EXHIBIT 10z
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This First Amendment to Loan and Security Agreement (the "First
Amendment") is made as of the 17th day of December, 2001 by and among
Homeland Stores, Inc., a Delaware corporation (the "Borrower"), with
its principal executive offices at 0000 XX Xxxxxxxxxx, Xxxxx 0000X,
Xxxxxxxx Xxxx, Xxxxxxxx 00000; and
Fleet Retail Finance Inc., a Delaware corporation with offices at 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Revolving Credit
Lender"); and
Back Bay Capital Funding LLC, a Delaware limited liability company with
offices at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Term
Lender"); and
Fleet Retail Finance Inc. (in such capacity, the "Administrative
Agent"), a Delaware corporation with offices at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, as collateral agent and administrative
agent for the Revolving Credit Lender and the Term Lender
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
WITNESSETH
WHEREAS, the Administrative Agent, the Revolving Credit Lender, the
Term Lender, and the Borrower entered into a Loan and Security Agreement dated
as of August 15, 2001 (as amended and in effect, the "Loan Agreement"); and
WHEREAS, the Administrative Agent, the Lenders, and the Borrower desire
to amend certain of the terms and conditions of the Loan Agreement.
NOW THEREFORE, it is hereby agreed as follows:
1. Definitions: All capitalized terms used herein and not otherwise defined
shall have the same meaning herein as in the Loan Agreement.
2. Amendments to Section 1. The provisions of Section 1 of the Credit Agreement
are hereby amended by deleting the definition of "Excess Availability Amount" in
its entirety and substituting the following in its stead:
"EXCESS AVAILABILITY AMOUNT": The greater of (i) $3,500,000,
or (ii) fifteen percent (15%) of the Borrowing Base (without
regard to the deduction of the Excess Availability Amount) as
of each date of calculation, provided that for the period
December 10, 2001 through January 9, 2002 the Excess
Availability Amount shall be the greater of the amounts set
forth in clause (i) or (ii) above, less, in each case
$650,000.
3. 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 Administrative Agent and the Lenders:
a. This First Amendment shall have been duly executed and
delivered by the Borrower, the Guarantors, the Administrative
Agent, and the Lenders. The Administrative Agent shall have
received a fully executed copy hereof and of each other
document required hereunder.
b. The Borrower shall have paid to the Administrative Agent for
the ratable benefit of the Lenders an amendment fee in the sum
of $15,000. The amendment fee shall be fully earned upon
execution of this First Amendment and shall not be rebated or
refunded under any circumstances.
c. The Bankruptcy Court in the Proceedings shall have entered an
order approving the Borrower's and each Guarantor's entering
into this First Amendment, which shall have been certified by
the Clerk of the Bankruptcy Court as having been duly entered,
and such order shall not have been stayed, modified, appealed,
reversed or otherwise affected. All motions and other
documents to be filed with and submitted to the Bankruptcy
Court in connection with this First Amendment and the approval
thereof shall be reasonably satisfactory in form and substance
to the Administrative Agent and the Lenders.
d. No Default or Event of Default shall have occurred and be
continuing.
e. The Borrower and each Guarantor shall have provided such
additional instruments and documents to the Administrative
Agent as the Administrative Agent and its counsel may have
reasonably requested.
In the event that each of the foregoing conditions are not satisfied (or waived
by the Lenders) by December 14, 2001 (or such later date as the Lenders may
agree), then this First Amendment shall be void and of no effect.
4. Miscellaneous.
f. Except as provided herein, all terms and conditions of the
Loan Agreement and the other Loan Documents remain in full
force and effect. The Borrower hereby ratifies, confirms, and
reaffirms all of the representations, warranties and covenants
therein contained.
g. The Borrower shall pay all reasonable out-of-pocket costs and
expenses incurred by the Administrative Agent and the Lenders
in connection with this First Amendment, including, without
limitation, all reasonable attorneys' fees.
h. 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, each shall be an original, and
all of which together shall constitute one instrument.
i. This First Amendment expresses the entire understanding of the
parties with respect to the matters set forth herein and
supersedes all prior discussions or negotiations hereon.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed and their seals to be hereto affixed as the date first above
written.
HOMELAND STORES, INC.
By
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Print Name:
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Title:
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FLEET RETAIL FINANCE INC.
as Administrative Agent, Collateral Agent
and as Revolving Credit Lender
By:
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Print Name:
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Title:
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2
BACK BAY CAPITAL FUNDING LLC
as Term Lender
By:
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Print Name:
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Title:
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CONSENT OF GUARANTORS
The undersigned, Guarantors, each hereby consent to the First Amendment
to Loan and Security Agreement and each acknowledge that their Guaranty of the
Liabilities executed by each of them remains in full force and effect.
IN WITNESS WHEREOF, the Guarantors have caused this Consent to First
Amendment to be executed and their seals to be hereto affixed as the date first
above written.
HOMELAND HOLDING CORPORATION
By:
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Print Name:
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Title:
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SLB MARKETING, INC.
By:
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Print Name:
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Title:
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JCH BEVERAGE, INC.
By:
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Print Name:
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Title:
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