1
Exhibit 10.1
EIGHTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
-----------------------------------------------
This Eighth Amendment to Loan and Security Agreement (the "Eighth
Amendment") is made as of this __ day of December, 2000 by and between
Fleet Retail Finance Inc., formerly known as BankBoston Retail
Finance Inc. (in such capacity, herein the "Agent"), a Delaware
corporation with offices at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, as agent for the ratable benefit of the "Lenders", who are party
to the Agreement (defined below)
and
Back Bay Capital Funding LLC, a Delaware Limited Liability
Company with offices at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(the "Term Lender")
and
Drug Emporium, Inc. (hereinafter, the "Borrower"), a Delaware
corporation with its principal executive offices at 000 Xxxxxx Xxxxxxx
Xxxxx, Xxxxxx, Xxxx 00000
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
W I T N E S S E T H:
WHEREAS, on October 28, 1998 the Agent, the Lenders and the Borrower
entered in a certain Loan and Security Agreement, as amended by a First
Amendment to Loan and Security Agreement dated May 11, 1999, a Second Amendment
to Loan and Security Agreement dated September 15, 1999, a Third Amendment to
Loan and Security Agreement dated December 10, 1999, a Fourth Amendment to Loan
and Security Agreement dated March 8, 2000, a Fifth Amendment to Loan and
Security Agreement dated May 10, 2000, a Sixth Amendment to Loan and Security
Agreement dated August 18, 2000, and a Seventh Amendment to Loan and Security
Agreement dated September __, 2000 (the "Agreement"); and
WHEREAS, the Borrower, the Agent, the Lenders, and the Term Lender
desire to amend certain of the provisions of the Agreement;
NOW, THEREFORE, it is hereby agreed among the Agent, the Lenders, the
Term Lender, and the Borrower as follows:
1. Capitalized Terms. All capitalized terms used herein and not
otherwise defined shall have the same meaning herein as in the Agreement.
-1-
2
2. Amendment to Article 5. Section 5-14 of the Agreement is hereby
amended to read as follows:
5-14. Minimum Excess Availability. Availability shall not be
less than $1,500,000.00, at all times through January 12, 2001, and
$10,000,000.00, at all times, thereafter, in each case measured without
regard to the additional Availability Reserve set forth in Paragraph 3
of the Eighth Amendment. For the purposes of the calculation of
Availability under this Section 5-14 cash deposited in the
Concentration Account no later than noon on the date of calculation
shall be added to the amount of Availability.
3. Additional Availability Reserves. The Agent and the Borrower hereby
agree that commencing December 19, 2000 an additional Availability Reserve in
the amount of $300,000.00 per Business Day, measured on a cumulative basis,
shall be established, until the Borrower satisfies the minimum Availability
covenant of $10,000,000.00 set forth in Section 5-14.
4. Ratification of Loan Documents. Except as provided herein, all terms
and conditions of the Agreement and of the other Loan Documents remain in full
force and effect. Furthermore, except as provided herein, all warranties and
representations made in the Agreement and in the other Loan Documents remain in
full force and effect.
5. Conditions to Effectiveness. This Eighth Amendment shall not be
effective until each of the following conditions precedent have been fulfilled
to the satisfaction of the Agent and the Lenders:
(a) This Eighth Amendment shall have been duly executed and
delivered by the all necessary parties hereto.
(b) No Suspension Event shall have occurred and be continuing.
(c) The Borrower shall have provided such additional
instruments and documents to the Agent as the Agent and the Agent's
counsel may have reasonably requested.
(d) The Agent shall promptly notify the Borrower when such
conditions are satisfied.
(e) The Borrower shall have furnished the Agent with corporate
resolutions authorizing the execution of this Amendment and the
documents contemplated herein.
-2-
3
6. Miscellaneous.
(a) This Eighth Amendment may be executed in several
counterparts and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and all of which
together shall constitute one instrument.
(b) This Eighth Amendment expresses the entire understanding
of the parties with respect to the transactions contemplated hereby. No
prior negotiations or discussions shall limit, modify, or otherwise
affect the provisions hereof.
(c) Any determination that any provision of this Eighth
Amendment or any application hereof is invalid, illegal or
unenforceable in any respect and in any instance shall not effect the
validity, legality, or enforceability of such provision in any other
instance, or the validity, legality or enforceability of any other
provisions of this Eighth Amendment.
(d) The Borrower shall pay on demand all costs and expenses of
the Agent, including, without limitation, reasonable attorneys' fees,
in connection with the preparation, negotiation, execution and delivery
of this Eighth Amendment.
(e) The Borrower warrants and represents that the Borrower has
consulted with independent legal counsel of the Borrower's selection in
connection with this Eighth Amendment and is not relying on any
representations or warranties of any Lender or the Agent or their
respective counsel in entering into this Eighth Amendment.
-3-
4
IN WITNESS WHEREOF, the parties have caused this Eighth Amendment to
Loan and Security Agreement to be executed by their duly authorized officers as
a sealed instrument as of the date first above written.
DRUG EMPORIUM, INC.
("Borrower")
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
FLEET RETAIL FINANCE INC.
("Agent")
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
The "LENDERS"
FLEET RETAIL FINANCE INC.
By
--------------------------------
Print Name:
-------------------------------
Title:
-------------------------------
-4-
5
NATIONAL CITY COMMERCIAL
FINANCE, INC.
By
--------------------------------
Print Name:
-------------------------------
Title:
-------------------------------
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By
--------------------------------
Print Name:
-------------------------------
Title:
-------------------------------
LASALLE BUSINESS CREDIT, INC.
By
--------------------------------
Print Name:
-------------------------------
Title:
-------------------------------
BACK BAY CAPITAL FUNDING LLC
By
--------------------------------
Print Name:
-------------------------------
Title:
-------------------------------
-5-
