ONE PRICE CLOTHING STORES, INC. AND SUBSIDIARIES
EXHIBIT 4(d)(4) Amendment Number Four to the Loan and Security Agreement by and between Congress
Financial Corporation (Southern) as Lender and the Registrant, One Price Clothing Stores, Inc. of
Puerto Rico and One Price Clothing Stores - U.S. Virgin Islands, Inc. as Borrowers dated
January 31, 1999
AMENDMENT NO. 4 TO FINANCING AGREEMENTS
January 31, 1999
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 and Amendment No. 3 to Financing
Agreements, dated February 19, 1998, 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 (a) to a reduction of the
applicable interest rates, (b) to reduce the unused line and letter of credit
fees and (c) amend the early termination fee provisions contained in 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. Definitions. The definition of "Interest Rate" set forth at
Section 1.33 of the Loan Agreement is amended in its entirety to read as
follows:
1.33 "Interest Rate" shall mean, as to Prime Rate Loans, a
rate of one-quarter of one (1/4%) percent per annum in excess
of the Prime Rate and, as to Eurodollar Rate Loans, a rate of
two (2%) percent per annum in excess of the Adjusted
Eurodollar Rate (based on the Eurodollar Rate applicable for
the Interest Period selected by the applicable Borrower for
such Eurodollar Rate Loans in accordance with the terms
hereof, whether such rate is higher or lower than any rate
previously quoted to such Borrower); provided, that: the
Interest Rate shall be increased to the rate of two and
one-quarter (2 1/4%) percent per annum in excess of the Prime
Rate as to Prime Rate Loans and the rate of four (4%) percent
per annum in excess of the Adjusted Eurodollar Rate as to
Eurodollar Rate Loans, at Lender's option, without notice, (a)
for the period on and after (i) the date of termination or
non-renewal hereof and until such time as all Obligations are
indefeasibly paid in full (notwithstanding entry of any
judgment against either Borrower), or (ii) the date of the
occurrence of any Event of Default or act, condition or event
which with notice or passage of time or both would constitute
an Event of Default, and for so long as such Event of Default
or other event is continuing as determined by Lender and (b)
on the Loans at any time outstanding in excess of the amounts
available to the respective Borrowers under Section 2 (whether
or not such excess(es), arise or are made with or without
Lender's knowledge or consent and whether made before or after
an Event of Default).
2. Letter of Credit Fee. The first sentence of Section 2.2(b) is
amended in its entirety to read as follows:
(b) In addition to any charges, fees or expenses charged by
any bank or issuer in connection with the Letter of Credit
Accommodations, each Borrower shall pay to Lender a letter of
credit fee at a rate equal to one and one-half (1 1/2%)
percent per annum on the daily outstanding balance of the
Letter of Credit Accommodations issued for its account for the
immediately preceding month (or part thereof), payable in
arrears as of the first day of each succeeding month, except
that such Borrower shall pay to Lender such letter of credit
fee, at Lender's option, without notice, at a rate equal to
three and one-half (3-1/2%) percent per annum for (i) the
period from and after the date of termination or non-renewal
hereof until Lender has received full and final payment of all
Obligations (notwithstanding entry of a judgment against such
Borrower) and (ii) the period from and after the date of the
occurrence of an Event of Default and for so long as such
Event of Default is continuing.
3. Unused Line Fee. Section 3.4 of the Loan Agreement is hereby
amended in its entirety to read as follows:
3.4 Unused Line Fee. Borrowers shall pay to Lender monthly an
unused line fee at a rate equal to three-eighths of one
(.375%) percent per annum calculated upon the amount by which
the Inventory Loan Limit exceeds the average daily principal
balance of the outstanding Revolving Loans and Letter of
Credit Accommodations during the immediately preceding month
(or part thereof) while this Agreement is in effect and for so
long thereafter as any of the Obligations are outstanding,
which fee shall be payable on the first day of each month in
arrears.
4. Term. The first sentence of Section 12.1(c) of the Loan
Agreement (as previously amended) is hereby amended, by adding Section 12.1(c)
(iii) thereto:
(iii) .125% of the April 1, 2000 to but not
Inventory Loan including March 31, 2001.
5. Carolina First Bank.
(a) Lender hereby (i) consents to an extension of the term of the
Carolina Bank Documents for a period not to exceed an additional one year and an
increase in the line of credit available for letters of credit issued for One
Price's account thereunder from $4,000,000 to $5,000,000 and (ii) amends clause
(i) of Section 9.9(g) of the Loan Agreement by deleting the term "$3,000,000"
and substituting the term "$5,000,000" therefor.
(b) Lender's consent pursuant to Section 5(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.
6. 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.
7. Miscellaneous.
(a) 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, 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) 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, without regard to principles of conflicts of law.
(c) 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.
(d) 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/ Xxxx Xxxxxx
Title: Vice President
AGREED AND ACCEPTED:
ONE PRICE CLOTHING STORES, INC.
By: /s/ C. Xxxx Xxxxx
Title: Treasurer
ONE PRICE CLOTHING OF PUERTO RICO, INC.
By: /s/ C. Xxxx Xxxxx
Title: Treasurer
CONSENTED TO AND AGREED:
ONE PRICE CLOTHING - U.S. VIRGIN ISLANDS, INC.
By: /s/ c. Xxxx Xxxxx
Title: Treasurer
