Exhibit 10(a) - Amendment 15 to Congress Financial Agreement
AMENDMENT NO. 15 TO FINANCING AGREEMENTS
As of May 30, 2003
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, Amendment No. 9 to Financing
Agreements, dated November 12, 2001, Amendment No. 10 to Financing Agreements,
dated December 12, 2001, Amendment No. 11 to Financing Agreements, dated January
31, 2002, Amendment No. 12 to Financing Agreements, dated September 25, 2002,
Amendment No. 13 to Financing Agreements, dated April 2, 2003, Amendment No. 14
to Financing Agreements, dated May 16, 2003 and 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 Section 9.15.2 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. Monthly Net Sales. Section 9.15.2(c) of the Loan Agreement is hereby
amended to delete the reference to "$27,000,000" in the column entitled Net
Sales and to replace it with "$25,100,000".
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 the fee referred to in Section
5 hereof; and
(c) Lender shall have received an original of this Amendment,
duly authorized, executed and delivered by each Borrower 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) All of the representations and warranties set forth in the
Loan Agreement and the other Financing Agreements, each as amended hereby, are
true and correct in all material respects on and as of the date hereof as if
made on the date hereof, except to the extent any such representation or
warranty is made as of a specified date, in which case such representation or
warranty shall have been true and correct as of such date.
(b) 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).
(c) 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. Amendment Fee. In addition to all other fees, charges, interest and
expenses payable by Borrower to Lender, Borrower shall pay to Lender a fee for
entering into this Amendment in the amount equal to $10,000, which fee is fully
earned and payable as of the date hereof and may be charged directly to the loan
account of Borrower maintained by Lender.
6. Miscellaneous.
(a) Additional Events of Default. The parties hereto
acknowledge, confirm and agree that the failure of Borrowers or One Price VI to
comply with any of the covenants, conditions and agreements contained herein
shall constitute an Event of Default under the Financing Agreements.
(b) 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.
(c) 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 but excluding any principles of conflicts of law or other rule of law
that would cause the application of the law of any jurisdiction other than the
laws of the State of Georgia.
(d) 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.
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(e) 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
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Title: Vice President
AGREED AND ACCEPTED:
ONE PRICE CLOTHING STORES, INC.
By: /s/C. Xxxx Xxxxx
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Title: Vice President - Finance & Treasurer
ONE PRICE CLOTHING OF PUERTO RICO, INC.
By: /s/C. Xxxx Xxxxx
----------------------------------------
Title: Vice President - Finance & Treasurer
CONSENTED TO AND AGREED:
ONE PRICE CLOTHING - U.S. VIRGIN ISLANDS, INC.
By: /s/C. Xxxx Xxxxx
----------------------------------------
Title: Vice President - Finance & Treasurer
