so accepted by Lender, shall
become a binding agreement between Borrower and Lender.
Very truly yours,
SOLO SERVE CORPORATION
By: /s/ Xxxx X. Xxxxx
--------------------------------
Title: Executive Vice President
AGREED:
CONGRESS FINANCIAL CORPORATION
(SOUTHWEST)
By:/s/ Xxxxxx Xxxxxx
--------------------------------
Title: Senior Vice President
ACKNOWLEDGED AND CONSENTED TO BY:
GENERAL ATLANTIC CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
--------------------------------
Title: Vice President
