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EXHIBIT 10.1
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "AMENDMENT")
is dated for reference purposes only as of March 16, 1998, by and between SANWA
BUSINESS CREDIT CORPORATION, a Delaware corporation ("LENDER"), having an office
at Xxx Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 ("LENDER") and SOLO SERVE
CORPORATION, a Delaware corporation ("BORROWER"), having its chief executive
office at 0000 Xxxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxx 00000.
RECITALS:
A. Lender has made financial accommodations to Borrower (the "LOAN")
pursuant to a certain Loan and Security Agreement dated for reference purposes
only as of September 25, 1997 (the "EXISTING AGREEMENT").
B. Borrower and Lender have agreed to amend the terms of the Existing
Agreement to, inter alia, (i) amend the definition of Current Asset Base, (ii)
modify certain financial covenants, (iii) provide for delivery to Lender of a
letter of credit as additional collateral for the Loan, (iv) permit Borrower to
enter into a sale-leaseback of certain of its owned facilities, and (v) waive
any default arising from Borrower's failure to satisfy certain financial
covenants.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and for $10.00 and other good and valuable consideration in hand paid
by each party to the other, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby covenant and agree as follows:
1. Recital Representations. Borrower hereby represents and warrants to
Lender that the foregoing Recitals are (a) true and accurate and (b) an integral
part of this Amendment. Borrower and Lender hereby agree that all of the
Recitals of this Amendment are hereby incorporated into this Amendment and made
a part hereof. Any term not otherwise defined herein shall have the meaning set
forth in the Existing Agreement.
2. Liabilities. All references in the Existing Agreement and the
Ancillary Agreements to Borrower's Liabilities shall refer to and include,
without limitation, all amounts now or hereafter due pursuant to the Existing
Agreement, as amended hereby or otherwise, payment of which amounts, Borrower
hereby expressly acknowledges to be secured by all Collateral pursuant to the
grant of a security interest under the Existing Agreement.
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3. Amendment to Existing Agreement. The Existing Agreement is hereby
amended as follows:
3.1. Section 1.1 (h) is hereby deleted in its entirety and the
following is substituted therefor:
(h) "BORROWING BASE" SHALL MEAN AN AMOUNT EQUAL TO THE SUM
(AS OF THE DATE OF DETERMINATION) OF: (I) THE CURRENT ASSET BASE, PLUS
(II) AN AMOUNT EQUAL TO THE GAC LETTERS OF CREDIT THEN HELD BY LENDER.
3.2. Section 1.1(t) is hereby deleted in its entirety and the
following is substituted therefor:
(t) "CURRENT ASSET BASE" SHALL MEAN AT ANY TIME AN AMOUNT
EQUAL TO THE SUM AT SUCH TIME OF:
(a) SEVENTY PERCENT (70%) OF ELIGIBLE INVENTORY, COMMENCING
ON EACH MAY 1, AND ENDING ON EACH DECEMBER 10, DURING THE TERM HEREOF,
(b) SEVENTY PERCENT (70%) OF ELIGIBLE INVENTORY AT ALL TIMES
THAT THE $600,000 GAC LETTER OF CREDIT IS THEN HELD BY LENDER; AND
(c) SIXTY-FIVE PERCENT (65%) OF ELIGIBLE INVENTORY AT ALL
OTHER TIMES, LESS AT ALL TIMES ANY RESERVES AS LENDER MAY, AT ANY TIME
AND FROM TIME TO TIME, ESTABLISH IN THE EXERCISE OF REASONABLE CREDIT
JUDGMENT AS A RESULT OF CHANGING CIRCUMSTANCES.
3.3. Section 1.1(ll) is hereby deleted in its entirety and the
following is substituted therefor:
(ll) "GAC LETTERS OF CREDIT" SHALL MEAN THE $600,000 GAC
LETTER OF CREDIT AND THE $750,000 GAC LETTER OF CREDIT, AND ALL
AMENDMENTS, MODIFICATIONS, SUPPLEMENTS, RENEWALS, SUBSTITUTIONS,
EXTENSIONS OR REPLACEMENTS THEREOF.
3.4. The following definition is hereby added to Section 1.1:
(bbbb) "600,000 GAC LETTER OF CREDIT" SHALL HAVE THE MEANING
SET FORTH IN SECTION 4.2(b).
(cccc) "$750,000 GAC LETTER OF CREDIT" SHALL HAVE THE MEANING
SET FORTH IN SECTION 4.2(a).
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3.5. Section 2.2(a) is hereby deleted in its entirety and the
following is substituted therefor:
(a) SUBJECT TO ALL OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT, LENDER AGREES, FOR SO LONG AS NO DEFAULT OR EVENT OF
DEFAULT EXISTS, TO MAKE REVOLVING LOANS ("REVOLVING LOANS") TO
BORROWER FROM TIME TO TIME, AS REQUESTED BY BORROWER IN ACCORDANCE
WITH THE TERMS OF SECTION 2.3 HEREOF, UP TO A MAXIMUM PRINCIPAL AMOUNT
AT ANY TIME OUTSTANDING EQUAL TO THE LESSER OF (I) TWELVE MILLION AND
NO/100 DOLLARS ($12,000,000.00) MINUS LETTER OF CREDIT USAGE, AND (II)
THE BORROWING BASE AT SUCH TIME MINUS LETTER OF CREDIT USAGE. IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT LENDER MAY USE THE BORROWING BASE
AS A MAXIMUM CEILING ON THE PRINCIPAL AMOUNT OF LOANS (INCLUDING
LETTER OF CREDIT USAGE) OUTSTANDING TO BORROWER AT ANY TIME. IT IS
FURTHER EXPRESSLY AGREED THAT, NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, IN THE EVENT BORROWER HAS NOT DELIVERED TO
LENDER CONFIRMATION OF THE EXTENSION OF THE EXPIRY DATE OF A GAC
LETTER OF CREDIT ON OR BEFORE 30-DAYS PRIOR TO ITS EXPIRY DATE (AS MAY
BE EXTENDED), SUCH GAC LETTER OF CREDIT SHALL NOT BE INCLUDED IN THE
BORROWING BASE FOR PURPOSES OF DETERMINING THE MAXIMUM PRINCIPAL
AMOUNT WHICH MAY BE OUTSTANDING AT SUCH TIME. IF THE UNPAID PRINCIPAL
BALANCE OF THE REVOLVING LOANS SHOULD EXCEED THE CEILING SO DETERMINED
OR ANY OTHER LIMITATION SET FORTH IN THIS AGREEMENT, SUCH REVOLVING
LOANS SHALL NEVERTHELESS CONSTITUTE LIABILITIES THAT ARE SECURED BY
THE COLLATERAL AND ENTITLED TO ALL THE BENEFITS THEREOF. IN NO EVENT
SHALL LENDER BE REQUIRED TO MAKE A LOAN AT ANY TIME THAT THERE EXISTS
A DEFAULT OR AN EVENT OF DEFAULT. NOTWITHSTANDING THE FOREGOING
PROVISIONS OF THIS SECTION 2.2(A), LENDER SHALL HAVE THE RIGHT TO
ESTABLISH RESERVES IN SUCH AMOUNTS, AND WITH RESPECT TO SUCH MATTERS,
AS LENDER SHALL, IN THE SOLE EXERCISE OF ITS REASONABLE DISCRETION,
DEEM NECESSARY OR APPROPRIATE, AGAINST THE AMOUNT OF REVOLVING LOANS
WHICH BORROWER MAY OTHERWISE REQUEST UNDER THIS SECTION 2.2(A). EXCEPT
AS OTHERWISE PROVIDED HEREIN, EACH REVOLVING LOAN SHALL BE MADE ON
NOTICE, GIVEN NOT LATER THAN 11:00 A.M. (CHICAGO TIME) ON THE BUSINESS
DAY OF THE PROPOSED REVOLVING LOAN, BY BORROWER TO LENDER. EACH SUCH
NOTICE (A "NOTICE OF REVOLVING LOAN") SHALL BE IN WRITING (INCLUDING
BY FACSIMILE TRANSMISSION) TO THE ACCOUNT EXECUTIVE OF LENDER IN
CHARGE OF BORROWER'S ACCOUNT (XXXXXXX XXXX AT CLOSING), OR, IN HER
ABSENCE, TO A DESIGNEE SPECIFIED BY LENDER, SPECIFYING THEREIN THE
REQUESTED DATE AND AMOUNT OF SUCH REVOLVING LOAN. BORROWER MAY ALSO
DELIVER ITS NOTICE OF BORROWING BY TELEPHONE COMMUNICATION TO LENDER,
BUT SUCH NOTICE SHALL NOT BE EFFECTIVE UNTIL LENDER SHALL HAVE
RECEIVED A CONFIRMATION IN WRITING (BY FACSIMILE OR OTHERWISE) OF SUCH
NOTICE OF BORROWING. LENDER SHALL, BEFORE 2:30 P.M. (CHICAGO TIME) ON
THE DATE OF THE PROPOSED REVOLVING LOAN, UPON FULFILLMENT OF THE
APPLICABLE CONDITIONS SET FORTH HEREIN, WIRE TO A BANK DESIGNATED BY
BORROWER AND REASONABLY ACCEPTABLE TO LENDER, THE AMOUNT OF SUCH
REVOLVING LOAN.
3.6. Section 4.2 is hereby deleted in its entirety and the
following is substituted therefor:
4.2 GAC LETTERS OF CREDIT.
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(a) BORROWER SHALL HAVE THE RIGHT, FROM TIME TO TIME
DURING THE TERM HEREOF, TO DELIVER TO LENDER A LETTER OF CREDIT ISSUED
UPON THE APPLICATION OF GAC, NAMING LENDER AS BENEFICIARY THEREOF, IN
AN AMOUNT NOT TO EXCEED $750,000, WHICH LETTER OF CREDIT SHALL BE IN
FORM AND SUBSTANCE ACCEPTABLE TO LENDER, IN LENDER'S SOLE AND EXCLUSIVE
DISCRETION (SAID LETTER OF CREDIT, TOGETHER WITH ALL AMENDMENTS,
MODIFICATIONS, SUBSTITUTIONS, SUPPLEMENTS, EXTENSIONS, RENEWALS OR
REPLACEMENTS THEREOF, THE "$750,000 LETTER OF CREDIT").
(b) CONCURRENTLY WITH THE EXECUTION OF THIS
AMENDMENT, BORROWER SHALL DELIVER TO LENDER A LETTER OF CREDIT ISSUED
UPON THE APPLICATION OF GAC, NAMING LENDER AS BENEFICIARY THEREOF, IN
AN AMOUNT NOT TO EXCEED $600,000 (SAID LETTER OF CREDIT, TOGETHER WITH
ALL AMENDMENTS, MODIFICATIONS, SUPPLEMENTS, SUBSTITUTIONS, EXTENSIONS,
RENEWALS OR REPLACEMENTS THEREOF, THE "600,000 LETTER OF CREDIT"),
WHICH LETTER OF CREDIT SHALL BE IN FORM AND SUBSTANCE ACCEPTABLE TO
LENDER, IN LENDER'S SOLE AND EXCLUSIVE DISCRETION.
(c) THE $600,000 GAC LETTER OF CREDIT AND THE
$750,000 LETTER OF CREDIT SHALL BE ISSUED BY A COMMERCIAL BANK OR
FINANCIAL INSTITUTION ACCEPTABLE TO LENDER, IN LENDER'S SOLE AND
ABSOLUTE DISCRETION, BUT WHICH IN ALL EVENTS MEETS THE FOLLOWING
CRITERIA: (I) SUCH FINANCIAL INSTITUTION SHALL HAVE AGGREGATE ASSETS OF
NO LESS THAN $2,000,000,000, (II) SUCH FINANCIAL INSTITUTION SHALL HAVE
A LONG-TERM DEPOSIT RATING OR A LONG-TERM DEBT RATING OF NO LESS THAN A
AND (II) SUCH FINANCIAL INSTITUTION SHALL HAVE AN OPERATING AND
PORTFOLIO QUALITY TRENDS WHICH ARE STABLE OR IMPROVING.
(d) BORROWER AND BANK HEREBY ACKNOWLEDGED THAT THE
$600,000 GAC LETTER OF CREDIT DEPOSITED CONCURRENTLY HEREWITH SHALL
HAVE AN EXPIRY DATE OF MAY 31, 1998 AND THE $750,000 GAC LETTER OF
CREDIT HAS AN EXPIRY DATE OF DECEMBER 31, 1998; PROVIDED THAT EACH GAC
LETTER OF CREDIT PROVIDES FOR AUTOMATIC RENEWAL THEREOF UNLESS NOTICE
IS GIVEN TO LENDER OF THE ISSUING BANK'S INTENT NOT TO RENEW.
NOTWITHSTANDING SUCH PROVISION, IF BORROWER ELECTS TO RENEW SUCH LETTER
OF CREDIT, BORROWER SHALL DELIVER TO LENDER A CONFIRMATION, NOT LESS
THAN THIRTY (30) DAYS PRIOR TO THE EXPIRY DATE OF THE APPLICABLE GAC
LETTER OF CREDIT, THAT THE APPLICABLE EXPIRY DATE OF SUCH GAC LETTER OF
CREDIT HAS BEEN EXTENDED. IN THE EVENT BORROWER DOES NOT DELIVER A
CONFIRMATION OF SUCH EXTENSION OR RENEWAL OF SUCH GAC LETTER OF CREDIT
ON OR BEFORE THIRTY (30) DAYS PRIOR TO THE THEN APPLICABLE EXPIRY DATE,
AND IN THE EVENT THE OUTSTANDING PRINCIPAL BALANCE OF THE LOAN AT ANY
TIME DURING SUCH 30-DAY PERIOD IMMEDIATELY PRIOR TO THE EXPIRY DATE OF
THE APPLICABLE GAC LETTER OF CREDIT IS GREATER THAN THE BORROWING BASE
(WITHOUT GIVING EFFECT TO ANY INCREASE THEREOF BASED UPON THE THEN
EXPIRING GAC LETTER OF CREDIT) LENDER SHALL HAVE THE RIGHT, WITHOUT
NOTICE TO BORROWER, TO DRAW UPON THE THEN EXPIRING GAC LETTER OF CREDIT
AND TO APPLY THE PROCEEDS THEREOF TO BORROWER'S LIABILITIES.
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(e) IN THE EVENT BORROWER ELECTS TO EXTEND OR RENEW
EITHER OF THE GAC LETTERS OF CREDIT, BORROWER SHALL HAVE THE RIGHT
DURING ANY SUCH EXTENSION PERIOD, UPON NOT LESS THAN THIRTY (30) DAYS
PRIOR WRITTEN NOTICE TO LENDER TO TERMINATE EITHER GAC LETTER OF CREDIT
AND TO REQUEST A RETURN THEREOF IF: (I) THE BORROWING BASE (EXCLUDING
ANY AMOUNT THEREOF ATTRIBUTABLE TO THE APPLICABLE GAC LETTER OF CREDIT)
IS THEN EQUAL TO OR GREATER THAN THE OUTSTANDING PRINCIPAL AMOUNT OF
THE LOANS, AND (II) NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING OR WOULD BE CREATED THEREBY, EITHER ON THE DATE OF SUCH
NOTICE OR ON THE DATE FOR TERMINATION OF THE APPLICABLE GAC LETTER OF
CREDIT. UPON RECEIPT OF SUCH NOTICE, SATISFACTION OF SUCH CONDITIONS,
AND EXPIRATION OF SAID 30-DAY PERIOD, LENDER SHALL RETURN THE
APPLICABLE GAC LETTER OF CREDIT TO BORROWER OR AS DIRECTED BY BORROWER.
FOR PURPOSES OF DETERMING BORROWER'S RIGHT TO TERMINATE ONE OR MORE OF
THE GAC LETTERS OF CREDIT ONLY, LOANS WILL BE ALLOCATED FIRST TO THE
BORROWING BASE, EXCLUSIVE OF BOTH GAC LETTERS OF CREDIT, THEN TO THE
BORROWING BASE PLUS THE $750,000 GAC LETTER OF CREDIT, AND FINALLY TO
THE BORROWING BASE PLUS BOTH GAC LETTERS OF CREDIT.
(f) EXCEPT AS PROVIDED IN SECTION 4.2(D) RELATING TO DRAWS
UPON THE GAC LETTERS OF CREDIT DURING THE 30-DAY PERIOD IMMEDIATELY
PRECEDING THE EXPIRY THEREOF, LENDER HEREBY AGREES NOT TO PRESENT ANY
GAC LETTER OF CREDIT FOR PAYMENT AT ANY OTHER TIME UNLESS AN EVENT OF
DEFAULT OR DEFAULT HAS OCCURRED AND IS CONTINUING. ANY PROCEEDS OF THE
GAC LETTER OF CREDIT PAID TO LENDER SHALL BE APPLIED BY LENDER TO THE
LIABILITIES, IN SUCH ORDER OF PRIORITY AS LENDER SHALL, IN ITS SOLE
DISCRETION DETERMINE.
3.7. Section 6.9 is hereby deleted in its entirety and the
following is substituted therefor:
6.9 GAC PERMITTED LIEN. LENDER HEREBY CONSENTS TO BORROWER
GRANTING TO GAC A LIEN ON CERTAIN OF BORROWER'S ASSETS, INCLUDING
PORTIONS OF THE COLLATERAL, TO SECURE BORROWER'S OBLIGATION TO
REIMBURSE GAC FOR DRAWS UPON THE GAC LETTERS OF CREDIT (THE "GAC
PERMITTED LIEN"). THE MAXIMUM AMOUNT SECURED BY THE GAC PERMITTED LIEN
SHALL EQUAL THE FACE AMOUNT OF THE GAC LETTERS OF CREDIT THEN
OUTSTANDING, INTEREST ACCRUED THEREON FOLLOWING A DRAW THEREOF, AND
REASONABLE ENFORCEMENT CHARGES. THE GAC PERMITTED LIEN SHALL BE
EXPRESSLY SUBORDINATE TO THE LIEN SECURING THE LIABILITIES, PURSUANT
TO THE TERMS OF A SUBORDINATION AND INTERCREDITOR AGREEMENT ENTERED
INTO BETWEEN LENDER AND GAC CONCURRENTLY HEREWITH, AS AMENDED,
MODIFIED, SUPPLEMENTED, EXTENDED OR RESTATED FROM TIME TO TIME.
3.8. Section 10.1 (w) is hereby deleted in its entirety and the
following is substituted therefor:
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(w) AT ALL TIMES DURING THE TERM HEREOF, XXXXXXX X. XXXXXX
SHALL OWN NOT LESS THAN 1,015,000 SHARES OF THE ISSUED AND OUTSTANDING
SHARES OF THE BORROWER.
3.9. Section 11.1 is hereby deleted in its entirety and the following
is substituted therefor:
11.1 FINANCIAL COVENANTS.
(a) BORROWER SHALL MAINTAIN AN INTEREST COVERAGE RATIO,
MEASURED QUARTERLY ON A ROLLING FOUR-QUARTER BASIS (EXCEPT AS
NOTED) IN THE FOLLOWING AMOUNTS AT THE FOLLOWING TIMES:
FOR THE 3 FISCAL-MONTH PERIOD
ENDING ON OR ABOUT 01/31/98: WAIVED
FOR THE 6 FISCAL-MONTH PERIOD
ENDING ON OR ABOUT 04/30/98: .65 TO 1.0
FOR THE 9 FISCAL-MONTH PERIOD
ENDING ON OR ABOUT 07/31/98: 1.25 TO 1.0
FOR THE ROLLING 4-FISCAL QUARTER
PERIOD ENDING ON OR ABOUT
10/31/98: 1.0 TO 1.0
FOR THE ROLLING 4-FISCAL QUARTER
PERIOD ENDING ON OR ABOUT
01/31/99 THROUGH 07/31/99: 1.70 TO 1.0
FOR THE ROLLING 4-FISCAL QUARTER
PERIOD ENDING ON OR ABOUT
10/31/99 OR THEREAFTER: 2.00 TO 1.0
(b) BORROWER SHALL NOT MAKE CAPITAL EXPENDITURES IN EXCESS OF
(I) $1,000,000 DURING FISCAL YEAR ENDING ON OR ABOUT JANUARY
31, 1998, (II) $2,500,000 DURING FISCAL YEAR ENDING ON OR
ABOUT JANUARY 31, 1999, (III) $1,750,000 DURING FISCAL YEAR
ENDING ON OR ABOUT JANUARY 31, 2000, OR (IV) $1,000,000 DURING
FISCAL YEAR ENDING JANUARY 31, 2001, MEASURED QUARTERLY.
3.10. Exhibits N and O, attached to the Existing Agreement are
hereby deleted in their entirety and Exhibits N and O attached hereto are hereby
substituted therefor. Lender
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hereby consents to the sale of that parcel of real property commonly known as
the Distribution Center to Xxxxxx/XxXxxxx, LLC. or its assigns and the lease of
said parcel from Xxxxxx/XxXxxxx, LLC or its assigns, as landlord to Borrower, as
tenant, provided that in connection with said sale and leaseback, (i) Borrower
delivers to Lender a Landlord's Waiver in form and substance acceptable to
Lender, in Lender's sole and absolute discretion and (ii) Borrower shall give
Bank no less than 5 days prior notice of the closing of such transaction. Lender
hereby further consents to the sale and leaseback of all other real property
owned by Borrower upon the following terms and conditions: (i) no Event of
Default or Default shall have occurred and be continuing, (ii) Lender shall have
received a true, accurate and complete copy of the Lease entered into in
connection therewith, and (iii) Borrower shall have delivered to Lender and
Landlord's Waiver, in form and substance acceptable to Lender, in Lender's sole
and absolute discretion.
4. Payment of Expenses. Upon demand by Lender therefor, Borrower shall
reimburse Lender for all costs, fees and expenses incurred by Lender or for
which Lender becomes obligated, in connection with the negotiation, preparation
and conclusion of this Amendment, including without limitation, reasonable
attorneys' fees, costs and expenses, search fees, title insurance policy fees,
costs and expenses, filing and recording fees and all taxes payable in
connection with this Amendment.
5. Waiver of Claims. Borrower hereby acknowledges, agrees and affirms
that it possesses no claims, defenses, offsets, recoupment or counterclaims of
any kind or nature against or with respect to the enforcement of the Loan
Agreement, as amended hereby or any Ancillary Agreement, (collectively
referred to herein as the "CLAIMS"), nor does Borrower now have knowledge of
any facts that would or might give rise to any Claims. If facts now exist
which would or could give rise to any Claim against or with respect to the
enforcement of the Existing Agreement as amended by this Amendment, the Note,
and/or any Ancillary Agreements, Borrower hereby unconditionally, irrevocably
and unequivocally waives and fully releases any and all such Claims as if such
Claims were the subject of a lawsuit, adjudicated to final judgment from which
no appeal could be taken and therein dismissed with prejudice.
6. Representations of Borrower. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. To induce Lender to enter into this Amendment, Borrower hereby
represents and warrants to Lender that, as of the effective date of this
Amendment:
(a) the execution and delivery of this Amendment, and the
performance by Borrower of its obligations under this Amendment, the Existing
Agreement and the Ancillary Agreements, as amended hereby, are within Borrower's
corporate powers, have been duly authorized by all necessary corporate action,
have received all necessary governmental approval (if any shall be required) and
do not and will not contravene or conflict with any provisions of law or the
Articles of Incorporation or By-Laws of Borrower or of any agreement binding
upon Borrower;
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(b) this Amendment, and each other instrument executed by
Borrower concurrently herewith, are the legal, valid and binding obligation of
Borrower enforceable against Borrower in accordance with its terms, except as
enforcement thereof may be subject to the effect of applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, and to the general principles of equity (regardless of whether
such enforcement is sought in a proceeding in equity or at law);
(c) all of the representations and warranties of Borrower made
in the Existing Agreement are true and correct as of the date hereof, except
where such representation or warranty specifically relates to an earlier date;
and
(d) no Default or Event of Default under the Existing
Agreement exists.
7. Representation by Counsel. Borrower hereby represents that: (i) it
has been represented by competent counsel of its choice in the negotiation and
execution of this Amendment; (ii) that it has read and fully understood the
terms hereof; (iii) Borrower and its counsel have been afforded an opportunity
to review, negotiate and modify the terms of this Amendment, and (iv) Borrower
intends to be bound hereby. In accordance with the foregoing, the general rule
of construction to the effect that any ambiguities in a contract are to be
resolved against the party drafting the contract shall not be employed in the
construction and interpretation of this Amendment.
8. Amendment Supplementary. This Amendment is supplementary to the Loan
Documents. All of the provisions of the Loan Documents, including without
limitation the right to declare principal and accrued interest due for any cause
specified in the Loan Documents, shall remain in full force and effect except as
herein expressly modified and they are hereby reaffirmed, ratified and confirmed
in their entirety and incorporated by reference as if fully set forth herein.
The Existing Agreement and all rights and powers created thereby and thereunder
or under such other documents are in all respects ratified and confirmed. From
and after the date hereof, the Existing Agreement shall be deemed to be amended
and modified as herein provided, but, except as so amended and modified, the
Existing Agreement shall continue in full force and effect and the Existing
Agreement and this Amendment shall be read, taken and construed as one and the
same instrument. On and after the date hereof, the term "THE LOAN AGREEMENT" as
used in the Note, and all Ancillary Agreements shall mean the Existing Agreement
as amended hereby.
9. SUBMISSION TO JURISDICTION; VENUE. The provisions of Section 14.10
of the Existing Agreement are hereby incorporated herein by reference as if
fully set forth herein.
10. NO JURY TRIAL. BORROWER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION, SUIT, COUNTERCLAIM OR PROCEEDING (I) TO ENFORCE OR DEFEND
ANY RIGHTS UNDER OR IN CONNECTION WITH THIS
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AMENDMENT, THE EXISTING AGREEMENT, THE ANCILLARY AGREEMENTS, OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR (II) ARISING FROM ANY DISPUTE
OR CONTROVERSY ARISING IN CONNECTION WITH OR RELATED TO THIS AMENDMENT, THE
EXISTING AGREEMENT, THE ANCILLARY AGREEMENTS, OR ANY SUCH AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT, AND AGREES THAT ANY SUCH ACTION, SUIT, COUNTERCLAIM OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
(THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK)
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IN WITNESS WHEREOF, the parties have executed this Amendment dated for
reference purposes only as of March 16, 1998.
BORROWER: LENDER:
SOLO SERVE CORPORATION SANWA BUSINESS CREDIT
CORPORATION
By: By:
------------------------- -----------------------------
Xxxxxxx X. Xxxxxx, Name:
President and -----------------------------
Chief Executive Officer Title:
----------------------------
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EXHIBIT N
SOLO SERVE CORPORATION
LOAN AND SECURITY AGREEMENT, AS AMENDED
March 13, 1998
Real Estate Owned
Solo Serve #0
000 Xxxxxxx
Xxx Xxxxxxx, XX
Solo Serve #2
0000 Xxx Xxxxx
Xxx Xxxxxxx, XX
Solo Serve #3
000 XX Xxxxxxxx Xxxxx
Xxx Xxxxxxx, XX
Distribution Center
0000 Xxxxxxxxx
Xxx Xxxxxxx, XX
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EXHIBIT O
SOLO SERVE CORPORATION
LOAN AND SECURITY AGREEMENT, AS AMENDED
March 13, 1998
Existing Leases
PART 1
Solo Serve #0
Xxxxxx Xxxxx
Xxx Xxxxxxx, XX
Solo Serve #0
Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX
Solo Serve #0
Xxxxxxx Xxxx.
Xxxxxx, XX
Solo Serve #0
Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX
Solo Serve #9
Westside (South)
Shopping Center
Gretna, LA
Old Store
Solo Serve #9
Westside (North)
Shopping Center
Gretna, LA
New Store
Solo Serve #11
St. Xxxxxxx Plaza
W. Judge Xxxxx
Xxxxxxxx, LA
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Solo Serve #00
Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxxx, XX
Solo Serve #00
Xxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX
Solo Serve #00
Xxxxxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX
Solo Serve #00
Xxxxxxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX
Solo Serve #00
Xxxx Xxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX
Solo Serve #00
Xxxxxxx Xxxxxxxx
Xxx Xxxxxxx, XX
Solo Serve #00
Xxxxxxxxxx Xxxxx
Xxx Xxxxxxx, XX
Solo Serve #00
Xxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxxx, XX
Solo Serve #00
Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX
Solo Serve #00
Xxx Xxxxxxx Xxxxx
XxXxxxx, XX
Solo Serve #25
Lake Creek Festival
Austin, TX
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Solo Serve #00
Xxxxx Xx Xxxxxx
Xxxxxx, XX
Solo Serve #00
Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX
Solo Serve #00
Xxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxx, XX
Solo Serve #00
Xxxxxxxxxx Xxxx Xxxxxx
Xxxxxx, XX
Solo Serve #00
Xxx Xxxxxx Xxxx
Xxxxx Xxxxx, XX
Solo Serve #00
Xxxxx Xxxx Xxxx
Xxx Xxxxxxx, XX
Solo Serve #00
Xxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxx, XX
Solo Serve #00
Xxxxxxxx Xx. Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX
New York Office
Distribution Center
0000 Xxxxxxxxx
Xxx Xxxxxxx, XX
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PART 2
Solo Serve #00
Xxxxxxxxxx Xxxx
X-00 Xxxxxxxxxx
Xxxxxx, XX
Solo Serve #39
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
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