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Exhibit 10.2
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
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This First Amendment to Loan and Security Agreement (the "First
Amendment") is made as of this 5th day of May, 1999 by and between
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
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 (the "Agreement"); and
WHEREAS, the Borrower, the Agent, and the Lender desire to amend
certain of the provisions of the Agreement;
NOW, THEREFORE, it is hereby agreed among the Agent, the Lenders 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.
2. AMENDMENT TO SECTION 5-12. Section 5-12 of the Agreement is
hereby amended by deleting the first sentence thereof and
replacing it with the following:
5-12. The Borrower shall maintain a trailing/rolling
twelve (12) month Fixed Charge Ratio of not less than 1.15 to
1 (tested monthly). For the purposes of determining the Fixed
Charge Ratio for fiscal years 2000 and 2001, the sum of up to
$8,000,000.00 per year in Capital Expenditures shall be
excluded in the calculation. There will be no such exclusion
for the purposes of calculating the Fixed Charge Ratio in
connection with the Libor Margin Pricing Grid.
3. 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.
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4. CONDITIONS TO EFFECTIVENESS. This First Amendment shall not
be effective until each of the following conditions precedent
have been fulfilled to the satisfaction of the Agent and the
Lenders:
1. This First Amendment shall have been duly executed
and delivered by the respective parties hereto.
2. No Suspension Event shall have occurred and be
continuing.
3. 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.
5. MISCELLANEOUS.
(a) This First 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.
(c) This First 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.
(d) Any determination that any provision of this
First 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 First
Amendment.
(e) 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 First
Amendment.
(f) The Borrower warrants and represents that the
Borrower has consulted with independent legal counsel of the
Borrower's selection in connection with this First Amendment
and is not relying on any representations or warranties of any
Lender or the Agent or their respective counsel in entering
into this First Amendment.
IN WITNESS WHEREOF, the parties have caused this First 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: /s/XXXXXXX X. XXXXX
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Name: XXXXXXX X. XXXXX
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Title: CHIEF FINANCIAL OFFICER
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BANKBOSTON RETAIL FINANCE INC.
("Agent")
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Vice President
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The "LENDERS"
BANKBOSTON RETAIL FINANCE INC.
By /s/ Xxxxx X. Xxxx
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Print Name: Xxxxx X. Xxxx
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Title: Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ Xxxxxxx X. Xxxxx
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Print Name: Xxxxxxx X. Xxxxx
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Title: Duly Authorized Signatory
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NATIONAL CITY COMMERCIAL
FINANCE, INC.
By /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Print Name: Xxxxxxx X. Xxxxxxxx, Xx.
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Title: Vice President
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AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By /s/ M. Xxxxxx Xxxxxx
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Print Name: M. Xxxxxx Xxxxxx
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Title: Vice President
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LASALLE BUSINESS CREDIT, INC.
By /s/ Xxxxx X. Xxxx
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Print Name: Xxxxx X. Xxxx
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Title: Vice President
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