EXHIBIT 4(d)(5) Amendment Number Five to the Loan and Security Agreement by and
between Congress Financial Corporation (Southern) as Lender and the Registrant,
One Price Clothing, Inc. of Puerto Rico and One Price Clothing - U.S. Virgin
Islands, Inc. as Borrowers dated February 23, 2000.
AMENDMENT NO. 5 TO FINANCING AGREEMENTS
February 23, 0000
Xxx 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 and Amendment No. 4 to Financing Agreements,
dated January 31, 1999, 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 have the meanings given to them in the Financing Agreements.
Borrowers have requested that Lender agree (a) to consent to an
increase in the line of credit provided to Borrower by Carolina First Bank and
(b) to increase the amount of purchase money indebtedness secured by Equipment
and Real Property permitted under 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. Carolina First Bank.
(a) Subject to the terms and conditions set forth herein,
Lender hereby (i) consents to an increase in the line of credit available for
letters of credit issued for One Price's account under the Carolina Bank
Documents from $5,000,000 to $8,000,000 and (ii) amends clause (i) of Section
9.9(g) of the Loan Agreement by deleting the figure "$5,000,000" and
substituting the following therefor: "$8,000,000".
(b) Lender's consent pursuant to Section 1(a), shall, however,
be conditioned upon Lender's receipt, in form and substance satisfactory to
Lender, of the written agreements between One Price and Carolina Bank setting
forth the foregoing modifications, together with, if required by Lender, a
written confirmation by Carolina Bank of the continued effectiveness of the
Intercreditor Agreement, dated May 16, 1997, between Lender and Carolina Bank,
in form and substance satisfactory to Lender and accompanied by the written
agreement and acknowledgment of One Price.
2. Encumbrances. Section 9.8(e) of the Loan Agreement is hereby amended by
deleting the figure "$2,500,000" and substituting the following therefor:
"$5,000,000".
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; and
(b) Lender shall have received an original of this Amendment,
duly authorized, executed and delivered by Borrowers and One Price VI.
4. Miscellaneous.
(a) 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, subject, nevertheless to the
periods of effectiveness of the temporary waiver and temporary amendment set
forth, respectively, in Sections 1 and 2 hereof, 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) 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) This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
(d) 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/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
AGREED AND ACCEPTED:
ONE PRICE CLOTHING STORES, INC.
By: /s/ C. Xxxx Xxxxx
C. Xxxx Xxxxx
Title: Vice President & Treasurer
ONE PRICE CLOTHING OF PUERTO RICO, INC.
By: /s/ C. Xxxx Xxxxx
C. Xxxx Xxxxx
Title: Vice President & Treasurer
CONSENTED TO AND AGREED:
ONE PRICE CLOTHING - U.S. VIRGIN ISLANDS, INC.
By: /s/ C. Xxxx Xxxxx
C. Xxxx Xxxxx
Title: Vice President & Treasurer
