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Exhibit 10.1
FIFTH AMENDMENT TO FOURTH AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
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THIS FIFTH AMENDMENT TO FOURTH AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is made as of February 29, 2000, by and among
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FLEET CAPITAL CORPORATION, a Rhode Island corporation (the "Lender"), and D&K
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HEALTHCARE RESOURCES, INC. ("D & K"), JARON, INC. ("Jaron") and XXXXXX DRUG
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CO., a South Dakota corporation ("Xxxxxx") (D & K, Jaron and Xxxxxx are
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sometimes hereinafter referred to individually as "Borrower" and collectively
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as "Borrowers").
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Preliminary Statements
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A. Lender, and Borrowers are parties to that certain Fourth Amended and
Restated Loan and Security Agreement dated as of August 7, 1998 (as amended,
restated or renewed from time to time, the "Loan Agreement"). Capitalized
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terms used herein and not otherwise defined shall have the meanings given
them in the Loan Agreement.
B. D & K has requested that Lender amend certain provisions of the Loan
Agreement on and subject to the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Increase in Letter of Credit Sublimit. The Loan Agreement is hereby
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amended by deleting Section 1.2 [RELATING TO LETTERS OF CREDIT; LC GUARANTIES]
in its entirety and replacing it the following new Section 1.2:
1.2 Letters of Credit; LC Guaranties. Lender agrees, for so
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long as no Default or Event of Default exists and if requested by D&K on
its own behalf or as agent for any Borrower, to (i) issue its or cause to
be issued its Affiliate's, Letters of Credit for the account of any
Borrower, or (ii) execute LC Guaranties by which Lender or its Affiliate
shall guaranty the payment of performance by any Borrower of its
reimbursement obligations with respect to Letters of Credit and letters
of credit issued for Borrower's account by any other Persons in support
of such Borrower's obligations (other than obligations for the repayment
of Money Borrowed), provided that the LC Amount at any time shall not
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exceed $25,000,000. No Letter of Credit or LC Guaranty may have an
expiration date that is after the last day of the Original Term. Any
amounts paid by Lender under any LC Guaranty or in connection with any
Letter of Credit shall be treated as Revolving Credit Loans, shall be
secured by all of the Collateral, and shall bear interest and be payable
at the same rate and in the same manner as Revolving Credit Loans.
2. No Claims. Borrowers acknowledge that there are no existing claims,
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defenses (personal or otherwise) or rights of set-off or recoupment
whatsoever with respect to any of the Loan Documents. Borrowers agree that
this Amendment in no way acts as a release or relinquishment of any Liens in
favor of the Lender securing payment of the Obligations.
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3. Miscellaneous. Except as expressly set forth herein, there are no
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agreements or understandings, written or oral, between any Borrower and
Lender relating to the Loan Agreement and the other Loan Documents that are
not fully and completely set forth herein or therein. Except to the extent
specifically waived or amended herein or in any of the documents,
instruments, or agreements delivered in connection herewith, all terms and
provisions of the Loan Agreement and the other Loan Documents are hereby
ratified and reaffirmed and shall remain in full force and effect in
accordance with the respective terms thereof. This Agreement may be executed
in one or more counterparts, and by different parties on different
counterparts. All such counterparts shall be deemed to be original documents
and together shall constitute one and the same agreement. A signature of a
party delivered by facsimile or other electronic transmission shall be deemed
to be an original signature of such party.
IN WITNESS WHEREOF, this Amendment has been executed and delivered by the
duly authorized representatives of the parties as of the date first above
written.
FLEET CAPITAL CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: SVP
D & K HEALTHCARE RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior VP and CFO
JARON, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: XX
XXXXXX DRUG CO.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: VP
