<PAGE> 1
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED
November 25, 1995 OR
----------------------------------
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM
TO
------------------------- --------------------
Commission File Number 0-16998
-----------
DRUG EMPORIUM, INC.
- -----------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 31-1064888
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
155 Hidden Ravines Drive, Powell, Ohio 43065
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (614) 548-7080
--------------------------
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Former name, former address and former fiscal year, if changed since last
report.
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--- ---
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the close of the period covered by this report.
Class Outstanding at 11/25/95
- ---------------------------- ----------------
Common Stock, $.10 par value 13,183,000 shares
---------------
<PAGE> 2
INDEX
DRUG EMPORIUM, INC.
PART I. FINANCIAL INFORMATION
- ------------------------------
Item 1. Financial Statements (Unaudited)
Condensed Consolidated Balance Sheets . . . . . . . .
Consolidated Statements of Operations . . . . . . . .
Consolidated Statements of Cash Flows . . . . . . . .
Notes to Consolidated Financial Statements . . . . . .
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations . .
PART II. OTHER INFORMATION
- ---------------------------
Item 6. Exhibits and Reports on Form 8-K . . . . . . . .
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . .
- ----------
EXHIBIT 10.1 - BANK CREDIT AGREEMENT . . . . . . . . . . . .
- ------------------------------------
EXHIBIT 11 - STATEMENT RE: COMPUTATION OF EARNINGS
- ---------------------------------------------------
PER SHARE . . . . . . . . . . . . . . . . . . . .
---------
2
<PAGE> 3
DRUG EMPORIUM, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
November 25, February 25,
------------ -----------
1995 1995
---- ----
(Unaudited) (Audited)
(In thousands)
ASSETS
Current assets:
Cash . . . . . . . . . . . . . . $ 739 $ 1,722
Accounts receivable . . . . . . . 11,977 10,368
Inventories . . . . . . . . . . . 192,878 128,125
Income taxes and other . . . . . 4,073 6,006
-------- --------
Total current assets . . . . . 209,667 146,221
Property and equipment, net . . . . 28,378 22,824
Goodwill . . . . . . . . . . . . . 5,460 5,908
Other assets . . . . . . . . . . . 1,404 1,491
-------- --------
Total assets . . . . . . . . . $244,909 $176,444
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Revolving credit line . . . . . . $ 33,500 $ -
Accounts payable . . . . . . . . 66,275 38,438
Other current liabilities . . . . 29,302 22,795
Current maturities of long-term
debt . . . . . . . . . . . . . . 4,274 5,086
-------- --------
Total current liabilities . . 133,351 66,319
Convertible subordinated debt . . . 49,421 52,000
Long-term debt, other . . . . . . . 14,638 11,976
Shareholders' equity:
Preferred stock, authorized 2,000,000
shares, none issued . . . . . . - -
Common stock, stated value $.10 per
share, authorized 28,000,000, issued
and outstanding 13,183,000 at November
25, 1995 and 13,171,000 at February
25, 1995 . . . . . . . . . . . 1,318 1,317
Additional paid-in capital . . . 32,115 32,068
Retained earnings . . . . . . . . 14,066 12,764
-------- --------
Total shareholders' equity . . 47,499 46,149
-------- --------
Total liabilities and shareholders'
equity . . . . . . . . . . . $244,909 $176,444
======== ========
See accompanying notes.
3
<PAGE> 4
DRUG EMPORIUM, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
November 25, November 26, November 25, November 26,
1995 1994 1995 1994
-------------------------- --------------------------
(Unaudited)
(In thousands, except per share data)
<S> <C> <C> <C> <C>
Net sales . . . . . . . . $170,954 $176,343 $503,839 $549,190
Cost of sales . . . . . . 134,059 139,356 395,549 434,645
-------- -------- -------- --------
36,895 36,987 108,290 114,545
Selling, administrative
and occupancy expenses. 34,680 35,405 101,722 108,801
Store closure expense . . 0 11,850 0 11,850
Other expense, net . . . 1,638 1,824 4,398 5,165
------- -------- -------- --------
Income (loss) before in-
come taxes. . . . . . . 577 (12,092) 2,170 (11,271)
Provision (benefit) for
income taxes. . . . . . 230 (4,200) 868 (3,875)
------- -------- -------- --------
Net income (loss) . . . . $ 347 $ (7,892) $ 1,302 $ (7,396)
======= ======== ======== ========
Net income (loss) per
share . . . . . . . . . $.03 $(.60) $.10 $.(56)
==== ====== ==== ======
Weighted average number of
common shares used in com-
puting net income per
share . . . . . . . . . 13,183 13,171 13,182 13,165
====== ====== ====== ======
</TABLE>
See accompanying notes.
4
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DRUG EMPORIUM, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Nine Months Ended
November 25, November 26,
------------ ------------
1995 1994
---- ----
(Unaudited)
(In thousands)
<S> <C> <C>
Operating activities:
Net income (loss) . . . . . . . $ 1,302 $ (7,396)
Add non-cash charges:
Depreciation and amortization 5,142 5,398
LIFO provision . . . . . . . 2,253 2,418
Store closure provision . . . 0 11,850
Cash provided by (used for) cur-
rent assets and liabilities:
Accounts receivable . . . . (1,453) (2,228)
Inventories at current cost (28,124) (13,738)
Accounts payable and other
current liabilities . . . . . 29,466 10,383
Other . . . . . . . . . . . 1,664 (4,345)
------- -------
Net cash provided by operating
activities . . . . . . . . . 10,250 2,342
Investing activities:
Purchase of property and equip-
ment, net. . . . . . . . . . (1,620) (2,419)
Payment for purchase of retail
stores, net of cash acquired (40,644) -
-------- -------
Net cash used for investing ac-
tivities (42,264) (2,419)
Financing activities:
Net borrowings under revolving
credit line . . . . . . . . 33,240 2,800
Net borrowings (repayments),
other . . . . . . . . . . . 322 (2,881)
Other . . . . . . . . . . . . . (2,531) 55
Net cash provided by (used for) --------- -------
financing activities . . . . 31,031 (26)
--------- -------
Change in cash . . . . . . . . . (983) (103)
Cash, beginning of period . . . . 1,722 585
---------- -------
Cash, end of period . . . . . . . $ 739 $ 482
========== =========
</TABLE>
Supplemental Schedule of Non-cash Investing and Financing Activities
--------------------------------------------------------------------
In addition to the payment for purchase of retail stores noted
above, the Company entered into a note payable agreement for $1.4
million as a component of one of the acquisitions.
See accompanying notes.
5
<PAGE> 6
DRUG EMPORIUM, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. The accompanying financial statements include the accounts
of Drug Emporium, Inc. and subsidiaries.
The information furnished reflects all adjustments which
are, in the opinion of management, necessary to fairly
present the consolidated financial position, results of
operations and cash flows on a consistent basis. Certain
amounts in prior period financial statements have been
reclassified to conform with the current presentation.
2. The Company's cost of sales is computed using the gross
profit method. The gross profit percentage used is validat-
ed by physical inventories conducted twice a year primarily
in the second and fourth quarters and the actual results of
the LIFO calculations in the fourth quarter.
3. The accompanying unaudited consolidated financial statements
are presented in accordance with the requirements for Form
10-Q and consequently do not include all the disclosures
normally required by generally accepted accounting princi-
ples. Reference should be made to the Company's Form 10-K
for the fiscal year ended February 25, 1995 (File No. 0-16998)
for additional disclosures including a summary of the
Company's accounting policies, which have not significantly
changed.
4. During the nine months ended November 25, 1995, the Company
acquired 29 stores in five separate transactions. These
acquisitions were accounted for as purchases. The consoli-
dated statements of operations reflect the results of opera-
tions of the acquired enterprises since the dates acquired.
5. The Company signed a new bank credit agreement (the Agree-
ment) on November 13, 1995. The Agreement increased the
available borrowings to help fund store acquisitions and
replaced the previous bank credit agreement that was due to
expire February 28, 1997.
The Agreement allows for a total credit facility of
$75,000,000, depending on available collateral. On or before
April 1, 1996, the credit facility will be reduced by
$15,000,000 and the remaining $60,000,000 will consist of a
$45,000,000 revolving credit facility and a $15,000,000 term
loan. Any conversion and reduction prior to April 1 would be at
the sole election of Drug Emporium, Inc. The Revolver expires
on February 28, 1999, while the term debt is due in quarterly
installments of $750,000.
The interest rate on the Revolver and the term debt float at
the bank's prime rate (Prime) plus 1/2% until the total
credit facility is reduced to a total of $60,000,000, at
which time the rate will be reduced to Prime. The Agreement
requires a commitment fee on the Revolver of .375% on the
unused available credit and has no compensating balance
requirements.
Borrowings made pursuant to the Agreement are secured by
inventory and accounts receivable. The Agreement prohibits
the payment of dividends, stock repurchases, and acquisition
of the Company's convertible subordinated debentures.
6
<PAGE> 7
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Results of Operations
The following table sets forth selected items from the Company's consolidated
statements of operations expressed as a percentage of net sales for the
periods indicated.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
November 25, November 26, November 25, November 26,
1995 1994 1995 1994
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net sales (in thousands) . $170,954 $176,343 $503,839 $549,190
======== ======== ======== ========
Gross margin . . . . . . . 21.6% 21.0% 21.5% 20.9%
Selling, administrative and
occupancy expenses . . . . 20.3 20.1 20.2 19.8
---- ---- ---- ----
1.3% 0.9% 1.3% 1.1%
=== === === ===
</TABLE>
For the quarter, average sales per store increased by four percent over
the prior year, however, total net sales decreased as a result of operating
fewer stores and a one-half percent decline in comparable store sales.
The net sales include sales for acquired stores from the date first
owned by the Company. Average sales per store per week for the 39 weeks,
excluding acquired stores, amounted to $109,000 compared with $105,000 in the
same prior year period. Management believes that average sales per store will
increase as a result of the acquired stores. Since most of the stores were
acquired late in the quarter the acquisitions have not significantly affected
operating results to date.
The following table lists corporately-owned store openings and store
closings through the third quarter ended November 25, 1995 and the similar
prior year period.
Three Months Ended Nine Months Ended
November 25, November 26, November 25, November 26,
1995 1994 1995 1994
----------- ----------- ----------- -----------
Number of stores at
beginning of period . . . 114 130 113 133
Stores opened or acquired . 26 - 34 2
Stores closed or sold . . . - (7) (7) (12)
--- --- --- ---
Total stores at end of
period . . . . . . . . . 140 123 140 123
=== === === ===
Gross margin as a percentage of sales increased during the respective
three and nine month periods ended November 25, 1995 over the comparable prior
year periods. This increase resulted from better shrink control, an emphasis
on lower product costs, selectively strengthened product pricing and better
category management, partially offset by reductions in the retail prices of
competitive items.
Selling, administrative and occupancy expenses likewise decreased in
the third quarter of Fiscal 1996 and year-to-date periods compared to the
similar prior year periods in total dollars but increased slightly as a
percentage of sales.
7
<PAGE> 8
The reduction in costs primarily resulted from the closure of underperforming
stores, partially offset by increased pressure on these costs resulting from
the investments in scanning and shrink control, which includes equipment lease
costs, the impact of the rollout on labor productivity, and training costs.
Inventory Valuation
The Company uses the LIFO method of accounting for its inventories.
Under this method, the cost of merchandise sold and reported in the financial
statements approximates current cost.
The Company, in computing its LIFO charge throughout the fiscal year,
uses an estimated percentage rate of inflation. The estimated inflation rate
used in the table below was two percent for all periods. This LIFO charge is
adjusted at each year-end based upon the actual weighted average percentage
rate of inflation during the fiscal year.
The table below sets forth the LIFO charge for the periods indicated.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
November 25, November 26, November 25, November 26,
1995 1994 1995 1994
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
LIFO charge (in thousands) $751 $806 $2,253 $2,418
==== ==== ====== ======
</TABLE>
Liquidity and Capital Resources
The Company signed a new bank credit agreement (the Agreement) on
November 13, 1995. The Agreement increased the available borrowings to help
fund store acquisitions and replaced the previous bank credit agreement that was
due to expire February 28, 1997.
The Agreement allows for a total credit facility of $75,000,000,
depending on available collateral. On or before April 1, 1996, the credit
facility will be reduced by $15,000,000 and the remaining $60,000,000 will
consist of a $45,000,000 revolving credit facility and a $15,000,000 term loan.
Any conversion and reduction prior to April 1 would be at the sole election of
Drug Emporium, Inc. The Revolver expires on February 28, 1999, while the term
debt is due in quarterly installments of $750,000.
The interest rate on the Revolver and the term debt float at the bank's
prime rate (Prime) plus 1/2% until the total credit facility is reduced to a
total of $60,000,000, at which time the rate will be reduced to Prime. The
Agreement requires a commitment fee on the Revolver of .375% on the unused
available credit and has no compensating balance requirements.
The Company gained bank approval and acquired $2.6 million face amount
of its convertible subordinated debt due in the year 2014 on the open market
during the nine months ended November 25, 1995.
The Company believes that internally generated funds and borrowings
available under its Agreement are sufficient to finance the Company's current
operations.
8
<PAGE> 9
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) The following Exhibits are included herein:
--Exhibit 10.1. Bank Credit Agreement
--Exhibit 11. Computation of earnings per share
--Exhibit 27. Financial Data Schedule
(b) The Company filed a Form 8-K, dated November
26, 1995, to report under Item 2, "Acquisitions,"
related to the purchase of F&M stores in Detroit and
Baltimore and to report the new bank agreement.
9
<PAGE> 10
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DRUG EMPORIUM, INC.
--------------------------------------
(Registrant)
Date January 5, 1996 By /s/ David L. Kriegel
------------------------ ---------------------------------------
David L. Kriegel
Chairman
Chief Executive Officer
Date January 5, 1996 By /s/ Timothy S. McCord
------------------------ ---------------------------------------
Timothy S. McCord
Chief Financial Officer
10
<PAGE> 1
THIRD AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$75,000,000 Columbus, Ohio
November 13, 1995
On or before February 28, 1999, for value received, the undersigned,
DRUG EMPORIUM, INC., a Delaware corporation (the "Company"), hereby promises to
pay to the order of BANK ONE, COLUMBUS, NA (the "Lender") or its assigns, as
further provided herein, the principal amount of Seventy Five Million Dollars
($75,000,000) or, if such principal is less, the aggregate unpaid principal
amount of all Revolving Credit Loans made by the Lender to the Company pursuant
to the Agreement referred to in Section 1 hereof, together with interest on the
unpaid principal balance from time to time outstanding hereunder until paid in
full at the rates determined and payable at the times in accordance with the
provisions of Section 1.5 of the Agreement. Both principal and interest are
payable in federal funds or other immediately available money of the United
States of America at the Main Office of the Lender, Bank One, Columbus, NA, 100
East Broad Street, Columbus, Ohio.
Section 1. Agreement. This Note is the Revolving Credit Note referred to
in the Third Amended and Restated Revolving Credit and Term Loan Agreement dated
as of the date hereof, between the Company and the Lender, as the same may be
amended, modified or supplemented from time to time (the "Agreement"), which
Agreement, as amended, is incorporated by reference herein. All capitalized
terms used herein shall have the same meanings as are assigned to such terms in
the Agreement. This Note is entitled to the benefits of and is subject to the
terms, conditions and provisions of the Agreement. The Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events, and also for repayments and reborrowings on
account of the principal hereof prior to maturity upon the terms, conditions and
provisions specified therein. The obligations of the Company hereunder are
secured as set forth in the Agreement. This Note is explicitly subject to
automatic reduction of its principal amount to $45,000,000 on March 31, 1996
pursuant to the terms of the Agreement.
Section 2. Endorsements. All Revolving Credit Loans made by the Lender
to the Company pursuant to the Agreement and all payments made on account of
principal hereof shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the schedule attached hereto which is a part of this Note;
provided, however, that the failure of the Lender or any holder to make such
notation shall not limit or otherwise affect the obligations of the Company
hereunder or under the Agreement.
Section 3. Setoffs. Upon the occurrence of any Event of Default, the
holder hereof shall have the right to setoff against all obligations of the
Company hereunder or under any of the Loan
-1-
<PAGE> 2
Documents, whether matured or unmatured, all amounts owing to the Company or any
Wholly-Owned Subsidiary by the holder hereof or any Affiliate of the holder
hereof, whether or not then due and payable, and all other funds or property of
the Company or any Wholly-Owned Subsidiary on deposit with or otherwise held by
or in the custody of the holder hereof or any Affiliate of the holder hereof for
the beneficial account of the Company or any Wholly-Owned Subsidiary.
Section 4. Confession of Judgment. The Company hereby authorizes any
attorney at law to appear for the Company in an action on this Note, at any time
after the same becomes due, as herein provided, in any court of record in or of
the State of Ohio, or elsewhere, to waive the issuing and service of process
against the Company and to confess judgment in favor of the legal holder of this
Note against the Company for the amount that may be due, with interest at the
rate herein mentioned and cost of suit, and to waive and release all errors in
said proceedings and judgment, and all petitions in error, and right of appeal
from the judgment rendered.
DRUG EMPORIUM, INC.
By /s/ David L. Kriegel
-----------------------------------------
David L. Kriegel, Chief Executive Officer
===============================================================================
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE
AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY
BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE
POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF
ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH
THE AGREEMENT, OR ANY OTHER CAUSE.
===============================================================================
-2-
<PAGE> 3
SCHEDULE TO REVOLVING CREDIT NOTE
<TABLE>
<CAPTION>
================================================================================================================
DATE AMOUNT OF AMOUNT OF UNPAID NOTATION MADE
LOAN PRINCIPAL PRINCIPAL BY
PAYMENTS BALANCE
<S> <C> <C> <C> <C>
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</TABLE>
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<PAGE> 4
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
Borrower: DRUG EMPORIUM, INC.
Bank: BANK ONE, COLUMBUS, NA
NOVEMBER 13, 1995
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 1. AMOUNT AND TERMS OF THE REVOLVING CREDIT.........................1
1.1. COMMITMENT OF THE BANK.........................................1
1.2. CANCELLATION OR REDUCTION OF THE COMMITMENT BY BORROWER........2
1.3. FEES...........................................................3
1.4. LOANS..........................................................3
1.5. THE REVOLVING CREDIT NOTE......................................4
1.6. ADDITIONAL PROVISIONS AND LIMITATIONS RELATING TO LIBO RATE
LOANS............................................................5
1.7. PREPAYMENTS AND RIGHT TO REBORROW..............................8
1.8. BORROWING BASE.................................................8
SECTION 2. TERM LOAN........................................................8
2.1. GENERAL........................................................8
2.2. TERM NOTE......................................................8
2.3. PREPAYMENT OF TERM NOTE.......................................10
2.4. ADDITIONAL PROVISIONS AND LIMITATIONS RELATING TO TERM NOTE
WHEN LIBO RATE IS IN EFFECT.....................................10
SECTION 3. GENERAL TERMS...................................................11
3.1. PAYMENTS......................................................11
3.2. PAYMENT ON NON-BANKING DAYS...................................11
3.3. SETOFFS.......................................................11
3.4. CAPITAL ADEQUACY..............................................11
3.5. FAILURE TO PAY; INTEREST AFTER MATURITY.......................12
SECTION 4. CONDITIONS OF EXTENSIONS OF CREDIT..............................12
4.1. CONDITIONS PRECEDENT TO INITIAL EXTENSIONS OF CREDIT..........12
4.2. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT..................13
</TABLE>
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
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<S> <C>
SECTION 5. REPRESENTATIONS AND WARRANTIES..................................14
5.1. ORGANIZATION AND GOOD STANDING................................14
5.2. DUE QUALIFICATION.............................................14
5.3. POWER AND AUTHORITY; DUE AUTHORIZATION........................14
5.4. BINDING OBLIGATIONS...........................................14
5.5. NO VIOLATION..................................................14
5.6. NO PROCEEDINGS................................................15
5.7. GOVERNMENT APPROVALS..........................................15
5.8. FINANCIAL CONDITION...........................................15
5.9. LITIGATION....................................................15
5.10. MARGIN ACTIVITY..............................................15
5.11. ACCURATE REPORTS.............................................16
5.12. TAX RETURNS AND PAYMENTS.....................................16
5.13. TITLE TO PROPERTIES; LIENS...................................16
5.14. ERISA........................................................16
5.15. PATENTS, TRADEMARKS, ETC.....................................16
5.16. SUBSIDIARIES AND AFFILIATES..................................17
5.17. INVESTMENTS..................................................17
5.18. INSURANCE....................................................17
5.19. ENVIRONMENTAL MATTERS........................................17
5.20. SOLVENCY.....................................................17
SECTION 6. AFFIRMATIVE COVENANTS...........................................18
6.1. COMPLIANCE WITH LAWS, ETC.....................................18
6.2. PRESERVATION OF CORPORATE EXISTENCE...........................18
6.3. AUDITS........................................................18
</TABLE>
ii
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
6.4. REPORTING REQUIREMENTS OF BORROWER............................18
6.5. USE OF PROCEEDS...............................................21
6.6. MAINTENANCE OF PROPERTIES AND INSURANCE.......................21
6.7. PAYMENT OF TAXES AND CLAIMS...................................21
6.8. PERFORMANCE OF CONTRACTS......................................21
6.9. ENVIRONMENTAL MATTERS.........................................21
6.10. DEPOSITORY...................................................22
6.11. SUBSIDIARIES.................................................22
6.12. MANDATORY PREPAYMENTS........................................22
6.13. MORTGAGE.....................................................22
SECTION 7. NEGATIVE COVENANTS..............................................23
7.1. NEGATIVE PLEDGE...............................................23
7.2. TANGIBLE NET WORTH............................................23
7.3. MINIMUM CURRENT RATIO.........................................23
7.4. UNSUBORDINATED LIABILITIES TO TANGIBLE NET WORTH RATIO........24
7.5. LIABILITIES TO TANGIBLE NET WORTH RATIO.......................24
7.6. INCOME AVAILABLE FOR FIXED CHARGES TO FIXED CHARGES RATIO.....24
7.7. MERGERS, ACQUISITIONS, SALES, ETC.............................24
7.8. LOANS, ETC....................................................25
7.9. CONTINGENT OBLIGATIONS........................................25
7.10. DIVIDENDS, PURCHASES AND PREPAYMENTS.........................25
7.11. TRANSACTIONS WITH AFFILIATES.................................25
7.12. SUBORDINATED DEBT............................................26
7.13. SOLVENCY.....................................................26
7.14. ERISA........................................................26
</TABLE>
iii
<PAGE> 8
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
7.15. SALE/LEASEBACKS..............................................26
7.16. ACCOUNTS RECEIVABLE..........................................26
7.17. CAPITAL EXPENDITURES.........................................27
SECTION 8. EVENTS OF DEFAULT AND REMEDIES..................................27
SECTION 9. PARTICIPATION...................................................29
SECTION 10. DEFINITIONS....................................................30
10.1. DEFINITIONS..................................................30
10.2. ACCOUNTING TERMS.............................................38
SECTION 11. MISCELLANEOUS..................................................38
11.1. TERM OF AGREEMENT; SUCCESSORS AND ASSIGNS....................38
11.2. NOTICES......................................................38
11.3. NO IMPLIED WAIVERS...........................................38
11.4. AMENDMENTS, MODIFICATIONS, ETC...............................38
11.5. APPLICABLE LAW...............................................39
11.6. SEVERABILITY.................................................39
11.7. EXPENSES.....................................................39
11.8. COUNTERPARTS.................................................39
11.9. ENTIRE AGREEMENT.............................................39
11.10. HEADINGS....................................................39
11.11. EFFECTIVE DATE..............................................39
11.12. CONFESSION OF JUDGMENT......................................39
11.13. TIME........................................................40
11.14. CONSENT TO JURISDICTION; SERVICE............................40
SIGNATURES..................................................................41
</TABLE>
iv
<PAGE> 9
EXHIBITS
Exhibit 1.1.3 STANDARD FORM OF BANK'S LETTER OF CREDIT APPLICATION
Exhibit 1.5 THIRD AMENDED AND RESTATED REVOLVING CREDIT NOTE
Exhibit 2.2 TERM NOTE
Exhibit 4.1(b) THIRD AMENDED AND RESTATED SECURITY AGREEMENT
Exhibit 4.1(c) THIRD AMENDED AND RESTATED PLEDGE AGREEMENT
Exhibit 4.1(d) THIRD AMENDED AND RESTATED UNCONDITIONAL GUARANTY
Exhibit 4.1(e) THIRD AMENDED AND RESTATED SUBSIDIARY SECURITY AGREEMENT
Exhibit 4.1(k) FORM OF BORROWER'S COUNSEL'S OPINION
Exhibit 5.9 PENDING LITIGATION
Exhibit 5.16 LIST OF SUBSIDIARIES AND AFFILIATES
Exhibit 6.4(i) DRUG EMPORIUM, INC. BORROWING BASE CERTIFICATE
Exhibit 6.4(k) LANDLORD'S WAIVER AND CONSENT
v
<PAGE> 10
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS THIRD AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
dated as of the 13th day of November, 1995 (the "Agreement"), is between DRUG
EMPORIUM, INC., a Delaware corporation (the "Borrower"), and BANK ONE, COLUMBUS,
NA (the "Bank"), and amends and restates in its entirety that certain Revolving
Credit Agreement dated as of February 14, 1992 between Borrower and the Bank as
(a) amended and restated by that certain First Amended and Restated Revolving
Credit and Term Loan Agreement dated as of January 4, 1994 between Borrower and
the Bank, (b) further amended by that certain Amendment No. 1 to First Amended
and Restated Revolving Credit and Term Loan Agreement dated as of November 11,
1994 between Borrower and the Bank and that certain Amendment No. 2 to First
Amended and Restated Revolving Credit and Term Loan Agreement dated as of
February 25, 1995 between Borrower and the Bank, and (c) amended and restated by
that certain Second Amended and Restated Revolving Credit Agreement dated as of
May 12, 1995 between Borrower and Bank.
THE PARTIES HERETO, INTENDING TO BE LEGALLY BOUND, hereby agree as
follows:
SECTION 1
AMOUNT AND TERMS OF THE REVOLVING CREDIT
1.1. COMMITMENT OF THE BANK.
1.1.1. Commitment. The Bank agrees, subject to the terms and
conditions of this Agreement, and provided that no Event of Default or Default
(the definitions of these and other capitalized terms used herein having the
meanings provided in Section 10) then exists, to provide Credits to Borrower in
the form of Revolving Credit Loans from time to time on and after the date
hereof but prior to February 28, 1999 (the "Maturity Date") in respective
amounts selected by Borrower from time to time, provided that the aggregate
amount thereof at any one time outstanding shall not exceed the Commitment.
1.1.2. Maximum Commitment. The amount of the Commitment shall equal
the lesser of the Borrowing Base or (a) $75,000,000 from the date hereof until
and including March 31, 1996 (the "Reduction Date") or (b) $45,000,000
thereafter. All provisions of this Agreement relating to reduction of the
Commitment, including the provisions of Section 1.2, shall apply to the
reduction of the Commitment provided for in this Section 1.1.2. Notwithstanding
the foregoing, if Borrower reduces the amount of the Commitment to $45,000,000
or less pursuant to Section 1.2 of this Agreement before March 31, 1996, then,
for purposes hereof, the "Reduction Date" shall be deemed to refer to the date
upon which such reduction actually took place. The maximum amount of all Credits
of the Bank to Borrower under this Section 1 at any one time outstanding shall
not exceed the total of the Commitment. For the purpose of computing the
<PAGE> 11
unused portion of the Commitment, the Bank shall treat as outstanding Credits
under this Agreement the undrawn face amount of outstanding Letters of Credit
issued from time to time hereunder at the request of Borrower. Upon repayment of
any outstanding Credit, the amount of such Credit will again be available for
reborrowing hereunder.
1.1.3. Letters of Credit.
(a) Borrower may request a Letter of Credit by completing the
Bank's then standard application for a Letter of Credit (copy of current
standard application is attached as Exhibit 1.1.3) and delivering the
application to the Bank at least two Banking Days before the date on which the
Letter of Credit is to be issued. On the date the Letter of Credit is to be
issued, the Bank shall deliver the Letter of Credit to Borrower, or to the
Person designated by Borrower. No Letter of Credit shall be issued with an
expiration date (i) more than 180 days after the date of issuance, or (ii) after
the Maturity Date or which is payable in a currency other than United States
dollars. Except as otherwise provided herein, all the terms of the Letter of
Credit and such standard application shall govern the Letter of Credit.
Notwithstanding any other provision hereof to the contrary, the face amount of
all Letters of Credit outstanding at any one time shall not exceed $5,000,000.
(b) Borrower shall immediately reimburse the Bank for the
amount paid on all drafts drawn under Letters of Credit issued hereunder. If,
notwithstanding the foregoing sentence, Borrower should fail to so immediately
reimburse the Bank, then, in addition to any other remedy which the Bank may
have with respect to such failure, any amount paid by the Bank on any draft
under a Letter of Credit shall be treated as a Variable Rate Loan (bearing
interest at the rate set forth in Section 3.5 hereof with respect to Revolving
Credit Loans which have become due and payable) unless Borrower makes
alternative advance provision for the funding of such reimbursement satisfactory
to the Bank.
1.2. CANCELLATION OR REDUCTION OF THE COMMITMENT BY BORROWER.
1.2.1. Cancellation/Reduction. Before the Maturity Date, the then
unused aggregate Commitment may be canceled or may be reduced permanently from
time to time by Borrower in the amount of U.S. $1,000,000 or any larger amount
which is a whole multiple of U.S. $1,000,000 upon 10 Banking Days' written
notice to the Bank of Borrower's election to do so, which notice shall specify
the date when such cancellation or reduction shall be effective and on such
effective date, the Commitment shall be so canceled or reduced; provided that:
(a) any such cancellation or reduction shall be irrevocable;
(b) in the event of a cancellation of the Commitment,
Borrower shall (i) pay in full all Commitment Fees due to the date of
cancellation and (ii) pay all amounts outstanding under the Revolving
Credit Note;
(c) in the event of a reduction of the Commitment to an
amount less than the principal amount of the then outstanding Revolving
Credit Loans and Letters of Credit, Borrower shall pay the Revolving
Credit Note so that the unpaid principal amount
2
<PAGE> 12
of the then outstanding Revolving Credit Loans and Letters of Credit does
not exceed the Commitment as so reduced; and
(d) Borrower may not cancel, prepay or reduce LIBO Rate Loans
unless Borrower first pays all fees, costs, penalties and premiums
incurred by the Bank because of such cancellation, prepayment or
reduction.
1.2.2. Payment of Interest. All principal payments made pursuant to
this Section 1.2 shall be accompanied by the payment of accrued interest on such
principal to the date of such payment and such additional consideration as may
be required pursuant to Section 1.2.1(d).
1.3. FEES.
1.3.1. Commitment Fee. As consideration for the Commitment, Borrower
shall pay to the Bank a fee (the "Commitment Fee") on the daily average unused
portion of the aggregate Commitment at a rate per annum equal to 3/8 of 1% with
respect to the unused portion of the Commitment, commencing with the effective
date hereof. For the purpose of computing the unused portion of the aggregate
Commitment, the Bank shall treat as outstanding Credits under this Agreement the
undrawn face amount of outstanding Letters of Credit issued from time to time
hereunder at the request of Borrower. The Commitment Fee shall be calculated on
the basis of the actual number of days elapsed over a year of 360 days. The
Commitment Fee shall be payable quarterly in arrears on the last day of each
February, May, August and November.
1.3.2. Letter of Credit Fees. Borrower shall pay to the Bank a
negotiation fee of 1/4 of 1% of the amount of each draft drawn under a Letter of
Credit. In addition, the Bank may charge Borrower its usual and customary
issuance and administration charges with respect to each Letter of Credit.
1.4. LOANS.
1.4.1. Forms of Loans. Each Revolving Credit Loan shall, at the
election of Borrower, be made either in the form of (a) a Variable Rate Loan
(individually a "Variable Rate Loan" and collectively the "Variable Rate
Loans"); or (b) with respect to only those Revolving Credit Loans made during a
LIBO Rate Period, a LIBO Rate Loan (individually a "LIBO Rate Loan" and
collectively the "LIBO Rate Loans"). Except as otherwise provided herein, each
Variable Rate Loan shall be in the initial principal amount of $300,000 or any
larger amount which is a whole multiple of $100,000. Each LIBO Rate Loan shall
be in the initial principal amount of $1,000,000 or any larger amount which is a
whole multiple of $100,000.
1.4.2. Borrowing Procedures.
(a) Except as otherwise provided herein, each Revolving
Credit Loan shall be made pursuant to Borrower's written or telephonic request
to the Bank and shall specify (i) the total amount of the Loan; (ii) whether the
Loan is to be a Variable Rate Loan or, if available, a LIBO Rate Loan; (iii) the
borrowing date (the "Borrowing Date"), which shall be a Banking Day in the case
of a Variable Rate Loan or a LIBO Banking Day in the case of a LIBO Rate Loan;
and
3
<PAGE> 13
(iv) in the case of a LIBO Rate Loan, that the Bank quote to Borrower on the
Trade Date the LIBO Rate for loans outstanding for one, two, three or six
months. Requests for Variable Rate Loans may be made prior to 12:00 noon on the
Borrowing Date. Requests for LIBO Rate Loans shall be made by 12:00 noon on the
Request Date.
(b) In the case of a request for a LIBO Rate Loan, the Bank
shall, no later than 11:00 a.m. on the Trade Date, notify Borrower of the LIBO
Rate applicable for the periods requested by Borrower. Borrower shall, no later
than 11:30 a.m. on the Trade Date, give notice to the Bank by telephone
confirmed by fax or otherwise in writing received on the next succeeding Banking
Day, whether it wishes (i) to complete such borrowing in the form of a LIBO Rate
Loan and, if so, the maturity date of such LIBO Rate Loan (which shall be either
one, two, three or six months from the Borrowing Date, but in no event later
than the Maturity Date); (ii) to make such borrowing as a Variable Rate Loan; or
(iii) to cancel its request for a Revolving Credit Loan. Failure by Borrower to
deliver notice to complete the borrowing by 11:30 a.m. on the Trade Date shall
constitute cancellation of such request.
(c) The proceeds of each Revolving Credit Loan will, subject
to the satisfaction of the terms and conditions of this Agreement, promptly (but
at least by 3:00 p.m. of the Borrowing Date) be made available to Borrower by
the Bank by crediting or making a payment to the account of Borrower.
1.5. THE REVOLVING CREDIT NOTE.
1.5.1. Form. The Revolving Credit Loans made by the Bank shall be
evidenced by a master promissory note of Borrower in the form attached hereto as
Exhibit 1.5, with appropriate insertions (the "Revolving Credit Note"), payable
to the order of the Bank and representing the obligation of Borrower to pay the
amount of the Commitment or, if different, the aggregate unpaid principal amount
of all Revolving Credit Loans made by the Bank, with interest thereon as
prescribed in this Section 1.5. The Revolving Credit Note shall (a) be dated the
date of this Agreement; (b) be stated to mature on the Maturity Date; and (c)
bear interest at the applicable interest rate per annum as provided in, and
payable as specified in, this Section 1.5. Each Revolving Credit Loan made by
the Bank and each payment made on account of principal on the Revolving Credit
Note shall be recorded by the Bank on its books and records in the usual and
ordinary course of business, such ordinary course books and records to
constitute prima facie evidence in the absence of manifest error of the amount
of all Revolving Credit Loans and payments; provided, however, that the failure
of the Bank to make such recordation shall not limit or otherwise affect the
obligations of Borrower under the Revolving Credit Note.
1.5.2. Interest on Variable Rate Loans. Each Variable Rate Loan
shall bear interest on the unpaid principal balance of such Loan for each day
from the day such Loan is made until the Reduction Date at a fluctuating rate
per annum equal to the Prime Rate plus 50 basis points. Thereafter, each
Variable Rate Loan shall bear interest on the unpaid principal balance of such
Loan for each day from the day such Loan is made until it becomes due, at a
fluctuating rate per annum equal to either (a) the Prime Rate plus 50 basis
points or (b) the Prime Rate in the case of a Variable Rate Loan made during a
period when the most recent quarterly financial statements of Borrower indicate
both (i) a LIBO Fixed Charge Coverage Ratio of 1.05:1.00 or greater and
4
<PAGE> 14
(ii) a LIBO Senior Leverage Ratio of 2.5:1.0 or less. Interest on all Variable
Rate Loans shall be calculated on the basis of the actual number of days elapsed
over a year of 360 days. Any change in the interest rate on a Variable Rate Loan
due to a change in the Prime Rate shall take effect, without notice to Borrower,
at the opening of business on the date of such change in the Prime Rate.
Interest on the Variable Rate Loans shall be payable quarterly on the last day
of each February, May, August and November commencing on the first such date
following the initial Variable Rate Loan.
1.5.3. Interest on LIBO Rate Loans. Each LIBO Rate Loan shall bear
interest on the outstanding principal amount of such Loan for each day from the
day such Loan is made until it becomes due, at a rate per annum equal to the
LIBO Rate as in effect on the applicable Trade Date. Borrower shall pay, with
respect to each LIBO Rate Loan, such additional amounts as shall be determined
pursuant to Section 1.6. Interest on each LIBO Rate Loan shall be payable at the
maturity of such Loan. Interest on all LIBO Rate Loans shall be calculated on
the actual number of days elapsed over a year of 360 days.
1.5.4. Additional Interest. For so long as the Bank, or any
participating bank, maintains reserves against any category of liabilities which
includes deposits by reference to which the interest rate on LIBO Rate Loans is
determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of the Bank to United States
residents which the Bank, or such participating bank, determines in good faith
to be legally required, and as a result the cost to the Bank, or such
participating bank, of making or maintaining its LIBO Rate is determined by the
Bank, or such participating bank, in good faith to have increased, then the Bank
may require Borrower to pay, contemporaneously with each payment of interest on
any LIBO Rate Loan of the Bank, additional interest on such LIBO Rate Loan at a
rate per annum equal to (a)(i) the applicable LIBO Rate divided by (ii) one
minus the Euro Reserve Percentage minus (b) the applicable LIBO Rate.
1.6. ADDITIONAL PROVISIONS AND LIMITATIONS RELATING TO LIBO RATE LOANS.
1.6.1. Additions. The additional provisions and limitations set
forth below shall apply with respect to LIBO Rate Loans:
(a) Deposits Unavailable. If the Bank shall, in good faith,
determine that it is unable to reasonably ascertain the LIBO Rate or either the
Bank or any participating bank is unable to acquire Eurodollar deposits or
Eurocurrency deposits on reasonable terms in an amount sufficient to meet a
request for a LIBO Rate Loan, the Bank shall forthwith give notice thereof to
Borrower, whereupon, until the Bank notifies Borrower that the circumstances
giving rise to such unavailability no longer exist (which the Bank shall do upon
receiving notice thereof), the obligations of the Bank to make LIBO Rate Loans
shall be suspended. In such event, Borrower may request a Variable Rate Loan of
like amount without regard to the notice requirement of Section 1.4 or may
cancel such request.
(b) Illegality. The obligation of the Bank to make LIBO Rate
Loans hereunder shall be suspended (to the extent necessary to remove such
illegality or impossibility) if any change in any law, treaty, rule or
regulation, or in any interpretation thereof by any
5
<PAGE> 15
governmental authority charged with its administration (whether or not having
the force of law) including, without limitation, exchange controls, shall, in
the sole opinion of the Bank or any participating bank, make it unlawful or
impossible for such bank to comply with its obligation to make or maintain any
LIBO Rate Loan hereunder for the duration of such illegality or impossibility.
The Bank shall promptly notify Borrower of such suspension, whereupon, until the
Bank receives notice that such illegality or impossibility ceases to exist and
gives notice to Borrower thereof, the obligations of the Bank to make LIBO Rate
Loans shall be suspended. Borrower shall, upon receipt of notice from the Bank,
either (i) repay in full (or to the extent necessary to remove such illegality
or impossibility) the outstanding principal amount of all such LIBO Rate Loans,
plus accrued interest thereon or (ii) convert the applicable interest rate
payable with respect to such Loan to the interest rate payable on a similar
Variable Rate Loan (to the extent such rate is not illegal).
(c) Change in Law. If the Bank has LIBO Rate Loans outstanding
and there shall occur any change in applicable law, treaty, rule, regulation or
in any interpretation thereof by any governmental authority charged with its
administration (whether or not having the force of law) which (i) change
directly affects transactions in Eurodollars or Eurocurrencies, (ii) involves
new or additional taxes, reserves or deposit requirements in regard to the LIBO
Rate Loans or changes in the basis of taxation of payments on such Loans, or
(iii) if the LIBO Rate Loans made hereunder by the Bank were to have been
matched with Eurodollar or Eurocurrency deposits corresponding in amounts to
such LIBO Rate Loans and having maturity dates which are the same as such LIBO
Rate Loans regardless of whether or not such LIBO Rate Loans are in fact so
matched, increases the cost to the Bank or any participating bank of making or
maintaining the LIBO Rate Loans hereunder or reduces the amount of any payments
(whether of principal, interest, or otherwise) receivable by the Bank or any
participating bank as to any LIBO Rate Loans or requires the Bank or any
participating bank to make any payment on or calculated by reference to the
gross amount of any sum received by it as to such LIBO Rate Loans, then:
(A) the Bank shall promptly notify Borrower of the
occurrence of such event;
(B) the Bank shall promptly deliver to Borrower a
certificate stating the change which has occurred, together
with the date thereof and the amount of and the manner of
calculating the increased cost on any outstanding LIBO Rate
Loan; and
(C) upon receipt of such certificate from the Bank,
Borrower shall pay to the Bank within 10 days the amount or
amounts of such additional cost with respect to such
outstanding LIBO Rate Loan as additional compensation
hereunder.
(d) Certificate as to Payment. The certificate of the Bank as
to the additional amounts payable pursuant to Section 1.6.1(c) delivered to
Borrower shall (in the absence of manifest error in the transmission or
calculation) be conclusive evidence of the amount thereof. The protection of
this Section 1.6.1(d) shall be available to the Bank and any participating bank
regardless of any possible contention of invalidity or inapplicability of the
law,
6
<PAGE> 16
regulation or condition which has been imposed. However, if Borrower has made a
payment of any additional amounts pursuant to Section 1.6.1(c) and any
subsequent event occurs which reduces the amount of the increased cost incurred
by the Bank or any participating bank, then the Bank shall promptly refund to
Borrower an amount equal to such reduction in the amount of increased cost.
(e) Substitution. If Borrower is required to pay to the Bank
any additional amounts pursuant to Section 1.6.1(c), Borrower shall be entitled,
upon giving the Bank not less than five days' written notice, in addition to its
other rights, to prepay all or any portion of an outstanding LIBO Rate Loan with
respect to which such additional amounts of payment are required (any
prohibition against prepayment of such Loans herein contained to the contrary
notwithstanding) by substituting a Variable Rate Loan of equal principal amount
for all or any such portion of the Loan. All such prepayments shall be
accompanied by payment of interest accrued to the date of such prepayments. As a
condition of such prepayments, Borrower shall promptly pay to the Bank upon the
Bank's written request such amount or amounts as in the reasonable good faith
business judgment of the Bank will compensate the Bank for any loss, premium or
penalty incurred by it because of such prepayment.
(f) Increased Costs. In addition to the other amounts payable
hereunder, Borrower shall pay to the Bank such additional amounts as shall
compensate the Bank and any participating Persons pursuant to Section 9 hereof
for increased costs which the Bank or such participating Person, reasonably and
in good faith determines to be allocable to LIBO Rate Loans. Additional amounts
payable under this Section 1.6.1(f) shall be paid by Borrower to the Bank on the
maturity of the respective LIBO Rate Loans, subject to receipt by Borrower from
the Bank of a certificate showing the amount and certifying to the correctness
thereof.
(g) Interest Period. With respect to LIBO Rate Loans, if the
interest period selected by Borrower (i) ends on a day which is not a LIBO
Banking Day, the period so selected shall be extended to the next succeeding
LIBO Banking Day unless such LIBO Banking Day falls in another calendar month,
in which case such interest period shall end on the next preceding LIBO Banking
Day; or (ii) begins on the last LIBO Banking Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar month at
the end of such interest period), the period so selected shall end on the last
LIBO Banking Day of the calendar month; provided, however, that notwithstanding
(i) or (ii) above, no period may be selected which ends after the Maturity Date.
1.6.2. Limitation. Charges or additional expenses or otherwise to
Borrower under Sections 1.2.1(d), 1.5.4 or 1.6.1 shall be subject to the
conditions that each is (a) the subject of notice given to Borrower by the Bank
within a reasonable time after the Bank determines that the same may exist; (b)
except as to the subjects of Section 1.2.1(d), the result of a change in law or
regulation or official interpretation thereof occurring after the date of
Closing; (c) not reflected in the determination of any other rate or charge
hereunder; and (d) (i) directly attributable and unique to the transactions
under this Agreement, or (ii) as to all the Bank's or any participating Person's
(pursuant to Section 9 hereof) customers similarly or analogously situated, (A)
passed through to or assessed against other customers to the extent the Bank or
such participating
7
<PAGE> 17
Person is contractually empowered to do so and (B) is allocated among all such
customers (without reference to part (A) of this clause).
1.6.3. Statement. The Bank's written statement to Borrower that
items under or covered by this Section 1.6 are properly chargeable to Borrower
under this Agreement, the general nature of those charges, and the amount
thereof shall be conclusive, absent manifest error. Except only to the extent
specifically set forth in this Agreement to the contrary, no charges or
additions under or covered by this Section 1.6 shall be payable, and no interest
shall accrue thereon, prior to the presentation of the statement described in
this Section 1.6.3.
1.7. PREPAYMENTS AND RIGHT TO REBORROW. Outstanding Variable Rate Loans
may be prepaid in whole at any time or in part from time to time in an amount of
U.S. $300,000 or any larger amount which is a whole multiple of $100,000 (or
such lesser amount as constitutes the entire amount outstanding) without premium
or penalty. The LIBO Rate Loans may be prepaid only as provided for in Section
1.2 or Section 1.6.1(e). No prepayment of a Revolving Credit Loan shall affect
Borrower's right to reborrow from the Bank under the Revolving Credit Note
before the Maturity Date.
1.8. BORROWING BASE. Borrower shall, from time to time, prepay Revolving
Credit Loans in such amounts as shall be necessary so that, at all times, the
sum of the aggregate unpaid principal amount of all Revolving Credit Loans is
less than or equal to the Borrowing Base as reflected on the most recent
Borrowing Base Certificate delivered hereunder. Any prepayment required as a
result of a reduced Borrowing Base shall be made within five Banking Days after
the delivery of the applicable Borrowing Base Certificate and shall be subject
to the provisions of Section 1.2.1(d) hereof. Borrower may, with the consent of
the Bank, which consent may be withheld for any reason or no reason, in lieu of
making such prepayment, deliver, within said five Banking Days, to the Bank,
such additional collateral as the Bank may request accompanied by such documents
as may be deemed necessary or appropriate by the Bank to protect the interests
of the Bank.
SECTION 2
TERM LOAN
2.1. General. On the Reduction Date, providing that Borrower is not then
in default hereunder, the Bank shall make a term loan (the "Term Loan") to
Borrower in the amount of $15,000,000, which Term Loan will be evidenced by a
term note (the "Term Note"). The Revolving Credit Loans and the Term Loan are
herein collectively called the "Loans" and the Revolving Credit Note and the
Term Note are herein collectively called the "Notes".
2.2. Term Note. The Term Loan shall be evidenced by a Term Note of
Borrower in the form attached hereto as Exhibit 2.2 executed by duly authorized
officers thereof on the Reduction Date. The Term Note shall include the
following terms:
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<PAGE> 18
2.2.1. The Term Note shall be dated as of the Reduction Date and
shall be due and payable in full on or before February 28, 2001 (the
"Termination Date").
2.2.2. Unless Borrower has elected, from time to time, in accordance
with the provisions of Section 2.2.3 to cause all or a portion of the Term Note
to bear interest at a LIBO Rate, the Term Note shall bear interest on the unpaid
principal balance thereof calculated on the basis of the actual number of days
elapsed over a year of 360 days on the unpaid principal balance thereof at a
fluctuating rate per annum equal to either (a) the Prime Rate plus 50 basis
points or (b) during a period when the most recent quarterly financial
statements of Borrower indicate both (i) a LIBO Fixed Charge Coverage Ratio of
1.05:1.00 or greater and (ii) a LIBO Senior Leverage Ratio of 2.5:1.0 or less,
the Prime Rate. Any change in the interest rate due to a change in the Prime
Rate shall take effect, without notice to Borrower, at the opening of business
on the date of the change in the Prime Rate.
2.2.3. Borrower may elect, from time to time during a LIBO Rate
Period, to have all or a portion of the Term Note bear interest at the LIBO Rate
by providing a request therefor to the Bank not later than 12:00 noon, on the
Request Date, which request shall specify (a) the effective date of the LIBO
Rate (the "Effective Date"), which shall be a LIBO Banking Day, (b) the
principal amount of the Term Note to bear interest at the LIBO Rate which shall
not be less than U.S. $1,000,000 or any larger amount which is a whole multiple
of U.S.$100,000 and (c) the interest period during which the LIBO Rate is to be
in effect, which may be for one, two, three or six months (provided that the
interest period shall not be so long as to be inconsistent with Borrower's
obligations to make payments as anticipated by Section 2.2.6). The Bank shall,
not later than 11:00 a.m. on the Trade Date, give notice to Borrower of the LIBO
Rate applicable for the period requested by Borrower. Borrower shall, not later
than 11:30 a.m. on the Trade Date, give notice by telephone confirmed by fax or
otherwise in writing to be received by the Bank on the next succeeding Banking
Day to the Bank as to whether or not Borrower elects to have all or a portion of
the Term Note bear interest at the LIBO Rate commencing as of the Effective Date
for the interest period so selected. If Borrower elects not to have all or any
part of the Term Note bear interest at the LIBO Rate or fails to deliver such
notice of election in a timely manner, the Term Note shall continue to bear
interest at the rate set forth in Section 2.2.2 and such portion of the Term
Loan bearing interest at a LIBO Rate shall, upon expiration of the period
selected for such LIBO Rate, bear interest at such rate. Each election to have a
portion of the Term Note bear interest at the LIBO Rate shall be recorded and
endorsed by the Bank on its books and records; provided, however, that the
failure of the Bank to make such recordation shall not limit or otherwise affect
the obligations of Borrower under the Term Note.
2.2.4. As used in this Section 2, "LIBO Rate" shall have the meaning
and shall be calculated as provided in Section 10 of this Agreement; provided,
however, (a) the term "Effective Date" shall be substituted for references
therein to "date of each LIBO Rate Loan" and "date of such LIBO Rate Loan", (b)
the term "the period specified pursuant to Section 2.2.3(c) of the Agreement
during which the LIBO Rate is to be in effect" shall be substituted for
references therein to "a like period as such LIBO Rate Loan" and (c) the term
"principal amount of the Term Note to bear interest at the LIBO Rate" shall be
substituted for references therein to "amount of such LIBO Rate Loan."
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2.2.5. Interest on the portion of the Term Note bearing interest at
the rate set forth at Section 2.2.2 shall be payable in arrears on the last day
of each February, May, August and November. Interest on the portion of the Term
Note bearing interest at the LIBO Rate shall be payable at the maturity of the
interest period selected.
2.2.6. Principal payments on the Term Note shall be due and payable
in consecutive quarterly installments on the last day of each February, May,
August and November commencing May 31, 1996, with each of the first 19
installments thereof equal to $750,000 and the last installment for the balance
thereof.
2.3. Prepayment of Term Note. The principal portion of the Term Note
bearing interest based on the Prime Rate may be prepaid, at the option of
Borrower, in an amount of $300,000 or any larger amount which is a whole
multiple of $100,000 (or such lesser amount as constitutes the entire amount
outstanding), at any time or from time to time, without premium or penalty, by
giving written, telegraphic or oral notice to the Bank not later than 12:00 noon
on the Banking Day on which such prepayment is to be made. When such notice of
prepayment has been given to the Bank, the applicable principal amount of the
Term Note shall become due and payable on the designated prepayment date. All
prepayments will be applied to the Term Loan in the inverse order of maturity.
No prepayment of any portion of the principal of the Term Note that bears
interest at the LIBO Rate shall be permitted during the effective period of such
LIBO Rate for any reason or in any amounts, unless Borrower first pays all fees,
costs, penalties and premiums incurred by the Bank because of such prepayment.
Such prepayments may not be reborrowed.
2.4. Additional Provisions and Limitations Relating to Term Note when LIBO
Rate is in Effect. The additional provisions and limitations set forth below
shall apply to the Term Note when the LIBO Rate is in effect.
2.4.1. If the Bank shall, prior to any Effective Date, in good faith
determine that it is unable to ascertain the LIBO Rate or either the Bank or any
participating bank is unable to acquire Eurodollar deposits on reasonable terms
in an amount sufficient to meet a request for a LIBO Rate Loan hereunder, the
Bank shall forthwith give notice thereof to Borrower, whereupon until the Bank
notifies Borrower that the circumstances giving rise to such unavailability no
longer exist (which the Bank shall do upon receiving notice thereof), the Term
Loan shall bear interest at the applicable rate as set forth in Section 2.2.2.
2.4.2. The provisions of Sections 1.6.1(b) through (g) of this
Agreement shall be applicable to the Term Note when and to the extent bearing
interest at the LIBO Rate and the term "LIBO Rate Loan(s)" as used therein for
purposes of this Section 2.4.2. will be deemed to refer to the Term Note and the
principal balance thereof which bears interest at the LIBO Rate.
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SECTION 3
GENERAL TERMS
3.1. PAYMENTS. Borrower shall make all payments of principal, interest and
additional compensation on each Note issued hereunder and Commitment Fees to the
Bank as payee at the Bank's main office, 100 East Broad Street, Columbus, Ohio,
in immediately available funds prior to 12:00 noon, on the date such payments
shall become due in accordance with the terms hereof and of each Note.
3.2. PAYMENT ON NON-BANKING DAYS. Subject to the provisions of Section
1.6.1(g), whenever any payment to be made hereunder shall be stated to be due on
a day other than a Banking Day, such payment shall be made on the next
succeeding Banking Day and such extension of time shall in such case be included
in the computation of payment of interest hereunder or the Commitment Fees
hereunder, as the case may be.
3.3. SETOFFS. Upon the occurrence of any Event of Default, the Bank shall
have the right to setoff against all obligations of Borrower to the Bank
hereunder and under the Notes, whether matured or unmatured, all amounts owing
to Borrower by the Bank, whether or not then due and payable, and all other
funds or property of Borrower on deposit with or otherwise held by or in the
custody of the Bank for the beneficial account of Borrower, except for deposit
accounts that contain only (a) payroll funds, (b) employee benefit plan funds,
(c) tax deposits or (d) other funds which are not beneficially owned by
Borrower. Borrower agrees, to the fullest extent it may effectively do so under
applicable law, that any holder of a participation in a Note may exercise rights
of setoff or counterclaim, and any other rights with respect to such
participation, as fully as if the holder of the participation were a direct
creditor of the Borrower in the amount of such participation.
3.4. CAPITAL ADEQUACY. If, after the date hereof, there occurs any change
in any applicable law, rule or regulation regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Bank, or any
participating bank, with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the Bank's, or the participating bank's, capital as a direct consequence of
its obligations hereunder to a level below that which the Bank, or the
participating bank, could have achieved but for such adoption, change or
compliance (taking into consideration the Bank's, or participating bank's,
policies with respect to capital adequacy) by an amount deemed by the Bank, or
the participating bank, to be material, then, from time to time, within 15 days
after demand by the Bank, Borrower shall pay to the Bank such additional amount
or amounts as will compensate the Bank for such reduction. If Borrower is
required to pay to the Bank any additional amounts pursuant to this Section 3.4,
Borrower shall be entitled, upon giving the Bank not less than five days'
written notice, in addition to its other rights, to prepay all or any portion of
an outstanding Loan with respect to which such additional amounts are due, any
provision herein contained to the contrary notwithstanding (all such prepayments
shall be with interest accrued to the date of such prepayments). As a condition
of
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such prepayments, Borrower shall promptly pay to the Bank upon the Bank's
written request such amount or amounts as, in the reasonable judgment of the
Bank, will compensate the Bank, or any participating bank, for such prepayment
in accordance with the provisions of Section 1.6.1(e).
3.5. FAILURE TO PAY; INTEREST AFTER MATURITY. Whenever any principal
payment to be made on a LIBO Rate Loan shall become due and payable, whether or
not at the stated maturity thereof, and Borrower fails to make such principal
payment, the unpaid amount shall be deemed to be a Variable Rate Loan hereunder.
Unpaid (a) interest on any Note, or (b) principal on any Loan, shall, after
becoming due and payable, bear interest at the Prime Rate plus 1%. If any such
unpaid payment represents the required payment to be made on a LIBO Rate Loan,
Borrower shall be liable for all the costs, premiums, fees and penalties
incurred by the Bank due to such non-payment pursuant to Section 1.6.1(e), which
amounts shall be due and payable within 10 days after demand by the Bank and
which amounts shall bear interest at the Prime Rate plus 1%.
SECTION 4
CONDITIONS OF EXTENSIONS OF CREDIT
The obligation of the Bank to make extensions of Credit to Borrower
provided for hereunder shall be subject to the following conditions:
4.1. CONDITIONS PRECEDENT TO INITIAL EXTENSION OF CREDIT. Prior to the
initial extension of Credit hereunder, Borrower shall furnish to the Bank all of
the following, each dated the date hereof (unless otherwise indicated) in form
and substance satisfactory to the Bank:
(a) Revolving Credit Note. A properly executed Revolving Credit
Note, drawn to the order of the Bank in the principal amount of $75,000,000.
(b) Security Agreement. A properly executed Third Amended and
Restated Security Agreement in the form attached hereto as Exhibit 4.1(b) (the
"Security Agreement").
(c) Pledge Agreement. A properly executed Third Amended and Restated
Pledge Agreement in the form attached hereto as Exhibit 4.1(c) (the "Pledge
Agreement"), accompanied by appropriate stock certificates and stock powers.
(d) Subsidiary Guaranties. Properly executed Third Amended and
Restated Unconditional Guaranties of each Wholly-Owned Subsidiary in the form
attached hereto as Exhibit 4.1(d) (each, a "Subsidiary Guaranty").
(e) Subsidiary Security Agreements. Properly executed Third
Amended and Restated Security Agreements of each Wholly-Owned Subsidiary in the
form attached hereto as Exhibit 4.1(e) (each, a "Subsidiary Security
Agreement").
(f) Financing Statements. Copies of duly completed and executed
Uniform Commercial Code financing statements or statements of assignment or
statements of amendment
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with respect to the property covered by the Security Agreement, the Subsidiary
Security Agreements and the Pledge Agreement, in proper form for filing in all
jurisdictions in which such filing is necessary or appropriate to establish,
perfect, protect and preserve the rights, titles, interests, remedies, powers,
privileges and Liens of the Bank in such property.
(g) Liens and Other Searches. Results of record searches by a Person
satisfactory to the Bank, of the Uniform Commercial Code filings which may have
been filed with respect to the personal property of Borrower or the Subsidiaries
in the state and county filing offices and real estate records in each of the
jurisdictions requested by the Bank, and of judgment and tax Liens with respect
to Borrower and each Subsidiary.
(h) Borrowing Base Certificate. A Borrowing Base Certificate, duly
executed and completed by the chief executive officer or chief financial officer
of Borrower, setting forth the calculation of the Borrowing Base as of September
23, 1995 adjusted to reflect the Borrower's recent acquisition of certain stores
in Maryland and Michigan.
(i) Certified Resolutions of Borrower. A certified copy of the
resolutions of the Board of Directors of Borrower authorizing the execution,
delivery and performance of this Agreement, the Notes, the Security Agreement
and the Pledge Agreement.
(j) Certified Resolutions of Subsidiaries. Certified copies of the
resolutions of the Boards of Directors of each Wholly-Owned Subsidiary
authorizing the execution, delivery and performance of the applicable Subsidiary
Guaranties and Subsidiary Security Agreements.
(k) Opinion of Counsel. The favorable opinion of counsel for
Borrower ("Counsel"), which Counsel shall be acceptable to the Bank, addressed
to the Bank in the form attached hereto as Exhibit 4.1(k).
(l) Secretary's Certificates. Signed copies of certificates of the
Secretary or Assistant Secretary of Borrower and each of the Wholly-Owned
Subsidiaries which shall certify the names of the officers of each such company
authorized to sign this Agreement, the Notes, the Security Agreement, the Pledge
Agreement, the Subsidiary Guaranties, the Subsidiary Security Agreements, and
the other documents or certificates to be executed and delivered pursuant hereto
or thereto (the "Loan Documents"), together with the true signatures of such
officers. The Bank may conclusively rely upon such certificates until it shall
receive a further certificate of the Secretary or an Assistant Secretary of the
applicable company canceling or amending the prior certificate and submitting
the signatures of the officers named in such further certificate.
4.2. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT. The obligation of the
Bank to provide or extend any Credit hereunder shall be subject to the further
condition precedent that, at the time of each Loan, Borrower shall be in
compliance with all of the provisions, warranties and conditions contained in
this Agreement (or, if not in compliance with the representations and warranties
hereunder, such non-compliance is disclosed to the Bank before Borrower requests
a Loan and the Bank waives the non-compliance), and there shall exist no Default
or Event of Default as set forth in Section 8. Each borrowing hereunder shall be
deemed to be a representation and warranty by Borrower on the date of such
borrowing that the representations
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and warranties contained in Section 5 are then true and correct, and that
Borrower is then in compliance with the covenants contained in Sections 6 and 7.
SECTION 5
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to the Bank, which representations and
warranties will survive the execution and delivery of this Agreement and the
Notes, as follows:
5.1. ORGANIZATION AND GOOD STANDING. Borrower and each Subsidiary has been
duly organized and is validly existing as a corporation in good standing under
the laws of its jurisdiction, with power and authority to own its properties and
to conduct its business as such properties are presently owned and such business
is presently conducted.
5.2. DUE QUALIFICATION. Borrower and each Subsidiary is duly qualified to
do business as a foreign corporation in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the failure to
maintain such qualification, licenses or approvals would materially adversely
affect (a) the interests of the Bank hereunder, (b) the ability of such
companies to perform their obligations hereunder or under any document or
agreement contemplated hereby or (c) the enforceability of this Agreement.
5.3. POWER AND AUTHORITY; DUE AUTHORIZATION. Borrower and each of the
Wholly- Owned Subsidiaries has all necessary power, authority and legal right to
(a) execute, deliver and perform the Loan Documents and (b) carry out the terms
of the Loan Documents. Borrower and each of the Wholly-Owned Subsidiaries has
duly authorized, by all necessary corporate action, the execution, delivery, and
performance of this Agreement and the other Loan Documents to which such entity
is a party.
5.4. BINDING OBLIGATIONS. This Agreement constitutes, and each other Loan
Document to which each such entity is a party when duly executed and delivered
will constitute, a legal, valid and binding obligation of Borrower and each
Wholly-Owned Subsidiary enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, or
other similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
5.5. NO VIOLATION. The consummation of the transactions contemplated by
this Agreement and the other Loan Documents and the fulfillment of the terms
hereof and thereof will not (a) conflict with, result in any breach of any of
the terms and provisions of, or constitute (with or without notice or lapse of
time) a default under, (i) the charter documents (e.g., Articles of
Incorporation and Code of Regulations) of Borrower or any Subsidiary, or (ii)
any material indenture (including, without limitation, the Indenture), loan
agreement, mortgage, deed of trust, or other agreement or instrument to which
Borrower or any Subsidiary is a party or by which it is bound, or (b) result in
the creation or imposition of any Lien (other than a Permitted Lien) upon
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any of the properties of Borrower or any Subsidiary which Lien has a material
impact on the enforceability of the Loan Documents or the collectibility of
amounts outstanding under the Loan Documents pursuant to the terms of any such
material indenture, loan agreement, mortgage, deed of trust, or other agreement
or instrument, other than the Loan Documents, or (c) violate any law or any
order, rule, or regulation applicable to Borrower or any Subsidiary of any court
or of any federal or state regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over such entity or any of its
properties.
5.6. NO PROCEEDINGS. To the best of Borrower's knowledge, there are no
proceedings or investigations pending or threatened before any court, regulatory
body, administrative agency or other tribunal or governmental instrumentality
(a) asserting the invalidity of this Agreement or any other Loan Document, (b)
seeking to prevent the consummation of any of the transactions contemplated by
this Agreement or any other Loan Document, or (c) seeking any determination or
ruling that might materially and adversely affect (i) the performance by
Borrower or any Wholly-Owned Subsidiary of its obligations under this Agreement
or any of the Loan Documents, or (ii) the validity or enforceability of this
Agreement or any of the Loan Documents.
5.7. GOVERNMENT APPROVALS. No authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by Borrower or
any Wholly-Owned Subsidiary of this Agreement or any other Loan Document.
5.8. FINANCIAL CONDITION. Borrower has furnished to the Bank audited
consolidated financial statements including (a) an audited Consolidated balance
sheet as at February 25, 1995 of Borrower; (b) an audited Consolidated statement
of operations for the year ended February 25, 1995 of Borrower; (c) an audited
Consolidated statement of shareholders' equity for the year ended February 25,
1995 of Borrower; and (d) an audited Consolidated statement of cash flow for the
year ended February 25, 1995 of Borrower. Such financial statements are complete
and correct and fairly present the Consolidated financial position of Borrower
and the Subsidiaries as at such date and the Consolidated results of operations
of Borrower and the Subsidiaries for the period ended on such date, all in
accordance with generally accepted accounting principles consistently applied.
Since February 25, 1995, to the best of Borrower's knowledge, there has been no
material adverse change in any such position, business or operations.
5.9. LITIGATION. Except as set forth on Exhibit 5.9 hereto, no injunction,
decree or other decision has been issued or made by any court, government or
agency or instrumentality thereof that prevents, and, to the best of Borrower's
knowledge, no threat by any Person has been made to attempt to obtain, any such
decision (a) that involves this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby or (b) that Borrower reasonably
believes will involve liabilities in excess of 10% of the Borrower's Tangible
Net Worth at the time of determination.
5.10. MARGIN ACTIVITY. Neither Borrower nor any Subsidiary is engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U or X of the Board of Governors
of the Federal Reserve System as is now and may from time to time hereafter be
in effect), and no part of the proceeds of any Loan hereunder will
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be used to purchase or carry any such margin stock or to extend credit to others
for the purpose of purchasing or carrying any such margin stock or to reduce or
retire any Indebtedness incurred for any such purpose.
5.11. ACCURATE REPORTS. No material information, exhibit, financial
statement, document, book, record or report furnished or to be furnished by
Borrower to the Bank in connection with this Agreement was or will be inaccurate
in any material respect as of the date it was or will be dated or (except as
otherwise disclosed to the Bank at such time) as of the date so furnished, or
contained or will contain any material misstatement of fact or omitted or will
omit to state a material fact or any fact necessary to make the statements
contained therein not materially misleading.
5.12. TAX RETURNS AND PAYMENTS. Borrower and the Subsidiaries have filed
all tax returns required by law to be filed and have paid all taxes, assessments
and other governmental charges levied upon any of their properties, assets,
income or franchises, other than those not yet delinquent and those being
contested in good faith for which adequate reserves have been established in
accordance with generally accepted accounting principles. The charges, accruals
and reserves on the books of Borrower and its Subsidiaries in respect to income
taxes for all fiscal periods are adequate, and Borrower knows of no unpaid
material assessment for additional income taxes for any fiscal period or of any
basis therefor.
5.13. TITLE TO PROPERTIES; LIENS. Borrower and the Subsidiaries have title
to, ownership or other interests or rights sufficient to permit the use of all
of their respective material properties and assets (including all material
patents, trademarks, service marks, trade names, copyrights and licenses)
necessary to the performance of the Agreement and the conduct of their Core
Business, including the properties and assets reflected in the balance sheet of
Borrower delivered pursuant to Section 5.8, except properties held under leases
which are capitalized in accordance with generally accepted accounting
principles consistently applied and except properties and assets disposed of
since the date of such balance sheet in the ordinary course of business, and
none of such properties or assets is subject to any Lien except Permitted Liens.
5.14. ERISA. Without in any way limiting the scope of Section 5.5, neither
Borrower nor any Subsidiary (a) has incurred any material accumulated funding
deficiency within the meaning of the Employee Retirement Income Security Act of
1974, as amended from time to time ("ERISA"); (b) has incurred any material
liability to the Pension Benefit Guaranty Corporation established under ERISA
(or any successor thereto under ERISA) in connection with any employee benefit
plan established or maintained by such company; nor (c) has had any tax assessed
against it by the Internal Revenue Service for any alleged violation under
Section 4975 of the Internal Revenue Code.
5.15. PATENTS, TRADEMARKS, ETC. Borrower and each Subsidiary own or have
interests or rights in all the material patents, trademarks, service marks,
trade names, copyrights and licenses, necessary for the conduct of the Core
Business, without any known conflict with the rights of others except conflicts
which would not materially and adversely affect the businesses of such
companies.
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5.16. SUBSIDIARIES AND AFFILIATES. Borrower has no Subsidiaries or
Affiliates except those set forth on Exhibit 5.16 attached hereto.
5.17. INVESTMENTS. Except for Permitted Investments, neither Borrower nor
any Subsidiary (a) is a general partner in any partnership or a member in any
joint venture, (b) owns or holds the assets, stocks, bonds, notes or other
securities other than as disclosed on Exhibit 5.16 or in the financial
statements delivered to the Bank pursuant to Section 5.8, nor (c) is a party to
any agreement relating to commodity futures, financial futures or similar
investments.
5.18. INSURANCE. All of the properties and operations of Borrower and the
Subsidiaries of a character usually insured by Persons of established reputation
engaged in the same or a similar business similarly situated are adequately
insured, by reputable insurers duly licensed by appropriate state authorities
against loss or damage of the kinds and in the amounts customarily insured
against by such Persons; and Borrower and each Subsidiary carry, with such
insurers in customary amounts, such other insurance, including public liability
insurance, as is usually carried by Persons of established reputation engaged in
the same or a similar business similarly situated. Without limiting the
foregoing, the Borrower shall at all times: (a) furnish to the Bank, upon
request, a statement of its insurance coverage, in form and detail satisfactory
to the Bank; (b) require each policy of insurance to contain a provision whereby
it cannot be canceled, amended or modified except after 30 days' prior written
notice to the Bank; (c) require each policy of insurance covering any of the
Collateral (as defined in the Security Agreement or any Subsidiary Security
Agreement) to be written or endorsed so as to make losses, if any, payable to
the Bank, in addition to the Borrower; and (d) require each policy of insurance
covering any of the Collateral to contain an agreement by the insurer that any
loss shall be payable to the Bank notwithstanding any act or negligence of the
Borrower or any Subsidiary which might otherwise result in forfeiture of said
insurance. If the Borrower fails to pay or cause to be paid the premium on any
such insurance, the Bank may, in its sole discretion, do so for the account of
the Borrower, and Borrower shall reimburse the Bank for the cost thereof on
demand.
5.19. ENVIRONMENTAL MATTERS. There are, to the best of Borrower's
knowledge, no materials, presently located on any real property owned by, leased
to or operated by Borrower or any Subsidiary, which are radioactive or which are
toxic and which under federal, state or local law, statute, ordinance or
regulations, or court or administrative order or decree, or private agreement
for which Borrower or a Subsidiary is legally responsible for compliance (the
"Environmental Requirements") or require special handling in collection,
storage, treatment or disposal ("Hazardous Materials") which are not being
handled in accordance with the Environmental Requirements and to the best
knowledge of Borrower, no part of such real property has been contaminated by
any Hazardous Materials.
5.20. SOLVENCY. Borrower and the Subsidiaries are able to meet their debts
as they become due. The present fair saleable value of the property and assets
of Borrower and the Subsidiaries is greater than the amount required to pay all
Indebtedness of Borrower and the Subsidiaries, including the Indebtedness
incurred under this Agreement.
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SECTION 6
AFFIRMATIVE COVENANTS
Until all Loans, amounts due or which could in the future become due under
Letters of Credit and other sums due and owing under this Agreement to the Bank
have been paid in full and Borrower no longer has any right to borrow or request
Letters of Credit hereunder, Borrower covenants and agrees as follows:
6.1. COMPLIANCE WITH LAWS, ETC. Borrower shall and shall cause each of
the Subsidiaries to comply in all material respects with all applicable laws,
rules, regulations and orders regarding its operations.
6.2. PRESERVATION OF CORPORATE EXISTENCE. Except as provided in Section
7.7.1, Borrower shall and shall cause each of the Subsidiaries to preserve and
maintain its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where the failure to
preserve and maintain such existence, rights, franchises, privileges and
qualification would materially adversely affect (a) the interests of the Bank
hereunder or (b) the enforceability of this Agreement or any of the Loan
Documents. Borrower will engage and cause the Subsidiaries to engage primarily
in the Core Business.
6.3. AUDITS. Borrower shall and shall cause each of the Subsidiaries to,
at any time and from time to time during regular business hours, upon at least
two Banking Days notice, permit the Bank, or its agents or representatives, (a)
to examine and make copies of and abstracts from all books, records and
documents (including, without limitation, computer tapes and disks) in the
possession or under the control of such company and (b) to visit the offices and
properties of such company for the purpose of examining such materials described
in clause (a) next above, and to discuss matters relating to such company's
performance hereunder or such company's business, operations and financial
condition with any of the officers or employees of such company having knowledge
of such matters and who are then available. The costs of such examinations shall
be borne by Borrower up to $10,000 in any fiscal year. Borrower agrees to use
reasonable efforts to make such officers and employees available at such time or
at another mutually agreeable time. In addition to the foregoing, Borrower
agrees to allow the Bank to perform inventory audits by an independent
accounting firm chosen by the Bank with respect to Borrower's and its
Subsidiaries' retail stores; provided, however, that only one such audit shall
be conducted in any 12 month period and that any such audit shall be with
respect to up to one-half of such retail stores. The costs of such inventory
audits shall be borne by Borrower up to $25,000 in any fiscal year.
6.4. REPORTING REQUIREMENTS OF BORROWER. Borrower shall furnish to, or
at the direction of, the Bank:
(a) Monthly Financial Statements. Within 45 days after the last day
of each of the first 11 months of each fiscal year of Borrower, (i) a
Consolidated and Consolidating balance sheet of Borrower and the Subsidiaries as
at the close of such period; (ii) a Consolidated and Consolidating statement of
operations for Borrower and the Subsidiaries for such period and for
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the year to date; and (iii) a reconciliation of retained earnings on a
Consolidated basis as at the close of such period; all in reasonable detail,
prepared in accordance with generally accepted accounting principles applied on
a consistent basis and certified as complete and correct, subject to changes
resulting from year-end adjustments, by the chief financial officer, chief
executive officer or controller of Borrower.
(b) Annual Financial Statements. Within 90 days after the end of
each fiscal year of Borrower, a complete annual audit report, including (i) a
Consolidated balance sheet of Borrower and the Subsidiaries as at the close of
such period, (ii) Consolidated statements of operations, shareholders' equity
and cash flow for such period and (iii) any management letters prepared in
connection with such audit report, all in reasonable detail, prepared in
accordance with generally accepted accounting principles applied on a consistent
basis and accompanied by an unqualified opinion thereon of Ernst & Young or
other independent auditors of recognized national standing selected by Borrower
and acceptable to the Bank. In addition, Borrower shall furnish to, or at the
direction of, the Bank, within 90 days after the close of each fiscal year (A) a
Consolidating balance sheet of Borrower and the Subsidiaries as at the end of
such period and (B) Consolidating statements of operations for such period; all
in reasonable detail and based upon the audited Consolidated statements referred
to above, prepared in accordance with generally accepted accounting principles
applied on a consistent basis and certified as complete and correct by the chief
financial officer, chief executive officer or controller of Borrower.
(c) Weekly Sales Reports. Within 10 days after the end of each week,
a sales report reflecting, for the prior week and the year to date and for the
comparable periods for the prior year, sales activity of each operating region
of Borrower and each Subsidiary, all in form and substance satisfactory to the
Bank.
(d) Monthly Compliance Certificates. Concurrently with the
delivery of the monthly and annual financial statements to be furnished pursuant
to Sections 6.4(a) and (b) hereof, a certificate of the chief financial officer,
chief executive officer or controller of Borrower which (i) states that, except
as disclosed therein, such officer, after reasonable investigation, has no
knowledge of any Event of Default or Default and (ii) sets forth, in summary
form, calculations showing the financial status of Borrower (at the end of, or,
in the case of incurrence tests, during, such accounting period) in respect of
the restrictions contained in Sections 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7.1(b),
7.9(b), 7.10 and 7.17 hereof.
(e) Auditor's Certificate. Concurrently with the annual audit report
called for by Section 6.4(b), a certificate prepared by the auditors stating
that, except as disclosed therein, they have no knowledge of any Event of
Default or Default with respect to the restrictions contained in Sections
7.1(b), 7.2, 7.3, 7.4, 7.5, 7.6, 7.9(b), 7.10 and 7.17 hereof.
(f) Notice of Default. Promptly upon the chief executive officer,
chief financial officer or chief accounting officer of Borrower obtaining
knowledge thereof, a certificate identifying any Default or Event of Default,
specifying the nature and period of the existence thereof and what action
Borrower has taken, is taking, or proposes to take in respect thereof.
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<PAGE> 29
(g) Reports. Promptly upon filing or distribution, copies of all
material which Borrower or any Subsidiary sends to any class of its security
holders or files with the Securities and Exchange Commission or any national
securities exchange including, but not limited to, all registration statements,
annual reports on Form 10-K, quarterly reports on Form 10-Q, reports on Form
8-K, proxy material and reports to shareholders and any and all amendments
thereof or supplements thereto.
(h) Notice of Litigation. Promptly upon any executive officer of
Borrower obtaining knowledge thereof, a certificate identifying any litigation,
arbitration proceeding or administrative investigation, inquiry or other
proceeding to which Borrower or any Subsidiary is or hereafter may become a
party which may involve any risk of any material judgment or liability not fully
covered by insurance or which may otherwise result in any materially adverse
change in the business or assets or in the condition (financial or otherwise) of
Borrower or any Subsidiary or which may impair the ability of Borrower or any
Subsidiary to perform under this Agreement or any Loan Document.
(i) Borrowing Base Certificate. Within 30 days after the end of
each fiscal month, a Borrowing Base Certificate as at the end of such fiscal
month.
(j) Financial Plan. Within 60 days after the end of each fiscal year
(i) a financial plan of Borrower and the Subsidiaries consisting of a budget
containing detailed financial projections for the then current fiscal year on a
quarterly basis (including profit and loss statements, cash flow statements and
balance sheets), in form and substance satisfactory to the Bank, such budget and
projections to be accompanied by a certificate of the chief financial officer or
controller of Borrower specifying the assumptions on which such budget and
projections were prepared and stating that such officer has no reason to
question the reasonableness of any such material assumptions; and (ii) a
reasonably detailed discussion of the issues and strategies of management with
respect to such financial plan.
(k) Landlord Waivers. Immediately upon execution hereof, Borrower
shall use its best efforts to obtain from those of its and its Subsidiaries'
landlords who have not already provided one, in those jurisdictions where such
landlords are given a statutory Lien superior to or pari passu with the Lien
granted to the Bank under the Loan Documents, a Landlord's Waiver and Consent in
the form attached hereto as Exhibit 6.4(k). From and after the execution hereof,
Borrower shall, prior to entering into or assuming any obligations under a lease
or permitting any Subsidiary to enter into or assume any obligations under a
lease in those jurisdictions where landlords are given such a statutory Lien,
obtain such a Landlord's Waiver and Consent.
(l) Quarterly Reconciliation Statements. Within 45 days after the
last day of each of Borrower's fiscal quarters, a reconciliation of Borrower's
store closing and restructuring reserve, on a Consolidated basis as at the close
of such period; in form and substance acceptable to the Bank and in reasonable
detail.
(m) Other Information. Promptly upon Bank's request any other
information or report reasonably requested.
20
<PAGE> 30
6.5. USE OF PROCEEDS. Borrower shall use the loan proceeds disbursed
pursuant to this Agreement to repay all Indebtedness owed to the Bank, including
Indebtedness under that certain Second Amended and Restated Revolving Credit and
Term Loan Agreement dated May 12, 1995 and the Second Amended and Restated
Revolving Credit Note, dated May 12, 1995 executed thereunder, and for other
legal and proper purposes.
6.6. MAINTENANCE OF PROPERTIES AND INSURANCE. Borrower shall and shall
cause each Subsidiary to (a) at all times have an ownership or other interest in
all of its respective material properties and assets (including all material
patents, trademarks, service marks, trade names, copyrights, licenses and rights
in respect of the foregoing) sufficient to permit the use thereof necessary to
the performance of this Agreement and the Loan Documents and the conduct of
their Core Business including the property and assets reflected in the most
recent balance sheet delivered to the Bank pursuant to Section 6.4 except
property held under leases which are capitalized in accordance with generally
accepted accounting principles consistently applied and except properties and
assets disposed of since the date of such balance sheet in the ordinary course
of business or otherwise in compliance herewith, (b) maintain in good repair,
working order and condition all material properties used or useful in the
business of Borrower and each Subsidiary and, from time to time, make all
appropriate repairs, renewals and replacements thereof; and (c) maintain
insurance upon their properties of such character and amounts as are usually
maintained by companies engaged in like business; furnish to the Bank, upon
request, a statement of its insurance coverage; and obtain additional insurance
promptly upon the reasonable and prudent request of the Bank.
6.7. PAYMENT OF TAXES AND CLAIMS. Borrower shall, and shall cause each
Subsidiary to, promptly pay and discharge all taxes and assessments levied and
assessed or imposed upon their properties or upon their income as well as all
material claims which, if unpaid, might by law become a Lien upon their
properties; provided, however, that nothing herein contained shall require
Borrower or any Subsidiary to pay any such taxes, assessments or claims so long
as such company shall in good faith contest the validity and stay the execution
and enforcement thereof and establish and maintain any reserve required by
generally accepted accounting principles consistently applied with respect
thereto.
6.8. PERFORMANCE OF CONTRACTS. Borrower shall, and shall cause each
Subsidiary to, perform according to and comply with all of their agreements if
non-performance thereof could materially adversely affect the business or credit
of such company or could impair the ability of such company to perform this
Agreement or any Loan Document; provided, however, that nothing herein contained
shall require Borrower or any Subsidiary to so perform or comply with respect to
any action as to which there exists a bona fide dispute, during the pendency and
diligent prosecution of such dispute.
6.9. ENVIRONMENTAL MATTERS. If at any time Borrower obtains notice that
any real property owned by, leased to or operated by Borrower or any Subsidiary
has located therein Hazardous Materials, Borrower shall, within 30 days after
receipt of such notice, take or cause to be taken, at its sole expense, such
actions as may be necessary to comply with all Environmental Requirements;
provided, however, that nothing herein contained shall require Borrower or any
21
<PAGE> 31
Subsidiary to take any such actions so long as such company shall in good faith
contest such notice and stay the execution and enforcement thereof.
6.10. DEPOSITORY. Borrower shall and shall cause each Subsidiary to use
the Bank as its primary corporate depository institution.
6.11. SUBSIDIARIES. Prior to the creation of any Subsidiary or the
acquisition by Borrower of additional stock of any existing Subsidiary, and in
addition to any other requirements relating to such creation or acquisition,
Borrower shall (a) notify the Bank of such act and supply the Bank with such
financial and other information regarding such Subsidiary as the Bank may
request, (b) cause the shares of stock of such Subsidiary not then subject to
the Pledge Agreement to become subject to such Pledge Agreement and (c) if the
creation or acquisition results in the creation of a Wholly-Owned Subsidiary,
cause the Wholly-Owned Subsidiary to deliver a Subsidiary Guaranty and
Subsidiary Security Agreement to the Bank.
6.12. MANDATORY PREPAYMENTS. Subject to all other rights of Bank
hereunder, including the right of approval, upon any one or more transfers of
any portion of the assets of the Borrower or any Subsidiary, other than in the
ordinary course of business, Borrower shall pay to the Bank, as a mandatory
prepayment of amounts due or to become due hereunder, the aggregate Net Proceeds
of such transfers in excess of $250,000 in any fiscal year. For purposes of this
Section 6.12, "Net Proceeds" shall mean the amount of any cash, the face amount
of any obligation payable in cash and the fair market value of any non-cash
consideration paid or payable to Borrower or any of its Affiliates in connection
with such transaction less only Borrower's reasonable and reasonably documented
direct, out-of-pocket expenses incurred directly in connection with such
transaction. The Bank shall apply any such payments, first, against obligations
arising with respect to the Term Loan, in the inverse order of maturity and,
second, against obligations arising with respect to any Revolving Credit Loans.
Any such payments which would, under the terms hereof, be applied against
obligations arising with respect to LIBO Rate Loans or to the Term Note to the
extent that a LIBO Rate applies thereto, shall be deemed to be pledged to the
Bank for the payment of such obligations upon the expiration of the effective
period of the applicable LIBO Rate and Borrower shall deliver to the Bank such
evidence of such pledge (including payment of the amount of such Net Proceeds to
the Bank in trust) as the Bank may require.
6.13. MORTGAGE. Promptly upon Borrower or any Subsidiary obtaining title
to real property located at 280 West Nine Mile, Ferndale, Michigan, Borrower
will cause a first and exclusive mortgage on such property to be granted to Bank
in such form and substance as is reasonably acceptable to Bank and will deliver
to Bank such title insurance, environmental reports, surveys, opinions and other
documents as Bank shall request in connection therewith.
22
<PAGE> 32
SECTION 7
NEGATIVE COVENANTS
Until all Loans, amounts due or which could in the future become due under
Letters of Credit and other sums due and owing under this Agreement to the Bank
have been paid and Borrower no longer has the right to borrow or request Letters
of Credit hereunder, Borrower covenants and agrees as follows:
7.1. NEGATIVE PLEDGE. Borrower shall not, and shall not allow any
Subsidiary to, without the prior written consent of the Bank:
(a) Create, incur, assume or permit to continue any Lien on any of
its property or assets, whether now owned or hereafter acquired, except
Permitted Liens; nor
(b) Create, incur, assume or suffer to exist any Indebtedness except
(i) Indebtedness represented by the Notes; (ii) Subordinated Debt; (iii) Secured
Indebtedness which is secured by Permitted Liens; (iv) unsecured Indebtedness
owed by Borrower to any Subsidiary or owed by any Wholly-Owned Subsidiary to
Borrower or another Subsidiary; and (v) up to $1,500,000 of unsecured
Indebtedness currently owed by Borrower representing a portion of the purchase
price payable by Borrower in connection with its acquisition of deep discount
drug stores from its franchisees.
7.2. TANGIBLE NET WORTH. Borrower shall not permit Tangible Net Worth at
any time to be less than the amount set forth for the applicable period;
provided, however, that each of the amounts of Tangible Net Worth set forth in
the following schedule shall be automatically increased on and after the date of
any issuance by Borrower of any Equity Security by an amount equal to 90% of any
increase in Tangible Net Worth resulting solely from such issuance, if any:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------
PERIOD TANGIBLE NET WORTH
- ----------------------------------------------------------------------
<S> <C>
Date hereof until and including March 2, 1996 $51,000,000
- ----------------------------------------------------------------------
March 3, 1996 until and including March 1, 1997 $53,000,000
- ----------------------------------------------------------------------
March 2, 1997 until and including February 28, 1998 $58,000,000
- ----------------------------------------------------------------------
March 1, 1998 and thereafter $65,000,000
- ----------------------------------------------------------------------
</TABLE>
For purposes hereof, "Equity Security" shall mean any stock, shares, voting
trust certificates, bonds, debentures, notes or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, and any
certificates of interest, shares, or participation in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire any of the foregoing.
7.3. MINIMUM CURRENT RATIO. Borrower shall not permit, at any time, the
Consolidated Current Ratio of Borrower to be less than the amount set forth
below for the applicable period.
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<PAGE> 33
"Consolidated Current Ratio" means the ratio of (a) Current Assets of Borrower
(Consolidated) to (b) Current Liabilities of Borrower (Consolidated).
<TABLE>
<CAPTION>
- -----------------------------------------------------------------
PERIOD RATIO
- -----------------------------------------------------------------
<S> <C>
Date hereof until and including March 31, 1996 1.35:1.00
- -----------------------------------------------------------------
April 1, 1996 and thereafter 1.50:1.00
- -----------------------------------------------------------------
</TABLE>
7.4. UNSUBORDINATED LIABILITIES TO TANGIBLE NET WORTH RATIO. Borrower
shall not permit, at any time, the ratio of (a) Consolidated Unsubordinated
Liabilities to (b)(i) Tangible Net Worth plus (ii) Subordinated Debt to be more
than the amount set forth below for the applicable period..
<TABLE>
<CAPTION>
- -----------------------------------------------------------------
PERIOD RATIO
- -----------------------------------------------------------------
<S> <C>
Date hereof until and including March 31, 1996 1.60:1.00
- -----------------------------------------------------------------
April 1, 1996 until and including March 1, 1997 1.50:1.00
- -----------------------------------------------------------------
March 2, 1997 and thereafter 1.15:1.00
- -----------------------------------------------------------------
</TABLE>
7.5. LIABILITIES TO TANGIBLE NET WORTH RATIO. Borrower shall not permit
the ratio of Borrower's Consolidated Liabilities to Tangible Net Worth to be
more than 4.25:1.00 at any time from the date hereof to and including March 31,
1996 or more than 3.7:1.00 at any time thereafter.
7.6. INCOME AVAILABLE FOR FIXED CHARGES TO FIXED CHARGES RATIO. Borrower
shall not permit the ratio of Borrower's Consolidated Income Available for Fixed
Charges to Borrower's Consolidated Fixed Charges at the end of any fiscal
quarter for the four fiscal quarters then ended to be less than the relevant
ratio set forth in the following schedule:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------
PERIOD RATIO
- -----------------------------------------------------------------
<S> <C>
Date hereof until and including March 1, 1997 1.05:1.00
- -----------------------------------------------------------------
March 2, 1997 and thereafter 1.10:1.00
- -----------------------------------------------------------------
</TABLE>
7.7. MERGERS, ACQUISITIONS, SALES, ETC.
7.7.1. Borrower shall not, and shall not allow any Subsidiary to,
(a) be a party to any merger or consolidation, or (b) purchase or otherwise
acquire (i) all or substantially all of the assets or any stock of any class of,
or (ii) any partnership or joint venture interest in, any other Person, except
for Permitted Investments and except for any merger of any Subsidiary into
Borrower provided that Borrower shall be the continuing or surviving corporation
and, after giving effect to such merger, no Event of Default or Default shall
exist hereunder.
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<PAGE> 34
7.7.2. Borrower shall not, and shall not allow any Subsidiary to,
sell, transfer, convey or lease all or any substantial part of its assets,
including the stock of any Subsidiary, except in the ordinary course of
business.
7.8. LOANS, ETC. Borrower shall not, and shall not allow any Subsidiary
to, make any loan, advance or capital contribution to or investment in or with
any Person, except (a) Permitted Investments, (b) loans or advances of Borrower
to Wholly-Owned Subsidiaries or (c) loans or advances (up to an aggregate at any
one time outstanding not exceeding $2,000,000 on a Consolidated basis) to
Persons other than Wholly-Owned Subsidiaries; provided that the conversion of
delinquent open account royalty receivables to notes receivable shall not be
deemed to constitute a loan or advance for purposes of this Section 7.8. Any
such notes receivable shall constitute additional collateral under the Security
Agreement and Subsidiary Security Agreements and shall be delivered to the Bank
(i) upon the Borrower's or any Subsidiary's receipt thereof if in a face amount
of $500,000 or more or (ii) upon the Bank's request if in a face amount of less
than $500,000.
7.9. CONTINGENT OBLIGATIONS. Borrower shall not, and shall cause the
Subsidiaries to not, assume, guarantee, endorse, contingently agree to purchase
or otherwise become liable upon the obligation of any one or more Persons other
than (a) guaranties by Borrower of obligations of Wholly-Owned Subsidiaries; (b)
guaranties by Borrower of obligations of Affiliates and Subsidiaries, other than
Wholly-Owned Subsidiaries, which are engaged in the Core Business up to an
aggregate amount of $1,000,000 for the amount of all such guaranties at any one
time outstanding on a Consolidated basis; (c) guaranties by Subsidiaries of
obligations of Borrower; (d) guaranties by Borrower of real estate lease
obligations for stores closed by Borrower and leased by the landlord thereof to
unrelated Persons so long as the aggregate rentals payable under any such
guaranty do not exceed the amount payable under the original lease of Borrower
which was terminated simultaneously with the execution of the guaranty; and (e)
guaranties by Borrower of obligations of unrelated Persons up to an aggregate
amount of $100,000 for the amount of all such guaranties at any one time
outstanding on a Consolidated basis.
7.10. DIVIDENDS, PURCHASES AND PREPAYMENTS. Borrower shall not, and shall
not permit any Subsidiary to, (a) declare or pay any dividends on, or make any
distribution with respect to, any shares of its capital stock of any class
(except in shares of such capital stock), (b) purchase, redeem or otherwise
acquire for a consideration any shares of its capital stock of any class, nor
(c) prepay, purchase, redeem or otherwise acquire any of its Subordinated Debt;
provided, however, that Wholly-Owned Subsidiaries shall not be restricted by the
provisions of this Section 7.10 from paying cash dividends to Borrower.
7.11. TRANSACTIONS WITH AFFILIATES. Borrower shall not, and shall not
allow any Subsidiary to, enter into any transaction, including, without
limitation, the purchase, sale or exchange of any property or the rendering of
any service, with any Affiliate except in the ordinary course of and pursuant to
the reasonable requirements of the business of Borrower and upon fair and
reasonable terms no less favorable to Borrower than would obtain in an arm's
length transaction with a Person not an Affiliate of Borrower.
25
<PAGE> 35
7.12. SUBORDINATED DEBT. Borrower shall not permit the modification,
waiver or amendment of any of the terms of its Subordinated Debt.
7.13. SOLVENCY. Borrower shall not, and shall not allow any Subsidiary
to, make any transfer of an interest in property or incur any obligation if such
company:
(a) made such transfer or incurred such obligation with actual
intent to hinder, delay, or defraud any Person to which such company was,
or became, indebted on or after the date such transfer was made or such
obligation was incurred; or
(b) (i) received less than a reasonably equivalent value in
exchange for such transfer or obligation; and
(ii) (A) was insolvent on the date that such transfer was made
or such obligation was incurred, or became insolvent as a result of such
transfer or obligation;
(B) was engaged in business or a transaction, or was
about to engage in business or a transaction, for which any property
remaining with such company was an unreasonably small capital; or
(C) intended to incur, or believed that such company
would incur, Indebtedness that would be beyond such company's ability to
pay as it matured;
provided, however, that the provisions of this Section 7.13 shall not be deemed
to have been violated by reason of the transactions contemplated hereby.
7.14. ERISA. Borrower shall not, and shall not allow any Subsidiary to,
(a) incur any material accumulated funding deficiency within the meaning of
ERISA; (b) incur any material liability to the Pension Benefit Guaranty
Corporation established under ERISA (or any successor thereto under ERISA) in
connection with any employee benefit plan established or maintained by such
company; nor (c) have any tax assessed against it by the Internal Revenue
Service for any alleged violation under Section 4975 of the Internal Revenue
Code.
7.15. SALE/LEASEBACKS. Borrower shall not, and shall not allow any
Subsidiary to, enter into any agreement with any Person providing for the
leasing by such company of real or personal property which has been or is to be
sold or transferred by such company to such Person or of real or personal
property intended to be used for substantially the same purpose as the property
sold or transferred by such company; provided, however, that all real or
personal property which is purchased after the date hereof for the express
purpose of a later sale and leaseback transaction shall be exempt from the
foregoing prohibition if (a) Borrower notifies Bank of such purchase by the date
that is 30 days after the later of (i) the purchase of such asset or (ii) the
determination by the Borrower that such asset is to be the subject of a sale and
leaseback and (b) Bank grants its prior approval to the terms of the sale and
leaseback.
7.16. ACCOUNTS RECEIVABLE. Borrower shall not, and shall not allow any
Subsidiary to, discount or sell any of its notes or accounts receivable.
26
<PAGE> 36
7.17. CAPITAL EXPENDITURES. Borrower will not permit the aggregate amount
of Capital Expenditures made by Borrower and the Subsidiaries during any fiscal
year to exceed $7,000,000. To the extent that Capital Expenditures in any fiscal
year or stated period are less than the permitted amount (without giving effect
to any adjustment allowed pursuant to this sentence), the permitted amount of
Capital Expenditures for the next succeeding fiscal year only shall be increased
by the amount of such difference.
SECTION 8
EVENTS OF DEFAULT AND REMEDIES
If any of the following events ("Events of Default") shall occur and be
continuing:
(a) Principal and Letter of Credit Payments. Borrower shall default
(i) in the payment of the principal of the Notes when and as the same
shall become due and payable, whether at the due date thereof or by
acceleration or otherwise (including any payment due pursuant to Section
1.8 as a result of any Borrowing Base deficiency or pursuant to Section
6.12 as a mandatory prepayment) or (ii) in the payment of any
reimbursement to the Bank for amounts paid on any draft drawn under a
Letter of Credit issued hereunder;
(b) Interest Payments and Fees. Borrower shall default in the
payment of interest on the Notes or any additional amount due hereunder
or thereunder, when and as the same shall become due and payable, whether
at the due date thereof or by acceleration or otherwise, provided such
default shall continue for a period of five days;
(c) Representations and Warranties. Any representation or warranty
made by Borrower in this Agreement, any Borrowing Base Certificate,
report, certificate, financial statement or other instrument furnished in
connection with this Agreement or the Loans shall prove to be false or
misleading in any material respect;
(d) Special Covenants. Borrower or any Subsidiary shall fail to
observe or perform any covenant, condition or agreement in Section 6.4(a),
(b) or (i) or Section 7 of this Agreement or the Bank shall fail (other
than by reason of the act or omission of Bank) to have a valid,
enforceable and perfected Lien upon all the collateral as provided in the
Security Agreement and each Subsidiary Security Agreement, first and prior
to all other Liens other than Permitted Liens;
(e) Other Covenants. Borrower or any Subsidiary shall fail to
observe or perform any covenant, condition or agreement (other than those
mentioned in Section 6.4(a), (b) or (i) or Section 7) to be observed or
performed pursuant to the terms hereof, provided such default shall
continue unremedied for 30 days after written notice thereof to Borrower
by the Bank;
27
<PAGE> 37
(f) Cross Default. (i) Borrower or any Subsidiary shall default with
respect to any Indebtedness other than Indebtedness represented by the
Notes; (ii) any event or condition shall occur which enables the holder of
any Indebtedness (other than Indebtedness represented by the Notes) or any
Person acting on such holder's behalf to accelerate the maturity thereof,
or (iii) the holder of any Indebtedness other than Indebtedness
represented by the Notes shall accelerate the maturity of such
Indebtedness; provided, however, that no Default under this Section 8(f)
shall be deemed to occur where the amount, individually or in the
aggregate, of such Indebtedness does not exceed $500,000;
(g) Judgments. One or more judgments from which no appeal may be
taken or with respect to which the time to appeal has expired for the
payment of money in excess of $500,000 shall be rendered against Borrower
and the Subsidiaries in the aggregate and the same shall remain
undischarged for a period of 30 consecutive days during which the
execution shall not be effectively stayed;
(h) Bankruptcy, Etc. Borrower or any Subsidiary shall (i) make an
assignment for the benefit of, or enter into any composition or
arrangement with, creditors; (ii)(A) apply for or consent to the
appointment of a receiver, custodian, trustee or liquidator for it or any
of its property, or (B) authorize such application or consent, or (C)
proceedings seeking such appointment shall be commenced against such
company without authorization, consent or application, and shall have not
been discharged within 60 days of such commencement; (iii)(A) authorize or
file a voluntary petition in bankruptcy, suffer an order for relief under
any federal bankruptcy law or apply for or consent (by admission of
material allegations of a petition or otherwise) to the application of any
bankruptcy, reorganization, arrangement, readjustment of debt, insolvency,
dissolution, liquidation or other similar law of any jurisdiction, or (B)
authorize such application or consent, or proceedings to such end shall be
instituted against such company without its authorization, application or
consent and shall not be discharged within 60 days of the institution
thereof; (iv) permit or suffer all or any part of its properties to be
sequestered, attached, or subjected to a Lien through any legal proceeding
or distraint which is not discharged within 60 days of the commencement
thereof; or (v) generally not pay its debts as such debts become due;
(i) Reorganization, Receiver, Etc. An order, judgment or decree
shall be entered without the application, approval or consent of Borrower
or any Subsidiary by any court of competent jurisdiction, approving a
petition seeking reorganization of such company or appointing a receiver,
trustee or liquidator of such company or of all or a substantial part of
its assets, and such order, judgment or decree shall continue unstayed and
in effect for any period of 60 days;
(j) ERISA. A Reportable Event (as defined in ERISA) shall have
occurred with respect to any Plan (as defined therein) of Borrower or any
Subsidiary and, within 30 days after the reporting of such Reportable
Event to the Bank, the Bank shall have notified Borrower in writing that
(i) it has made a determination that, on the basis of such Reportable
Event, there are reasonable grounds for the termination of such Plan by
the Pension Benefit Guaranty Corporation or for the appointment by the
appropriate United
28
<PAGE> 38
States District Court of a trustee to administer such Plan; and (ii) as a
result thereof an Event of Default exists hereunder; or a trustee shall be
appointed by a United States District Court to administer any Plan; or the
Pension Benefit Guaranty Corporation shall institute proceedings to
terminate any Plan;
(k) Change in Control. Any Person or group of Persons acting in
concert, other than David Kriegel or John B. Gerlach, acquires beneficial
interest in 25% or more of any class of the outstanding voting securities
of Borrower; or
(l) Collateral Default. Any default (other than those otherwise
mentioned in this Section 8) shall occur pursuant to the terms of any of
the Loan Documents other than this Agreement and such default continues
after the longer of 30 days or any cure period provided in such Loan
Document;
then (A) the Bank, at any time thereafter during the continuance of any such
Event of Default specified above (other than in Section (h) or (i)), may, by
written notice to Borrower, terminate the Commitment (if still in existence),
and declare the entire principal amount of the Notes to be due and payable
forthwith, whereupon the Notes, including all principal and interest and all
other amounts payable hereunder or thereunder, shall forthwith become due and
payable; and (B) automatically upon the occurrence of any of the events
specified in Section (h) or (i), the Commitment shall terminate (if still in
existence) and the Notes shall become immediately due and payable, in either
case without presentment, demand, protest, or notice of any kind, all of which
are hereby expressly waived, anything contained herein or in the Notes or the
Loan Documents to the contrary notwithstanding.
SECTION 9
PARTICIPATION
The Bank may sell or agree to sell to one or more other Persons a
participation in all or any part of any Loans held by it or any Loan made or to
be made by it hereunder. Notwithstanding any other provision hereof to the
contrary, the Bank shall have no obligation to advance any funds in connection
with the Term Loan or any Revolving Credit Loan in excess of the Bank's pro rata
share of the Term Loan or such Revolving Credit Loan under any then existing
participation arrangements with any participating Persons until and unless the
Bank has received from each such participating Person an amount equal to such
participating Person's pro rata share of such advance. Borrower acknowledges and
agrees that Bank may deliver copies of the Loan Documents to any such
participating Persons and may disclose and deliver to such participating Persons
any other information or documentation as it may receive on behalf of Borrower
hereunder.
29
<PAGE> 39
SECTION 10
DEFINITIONS
10.1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the meanings specified:
"Affiliate" with respect to any Person means each Person that,
directly or indirectly (through one or more intermediaries or otherwise),
controls, is controlled by, or is under common control with such Person, but,
when used with respect to Borrower, such term shall exclude Subsidiaries.
"Agreement" is defined in the preamble.
"Bank" is defined in the preamble.
"Banking Days" means days other than Saturdays, Sundays and other
legal holidays or days on which the principal office of the Bank is closed.
"Borrower" is defined in the preamble.
"Borrowing Base" means, as at the date of determination thereof, (a)
40% of the aggregate amount of Eligible Inventory from the date hereof until and
including the Reduction Date or (b) 35% of the aggregate amount of Eligible
Inventory thereafter.
"Borrowing Base Certificate" means a certificate of the chief
executive officer, chief financial officer or controller of Borrower in the form
of Exhibit 6.4(i) attached hereto setting forth the calculation of the Borrowing
Base.
"Borrowing Date" is defined at Section 1.4.2(a).
"Capital Expenditures" means, as to any Person, for any period,
expenditures (including the aggregate amount due under capital leases incurred
during such period but excluding such amount under capital leases of assets the
inclusion of which would cause such amount to be double counted for such period)
made by such Person to acquire or construct fixed assets, plant and equipment
(including renewals, improvements and replacements) during such period, computed
in accordance with generally accepted accounting principles applied on a basis
consistent with those used in making the calculations for purposes of
determining compliance with the provisions of this Agreement.
"Closing" means the closing of the transactions described herein at
the offices of Schwartz, Kelm, Warren & Ramirez, 41 South High Street, Suite
2300, Columbus, Ohio.
"Commitment" is defined at Section l.1.2.
"Commitment Fee" is defined at Section 1.3.1.
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<PAGE> 40
"Consolidated" means reports or accounts of Borrower and its
Subsidiaries consolidated in accordance with generally accepted accounting
principles applied on a consistent basis.
"Consolidated Current Ratio" is defined at Section 7.3.
"Consolidating" means financial statements which present individual
financial statements for (a) each of Borrower's Mid-Atlantic, Midwest,
Northeast, Southeast, Western, Cincinnati, Detroit and Baltimore districts and
(b) each additional district which may be added by Borrower or any Subsidiary
after the date hereof, together with all entries required by generally accepted
accounting principles for the elimination of intercompany accounts.
"Core Business" means the ownership and operation of deep discount
drugstores.
"Counsel" is defined at Section 4.1(k).
"Credit Amount," "Credit" or "Credits" means credit extended by the
Bank to Borrower pursuant to the provisions of this Agreement, whether in the
form of Loans, Letters of Credit or otherwise.
"Current Assets" means all assets which may properly be classified
as current assets in accordance with generally accepted accounting principles
applied on a consistent basis, except that amounts due from unconsolidated
Subsidiaries and Affiliates shall be excluded.
"Current Liabilities" means all Liabilities as may properly be
classified as current Liabilities in accordance with generally accepted
accounting principles applied on a consistent basis, and the principal amount of
all Revolving Credit Loans which are outstanding hereunder but shall not include
up to $3,980,000 in reserves reasonably established by the Borrower in November
1994 in connection with the Disposition.
"Debenture" means any of the $49,421,000 in aggregate principal
amount of Borrower's outstanding 7-3/4% Convertible Subordinated Debentures due
October 1, 2014 issued pursuant to the Indenture.
"Default" means any condition or event which constitutes an Event of
Default or which would become an Event of Default with the giving of notice or
lapse of time or both (unless cured or waived).
"Disposition" means, collectively, (a) the transfer of Borrower's
stores numbered 702, 703, 706, 709, 710, 713 and 730 located in Virginia and
Maryland to Melville Corp.'s CVS drugstore unit on or before November 19, 1994;
(b) the closing of Borrower's stores numbered 701, 711, 715, 719, 721, 722, 723,
724, 725, 726, 727 and 728 located in Virginia and Maryland on or before March
31, 1995; (c) the closing of Borrower's stores numbered 704, 705, 714, 718 and
729 in the Washington, D.C. market on or before March 2, 1997; and (d) the
closing of Borrower's stores numbered 52 and 53 in the Indianapolis market on or
before May 31, 1995.
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<PAGE> 41
"EBITR" means, for any period, Income Available for Fixed Charges
with respect to such period adjusted (with respect to any period ending on or
before November 30, 1995 only) so as not to include any loss derived from the
stores disposed of or closed pursuant to the Disposition.
"Effective Date" is defined at Section 2.2.3.
"Eligible Inventory" means, at any time, without duplication, the
aggregate cost (net of all reserves other than LIFO reserves) to Borrower of
Inventory owned exclusively by Borrower or any of its Wholly-Owned Subsidiaries
as determined on a FIFO basis in accordance with generally accepted accounting
principles consistently applied less the sum of (a) 285% of the aggregate
outstanding balance of the Term Loan plus (b) the face amount of all guaranties
then outstanding as authorized by Section 7.9(b); provided, however, that there
shall be excluded from Eligible Inventory (i) all Inventory which is customarily
dispensed to the consumer through a pharmacy only with a doctor's prescription;
(ii) all Inventory in transit; and (iii) any Inventory which is not the subject
of a first perfected security interest and Lien of the Bank.
"Environmental Requirements" is defined at Section 5.19.
"ERISA" is defined at Section 5.14.
"Euro Reserve Percentage" means, for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the actual reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rates on LIBO Rate Loans is determined or any category of extensions of
credit or other assets which includes loans by a non-United States office of the
Bank to United States residents).
"Eurocurrency" means any currency (a) for which a Rate of Exchange
Available to the Bank exists and (b) an established, stable trading market in
the currency exists.
"Eurodollar" means the United States dollars loaned under a LIBO
Rate Loan.
"Events of Default" is defined at Section 8.
"Fixed Charges" means, for any period, the sum of (a) gross interest
expense incurred during such period and (b) gross rental expense incurred during
such period with respect to non-capitalized leases, all as determined in
accordance with generally accepted accounting principles, applied on a
consistent basis.
"Hazardous Materials" is defined at Section 5.19.
"Income Available for Fixed Charges" means, for any period, the sum
of Consolidated Net Income before income taxes and the amount of any LIFO
provision incurred
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<PAGE> 42
during such period, determined in accordance with generally accepted accounting
principles consistently applied, plus Fixed Charges, but shall not include a
charge of up to $11,850,000 reasonably taken by the Borrower in November 1994 in
connection with the Disposition.
"Indebtedness" means any Liabilities representing obligations for
borrowed money or the deferred purchase price of property or services (except
accruals and trade accounts payable arising in the ordinary course of business)
including, without limitation, capitalized lease obligations, and Liabilities
similar to the foregoing of other Persons which are secured by a Lien on any
asset of Borrower or any Subsidiary, or guaranteed directly or indirectly by any
of them.
"Indenture" means that certain indenture dated as of October 5, 1989
between the Borrower and The Huntington National Bank as trustee.
"Inventory" means finished goods owned by Borrower held for sale in
the ordinary course of business of Borrower.
"Letter of Credit" means a commercial letter of credit issued
hereunder by the Bank as a Loan pursuant to this Agreement on behalf of
Borrower. "Letter of Credit" shall specifically not include stand-by letters of
credit and the Bank is under no obligation to issue stand-by letters of credit
to Borrower hereunder.
"Liabilities" as applied to any Person, means (a) all items (except
items of capital stock, of capital surplus, of general contingency reserves or
of retained earnings and amounts attributable to minority interest, if any)
which, in accordance with generally accepted accounting principles, would be
included in determining total liabilities as shown on the liability side of a
balance sheet of such Person as at the date as of which Liabilities are to be
determined, including specifically capitalized lease obligations and (b) all
obligations secured by any Lien or conditional sale or other title retention
agreement to which any property or asset owned or held by such Person is
subject, whether or not the obligations secured thereby shall have been assumed
(excluding non-capitalized leases which may amount to title retention
agreements) and (c) 40% of any LIFO reserves as of the date of determination.
"LIBO Banking Days" means days which are both Banking Days and
London Banking Days.
"LIBO Fixed Charge Coverage Ratio" means the ratio described in
clause (a) of the definition of "LIBO Rate Period", below.
"LIBO Rate" means, as of the date of each LIBO Rate Loan, the rate
of interest (rounded upward, if necessary, to the next highest 1/16th of 1%) at
which the Bank was offered deposits in United States dollars in the London
Interbank LIBO Market on the second London Banking Day preceding the date of
such LIBO Rate Loan for delivery on the date of such LIBO Rate Loan, for
deposits for a like period as such LIBO Rate Loan and in an amount equal to the
amount of such LIBO Rate Loan plus (a) either (i) 2.5% or (ii) 2.25% in the case
of a LIBO Rate Loan made during a LIBO Rate Period when the most recent
quarterly financial statements of Borrower indicate both (A) a LIBO Fixed Charge
Coverage Ratio of 1.20:1.00 or greater and
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<PAGE> 43
(B) a LIBO Senior Leverage Ratio of 1.5:1.0 or less and (b) any additional costs
provided for in Section 1.5.4.
"LIBO Rate Loan" is defined at Section 1.4.1.
"LIBO Rate Period" means any period from and after the Reduction
Date during which the most recent quarterly financial statements of Borrower
indicate both (a) a ratio of EBITR to Fixed Charges for the four fiscal quarters
then ended of greater than 1.10:1.00 and (b) a ratio of (i) the sum of total
Consolidated Unsubordinated Liabilities to (ii) the sum of Consolidated Tangible
Net Worth plus Subordinated Debt plus 60% of any LIFO reserve of less than
2.0:1.0. Notwithstanding the foregoing, a date shall not be deemed to be
included in a LIBO Rate Period if more than 45 days have then elapsed from the
end of Borrower's then most recent fiscal quarter and Borrower has not yet
delivered to the Bank its quarterly financial statements for such fiscal
quarter.
"LIBO Senior Leverage Ratio" means the ratio described in clause (b)
of the definition of "LIBO Rate Period", above.
"Lien" means a security interest, charge, or encumbrance, or other
right or claim of any Person other than (a) a potential claim or right (that has
not yet been asserted) of a trustee appointed for any customer of Borrower in
connection with any bankruptcy proceeding or (b) an unfiled lien for taxes
accrued but not yet payable.
"Loan Documents" are defined at Section 4.1(l).
"Loan" means a loan made by the Bank pursuant hereto evidenced by
the Notes.
"London Banking Days" means days on which dealings are carried out
in the London Interbank Market.
"Maturity Date" is defined at Section 1.1.1.
"Net Income" means for any period the Consolidated net income
(deficit) of Borrower during such period as determined in accordance with
generally accepted accounting principles consistently applied.
"Net Proceeds" is defined at Section 6.12.
"Notes" is defined at Section 2.1.
"Permitted Investments" means any of the following to the extent
such investment does not violate the covenants set forth in Section 7 of this
Agreement on or after the date such investment is made:
(a) commercial paper issued by the Bank or certificates of
deposit issued, or other time deposit accounts offered, by the Bank
or any Affiliate of the Bank;
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<PAGE> 44
(b) marketable direct obligations issued by the United States
of America maturing within one year from the date of acquisition
thereof;
(c) commercial paper maturing no more than one year from the
date of creation thereof and having as at any date of determination
a rating of at least A-1 (or its equivalent) from Standard & Poor's
Corporation or P-1 (or its equivalent) from Moody's Investor's
Service, Inc.;
(d) existing investments in the Subsidiaries;
(e) the purchase of all or a portion of the assets of a
Person so long as (i) the assets acquired are used solely in the
Core Business, (ii) the cumulative aggregate consideration paid for
all such assets purchased hereunder in any fiscal year does not
exceed $1,000,000 and (iii) the Bank is notified in writing of each
such purchase 30 days in advance.
"Permitted Liens" means any of the following:
(a) Liens securing (i) taxes, assessments, fees or other
governmental charges or levies, or securing the claims of
materialmen, mechanics, carriers, warehousemen, landlords and other
similar Persons or (ii) Permitted Investments, to the extent the
Lien thereon arises by operation of law;
(b) Liens incurred or deposits made in the ordinary course of
business (i) in connection with workers' compensation, unemployment
insurance, social security and other similar laws or (ii) to secure
the performance of bids, tenders, sales, contracts, public or
statutory obligations not incurred in connection with the borrowing
of money, the obtaining of advances or the payment of the purchase
price of property or services;
(c) Reservations, exceptions, easements, leases and other
similar title exceptions or encumbrances affecting real property,
provided they do not in the aggregate materially interfere with
their use in the ordinary course of Borrower's or any Subsidiary's
business;
(d) Liens in favor of the Bank;
(e) Liens securing purchase money obligations respecting
personal property of Borrower and the Subsidiaries and capitalized
leases for an aggregate amount not in excess of $6,000,000 at any
one time outstanding on a Consolidated basis so long as such Liens
apply only to the personal property being purchased or leased and do
not attach to Inventory; and
(f) Liens securing the existing mortgage of MetLife Capital on
real property used as Borrower's headquarters located at 155 Hidden
Ravines Drive, Powell, Ohio and fixtures thereon (but not personal
property of any type
35
<PAGE> 45
appurtenant thereto or used in connection therewith) incurred by
Borrower provided that the aggregate amount of Indebtedness of
Borrower secured thereby does not exceed $1,400,000 at any one time
outstanding.
"Person" means any individual, partnership, corporation, trust,
unincorporated organization, government or any department or agency thereof or
any other entity.
"Pledge Agreement" is defined at Section 4.1(c).
"Prime Rate" means the rate published or announced by the Bank as
its "Prime Rate" which rate may not be the Bank's lowest rate.
"Rate of Exchange Available to the Bank" means (a) whenever an
exchange rate applies to voluntary borrowings by Borrower, the rate of exchange
of United States dollars to a Eurocurrency, as quoted to the Bank from brokers,
traders or other Persons who make such quotations, or (b) whenever an exchange
rate applies to a situation other than a voluntary borrowing by Borrower, the
rate of exchange as between Eurocurrency and United States dollars, in the
following order of preference: (i) from correspondents, principals, brokers,
traders or other Persons with whom the Bank regularly conducts business, (A) as
offered to and accepted by the Bank for transactions hereunder and for other
customers or for its own account; (B) as offered to the Bank; (ii) from brokers,
traders, or other Persons who make such quotations in the ordinary course of
their business (A) as offered to and accepted by the Bank for transactions
hereunder and for other customers or for its own account; (B) as offered to the
Bank.
"Redemption" means the Borrower's redemption of certain of the
Debentures.
"Reduction Date" is defined at Section 1.1.2.
"Request Date" means the day three LIBO Banking Days before the
Borrowing Date of a LIBO Rate Loan.
"Revolving Credit Loan" means a Loan made by the Bank pursuant
hereto evidenced by the Revolving Credit Note.
"Revolving Credit Note" is defined at Section 1.5.1.
"Security Agreement" is defined at Section 4.1(b).
"Subordinated Debt" means the principal sum of unsecured
Indebtedness of Borrower maturing more than 12 months from the date of
determination thereof that is subordinated to all Loans and other amounts owed
under this Agreement on terms acceptable to the Bank and shall include the
Debentures so long as the same shall not have been amended and their maturity
date is more than 12 months from the date of determination.
36
<PAGE> 46
"Subsidiary" means any corporation at least 51% of the outstanding
voting stock of which shall, at the time as of which any determination is being
made, be owned, directly or indirectly, by Borrower.
"Subsidiary Guaranty" is defined at Section 4.1(d).
"Subsidiary Security Agreement" is defined at Section 4.1(e).
"Tangible Net Worth" means the total of the capital stock (net of
treasury stock), paid in surplus, retained earnings (deficit) and 60% of the
Borrower's LIFO reserve, as determined in accordance with generally accepted
accounting principles consistently applied, minus the following items (without
duplication of deductions), if any, appearing on the Consolidated balance sheet
of Borrower:
(a) all deferred charges (net of amortization);
(b) the book amount of all assets which would be treated as
intangibles under generally accepted accounting principles,
including, without limitation, such items as goodwill, unamortized
debt discount and expense and corporate organization expenses,
treasury stock, trademarks, trademark applications, trade names,
service marks, brand names, copyrights, patents, patent applications
and licenses and rights with respect to the foregoing; and
(c) write-up in the book amount of any asset resulting from a
revaluation thereof from the book amount entered upon acquisition.
"Term Loan" is defined at Section 2.1.
"Term Note" is defined at Section 2.1.
"Termination Date" is defined at Section 2.2.1.
"Trade Date" means, regarding LIBO Rate Loans, the day two LIBO
Banking Days before the Borrowing Date or the Effective Date.
"Unsubordinated Liabilities" means all Liabilities of Borrower and
its Subsidiaries less Subordinated Debt.
"Variable Rate Loan" is defined at Section 1.4.1.
"Wholly-Owned Subsidiary" means a Subsidiary, all of the voting
stock (other than directors' qualifying shares) of which and all other stock and
equity securities of which are owned, directly or indirectly, by Borrower.
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<PAGE> 47
10.2. ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the financial
statements of Borrower as of the date hereof.
SECTION 11
MISCELLANEOUS
11.1. TERM OF AGREEMENT; SUCCESSORS AND ASSIGNS. This Agreement and all
covenants, agreements, representations and warranties made herein and in the
certificates delivered pursuant hereto shall survive the making by the Bank of
the Loans and the execution and delivery to the Bank of the Notes and shall
continue in full force and effect until the Termination Date, the Maturity Date,
the termination of the Commitment or the payment in full of all amounts due
hereunder, whichever is latest. Whenever in this Agreement either of the parties
is referred to, such reference shall include the successors and assigns of such
party; and all terms and provisions of this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
11.2. NOTICES. Notices, demands and communications shall be deemed to have
been properly given to Borrower when faxed to (614) 548-6541 or deposited in the
United States mail, registered or certified, postage prepaid, and addressed to
Borrower at 155 Hidden Ravines Drive, Powell, Ohio 43065, Attention: Chief
Executive Officer, or hand delivered to the same address. Any communication to
the Bank shall be deemed properly given if faxed, hand delivered or similarly
mailed as follows:
Bank One, Columbus, NA
Commercial Loan Department
100 East Broad Street
Columbus, Ohio 43271-0170
Fax: (614) 248-5518
11.3. NO IMPLIED WAIVERS. No delay on the part of the Bank in exercising
any right, power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude any other or further exercise thereof. The rights and
remedies herein expressly specified are cumulative and not exclusive of any
other rights and remedies which the Bank would otherwise have.
11.4. AMENDMENTS, MODIFICATIONS, ETC. No amendment, modification,
termination, or waiver of any provision of this Agreement or of the Notes nor
consent to any departure by Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Bank, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given. No notice or demand on Borrower in any case shall
entitle Borrower to any other or further notice or demand in similar or other
circumstances.
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<PAGE> 48
11.5. APPLICABLE LAW. This Agreement and the Notes shall be deemed to be
contracts made under the laws of the State of Ohio, and for all purposes shall
be construed in accordance with the laws of such state.
11.6. SEVERABILITY. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provisions in any other jurisdiction.
11.7. EXPENSES. All fees, costs or expenses, including reasonable fees and
expenses of outside legal counsel incurred by the Bank or any Persons
participating in the Loans pursuant to Section 9, in connection with the
preparation, administration, amendment, modification or enforcement of the
Agreement shall be paid by Borrower on demand.
11.8. COUNTERPARTS. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto were upon the
same instrument. Complete sets of counterparts shall be lodged with Borrower and
the Bank.
11.9. ENTIRE AGREEMENT. The Loan Documents set forth the entire
understanding between the parties concerning the subject matter thereof and
incorporate all prior negotiations and understandings. There are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between them relating to the subject matter of this Agreement other than those
set forth in the Loan Documents. No representation or warranty has been made by
or on behalf of any party to the Loan Documents (or any officer, director,
employee or agent thereof) to induce the other parties to enter into the Loan
Documents or to abide by or consummate any transactions contemplated by any term
of the Agreement, except representations and warranties, if any, expressly set
forth or referred to in the Loan Documents. Nothing expressed or implied in any
of the Loan Documents is intended or shall be construed to confer upon or give
any Person other than the parties hereto and their successors or assigns, any
rights or remedies under or by reason of the Loan Documents.
11.10. HEADINGS. Headings of the sections of this Agreement are for
convenience only and shall not affect the construction of this Agreement.
11.11. EFFECTIVE DATE. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties.
11.12. CONFESSION OF JUDGMENT. Borrower hereby authorizes any attorney at
law to appear for Borrower, in an action on the Agreement, at any time after the
same becomes due, as herein provided, in any court of record in or of the State
of Ohio, or elsewhere, to waive the issuing and service of process against
Borrower and to confess judgment in favor of the holder of the Agreement or the
party entitled to the benefits of the Agreement against Borrower for the amount
that may be due, with interest at the rate herein mentioned and costs of suit,
and to waive and release all errors in said proceedings and judgment, and all
petitions in error, and right of appeal from the judgment rendered.
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<PAGE> 49
11.13. TIME. Unless otherwise stated, all time references set forth
herein are stated in Columbus, Ohio time.
11.14. CONSENT TO JURISDICTION; SERVICE. As a specifically bargained
inducement for the transactions set forth herein, the parties hereto
specifically agree that any action, suit or proceeding in respect of or arising
from or out of this Agreement, its validity or performance, shall be initiated
and prosecuted as to all parties and their successors and assigns at Columbus,
Ohio except to the extent that such exclusive jurisdiction would be inconsistent
with the Bank's exercise of its rights under Section 11.12 hereof. The parties
hereto consent to and submit to the exercise of jurisdiction over their person
by any court situated at Columbus, Ohio, including without limitation the United
States District Court for the Southern District of Ohio and having jurisdiction
over the subject matter hereof and the Borrower hereby irrevocably appoints and
designates CT Corporation System its current agent for service of process in the
State of Ohio (the "Agent") as its true and lawful attorney in fact and duly
authorized agent for service of legal process and agrees that service of such
process upon such attorney in fact shall constitute personal service of such
process upon such party. Borrower hereby agrees to maintain the Agent as its
statutory agent for service of process in the State of Ohio during the term of
this Agreement.
11.15. Waiver of Jury Trial. THE BANK AND THE BORROWER HEREBY VOLUNTARILY,
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN
THE BANK AND THE COMPANY ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE BORROWER AND THE BANK IN
CONNECTION WITH THIS AGREEMENT, OR ANY OTHER AGREEMENT OR DOCUMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO ENTER INTO THE FINANCING
TRANSACTIONS WITH THE BORROWER. IT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT,
AMEND OR MODIFY THE BANK'S ABILITY TO PURSUE ITS REMEDIES INCLUDING, BUT NOT
LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN THIS
AGREEMENT OR ANY OTHER DOCUMENT RELATED HERETO.
40
<PAGE> 50
The parties hereto have caused this Agreement to be duly executed by their
respective duly authorized officers as of the date first above written.
BANK ONE, COLUMBUS, NA
By: /s/ Thomas D. Igoe
-----------------------------------------
Thomas D. Igoe
Senior Vice President
DRUG EMPORIUM, INC.
By: /s/ David L. Kriegel
-----------------------------------------
David L. Kriegel, Chief Executive Officer
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
41
<PAGE> 51
EXHIBIT 1.5
THIRD AMENDED AND RESTATED
REVOLVING CREDIT NOTE
$75,000,000
Columbus, Ohio
November 13, 1995
On or before February 28, 1999, for value received, the undersigned,
DRUG EMPORIUM, INC., a Delaware corporation (the "Company"), hereby promises to
pay to the order of BANK ONE, COLUMBUS, NA (the "Lender") or its assigns, as
further provided herein, the principal amount of Seventy Five Million Dollars
($75,000,000) or, if such principal is less, the aggregate unpaid principal
amount of all Revolving Credit Loans made by the Lender to the Company pursuant
to the Agreement referred to in Section 1 hereof, together with interest on the
unpaid principal balance from time to time outstanding hereunder until paid in
full at the rates determined and payable at the times in accordance with the
provisions of Section 1.5 of the Agreement. Both principal and interest are
payable in federal funds or other immediately available money of the United
States of America at the Main Office of the Lender, Bank One, Columbus, NA, 100
East Broad Street, Columbus, Ohio.
Section 1. Agreement. This Note is the Revolving Credit Note referred
to in the Third Amended and Restated Revolving Credit and Term Loan Agreement
dated as of the date hereof, between the Company and the Lender, as the same
may be amended, modified or supplemented from time to time (the "Agreement"),
which Agreement, as amended, is incorporated by reference herein. All
capitalized terms used herein shall have the same meanings as are assigned to
such terms in the Agreement. This Note is entitled to the benefits of and is
subject to the terms, conditions and provisions of the Agreement. The
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events, and also for
repayments and reborrowings on account of the principal hereof prior to
maturity upon the terms, conditions and provisions specified therein. The
obligations of the Company hereunder are secured as set forth in the Agreement.
This Note is explicitly subject to automatic reduction of its principal amount
to $45,000,000 on March 31, 1996 pursuant to the terms of the Agreement.
Section 2. Endorsements. All Revolving Credit Loans made by the Lender
to the Company pursuant to the Agreement and all payments made on account of
principal hereof shall be recorded by the Lender and, prior to any transfer
hereof, endorsed on the schedule attached hereto which is a part of this Note;
provided, however, that the failure of the Lender or any holder to make such
notation shall not limit or otherwise affect the obligations of the Company
hereunder or under the Agreement.
Section 3. Setoffs. Upon the occurrence of any Event of Default, the
holder hereof shall have the right to setoff against all obligations of the
Company hereunder or under any of the Loan
<PAGE> 52
Documents, whether matured or unmatured, all amounts owing to the Company or
any Wholly-Owned Subsidiary by the holder hereof or any Affiliate of the holder
hereof, whether or not then due and payable, and all other funds or property of
the Company or any Wholly- Owned Subsidiary on deposit with or otherwise held
by or in the custody of the holder hereof or any Affiliate of the holder hereof
for the beneficial account of the Company or any Wholly-Owned Subsidiary.
Section 4. Confession of Judgment. The Company hereby authorizes any
attorney at law to appear for the Company in an action on this Note, at any
time after the same becomes due, as herein provided, in any court of record in
or of the State of Ohio, or elsewhere, to waive the issuing and service of
process against the Company and to confess judgment in favor of the legal
holder of this Note against the Company for the amount that may be due, with
interest at the rate herein mentioned and cost of suit, and to waive and
release all errors in said proceedings and judgment, and all petitions in
error, and right of appeal from the judgment rendered.
DRUG EMPORIUM, INC.
By
-----------------------------------
David L. Kriegel, Chief Executive Officer
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE
AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY
BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS
OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY
CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
-2-
<PAGE> 53
SCHEDULE TO REVOLVING CREDIT NOTE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------
DATE AMOUNT OF AMOUNT OF UNPAID NOTATION MADE
LOAN PRINCIPAL PRINCIPAL BY
PAYMENTS BALANCE
- -----------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
-3-
<PAGE> 54
EXHIBIT 2.2
TERM NOTE
$15,000,000
________, Ohio
March 31, 1996
On or before February 28, 2001, for value received, the undersigned,
DRUG EMPORIUM, INC., a Delaware corporation (the "Company"), hereby promises to
pay to the order of BANK ONE, COLUMBUS, NA (the "Lender") or its assigns, as
further provided herein, the principal amount of Fifteen Million Dollars
($15,000,000), together with interest on the unpaid principal balance from time
to time outstanding hereunder until paid in full at the rates determined and
payable at the times in accordance with the provisions of Section 2.2 of the
Agreement, as defined in Section 1, below. Both principal and interest are
payable in federal funds or other immediately available money of the United
States of America at the Main Office of the Lender, Bank One, Columbus, NA, 100
East Broad Street, Columbus, Ohio.
Section 1. Agreement. This Note is the Term Note referred to in the
Third Amended and Restated Revolving Credit and Term Loan Agreement, dated as
of November 13, 1995, between the Company and the Lender, as the same may be
amended, modified or supplemented from time to time (the "Agreement"), which
Agreement, as amended, is incorporated by reference herein. All capitalized
terms used herein shall have the same meanings as are assigned to such terms in
the Agreement. This Note is entitled to the benefits of and is subject to the
terms, conditions and provisions of the Agreement. The Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events upon the terms, conditions and provisions
specified therein. The obligations of the Company hereunder are secured as set
forth in the Agreement.
Section 2. Payments.
2.1. Interest. Interest on the portion of this Note bearing
interest at the rate set forth at Section 2.2.2 of the Agreement shall be
payable in arrears on the last day of each February, May, August and November.
Interest on the portion of this Note bearing interest at the LIBO Rate shall be
payable at the maturity of the interest period selected.
2.2. Principal. Principal payments on this Note shall be due
and payable in consecutive quarterly installments on the last day of each
February, May, August and November commencing May 31, 1996, with each of the
first 19 installments thereof equal to $750,000 and the last installment,
payable on February 28, 2001, for the balance hereof and all accrued interest.
Section 3. Prepayment. Subject to the provisions of the Agreement,
including, without limitation, Section 2.3 thereof, the principal of this Note
may be prepaid in whole at any time or in part from time to time and shall be
so prepaid as set forth in Section 6.12 of the Agreement.
<PAGE> 55
Section 4. Setoffs. Upon the occurrence of any Event of Default, the
holder hereof shall have the right to setoff against all obligations of the
Company hereunder or under any of the Loan Documents, whether matured or
unmatured, all amounts owing to the Company or any Wholly-Owned Subsidiary by
the holder hereof or any Affiliate of the holder hereof, whether or not then
due and payable, and all other funds or property of the Company or any
Wholly-Owned Subsidiary on deposit with or otherwise held by or in the custody
of the holder hereof or any Affiliate of the holder hereof for the beneficial
account of the Company or any Wholly-Owned Subsidiary.
Section 5. Confession of Judgment. The Company hereby authorizes any
attorney at law to appear for the Company in an action on this Note, at any
time after the same becomes due, as herein provided, in any court of record in
or of the State of Ohio, or elsewhere, to waive the issuing and service of
process against the Company and to confess judgment in favor of the legal
holder of this Note against the Company for the amount that may be due, with
interest at the rate herein mentioned and cost of suit, and to waive and
release all errors in said proceedings and judgment, and all petitions in
error, and right of appeal from the judgment rendered.
DRUG EMPORIUM, INC.
By
--------------------------------------
David L. Kriegel, Chief Executive Officer
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT
JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE
AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART
TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
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<PAGE> 56
EXHIBIT 4.1(b)
THIRD AMENDED AND RESTATED
SECURITY AGREEMENT
THIS THIRD AMENDED AND RESTATED SECURITY AGREEMENT dated as of the 13th
day of November, 1995 (collectively with the exhibits attached hereto, the
"Agreement") is between DRUG EMPORIUM, INC., a Delaware corporation (the
"Company"), and BANK ONE, COLUMBUS, NA (the "Bank") under that certain Third
Amended and Restated Revolving Credit and Term Loan Agreement dated of even
date herewith between the Company and the Bank (the "Loan Agreement") and
amends and restates in its entirety that certain Second Amended and Restated
Security Agreement dated as of May 12, 1995 between the Company and the Bank.
The parties agree as follows:
Section 1. Definitions.
1.1. Additional Definitions. In addition to the terms defined
elsewhere in this Agreement or the Loan Agreement, the following terms have the
following meanings:
"Account" means and includes all accounts (whether or not earned by
performance), contract rights, chattel paper, instruments, documents, general
intangibles (including, without limitation, general customer lists,
prescription lists, prescription files containing the names and addresses of
prescription customers and the prescription histories of such customers, tax
refunds, tax refund claims, patents, trademarks, trade names, good will, blue
prints and drawings relating thereto) and all other forms of obligations owing
to the Company, whether secured or unsecured, whether now existing or hereafter
created, and whether or not specifically assigned to the Bank under this
Agreement, all guarantees and other security therefor, all merchandise returned
to or repossessed by the Company, and all rights of stoppage in transit and all
other rights and remedies of an unpaid vendor, lienor or secured party.
"Collateral" means and includes all Accounts, Equipment, Inventory, all
property now or at any time hereafter in the Bank's possession (including
claims and credit balances), and all other property in which the Company at any
time grants a Lien to the Bank pursuant to the Loan Documents or otherwise,
whether now existing or hereafter acquired or arising, together with (a) all
books, records, ledger cards and other property pertaining to any of the
foregoing, and any equipment on which any such items are stored or maintained
and (b) all products and proceeds of any of the foregoing, and all insurance
proceeds related to any of the foregoing, including, without limitation, any
claims against third parties for loss or damage to or destruction of any or all
of the foregoing and any cash, negotiable instruments and other instruments of
money, chattel paper, security agreements or other documents.
"Collateral Location" means each of the locations listed on the
Collateral Locations Exhibit, attached hereto and made a part hereof, and such
other locations as may be established as such pursuant to this Agreement.
<PAGE> 57
"Customer" means any Person who is obligated as an account debtor or
other obligor on, under, or in connection with, any Account.
"Default" means any Event of Default and any event, condition or
circumstance which, with the giving of notice or lapse of time, or both, may
become an Event of Default.
"Equipment" means and includes all equipment, furniture and fixtures
used in the business of the Company or located at any Collateral Location,
whether now owned or hereafter acquired, and all documents of title or other
documents representing the foregoing. The term "Equipment" shall include
computers, modems, printers, software, and related Equipment, media and data
necessary to run software owned or used by the Company to keep track of its
Inventory or Accounts.
"Event of Default" means any of the events specified in Section 8 of the
Loan Agreement as an Event of Default, provided that any requirement for the
giving of notice or lapse of time has been satisfied in connection with such
event.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with the accounting principles reflected in the financial statements
furnished to the Bank under, and which comply with the requirements of, the
Loan Agreement.
"Inventory" means all raw materials, work in process, finished goods and
materials and supplies of any kind, nature or description which are or might be
used or consumed in the business of the Company or used in connection with the
manufacturing, packing, shipping, advertising, selling or finishing of such
goods, merchandise and other personal property, and all goods, merchandise and
other personal property wherever located, to be furnished by the Company under
any contract or contract for service or held for sale or lease, whether now
owned or hereafter acquired, and all documents of title or other documents
representing the foregoing.
"Junior Obligations" means those Obligations of the Company or any
Subsidiary to the Bank defined by item (e) of the definition of the term
"Obligations," as such term is defined in this Section 1.1.
"Loan Documents" means this Agreement, the Loan Agreement and all other
instruments or agreements required or contemplated hereby or thereby.
"Obligations" means (a) the obligations of the Company or any Subsidiary
to the Bank under this Agreement or any of the Loan Documents, (b) the
obligations of the Company or any Subsidiary to the Bank under any other
instrument or agreement required or contemplated hereby or thereby, (c) all
costs and expenses incurred by the Bank or any participating Persons, as such
Persons are contemplated by Section 9 of the Loan Agreement, in the collection
or the enforcement of any such obligations of the Company, or realization upon
the Collateral, including without limitation reasonable attorneys' fees and
legal expenses, (d) all future advances made by the Bank for the maintenance,
protection or preservation of, the Collateral or any portion thereof,
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<PAGE> 58
including without limitation advances for storage, insurance premiums,
transportation charges, and the like and (e) all other obligations of the
Company to the Bank, howsoever created, arising, or evidenced, whether direct
or indirect, absolute or contingent, or now or hereafter existing or due or to
become due.
"Requirement of Law" means, for any Person, any term, condition, or
provision of any law, rule, judgment, regulation, order, writ, injunction or
decree of any court or government, domestic or foreign and any ruling of any
arbitrator to which such Person is a party or by which such Person or any of
its assets or property is bound or affected or from which such Person derives
benefits, and, if such Person is a corporation, its charter documents and
bylaws.
"Senior Obligations" means those Obligations of the Company or any
Subsidiary to the Bank defined by items (a), (b), (c) or (d) of the definition
of the term "Obligations,"as such term is defined in this Section 1.1.
"UCC" means Chapters 1301 through 1309 of the Ohio Revised Code as in
effect on the date of this Agreement and as the same may be supplemented or
amended from time to time hereafter.
1.2. Rules of Construction. All accounting terms used in this
Agreement not otherwise specifically defined in this Agreement shall be
construed in accordance with GAAP. Any capitalized term not defined herein but
defined in the Loan Agreement shall be construed in accordance with the
definition of such term as set forth in the Loan Agreement. Any other term not
specifically defined in this Agreement or the Loan Agreement shall be construed
in accordance with the meaning for such terms under the UCC. The meaning of
any defined term used in this Agreement shall apply equally to the singular,
plural and other forms of the term defined.
Section 2. Grant of Security Interest.
2.1. Lien. As security for the full and timely payment or
performance of the Obligations in accordance with the terms thereof, the
Company agrees that the Bank shall have, and there is hereby granted to and
created in favor of the Bank, a Lien under the UCC, and otherwise in accordance
with applicable law, in and to the Collateral. The Lien created hereunder
shall be prior in interest to any other Lien affecting the Collateral. The
Lien created hereunder shall be and remain in full force and effect until all
of the Obligations shall have been paid and discharged in full and otherwise
satisfied and the Company shall no longer have any right to request any Loans
under the Loan Agreement. Notwithstanding any thing contained in this Section
2.1, all Liens created hereunder which secure Senior Obligations shall be prior
in interest to all Liens created hereunder which secure Junior Obligations.
2.2. Collateral. As an inducement to enter into this Agreement
and the Loan Agreement, the Company is hereby granting to the Bank a security
interest in, among other assets, its Accounts, Equipment and Inventory. The
Company understands that the Bank would not have entered into this Agreement or
the Loan Agreement if the Company was not granting a security
- 3 -
<PAGE> 59
interest to the Bank in Accounts, Equipment and Inventory and that the
indubitable equivalent of any Lien in favor of the Bank against Accounts,
Equipment and Inventory is not provided to the Bank by the substitution
therefor of a Lien against real estate or any other asset which is not as
quickly convertible into cash as Accounts, Equipment or Inventory.
Section 3. Representations and Warranties. The Company hereby
represents and warrants to the Bank that:
3.1. Title to Collateral. The Company has good, indefeasible
and marketable title to all the Collateral free of all Liens other than those
granted hereby, except for Liens of landlords under state statutes or Liens
permitted under the Loan Agreement. No financing or continuation statement
which names the Company as debtor has been filed in any state or other
jurisdiction except as provided for herein or as set forth on Schedule 3.1
hereto, and the Company has not agreed or consented to cause or to permit in
the future (upon the happening of a contingency or otherwise) any of the
Collateral, whether now owned or hereafter acquired, to be subject to a Lien.
3.2. Perfection of Lien. The Company has taken or caused to be
taken all actions necessary to establish the Bank's Lien in the Collateral as a
valid, enforceable and perfected Lien, first and prior to all other Liens
except Liens permitted under the Loan Agreement.
3.3. Books and Records; Chief Executive Office. All books and
records of the Company concerning the Collateral are accurate, complete and
maintained in accordance with GAAP. The Collateral Locations Exhibit correctly
sets forth the address of (a) the chief executive office, registered office and
principal place of business of the Company, (b) any plant or division of the
Company maintaining a separate principal place of business, registered office
or chief executive office, (c) all other places of business of the Company and
the location of all Collateral and (d) the name and business address of each
landlord and mortgagee with any interest in any Collateral Location. The only
original books of account and records of the Company relating to any Accounts
of the Company are, and will continue to be, kept at the offices of the Company
set forth on the Collateral Locations Exhibit opposite the name of the division
or the plant of the Company where such Accounts originated. The only locations
at which Equipment and Inventory are located are set forth on the Collateral
Locations Exhibit opposite the name of the division or the plant of the Company
or other location where such Equipment and Inventory are located.
3.4. Accounts. The Accounts arose out of bona fide sales or
services, are collectible in the ordinary course of business and are not
disputed or subject to offset.
Section 4. Affirmative Covenants. On and after the date of this
Agreement and until all of the Obligations shall have been paid and discharged
in full or otherwise satisfied and the Company shall no longer have any right
to request any Loans under the Loan Agreement:
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<PAGE> 60
4.1. Insurance. The Company shall at all times: (a) maintain
or cause to be maintained insurance upon the Collateral with responsible and
reputable insurers of such character and in such amounts as are usually
maintained by Persons engaged in a like business; (b) furnish to the Bank,
prior to the execution of this Agreement and annually thereafter certificates
of insurance with respect to all insurance policies required to be maintained
hereunder, in form and detail satisfactory to the Bank; (c) require each policy
of insurance to contain a provision whereby it cannot be canceled, amended or
modified except after 30 days' prior written notice to the Bank; (d) require
each policy of insurance covering any of the Collateral to be written or
endorsed so as to make losses, if any, payable to the Bank, in addition to the
Company; and (e) require each policy of insurance covering any of the
Collateral to contain an agreement by the insurer that any loss shall be
payable to the Bank notwithstanding any act or negligence of the Company which
might otherwise result in forfeiture of said insurance. If the Company fails
to pay or cause to be paid the premium on any such insurance, the Bank may, in
its sole discretion, do so for the account of the Company, add the cost thereof
to the Obligations and be reimbursed by the Company therefor on demand.
4.2. Notice of Default. If any Default or Event of Default
occurs, the Company shall give prompt notice of such happening to the Bank.
4.3. Inspection. The Company shall permit any Person
designated by the Bank to enter, examine, audit and inspect the Collateral and
all properties, corporate books and financial records pertaining to the
Collateral, or the operation, business, affairs and financial condition of the
Company at any reasonable time and from time to time, and shall permit such
Persons to copy and make excerpts of such books and records.
4.4. Sale of Inventory. Notwithstanding the security interest
in the Collateral granted hereunder, the Company shall have the right to sell,
lease or otherwise dispose of its Inventory in the ordinary course of its
business, free and clear of such security interest; but, in such event, such
security interest shall continue in the proceeds of such sale, lease or other
disposition.
4.5. Company's Rights to Collect Accounts. Notwithstanding the
security interest in the Accounts granted under this Agreement, the Company
shall endeavor to collect the Accounts at its own cost and expense, until such
time as the Bank shall have notified the Company, pursuant to Section 4.6, that
the Bank has revoked the Company's right to collect the Accounts.
4.6. Collection of Accounts by the Bank. If an Event of
Default shall have occurred, the Bank shall have the right at any time and
without affecting the liability of the Company to the Bank (a) to revoke any
right of the Company to collect its Accounts, pursuant to Section 4.5, by
written notice to the Company to such effect, (b) to take over and direct
collection of the Accounts of the Company, (c) to give notice of the security
interest of the Bank in the Accounts to any or all of the Customers, (d) to
give notice to the Customers to make payment of the Accounts directly to the
Bank (and, at the request of the Bank, the Company shall
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<PAGE> 61
indicate on all billings to Customers that payments thereon are to be made to
the Bank), and (e) to take control of the Accounts of the Company and the
Proceeds thereof, and to take possession of all of the Company's books and
records relating thereto, with full power and authority in the name of the Bank
or of the Company to enforce, collect, sue for, receive, compromise, settle and
give receipts for any and all of the Accounts. If any Account becomes
evidenced by a promissory note, trade acceptance, chattel paper or other
writing or instrument for the payment of money, and there is at the time a
Default, the Company shall, at the request of the Bank, promptly deliver any
such instrument to the Bank duly endorsed to the order of the Bank as
additional Collateral under this Agreement. It is understood and agreed by the
Company that the Bank shall have no liability whatsoever to the Company under
this Section 4.6.
4.7. Account Verification. The Bank may at any time, without
notice to the Company, verify with any Customer the status of any Account
payable by such Customer; provided, however, that, prior to the occurrence of
an Event of Default, no request for verification shall be made in the name of
the Bank, nor shall the Bank disclose the purpose of such request. The Company
from time to time will execute and deliver such instruments and take all such
action as the Bank may reasonably request in order to effectuate the purpose of
this Section 4.7.
4.8. Preservation and Protection of Security Interests. The
Company shall faithfully preserve and protect the Bank's security interest in
the Collateral and shall, at its own cost and expense, cause such security
interest to be perfected and continue perfected so long as the Obligations or
any portion thereof are outstanding and unpaid, and for such purpose the
Company shall from time to time at the request of the Bank file or record, or
cause to be filed or recorded, such instruments, documents and notices,
including without limitation financing and continuation statements, as the Bank
may deem necessary or advisable from time to time in order to preserve, perfect
and continue perfected said security interest. The Company shall do all such
other acts and things and shall execute and deliver all such other instruments
and documents, including without limitation further security agreements,
pledges, endorsements, assignments and notices, as the Bank may deem necessary
or advisable from time to time in order to perfect and preserve the priority of
said security interest as a perfected first Lien in the Collateral prior to the
rights of any other secured party or lien creditor. The Bank, and its
officers, employees and authorized agents, or any of them, are hereby
irrevocably appointed the attorneys-in-fact of the Company to do all acts and
things which the Bank may deem necessary or advisable to preserve, perfect and
continue perfected the Bank's security interest in the Collateral, including
without limitation the signing of financing, continuation or other similar
statements and notices on behalf of the Company.
4.9. Maintenance of Collateral. The Company shall (a) from
time to time replace and repair all parts of the Collateral which are or become
worn, broken, damaged, or deteriorated, maintain the Collateral now or
hereafter owned or acquired by it, and every part thereof, in good working
order and repair and pay the costs of such repairs, replacements, and
maintenance as well as any costs of storing the same; and (b) pay and discharge
all taxes, assessments, fees, and other governmental charges or levies imposed
upon it or any of the Collateral as well as all lawful claims of materialmen,
mechanics, carriers, warehousemen, landlords and other similar Persons
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<PAGE> 62
for labor, materials, supplies and rentals which, if unpaid, might by law
become a Lien on the Collateral or any part thereof. If the Company fails to
make any payments it is required to make under this Section 4.9, the Bank may
do so for the account of the Company and may add the amount of such payments to
the Obligations.
4.10. Inventory. The Company shall maintain the Inventory in
good condition, salable at the Company's normal prices in the ordinary course
of its business.
4.11. New Stores. Prior to the opening of any retail store not
presently operated by the Company or any Subsidiary, the Company shall give
written notice to the Bank and shall perform, and cause each of the
Subsidiaries to perform, such acts as may be necessary or advisable to grant to
the Bank a perfected Lien, subject to no other Liens other than Liens permitted
under the Loan Agreement, in the Collateral located or to be located in such
new retail store.
4.12. Annual Certificate. The Company shall furnish to the
Bank within 45 days after the close of each fiscal year, a certificate of the
chief financial officer or controller of the Company certifying that he has
reviewed the locations where the Equipment and Inventory are located and that
appropriate filings have been made for the Company and each Subsidiary so that
the Bank continues to have a perfected Lien hereunder, subject to no other Lien
other than Liens permitted under the Loan Agreement.
4.13. Removal of the Equipment.
4.13.1. If no Event of Default shall have occurred, in
any instance where the Company in its discretion determines that any items of
the Equipment have become inadequate, obsolete, worn out, unsuitable,
undesirable or unnecessary, Company may remove such items of the Equipment from
any Collateral Location and sell, trade-in, exchange or otherwise dispose of
them (as a whole or in part) without any responsibility or accountability to
Bank, provided, however that Company shall either:
(a) Substitute and install anywhere on such
Collateral Location other machinery, furnishing, equipment or related property
having equal or greater value (but not necessarily having the same function) in
the operation of its business for the purpose for which it is intended;
provided, further, however such removal and substitution shall not be out of
the ordinary course of business, all of which substituted machinery,
furnishings, Equipment or related property shall be free of all liens (other
than Permitted Liens) and shall become a part of the Collateral; or
(b) Not make any such substitution and
installation; provided, further, however that in the case of (i) the sale of
any such Equipment to anyone other than itself or the scrapping thereof, or
(ii) the trade-in of such Equipment for other machinery on such Collateral
Location, Company shall use the proceeds of such sale for the reduction of the
Obligations.
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<PAGE> 63
4.13.2. Company shall promptly report to Bank each
removal, substitution, sale or other disposition of Equipment described in
Section 4.13.1 above and shall pay to Bank such amounts as are required by the
provisions of Section 4.13.1 (b) promptly after the sale, trade-in or other
disposition requiring such payment. Company shall not remove, or permit the
removal of, any of the Equipment from any Collateral Location except in
accordance with the provisions of this Section 4.13.
4.13.3. Upon compliance with this Section 4.13, Bank
agrees to deliver any releases reasonably deemed necessary by Company with
respect to the removal of such Equipment.
Section 5. Negative Covenants. On and after the date of this Agreement
and until all of the Obligations shall have been paid and discharged in full or
otherwise satisfied and the Company shall no longer have the right to request
Loans under the Loan Agreement:
5.1. Liens. The Company shall not create, assume, incur or
suffer to exist or agree or consent to cause or permit in the future (upon the
happening of a contingency or otherwise) to be created, assumed, incurred or to
exist any Lien upon any of the Collateral (other than Permitted Liens) except
with the prior written consent of the Bank to each such Lien.
5.2. Negative Pledge. Except as permitted by the Loan
Agreement, the Company shall not, without the prior written consent of the
Bank, (a) sell, assign, or transfer any of its right, title and interest in the
Collateral, except the Company may sell Inventory in the ordinary course of
business pursuant to Section 4.4, (b) permit any levy or attachment to be made
against any of the Collateral, or (c) file any financing statement with respect
to any of the Collateral, except financing statements in favor of the Bank.
5.3. Corporate Name. The Company shall not change its
corporate name unless, before the effective date of such change, the Company
delivers to the Bank such financing statements executed by the Company that the
Bank may request to reflect such name change, together with such other
documents and instruments that the Bank may request in connection with such
name change. The Company shall not hold its right, title or interest in, nor
maintain its records relating to, any Collateral in any name other than its
corporate name.
5.4. Change of Locations. The Company shall not change any of
the Collateral Locations unless, before the effective date of such change, (a)
the Company shall have given to the Bank 10 days prior written notice of its
intention to so change any such Collateral Location, clearly describing each
such new Collateral Location and providing any other information in connection
therewith that the Bank may reasonably request and (b) with respect to each
such new Collateral Location, it shall have taken such action, satisfactory to
the Bank (including, without limitation, the execution and delivery to the Bank
of such financing statements executed by the Company that the Bank may request
to reflect such change in Collateral Location together with such other
documents and instruments that the Bank may request in connection with such
change), as may be necessary to maintain the security interest of the Bank in
the Collateral at all times fully perfected and in full force and effect.
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<PAGE> 64
Section 6. Application of Moneys.
6.1. Payments. Except as otherwise provided herein, all monies
which the Bank shall receive either upon realization of the Lien granted
hereunder or otherwise may be applied by or at the direction of the Bank as
follows:
6.1.1. First, to the payment or reimbursement of all
reasonable advances, expenses and disbursements of the Bank (including, without
limitation, the fees and disbursements of its counsel and agents) incurred in
connection with the administration and enforcement of, or the preservation of
any rights under, this Agreement or the Loan Documents or in the collection of
the Obligations.
6.1.2. Second, to the payment of the then existing
Senior Obligations, matured and unmatured, in such order and in such manner as
the Bank may elect.
6.1.3. Third, to the payment of the then existing
Junior Obligations, matured and unmatured, in such order and in such manner as
the Bank may elect.
6.1.4. Fourth, after discharge and repayment of all of
the Obligations, any remaining funds shall be paid by the Bank to the Company.
6.2. Reserved Rights. The Bank shall have the continuing and
exclusive right to apply or reverse and re-apply any and all payments to any
portion of the Obligations. To the extent that the Company makes a payment or
payments to the Bank or the Bank receives any payment or proceeds of the
Collateral for the Company's benefit, which payment(s) or proceeds or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party under any bankruptcy act, state or federal law, common law or
equitable cause, then, to the extent of such payment or proceeds received, the
Obligations or the part thereof intended to be satisfied shall be revived and
continue in full force and effect as if such payment or proceeds had not been
received by the Bank.
Section 7. Events of Default and Remedies.
7.1. Rights on Event of Default.
7.1.1. Upon the occurrence of any Event of Default,
the Bank shall have the right, upon notice to the Company, (except that upon
the occurrence of an Event of Default under Section 8(h) or 8(i) of the Loan
Agreement, no notice shall be required) to declare the Obligations immediately
due and payable and may, without demand of performance or other demand,
advertisement or notice of any kind to or upon the Company or any other Person
(all and each of which demands, advertisements and/or notices are hereby
expressly waived), forthwith exercise such rights and remedies as are provided
by the UCC and such other rights and remedies in
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<PAGE> 65
respect thereof as it may have at law or in equity or under any of the Loan
Documents, including without limitation the right to enter any premises where
any of the Collateral is located and take possession of the same without demand
or notice and without prior judicial hearing or legal proceedings, which the
Company hereby expressly waives, and to sell all or any portion of the
Collateral at public or private sale, without prior notice to the Company
except as otherwise required by law (and, if notice is required by law, after
10 days prior written notice), at such place or places and at such time or
times and in such manner and upon such terms, whether for cash or on credit, as
the Bank in its sole discretion may determine. Upon any such sale of any of
the Collateral, the Bank may purchase all or any of the Collateral being sold,
free from any equity or right of redemption. The Bank shall apply the proceeds
of any such sale as provided in Section 6. If such proceeds are insufficient
to pay the amounts required by law, the Company shall be liable for any
deficiency in the amount so realized from the Collateral.
7.1.2. The Company shall promptly pay or reimburse all
costs and expenses of the Bank and any participating Persons, as such Persons
are contemplated by Section 9 of the Loan Agreement, including, but not limited
to, attorneys' fees, incurred with respect to the enforcement or preservation
of any of the Bank's rights hereunder.
7.1.3. Except as otherwise provided in this Agreement,
the Company hereby waives presentment, demand, protest or any notice (to the
extent permitted by applicable law) of any kind in connection with this
Agreement or any Collateral.
7.1.4. The Bank shall not incur any liability as a
result of the sale of any Collateral, or any part thereof, at any private sale
conducted in a commercially reasonable manner, in compliance with any
applicable law. The Company hereby waives any claims against the Bank arising
by reason of the fact that the price at which any of the Collateral may have
been sold at such a private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount of the
Obligations, even if the Bank accepts the first offer received and does not
offer any Collateral to more than one offeree, provided that the Bank has acted
in a commercially reasonable manner in conducting such private sale.
7.1.5. Upon any sale of all or any part of any
Collateral made either under the power of sale given hereunder or under
judgment or decree in any judicial proceedings for foreclosure or otherwise for
the enforcement of this Agreement, the Bank is hereby irrevocably appointed the
true and lawful attorney of the Company, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment, and transfer or
conveyance of the property thus sold. For that purpose, the Bank may execute
all such documents and instruments. This power of attorney shall be deemed
coupled with an interest, and the Company hereby ratifies and confirms all that
its said attorney, or its substitute or substitutes, shall lawfully do by
virtue of this Agreement. If so requested by the Bank or by any purchaser of
the Collateral or a portion thereof, the Company shall further ratify and
confirm any such sale or transfer by executing and delivering to the Bank or to
such purchaser or purchasers at the Company's expense all reasonable and proper
deeds, bills of sale, instruments of assignment, conveyance or transfer and
releases as may be designated in any such request.
- 10 -
<PAGE> 66
7.1.6. When authorized in accordance with this Section
7.1, the Bank may proceed to realize upon the security interest in the
Collateral against any one or more of the types of Collateral, at any one time
or from time to time, as the Bank shall determine in its sole discretion,
subject to the provisions of this Section 7.1. The Bank shall not be required
to realize upon any one type of Collateral before proceeding to realize upon
the security interest granted in any other type of Collateral. The proceeds of
any sale of, or other realization upon, or other receipt from, all or any
Collateral shall be applied by the Bank in the manner set forth in Section 6
hereof.
7.2. Remedies Cumulative; Delay or Omission Not a Waiver. To
the extent permitted by law and not otherwise provided to the contrary under
this Agreement, no remedy given hereunder to the Bank shall be exclusive of any
other remedy, and every such remedy shall be cumulative and in addition to
every other remedy given hereunder or now or hereafter given by statute, law,
equity or otherwise to the extent not contrary to or inconsistent with the
terms of this Agreement. The Bank may, in its absolute discretion, exercise
all or any of the powers, rights or remedies given to it hereunder or which may
be now or hereafter given by statute, law or equity or otherwise. No course of
dealing between the Company and the Bank or any delay or omission of the Bank
to exercise any right, remedy or power accruing upon any Default or Event of
Default shall impair any right, remedy or power or shall be construed to be a
waiver of any such Default or Event of Default or of any right of the Bank or
acquiescence therein, and every right, remedy and power given by this Agreement
to the Bank may, to the extent permitted by law, be exercised from time to time
and as often as may be deemed expedient by the Bank.
7.3. Assembling of Collateral. Upon the occurrence of any
Default, the Company, upon demand by the Bank, shall promptly assemble the
Collateral, or any part thereof designated by the Bank, and make it available
to the Bank at a place to be designated by the Bank which shall be reasonably
convenient to the Bank and the Company. The right of the Bank under this
Section 7.3 to have the Collateral assembled and made available to it is of the
essence of this Agreement and the Bank may, at its election, enforce such right
by an action for specific performance.
7.4. No Requirement to Marshal Collateral. The Company, to the
extent that it has any right, title or interest in any of the Collateral,
waives and releases any right to require the Bank to collect any of the
Obligations from any portion of the Collateral under any theory of marshaling
of assets, or otherwise, and specifically authorizes the Bank to apply any of
its Collateral against any of the Obligations in any manner that the Bank may
determine.
Section 8. Termination of Agreement. Upon the last to occur of (a)
satisfaction of all obligations of the Company under this Agreement, (b)
payment of all of the Obligations, (c) termination of the Commitment, (d)
termination of all outstanding Letters of Credit or (e) payment in full of the
Notes, this Agreement and the estate and rights hereby granted by the Company
in the Collateral shall automatically cease, terminate and be void
simultaneously therewith. Any of the Collateral remaining at the time of such
termination shall be fully released
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<PAGE> 67
and discharged from the Lien hereof and delivered to the Company by the Bank,
and this Agreement shall thereupon be released by the Bank, all at the expense
of the Company.
Section 9. Miscellaneous.
9.1. Expenses. All fees, costs or expenses, including
reasonable fees and expenses of outside legal counsel, incurred by the Bank or
any participating Persons, as such Persons are contemplated by Section 9 of the
Loan Agreement, in connection with either the preparation, administration,
amendment, modification or enforcement of this Agreement or any other
instruments, documents, or agreements to be delivered pursuant thereto
(including, without limitation, (a) all expenses incurred in obtaining all
necessary judicial and other approvals of the transactions contemplated hereby,
(b) all expenses incurred in conducting any examinations or appraisals which
the Bank, in its sole discretion, deems necessary or appropriate, (c) all
expenses incurred in assigning or otherwise transferring control of post office
boxes to the Bank or (d) out-of-pocket collateral administration expenses)
shall be paid by the Company on demand.
9.2. Term of Agreement; Successors and Assigns. This Agreement
and all covenants, agreements, representations and warranties made herein and
in the certificates delivered pursuant hereto shall survive the execution and
delivery hereof and shall continue in full force and effect until the
termination of this Agreement as set forth in Section 8. Whenever in this
Agreement either of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
terms and provisions of this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective permitted successors and
assigns. The Company may not assign its rights or obligations hereunder
without the prior consent of the Bank. The Bank may assign all or any of its
rights or obligations hereunder without the prior consent of the Company.
9.3. Notices. Notices, demands and communications shall be
deemed to have been properly given to the Company only when faxed to (614)
548-6541 or when made in writing and deposited in the United States mail,
registered or certified, postage prepaid, and addressed to the Company at 155
Hidden Ravines Drive, Powell, Ohio 43065, Attention: Chief Executive Officer,
whether or not the same are actually received by the Company. Any
communication to the Bank shall be deemed properly given if faxed to (614)
248-5518 or similarly mailed and addressed to the Bank at Commercial Loan
Department, 100 East Broad Street, Columbus, Ohio 43271-0121.
9.4. No Implied Waivers. No delay on the part of the Bank in
exercising any right, power or privilege granted hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof. The rights
and remedies herein expressly specified are cumulative and not exclusive of any
other rights and remedies which the Bank would otherwise have.
9.5. Amendments, Modifications, Etc. No amendment,
modification, termination, or waiver of any provision of this Agreement nor
consent to any departure by the Company therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
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<PAGE> 68
Bank, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No notice or demand on
the Company in any case shall entitle the Company to any other or further
notice or demand in similar or other circumstances.
9.6. Applicable Law. This Agreement shall be deemed to be a
contract made under the laws of the State of Ohio, and for all purposes shall
be construed in accordance with the laws of such state.
9.7. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
9.8. Counterparts. This Agreement may be signed in any number
of counterparts with the same effect as if the signatures thereto were upon the
same instrument. Complete sets of counterparts shall be lodged with the
Company and the Bank.
9.9. Merger. This Agreement, the Notes, the Loan Agreement and
the other Loan Documents reflect the entire understanding of the parties with
respect to their subject matter and supersede all prior agreements or
understandings with respect thereto in their entirety.
9.10. Headings. Headings of the sections of this Agreement are
for convenience only and shall not affect the construction of this Agreement.
9.11. Effective Date. This Agreement shall become effective
upon the execution of a counterpart hereof by each of the parties.
9.12. Confession of Judgment. The Company hereby authorizes
any attorney at law to appear for the Company, in an action on this Agreement,
at any time after any obligation hereunder becomes due, as herein provided, in
any court of record in or of the State of Ohio, or elsewhere, to waive the
issuing and service of process against the Company and to confess judgment in
favor of the Bank or the party entitled to the benefits of this Agreement
against the Company for the amount that may be due, with interest at the
default rate provided for in the Loan Documents and costs of suit, and to waive
and release all errors in said proceedings and judgment, and all petitions in
error, and right of appeal from the judgment rendered.
9.13. Consent to Jurisdiction; Service. As a specifically
bargained inducement for the transactions set forth herein, the parties hereto
specifically agree that any action, suit or proceeding in respect of or arising
from or out of this Agreement, its validity or performance, shall be initiated
and prosecuted as to all parties and their successors and assigns at Columbus,
Ohio except to the extent that such exclusive jurisdiction would be
inconsistent with the Bank's exercise of its rights under Section 9.12 hereof.
The parties hereto consent to and submit to the exercise of jurisdiction over
their person by any court situated at Columbus, Ohio, including without
limitation the United States District Court for the Southern District of Ohio
and having
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<PAGE> 69
jurisdiction over the subject matter hereof and the Company hereby irrevocably
appoints and designates CT Corporation System, its current agent for service of
process in the State of Ohio (the "Agent"), as its true and lawful attorney in
fact and duly authorized agent for service of legal process and agrees that
service of such process upon such attorney in fact shall constitute personal
service of such process upon such party. The Company hereby agrees to maintain
the Agent as its statutory agent for service of process in the State of Ohio
during the term of the Agreement.
9.14. WAIVER OF JURY TRIAL. THE BANK AND THE COMPANY HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE COMPANY ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE COMPANY
AND THE BANK IN CONNECTION WITH THIS AGREEMENT, THE LOAN AGREEMENT, OR ANY
OTHER AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS PROVISION IS A
MATERIAL INDUCEMENT TO THE BANK TO ENTER INTO THE FINANCING TRANSACTIONS WITH
THE COMPANY. IT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE
BANK'S ABILITY TO PURSUE ITS REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN THIS AGREEMENT, THE
LOAN AGREEMENT OR ANY OTHER DOCUMENT RELATED HERETO OR THERETO.
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<PAGE> 70
The parties hereto have caused this Agreement to be duly executed by
their respective duly authorized officers as of the day and year first above
written.
BANK ONE, COLUMBUS, NA
By:
--------------------------------------
Thomas D. Igoe
Senior Vice President
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT
JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE
AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART
TO COMPLY WITH THIS AGREEMENT, OR ANY OTHER CAUSE.
DRUG EMPORIUM, INC.
By:
-------------------------------------
David L. Kriegel, Chief Executive Officer
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<PAGE> 71
COLLATERAL LOCATIONS
EXHIBIT
<TABLE>
<CAPTION>
MICHIGAN
STORE # ADDRESS COUNTY NABP#
------- ------- ------ -----
<S> <C> <C> <C>
155 Hidden Ravines Drive Delaware
Powell, OH 43065
751 280 West Nine Mile Oakland 23 55053
Ferndale, MI 48220
752 30777 Gratiot Avenue Macomb 23 55065
Roseville, MI 48066
753 13555 Eureka Road Wayne 23 55077
Southgate, MI 48195
754 13505 Middlebelt Road Wayne 23 55089
Livonia, MI 48150
755 2105 South Telegraph Road Oakland 23 55091
Bloomfield Hills, MI 48302
756 22200 Michigan Avenue Wayne 23 55104
Dearborn, MI 48124
757 288 John R Oakland 23 55116
Troy, MI 48083
758 29088 Southfield Road Oakland 23 55128
Southfield, MI 48076
759 27690 Van Dyke Macomb 23 55130
Warren, MI 48093
760 1260 Rochester Road Oakland 23 55142
Rochester Hills, MI 48307
761 1700 Dix Avenue Wayne 23 55154
Lincoln Park, MI 48146
762 31005 Orchard Lake Road Oakland 23 55166
Farmington Hills, MI 48334
763 30100 Grand River Avenue Oakland 23 55178
Farmington Hills, MI 48336
764 35715 Warren Road Wayne 23 55180
Westland, MI 48185
765 14545 Racho Road Wayne 23 55192
Taylor, MI 48180
766 18859 E. Nine Road Macomb 23 55205
Eastpointe, MI 48021
767 3533 N. Woodward Oakland 23 55217
Royal Oak, MI 48072
768 5630 Van Dyke Macomb 23 55229
Sterling High, MI 48812
</TABLE>
<TABLE>
<CAPTION>
MARYLAND
STORE # ADDRESS COUNTY NABP#
------- ------- ------ -----
<S> <C> <C> <C>
155 Hidden Ravines Drive Delaware
Powell, OH 43065
731 1403 Merritt Blvd. Baltimore 21 20626
Dundalk, MD 21222
732 801 Goucher Blvd. Baltimore 21 20638
Towson, MD 21204
733 6501 Baltimore Nat'l Pike Baltimore 21 20640
Baltimore, MD 21228
734 570 Baltimore Pike Harford 21 20652
Bel Air, MD 21014
735 7317 Ritchie Hwy Anne Arundel 21 20676
Glen Burnie MD 21061
</TABLE>
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<PAGE> 72
EXHIBIT 4.1(C)
THIRD AMENDED AND RESTATED
PLEDGE AGREEMENT
THIS THIRD AMENDED AND RESTATED PLEDGE AGREEMENT dated as of the 13th day
of November, 1995 (the "Agreement") is between DRUG EMPORIUM, INC., a Delaware
corporation (the "Company"), and BANK ONE, COLUMBUS, NA, (the "Bank") under that
certain Third Amended and Restated Revolving Credit and Term Loan Agreement
dated of even date herewith between the Company and the Bank (the "Loan
Agreement"), and amends and restates in its entirety that certain Second Amended
and Restated Pledge Agreement dated as of May 12, 1995 between the Company and
the Bank. The parties agree as follows:
Section 1. Definitions.
1.1. Additional Definitions. In addition to the terms defined
elsewhere in this Agreement or the Loan Agreement, the following terms have the
following meanings:
"Collateral" is defined in Section 2.2.
"Collateral Proceeds" means all proceeds derived from or with respect
to the Collateral including, but not limited to, all securities hereafter
delivered or deliverable to the Bank in substitution for or in addition to any
of such Collateral and all certificates and instruments evidencing such
securities and all cash, securities and other property at any time and from time
to time received, receivable or otherwise distributed in respect to or in
exchange for any such Collateral.
"Default" means the occurrence of a condition or event which with
notice or lapse of time or both would constitute an Event of Default.
"Eligible Collateral" means marketable certificated securities
reviewed and approved by the Bank in advance in its reasonable discretion,
including, but not limited to, the Initial Collateral, and includes the
securities and the certificates or instruments representing the securities.
"Event of Default" means any of the events identified in Section 8 of
the Loan Agreement as an Event of Default, provided that any requirement for the
giving of notice or lapse of time has been satisfied in connection with such
event.
"Initial Collateral" means the Collateral delivered by the Company to
the Bank prior to or contemporaneously with the execution and delivery hereof
and initially made subject to the Lien of this Agreement as more fully described
on Exhibit A.
"Junior Obligations" means those Obligations of the Company or any
Subsidiary to the Bank defined by item (e) of the definition of the term
"Obligations," as such term is defined in this Section 1.1.
<PAGE> 73
"Lien of this Agreement" or "Lien hereof" means the lien created by
this Agreement or by any prior, concurrent or subsequent conveyance to the Bank
(whether made by the Company or any other Person) or otherwise created upon any
property held by the Bank to secure payment of the Obligations and/or
performance of the Company's other obligations under the Loan Documents.
"Loan Documents" means this Agreement, the Loan Agreement and all
other instruments or agreements required or contemplated hereby or thereby.
"Obligations" means (a) the obligations of the Company or any
Subsidiary to the Bank under this Agreement or any of the Loan Documents, (b)
the obligations of the Company to the Bank under any other instrument or
agreement required or contemplated hereby or thereby, (c) all costs and expenses
incurred by the Bank or any participating Persons, as such Persons are
contemplated by Section 9 of the Loan Agreement, in the collection or the
enforcement of any such obligations of the Company, or realization upon the
Collateral, including, without limitation, reasonable attorneys' fees and legal
expenses, (d) all future advances made by the Bank for the maintenance,
protection or preservation of, the Collateral or any portion thereof, including,
without limitation, advances for storage, insurance premiums, transportation
charges, and the like and (e) all other obligations of the Company to the Bank,
howsoever created, arising, or evidenced, whether direct or indirect, absolute
or contingent, or now or hereafter existing or due or to become due.
"Senior Obligations" means those Obligations of the Company or any
Subsidiary to the Bank defined by items (a), (b), (c) or (d) of the definition
of the term "Obligations," as such term is defined in this Section 1.1.
"UCC" means Chapters 1301 through 1309 of the Ohio Revised Code as in
effect on the date of this Agreement and as the same may be supplemented or
amended from time to time hereafter.
1.2. Rules of Construction. All accounting terms used in this
Agreement not otherwise specifically defined in this Agreement shall be
construed in accordance with generally accepted accounting principles applied on
a basis consistent with the accounting principles reflected in the financial
statements furnished to the Bank under, and which comply with the requirements
of, the Loan Agreement. Any capitalized term not defined herein but defined in
the Loan Agreement shall be construed in accordance with the definition of such
term as set forth in the Loan Agreement. Any other term not specifically defined
in this Agreement or the Loan Agreement shall be construed in accordance with
the meaning for such terms under the UCC. The meaning of any defined term used
in this Agreement shall apply equally to the singular, plural and other forms of
the term defined.
-2-
<PAGE> 74
Section 2. Delivery and Pledge of Collateral.
2.1. Delivery of Collateral.
2.1.1. Prior to or contemporaneously with the execution and
delivery hereof, the Company has delivered or is delivering the Initial
Collateral to the Bank, receipt of which is hereby acknowledged. Any and all
Collateral delivered to the Bank shall meet the applicable requirements set
forth in Section 2.1.2 and, until the termination of this Agreement as provided
in Section 8 hereof, shall be pledged to and held by the Bank for the purposes
set forth in Section 2.2 hereof.
2.1.2. The Company shall effect delivery, with respect to each
item of Eligible Collateral which is to be delivered to the Bank pursuant
hereto, by delivery of stock certificates in suitable form duly endorsed in
blank or having attached thereto a legal assignment, stock power or bond power
in a form satisfactory to the Bank, with signature guarantees satisfactory to
the Bank.
2.1.3. Concurrently with each delivery of Collateral to the
Bank pursuant to this Agreement (including, but not limited to, Initial
Collateral) the Company shall deliver to the Bank a certificate of the Company
dated the date of such delivery (a) identifying the items of Collateral being
delivered and (b) certifying that the representations and warranties of the
Company set forth herein are true and correct with respect to such items of
Collateral on such date.
2.2. Pledge of Collateral. As security for the full and timely
payment or performance of the Obligations in accordance with the terms thereof,
the Company, by these presents, does hereby grant and pledge unto the Bank, and
its successors and assigns, all of the Company's right, title and interest in
and to the following property (the "Collateral"):
2.2.1. The Initial Collateral and such other Eligible
Collateral as shall hereafter be actually delivered by the Company to the Bank
in substitution for or in addition to the Initial Collateral pursuant to the
terms of this Agreement;
2.2.2. The Collateral Proceeds;
2.2.3. Any other property and, to the extent provided in this
Agreement, the proceeds thereof that may, from time to time hereafter, be
subject to the Lien of this Agreement; and
2.2.4. All powers and appurtenant rights of the Company in the
property listed in Sections 2.2.1 through 2.2.3 above.
Notwithstanding anything contained in this Section 2.2, all security interests
created hereunder which secure Senior Obligations shall be prior in interest to
all security interests created hereunder which secure Junior Obligations.
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<PAGE> 75
Section 3. Collateral Maintenance.
3.1. Holding of Collateral. Prior to the occurrence of any Event of
Default, all Collateral shall be held by the Bank in the name of the Company
endorsed or signed in blank or in favor of the Bank. After the occurrence of any
Event of Default, any or all of the Collateral may be registered in the name of
the Bank or any nominee of the Bank. The Bank may deliver any of the Collateral
to the issuers thereof for the purpose of making denominational exchanges or
registrations or transfers or for such other purpose in furtherance and pursuant
to the provisions of this Agreement as the Bank may deem advisable. The Company
will deliver promptly (but not later than three Banking Days after receipt of a
written request from the Bank) to the Bank such other documents and certificates
as the Bank may reasonably request in connection with subjecting any Collateral
and Collateral Proceeds to the Lien of this Agreement.
3.2. Voting Rights. Prior to the occurrence of any Event of Default,
the Company shall have the right to vote and give consents with respect to the
Collateral, to consent to, ratify action taken at, or waive notice of, any
meeting with respect to the Collateral and to exercise all other stockholders'
rights and privileges with respect to the Collateral with the same force and
effect as if the Collateral was not subject to this Agreement; provided,
however, that no vote shall be cast nor shall any consent, waiver or
ratification be given or action taken which would be inconsistent with any of
the provisions of this Agreement or would cause, or approve any action that
would cause, the occurrence of a Default or Event of Default. After the
occurrence of any Event of Default, the Bank shall have all voting rights and
all other stockholders' rights and privileges with respect to the Collateral
with the same force and effect as if it was the absolute owner and record holder
thereof. The Company shall execute and deliver to the Bank all such proxies,
powers of attorney and other instruments as the Bank may request for the purpose
of enabling it to exercise its rights under this Section 3.2.
3.3. Payments on Collateral. Prior to the occurrence of any Event
of Default, and subject to Section 3.4 hereof, all payments on or with respect
to any Collateral shall be made to the Company. After the occurrence of an Event
of Default, the Bank shall have the right to take or direct all actions which it
deems necessary, desirable or appropriate to cause all payments on or with
respect to any Collateral to be made directly to the Bank, and the Bank shall
hold such payments as Collateral Proceeds or shall apply such payments as
provided in Section 6 hereof. If the Company receives any payment on or with
respect to any Collateral after the occurrence of an Event of Default, the
Company shall hold such payment in trust for the benefit of the Bank and shall
promptly remit such payment to the Bank. Upon waiver of an Event of Default, the
Bank shall, within three Banking Days after any such cure or waiver, pay over to
the Company any and all payments on the Collateral collected and held by the
Bank (other than any such payment theretofore applied by the Bank as provided in
Section 6 hereof) and so long as no other Event of Default has occurred, the
Company shall thereafter be entitled to receive directly payments on or with
respect to the Collateral.
3.4. Stock Dividends; Distributions. Notwithstanding the provisions
of Section 3.3 hereof, the following items shall forthwith be delivered to the
Bank, accompanied by proper stock
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<PAGE> 76
powers, bond powers and/or instruments of assignment duly executed by the
Company, to be held as Collateral subject to the terms of this Agreement:
3.4.1. Any and all dividends and interest on or with respect to
the Collateral paid or payable by delivery of stock or otherwise paid or payable
other than in cash;
3.4.2. Any and all other distributions made or payable on or
with respect to the Collateral, whether resulting from a subdivision,
combination or reclassification of the securities of the issuer thereof or
received in exchange for Collateral, or any part thereof, or as a result of any
merger, consolidation, acquisition or other exchange of assets to which such
issuer may be a party or otherwise; and
3.4.3. Any and all property (other than dividends and interest)
received in payment of or in redemption of or in exchange for any Collateral.
All such items received by the Company shall be held by it in trust for the
benefit of the Bank until delivered to the Bank.
Section 4. Representations and Warranties. The Company hereby represents
and warrants to the Bank that:
4.1. Title to Collateral. The Company is, or on the date of delivery
of the Collateral will be, the sole owner, of record and beneficially, of the
Initial Collateral and all other Eligible Collateral delivered pursuant hereto.
The Company has, or will have at the date of such delivery, good and marketable
title to each item constituting Collateral, free of any mortgage, pledge,
security interest, lien, charge or encumbrance (other than the Lien of this
Agreement). No Person has, or will have at the date of such delivery, any rights
to purchase or acquire any of the Collateral. Exhibit A correctly sets forth the
percentage of the issued and outstanding capital stock of the applicable issuer
eligible to vote for election of directors which each item of Initial Collateral
represents.
4.2. Perfection of Lien. The Company has taken with respect to the
Initial Collateral, or will have taken at the date of delivery of all of the
Eligible Collateral delivered pursuant hereto, all actions necessary so that the
Bank shall have a valid first and prior perfected security interest in and to,
and a general first lien upon, such Collateral subject to no other lien or
encumbrance.
4.3. Consents or Governmental Approvals. No consents or approvals
of any Person are required for the assignment and transfer by the Company of
possession of any of the Collateral to the Bank hereunder or, except as set
forth herein, the subsequent sale or transfer of such Collateral by the Bank.
4.4. Status of Collateral. Each share of the Initial Collateral is,
and each share of Eligible Collateral delivered pursuant hereto will be, validly
issued, fully paid and non-assessable and, to the best of the Company's
knowledge and belief, transferable on the books and records of
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the issuer in its present form without restriction, except as transferability
may now or in the future be restricted by operation of state "blue sky" laws or
federal securities laws.
Section 5. Covenants.
5.1. Warranty of Title and Authority to Pledge. The Company warrants
and agrees that all the Collateral now or hereafter subject to the Lien of this
Agreement is or will be, as the case may be, owned by the Company, of record and
beneficially, and pledged by it hereunder free and clear of any mortgage,
pledge, security interest, lien, charge or encumbrance, except the Lien of this
Agreement, and that it has and will have full power and lawful authority to
pledge, assign, transfer and deliver such Collateral in the manner and form
described or to cause such Collateral to be so pledged, assigned, transferred
and delivered. The Company shall not create, incur or suffer to exist any
mortgage, pledge, security interest, lien, charge or encumbrance upon the
Collateral other than the Lien of this Agreement. The Company hereby does, and
until the Collateral is reassigned to the Company will, warrant and defend the
title of the Bank to the Collateral, whether now or hereafter pledged or
delivered by the Company, against the claims and demands of all Persons.
5.2. Protection of Title; Payment of Taxes, Liens and Other Items.
The Company shall:
5.2.1. Duly and promptly pay and discharge, or cause to be paid
and discharged, before they become delinquent, all taxes, assessments,
governmental and other charges lawfully levied, assessed or imposed upon or
against any of the Collateral, including the income or profits therefrom and the
interest of the Bank in such Collateral;
5.2.2. Duly observe and conform in all material respects to all
valid requirements of any governmental authority imposed upon the Company
relative to any of the Collateral, and all covenants, terms and conditions under
or upon which any part thereof is held; and
5.2.3. Cause to be paid and discharged all lawful claims
(including, without limitation, income taxes) which, if unpaid, might become a
lien or encumbrance upon the Collateral.
5.3. Preservation and Protection of Security Interests. The Company
shall faithfully preserve and protect the Bank's security interest in the
Collateral and shall, at its own cost and expense, cause such security interest
to be perfected and continue perfected so long as the Obligations or any portion
thereof are outstanding and unpaid, and for such purpose the Company shall from
time to time at the request of the Bank file or record, or cause to be filed or
recorded, such instruments, documents and notices, including without limitation
financing and continuation statements, as the Bank may deem necessary or
advisable from time to time in order to preserve, perfect and continue perfected
said security interest. The Company shall do all such other acts and things and
shall execute and deliver all such other instruments and documents, including
without limitation further security agreements, pledges, endorsements,
assignments and notices, as
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the Bank may deem necessary or advisable from time to time in order to perfect
and preserve the priority of said security interest as a perfected first lien in
the Collateral prior to the rights of any other secured party or lien creditor.
The Bank, and its officers, employees and authorized agents, or any of them, are
hereby irrevocably appointed the attorneys-in-fact of the Company to do all acts
and things which the Bank may deem necessary or advisable to preserve, perfect
and continue perfected the Bank's security interest in the Collateral, including
without limitation the signing of financing, continuation or other similar
statements and notices on behalf of the Company.
5.4. Advances by Bank. If the Company shall fail to perform any of
its covenants contained in this Agreement, the Bank may, but shall not be
obligated to, make advances to perform the same on behalf of the Company, and
the Company will repay upon demand all sums so advanced, with interest from the
date of such advance until payment in full at the default rate of interest
payable under the Loan Documents. All sums so advanced, with interest as
aforesaid, shall be secured by this Agreement. No such advance shall be deemed
to relieve the Company from any Default or Event of Default hereunder.
5.5. Notice of Default. If any Default occurs, the Company shall
give immediate notice of such happening to the Bank.
Section 6. Application of Monies.
6.1. Payments. Except as otherwise provided herein, all monies which
the Bank shall receive upon realization of the Lien of this Agreement hereunder
or otherwise may be applied by or at the direction of the Bank as follows:
6.l.1. First, to the payment or reimbursement of all reasonable
advances, expenses and disbursements of the Bank (including, without limitation,
the fees and disbursements of its counsel and agents) incurred in connection
with the administration and enforcement of, or the preservation of any rights
under, this Agreement or the Loan Documents or in the collection of the
Obligations.
6.1.2. Second, to the payment of the then existing Senior
Obligations, matured and unmatured, in such order and in such manner as the Bank
may elect.
6.1.3. Third, to the payment of the then existing Junior
Obligations, matured and unmatured, in such order and in such manner as the Bank
may elect.
6.1.4. Fourth, after discharge and repayment of all of the
Obligations, any remaining funds shall be paid by the Bank to the Company.
6.2. Reserved Rights. The Bank shall have the continuing and
exclusive right to apply or reverse and re-apply any and all payments to any
portion of the Obligations. To the extent that the Company makes a payment or
payments to the Bank or the Bank receives any payment or proceeds of the
Collateral for the Company's benefit, which payment(s) or proceeds or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set
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aside or required to be repaid to a trustee, receiver or any other party
under any bankruptcy act, state or federal law, common law or equitable cause,
then, to the extent of such payment or proceeds received, the Obligations or the
part thereof intended to be satisfied shall be revived and continue in full
force and effect as if such payment or proceeds had not been received by the
Bank.
Section 7. Remedies upon Event of Default.
7.1. Remedies.
7.1.1. Upon the occurrence of any Event of Default, the Bank
shall have the right, upon notice to the Company (except that upon the
occurrence of an Event of Default under Section 8(h) or 7(i) of the Loan
Agreement, no notice shall be required), to declare the Obligations immediately
due and payable and may, without demand of performance or other demand,
advertisement or notice of any kind to or upon the Company or any other Person
(all and each of which demands, advertisements and/or notices are hereby
expressly waived), forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or forthwith sell, assign, give an option
or options to purchase, contract to sell or otherwise dispose of and deliver
said Collateral, or any part thereof, in one or more parcels at public or
private sale or sales, at any exchange, broker's board or any of the Bank's
offices or elsewhere upon such terms and conditions as it may deem advisable and
at such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk, with the right to the Bank upon any such
sale or sales, public or private, to purchase the whole or any part of said
Collateral so sold, free of any right or equity of redemption in the Company,
which right or equity is (to the extent permitted by applicable law) hereby
expressly waived and released. To the extent permitted by applicable law, the
Company waives all claims, damages and demands against the Bank arising out of
the retention or sale of the Collateral. In addition to the rights and remedies
granted to it in this Agreement and in any other instrument or agreement
securing, evidencing or relating to any of the Obligations, the Bank shall have
all the rights and remedies of a secured party under the UCC.
7.1.2. The Company recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws, the Bank may be compelled, with respect to any sale of
all or any part of the Collateral, to limit purchasers to those who will agree,
among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Company acknowledges that any such private sale may be at prices and on terms
less favorable to the Bank than those obtainable through a public sale without
such restrictions, and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially reasonable
manner and that the Bank shall have no obligation to engage in public sales and
no obligation to delay the sale of any Collateral for the period of time
necessary to permit the respective issuer thereof to register it for public
sale.
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7.1.3. The Company shall promptly pay or reimburse all costs
and expenses of the Bank, including, but not limited to, attorneys' fees,
incurred with respect to the enforcement or preservation of any of the Bank's
rights hereunder.
7.1.4. Except as otherwise provided in this Agreement, the
Company hereby waives presentment, demand, protest or any notice (to the extent
permitted by applicable law) of any kind in connection with this Agreement or
any Collateral.
7.1.5. The Bank shall not incur any liability as a result of
the sale of any Collateral, or any part thereof, at any private sale conducted
in a commercially reasonable manner, in compliance with any applicable law. The
Company hereby waives any claims against the Bank arising by reason of the fact
that the price at which any of the Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a public
sale or was less than the aggregate amount of the Obligations, even if the Bank
accepts the first offer received and does not offer any Collateral to more than
one offeree, provided that the Bank has acted in a commercially reasonable
manner in conducting such private sale.
7.1.6. Upon any sale of all or any part of any Collateral made
either under the power of sale given hereunder or under judgment or decree in
any judicial proceedings for foreclosure or otherwise for the enforcement of
this Agreement, the Bank is hereby irrevocably appointed the true and lawful
attorney of the Company, in its name and stead, to make all necessary deeds,
bills of sale and instruments of assignment, and transfer or conveyance of the
property thus sold. For that purpose, the Bank may execute all such documents
and instruments. This power of attorney shall be deemed coupled with an
interest, and the Company hereby ratifies and confirms all that its said
attorney, or its substitute or substitutes, shall lawfully do by virtue of this
Agreement. If so requested by the Bank or by any purchaser of the Collateral or
a portion thereof, the Company shall further ratify and confirm any such sale or
transfer by executing and delivering to the Bank or to such purchaser or
purchasers at the Company's expense all reasonable and proper deeds, bills of
sale, instruments of assignment, conveyance or transfer and releases as may be
designated in any such request.
7.1.7. When authorized in accordance with this Section 7.1, the
Bank may proceed to realize upon the security interest in the Collateral against
any one or more of the types of Collateral, at any one time or from time to
time, as the Bank shall determine in its sole discretion, subject to the
provisions of this Section 7.1. The Bank shall not be required to realize upon
any one type of Collateral before proceeding to realize upon the security
interest granted in any other type of Collateral. The proceeds of any sale of,
or other realization upon, or other receipt from, all or any Collateral shall be
applied by the Bank in the manner set forth in Section 6 hereof.
7.2. Remedies Cumulative; Delay or Omission Not a Waiver. To the
extent permitted by law and not otherwise provided to the contrary under this
Agreement, no remedy given hereunder to the Bank shall be exclusive of any other
remedy, and every such remedy shall be cumulative and in addition to every other
remedy given hereunder or now or hereafter given by statute, law, equity or
otherwise to the extent not contrary to or inconsistent with the terms of this
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Agreement. The Bank may, in its absolute discretion, exercise all or any of the
powers, rights or remedies given to it hereunder or which may be now or
hereafter given by statute, law or equity or otherwise. No course of dealing
between the Company and the Bank or any delay or omission of the Bank to
exercise any right, remedy or power accruing upon any Default or Event of
Default shall impair any right, remedy or power or shall be construed to be a
waiver of any such Default or Event of Default or of any right of the Bank or
acquiescence therein, and every right, remedy and power given by this Agreement
to the Bank may, to the extent permitted by law, be exercised from time to time
and as often as may be deemed expedient by the Bank.
Section 8. Termination of Agreement. Upon the last to occur of (a)
satisfaction of all obligations of the Company under this Agreement, and (b)
payment of all of the Obligations, (c) termination of the Commitment, (d)
termination of all outstanding Letters of Credit or (e) payment in full of the
Notes, this Agreement and the estate and rights hereby granted by the Company in
the Collateral shall automatically cease, terminate and be void simultaneously
therewith. Any of the Collateral remaining at the time of such termination shall
be fully released and discharged from the Lien hereof and delivered to the
Company by the Bank, and this Agreement shall thereupon be released by the Bank,
all at the expense of the Company.
Section 9. Miscellaneous.
9.1. Expenses. All fees, costs or expenses, including reasonable fees
and expenses of outside legal counsel, incurred by the Bank or any participating
Persons, as such Persons are contemplated by Section 9 of the Loan Agreement, in
connection with either the preparation, administration, amendment, modification
or enforcement of this Agreement or any other instruments, documents, or
agreements to be delivered pursuant thereto (including, without limitation, (a)
all expenses incurred in obtaining all necessary judicial and other approvals of
the transactions contemplated hereby, (b) all expenses incurred in conducting
any examinations or appraisals which the Bank, in its sole discretion, deems
necessary or appropriate, subject, however, to the provisions of Section 6.3 of
the Loan Agreement restricting the Company's obligations with respect to
inventory audits, or (c) out-of-pocket collateral administration expenses) shall
be paid by the Company on demand.
9.2. Term of Agreement; Successors and Assigns. This Agreement and
all covenants, agreements, representations and warranties made herein and in the
certificates delivered pursuant hereto shall survive the execution and delivery
hereof and shall continue in full force and effect until the termination of this
Agreement as set forth in Section 8. Whenever in this Agreement any of the
parties hereto are referred to, such reference shall be deemed to include the
permitted successors and assigns of such party; and all terms and provisions of
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective permitted successors and assigns. The
Company may not assign its rights or obligations hereunder without the prior
consent of the Bank. The Bank may assign all or any of its rights or obligations
hereunder without the prior consent of the Company.
9.3. Notices. Notices, demands and communications shall be deemed to
have been properly given to the Company only when faxed to the Company at (614)
548-6541 or when
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made in writing and deposited in the United States mail, registered or
certified, postage prepaid, and addressed to the Company at 155 Hidden Ravines
Drive, Powell, Ohio 43065, Attention: Chief Executive Officer, whether or not
the same are actually received by the Company. Any communication to the Bank
shall be deemed properly given if faxed to the Bank at (614) 248-5518 or
similarly mailed to the Bank and addressed to the Bank at Commercial Loan
Department, 100 East Broad Street, Columbus, Ohio 43271-0121.
9.4. No Implied Waivers. No delay on the part of the Bank in
exercising any right, power or privilege granted hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof. The rights
and remedies herein expressly specified are cumulative and not exclusive of any
other rights and remedies which the Bank would otherwise have.
9.5. Amendments, Modifications, Etc. No amendment, modification,
termination, or waiver of any provision of this Agreement nor consent to any
departure by the Company therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Bank, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given. No notice or demand on the Company in any case shall entitle
the Company to any other or further notice or demand in similar or other
circumstances.
9.6. Applicable Law. This Agreement shall be deemed to be a contract
made under the laws of the State of Ohio, and for all purposes shall be
construed in accordance with the laws of such state.
9.7. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
9.8. Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto were upon the
same instrument. Complete sets of counterparts shall be lodged with the Company
and the Bank.
9.9. Merger. This Agreement, the Loan Agreement and the other
agreements executed in connection with the Loan Agreement reflect the entire
understanding of the parties with respect to its subject matter and supersede
all prior agreements or understandings with respect thereto in their entirety.
9.10. Headings. Headings of the sections of this Agreement are for
convenience only and shall not affect the construction of this Agreement.
9.11. Effective Date. This Agreement shall become effective upon the
execution of a counterpart hereof by each of the parties.
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9.12. Confession of Judgment. The Company hereby authorizes any
attorney at law to appear for the Company, in an action on this Agreement, at
any time after any obligation hereunder becomes due, as herein provided, in any
court of record in or of the State of Ohio, or elsewhere, to waive the issuing
and service of process against the Company and to confess judgment in favor of
the Bank or the party entitled to the benefits of this Agreement against the
Company for the amount that may be due, with interest at the default rate
provided for in the Loan Agreement and costs of suit, and to waive and release
all errors in said proceedings and judgment, and all petitions in error, and
right of appeal from the judgment rendered.
9.13. Consent to Jurisdiction; Service. As a specifically bargained
inducement for the transactions set forth herein, the parties hereto
specifically agree that any action, suit or proceeding in respect of or arising
from or out of this Agreement, its validity or performance, shall be initiated
and prosecuted as to all parties and their successors and assigns at Columbus,
Ohio except to the extent that such exclusive jurisdiction would be inconsistent
with the Bank's exercise of its rights under Section 9.12 hereof. The parties
hereto consent to and submit to the exercise of jurisdiction over their person
by any court situated at Columbus, Ohio, including without limitation the United
States District Court for the Southern District of Ohio and having jurisdiction
over the subject matter hereof and the Company, hereby irrevocably appoints and
designates CT Corporation System, its current agent for service of process in
the State of Ohio (the "Agent"), as its true and lawful attorney in fact and
duly authorized agent for service of legal process and agrees that service of
such process upon such attorney in fact shall constitute personal service of
such process upon such party. The Company hereby agrees to maintain the Agent as
its statutory agent for service of process in the State of Ohio during the term
of this Agreement.
9.14. Waiver of Jury Trial. THE BANK AND THE COMPANY HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE COMPANY ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE COMPANY
AND THE BANK IN CONNECTION WITH THIS AGREEMENT, THE LOAN AGREEMENT, OR ANY OTHER
AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH
OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT TO THE BANK TO ENTER INTO THE FINANCING TRANSACTIONS WITH THE
COMPANY. IT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE
BANK'S ABILITY TO PURSUE ITS REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN THIS AGREEMENT, THE
LOAN AGREEMENT OR ANY OTHER DOCUMENT RELATED HERETO OR THERETO.
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IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement to
be executed and delivered effective the day and year first above written.
BANK ONE, COLUMBUS, NA
By:____________________________________________
Thomas D. Igoe
Senior Vice President
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THIS AGREEMENT,
OR ANY OTHER CAUSE.
DRUG EMPORIUM, INC.
By:____________________________________________
David L. Kriegel, Chief Executive Officer
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EXHIBIT A
INITIAL COLLATERAL
1. Stock Certificate No. 1 dated February 26, 1991, evidencing the ownership by
the Company of 10 shares of the Common Stock of Centerline, Inc., being 100% of
the issued and outstanding shares of the capital stock of such issuer eligible
to vote for election of directors of such issuer.
2. Stock Certificate No. 1 dated August 23, 1991, evidencing the ownership by
the Company of 100 shares of the Common Stock of Winter Fern Drug Distributors,
Inc., being 100% of the issued and outstanding shares of the capital stock of
such issuer eligible to vote for election of directors of such issuer.
3. Stock Powers, each dated February 11, 1992, relating to the stock
certificates listed at items 1 and 2 above, executed by the Company in blank.
4. Stock Certificate No. 8 dated May 9, 1995, evidencing the ownership by the
Company of 1,190 shares of the Common Stock of RJR Drug Distributors Inc., being
100% of the issued and outstanding shares of the capital stock of such issuer
eligible to vote for election of directors of such issuer.
5. Stock Certificate No. 1 dated September 7, 1994, evidencing the ownership by
the Company of 100 shares of the Common Stock of Houston Venture, Inc., being
100% of the issued and outstanding shares of the capital stock of such issuer
eligible to vote for election of directors of such issuer.
6. Stock Certificate No. 1 dated September 7, 1994, evidencing the ownership by
the Company of 100 shares of the Common Stock of Emporium Venture, Inc., being
100% of the issued and outstanding shares of the capital stock of such issuer
eligible to vote for election of directors of such issuer.
7. Stock Powers, each dated of May 12, 1995, relating to the stock certificates
listed at items 4, 5 and 6 above, executed by the Company in blank.
8. Stock Certificate No. 1 dated November 1, 1995, evidencing the ownership by
the Company of 100 shares of the Common Stock of Drug Emporium of Maryland,
Inc., being 100% of the issued and outstanding shares of the capital stock of
such issuer eligible to vote for election of directors of such issuer.
9. Stock Certificate No. 1 dated November 1, 1995, evidencing the ownership by
the Company of 100 shares of the Common Stock of Drug Emporium of Michigan,
Inc., being 100% of the issued and outstanding shares of the capital stock of
such issuer eligible to vote for election of directors of such issuer.
<PAGE> 86
10. Stock Powers, each dated of even date herewith, relating to the stock
certificates listed at items 8 and 9 above, executed by the Company in blank.
<PAGE> 87
EXHIBIT 4.1(d)
THIRD AMENDED AND RESTATED
UNCONDITIONAL GUARANTY
_________________, a ____________ corporation (the "Guarantor"), in
order to induce BANK ONE, COLUMBUS, NA (the "Bank"), to make loans to DRUG
EMPORIUM, INC., a Delaware corporation (the "Company"), pursuant to that
certain Third Amended and Restated Revolving Credit and Term Loan Agreement of
even date herewith (the "Agreement"), does hereby:
(a) CONSIDERATION. Represent and warrant to the Bank that it is a
subsidiary of the Company and, as such, it is entering into this Guaranty in
order to ensure to itself the availability of certain of the funds which the
Company plans to borrow from the Bank pursuant to the Agreement and that the
Guarantor, therefore, expects to derive economic benefits from the execution,
delivery and performance of the Agreement;
(b) SOLVENCY. Represent and warrant to the Bank that, both before and
after its execution, delivery and performance of the Guaranty, it is or will be
solvent, it has or will have assets having a fair value in excess of the amount
required to pay its probable liabilities or its existing debts as they become
absolute and matured and it has or will have access to adequate capital for the
conduct of its business and is or will be able to pay its debts from time to
time incurred in connection therewith as such debts mature;
(c) GUARANTY OF PAYMENT. Unconditionally and absolutely guarantee the
full and timely payment by the Company to the Bank of (i) any and all of the
liabilities or obligations which may become due and payable to the Bank from
the Company in accordance with the terms and conditions of the Agreement or any
other agreement, instrument or document executed by the Company in connection
therewith, (ii) all costs and expenses incurred by the Bank in the collection
or the enforcement of any such obligations of the Company, or realization upon
the Collateral, including, without limitation, reasonable attorneys' fees and
legal expenses, (iii) all future advances made by the Bank for the maintenance,
protection or preservation of, the Collateral or any portion thereof,
including, without limitation, advances for storage, insurance premiums,
transportation charges, and the like and (iv) all other obligations of payment
of the Company to the Bank, howsoever created, arising, or evidenced, whether
direct or indirect, absolute or contingent, or now or hereafter existing or due
or to become due (the "Payment Obligations"); and
(d) GUARANTY OF PERFORMANCE. Unconditionally and absolutely guarantee
the due and punctual performance and observance by the Company of (i) any and
all other obligations which are to be performed or observed by the Company in
accordance with the terms and conditions of the Agreement or any other
agreement, instrument or document executed by the Company in connection
therewith, whether according to the original or present terms thereof, at an
earlier or accelerated date or dates as provided therein, or pursuant to any
extension of time or to any change or changes in the terms and conditions
thereof, now or at any time hereafter made or
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granted and (ii) all other obligations of the Company to the Bank, howsoever
created, arising, or evidenced, whether direct or indirect, absolute or
contingent, or now or hereafter existing or due or to become due (the
"Performance Obligations" and, collectively with the Payment Obligations, the
"Obligations").
SECTION 1. ABSOLUTE AND UNCONDITIONAL OBLIGATION OF GUARANTOR. All
obligations of Guarantor under this Guaranty shall be absolute, unconditional
and continuing and shall remain in full force and effect until all of the
Obligations now existing or hereafter incurred shall have been paid and
discharged in full and otherwise satisfied. The obligations of Guarantor under
this Guaranty shall not be released, discharged, affected, modified or impaired
by reason of the happening from time to time of any event, including, without
limitation, any one or more of the following:
1.1. COMPROMISE, ETC. The compromise, settlement, release,
discharge or termination of any or all of the Obligations, by operation of law
or otherwise, except by payment and performance in full of the Obligations
pursuant to the terms of the Agreement or any other agreement, document or
instrument pursuant to which the Company is obligated to the Bank with respect
thereto;
1.2. FAILURE TO GIVE NOTICE. The failure of the Bank to give
notice to Guarantor of the occurrence of any Default or Event of Default under
the Agreement (capitalized terms not defined herein are defined in the
Agreement);
1.3. WAIVER. The waiver of the payment, performance or
observance by the Company of any of the Obligations;
1.4. EXTENSION. The extension of the time for payment of any
Indebtedness constituting Obligations or of the time for performance of any
other Obligation, or the extension or the renewal of any thereof;
1.5. MODIFICATION. The modification or amendment (whether
material or otherwise) of any of the Obligations, whether set forth in the
Agreement or any other agreement, document or instrument pursuant to which the
Company or any other Person is obligated to the Bank, in accordance with the
provisions of the Agreement, or any other agreement, instrument or document
relating thereto or otherwise;
1.6. ACTION OR INACTION. The taking of or omission to take any
action under the Agreement or any other agreement, document or instrument
pursuant to which the Company or any other Person is obligated to the Bank;
1.7. INVALIDITY, ETC. The invalidity or unenforceability of
any term or provision of the Agreement or any other agreement, document or
instrument pursuant to which the Company or any other Person is obligated to
the Bank, or any loss or release or substitution of, or other dealing with, any
of the Indebtedness constituting Obligations or otherwise;
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1.8. DELAY. Any failure, omission or delay on the part of the
Bank to enforce, assert or exercise any right, power or remedy conferred in the
Agreement or any other agreement, document or instrument pursuant to which the
Company or any other Person is obligated to the Bank, or any other act or acts
on the part of the Bank;
1.9. BANKRUPTCY. The voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the
assets, marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, arrangement, composition
with creditors or readjustment of, or other similar proceedings affecting the
Company, or its assets, or any allegation of invalidity or contest of the
validity of this Guaranty in any such proceedings;
1.10. DEFAULT BY GUARANTOR. The default or failure of
Guarantor to fully perform any of its obligations set forth in this Guaranty,
the occurrence of any Event of Default under the Agreement, or the default or
failure of any other Person to fully perform any of its obligations set forth
in any other agreement, document or instrument pursuant to which the Company or
any such Person is obligated to the Bank;
1.11. MISSING AGREEMENTS. The failure of any agreement,
instrument, certificate, or other document to be executed or delivered in
connection with the Agreement; or
1.12. MISCELLANEOUS. Any other event, circumstance, right,
claim or defense of any character whatsoever, whether or not similar to the
foregoing.
SECTION 2. NO CONSENT OR NOTICE. The Bank may, at any time and from
time to time, without consent of, or notice to, Guarantor, do any, some, or all
of the following without thereby impairing or releasing the obligations of
Guarantor under this Guaranty:
2.1. AMENDMENTS. Change the manner, place or terms of payment,
or change or extend the time of payment of, or renew or alter, the terms of any
obligations of payment of the Company to the Bank, and the guarantee herein
made shall apply to the obligations of payment of the Company to the Bank as so
changed, extended, renewed or altered;
2.2. ACTION OR INACTION. Exercise or refrain from exercising
any rights against the Company, any other guarantor of the Agreement, or any
other Person, or otherwise act or refrain from acting; or
2.3. SETTLE OR COMPROMISE. Settle or compromise any
obligations of payment of the Company, or any other guarantor of the
obligations of the Company to the Bank or subordinate the payment of all or any
part thereof to the payment of any liability (whether due or not) to creditors
of the Company other than the Bank.
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SECTION 3. RIGHTS OF THE BANK AND RELATED MATTERS.
3.1. ENFORCEMENT. Guarantor agrees that this Guaranty may be
enforced by the Bank without first resorting to or exhausting any other remedy
available under the Agreement, any other guaranty of the Agreement, any other
related agreement, document or instrument pursuant to which the Company or any
other Person is obligated to the Bank, or otherwise; provided, however, that
nothing herein contained shall prevent the Bank from resorting to any right or
remedy available to it.
3.2. BENEFIT. Guarantor agrees that this Guaranty will inure
to the benefit of and may be enforced by the Bank, its successors and assigns,
any duly authorized agent of the Bank, and any subsequent holder of any
instrument evidencing any of the Obligations, and shall be binding on and
enforceable against Guarantor, its successors and assigns.
3.3. WAIVER OF NOTICE, EVENT OF DEFAULT UNDER THE AGREEMENT,
ETC. Guarantor waives notice of any Default or Event of Default under the
Agreement and presentment, protest, notice of dishonor and demand for payment
of or with respect to any obligation of payment of the Company to the Bank or
any instrument or other writing evidencing or securing any obligation of
payment of the Company to the Bank.
3.4. SUBORDINATION AS TO GUARANTOR. Guarantor hereby
subordinates any and all claims which it now has, or in the future may acquire,
as creditor, employee, or contributor to the capital of the Company, to the
prior payment and performance in full of any and all of the Obligations to the
extent hereinafter set forth in this Section 3.4. If, prior to the payment and
performance of all of the Obligations, upon the occurrence and during the
continuation of a Default or an Event of Default under the Agreement, Guarantor
would, without reference to the provisions of this Section 3.4, be entitled to
receive any payment on account of any claim of Guarantor against the Company,
in insolvency proceedings or otherwise, all such payments shall be made instead
to the Bank until all of the Obligations have been paid and performed in full,
and Guarantor hereby so directs. If, following the occurrence and during the
continuation of a Default or any Event of Default, Guarantor receives any
payment on account of any claim of Guarantor against the Company, Guarantor
shall immediately pay the same over to the Bank to be applied to the payment
and performance of all of the Obligations.
3.5. NO DEFENSE LIMITS GUARANTOR'S OBLIGATIONS. No setoff,
counterclaim, reduction, or diminution of any obligation, or any other defense
of any kind or nature (excepting payment or performance in fact) which
Guarantor has or may have against the Bank shall limit or in any way affect
Guarantor's obligations under this Guaranty.
3.6. WAIVER OF RIGHTS TO SUBROGATION AND REIMBURSEMENT.
Guarantor hereby waives any right of subrogation to the rights of the Bank
against the Company, any right of reimbursement by the Company or any other
right of recovery that Guarantor may have against the Company if Guarantor
makes any payment under this Guaranty. Guarantor hereby represents and
warrants that it has not received any promissory note from the Company or
entered into any other written or oral agreement with the Company to the effect
that Guarantor will be reimbursed
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by the Company if Guarantor makes any payments under this Guaranty and has not
received any property of the Company as security for any such reimbursement.
Guarantor hereby covenants and agrees that Guarantor will not, at any time,
accept any promissory note or enter into any written or oral agreement with the
Company which has the effect of reimbursing Guarantor for any payments that it
may make under this Guaranty, accept any property of the Company as security
for any such reimbursement, or make any claim for reimbursement or that
Guarantor should be subrogated to the rights of the Bank against the Company.
The waivers, representations, warranties, covenants and agreements contained in
this paragraph are for the benefit of and may be enforced by the Bank and the
Company and their respective successors and assigns, including (without
limitation) any trustee in bankruptcy of the Company.
3.7. WAIVER OF NOTICE OF ACCEPTANCE. Guarantor hereby
expressly waives notice from the Bank of its acceptance of and reliance upon
this Guaranty, and of any future creation, renewal or accrual of any of the
Obligations, and any and every obligation of payment and performance of the
Company to the Bank shall conclusively be presumed to have been created,
contracted or incurred in reliance upon this Guaranty.
3.8. SECURITY. The obligations of the Guarantor hereunder are
secured by a Third Amended and Restated Security Agreement of even date
herewith between the Guarantor and the Bank.
3.9. NEGATIVE PLEDGE. During the term of this Agreement,
Guarantor shall not, without the prior written consent of the Bank:
(a) Create, incur, assume or permit to continue any Lien on
any of its property or assets, whether now owned or hereafter acquired, except
Permitted Liens; nor
(b) Create, incur, assume or suffer to exist any Indebtedness
except (i) Indebtedness represented by the Notes; (ii) Secured Indebtedness
which is secured by Permitted Liens; and (iii) unsecured Indebtedness owed to
Company or another Subsidiary of Company.
SECTION 4. MISCELLANEOUS.
4.1. NOTICES. All notices, requests or other communications
under this Guaranty shall be in writing and shall be deemed to have been
properly given only when faxed or deposited in the United States mail,
registered or certified, postage prepaid, return receipt requested, addressed
as follows:
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To Guarantor:
-------------------------------
155 Hidden Ravines Drive
Powell, Ohio 43065
Attn.: Chief Executive Officer
(614) 548-6541
To the Bank:
Bank One, Columbus, NA
Commercial Loan Department
100 East Broad Street
Columbus, Ohio 43271-0121
(614) 248-5518
Any party may, by notice given under this Section 4.1, designate a different
address for it than the one specified above.
4.2. AGREEMENT TO PAY ATTORNEYS' FEES AND EXPENSES. If the
Company should fail in the payment or performance of any of the Obligations and
the Bank or any Person participating in the Loans pursuant to Section 9 of the
Loan Agreement employs attorneys or incurs other expenses for the enforcement
of performance or observance by Guarantor of any of the Obligations or any
obligation or agreement on the part of Guarantor contained in this Guaranty,
Guarantor shall, on demand therefor, reimburse the reasonable fees of such
attorneys and such other expenses so incurred by the Bank or such participating
Person.
4.3. WAIVER. No delay on the part of the Bank in exercising
any of its options, powers or rights under this Guaranty, or any partial or
single exercise thereof, shall constitute a waiver thereof. No waiver of any
of the respective rights or obligations of the Bank under this Guaranty, and no
modification or amendment of this Guaranty, will be deemed to be effective
unless the same shall be in writing, duly signed on behalf of the Bank and
Guarantor. Each waiver, if any, will apply only with respect to the specific
instance and for the specific purpose given, and will in no way impair the
rights of the Bank or the obligations of Guarantor to the Bank in any respect
at any other time. No notice to or demand on Guarantor in any case will
entitle Guarantor to any other or further notice or demand in similar or other
circumstances.
4.4. AMENDMENT. This Guaranty shall not be or be deemed to be
amended, modified or limited orally or by any course of conduct or dealing or
any manner other than by a writing signed by the party against which such
amendment, modification or limitation is sought to be charged. This Guaranty
is made in the State of Ohio and is to be construed in accordance with and the
rights of the parties hereunder are to be governed by Ohio law.
4.5. NO RELEASE. The provisions of this Guaranty
notwithstanding, no rights or privileges of the Bank under the Agreement or any
other agreement, document or instrument
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<PAGE> 93
pursuant to which the Company is obligated to the Bank shall in any way be
diminished or released by this Guaranty.
4.6. SEVERABILITY. In case any clause, provision or section of
this Guaranty, or any covenant, stipulation, obligation, agreement, act, or
action, or part thereof, made, assumed, entered into, or taken under this
Guaranty, or any application thereof, is for any reason held to be illegal,
invalid or inoperable, such illegality, invalidity, or inoperability shall not
affect the remainder thereof or any other clause, provision or section or any
other covenant, stipulation, obligation, agreement, act or action or part
thereof, made, assumed, entered into, or taken thereunder, which shall at the
time be construed and enforced as if such illegal or invalid or inoperable
portion were not contained therein, nor shall such illegality or invalidity or
inoperability or any application thereof affect any legal and valid and
operable application thereof, from time to time, and each such clause,
provision or section, covenant, stipulation, obligation, agreement, act, or
action, or part thereof shall be deemed to be effective, operative, made,
entered into or taken in the manner and to the full extent from time to time
permitted by law.
4.7. CAPTIONS. The captions or headings in this Guaranty are
for convenience only and in no way define, limit or describe the scope or
intent of any provision or section of this Guaranty.
4.8. ENTIRE AGREEMENT. This Guaranty sets forth the entire
understanding of the parties and supersedes any and all prior agreements,
arrangements, and understandings relating to the subject matter of this
Guaranty.
4.9. SEPARATE INSTRUMENT. This Guaranty constitutes a separate
instrument, enforceable in accordance with its terms, and neither this Guaranty
nor the obligations of Guarantor under this Guaranty shall, under any
circumstance or in any legal proceedings, be deemed to have merged into or with
any other agreement or obligation of Guarantor.
4.10. JOINT PREPARATION. This Guaranty is to be deemed to have
been prepared jointly by the Guarantor and the Bank, and any uncertainty or
ambiguity existing herein shall not be interpreted against either party, but
shall be interpreted according to the rules for the interpretation of arm's
length agreements.
4.11. THIRD PARTIES. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give any Person other than the
parties hereto and their successors or assigns, any rights or remedies under or
by reason of this Guaranty.
4.12. GOVERNING LAW. This Guaranty shall be governed and
construed by the provisions hereof and in accordance with the laws of the State
of Ohio applicable to instruments to be performed in the State of Ohio.
4.13. CONSENT TO JURISDICTION; SERVICE. As a specifically
bargained inducement for the transactions set forth herein, the Guarantor
specifically agrees that any action, suit or proceeding in respect of or
arising from or out of this Guaranty, its validity or performance, shall
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<PAGE> 94
be initiated and prosecuted as to all parties and their successors and assigns
at Columbus, Ohio except to the extent that such exclusive jurisdiction would
be inconsistent with the Bank's exercise of its rights under Section 4.15
hereof. The parties hereto consent to and submit to the exercise of
jurisdiction over their person by any court situated at Columbus, Ohio,
including without limitation the United States District Court for the Southern
District of Ohio and having jurisdiction over the subject matter hereof and the
Guarantor, hereby irrevocably appoints and designates ____________________, its
current agent for service of process in the State of Ohio (the "Agent"), as its
true and lawful attorney in fact and duly authorized agent for service of legal
process and agrees that service of such process upon such attorney in fact
shall constitute personal service of such process upon such party. The
Guarantor hereby agrees to maintain the Agent as its statutory agent for
service of process in the State of Ohio during the term of this Guaranty.
4.14. WAIVER OF JURY TRIAL. THE BANK AND THE GUARANTOR HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE GUARANTOR ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE
GUARANTOR AND THE BANK IN CONNECTION WITH THIS GUARANTY, THE LOAN AGREEMENT, OR
ANY OTHER AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS PROVISION IS A
MATERIAL INDUCEMENT TO THE BANK TO ENTER INTO THE FINANCING TRANSACTIONS WITH
THE COMPANY. IT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE
BANK'S ABILITY TO PURSUE ITS REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN THIS GUARANTY, THE
LOAN AGREEMENT OR ANY OTHER DOCUMENT RELATED HERETO OR THERETO.
4.15. CONFESSION OF JUDGMENT. Guarantor hereby authorizes any
attorney at law to appear for it, in an action on this Guaranty, as herein
provided, in any court of record in or of the State of Ohio, or elsewhere, to
waive the issuing and service of process against Guarantor and to confess
judgment in favor of the holder of the Guaranty against Guarantor for the
amount that may be due, with interest at the default rate provided for in the
Agreement and costs of suit, and to waive and release all errors in said
proceedings and judgment, and all petitions in error, and right of appeal from
the judgment rendered.
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<PAGE> 95
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the ___ day of
November, 1995.
_________________________________________________________
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A
COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED
TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY
HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS,
FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
________________________________________________________
[**SUBSIDIARY**]
By:_____________________________________
Its:____________________________________
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<PAGE> 96
EXHIBIT 4.1(e)
[SUBSIDIARY] SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of the 13th day of November, 1995
(collectively with the exhibits attached hereto, the "Agreement") is between
________________, a Delaware corporation (the "Company"), and BANK ONE,
COLUMBUS, NA (the "Bank") under that certain Third Amended and Restated
Revolving Credit and Term Loan Agreement dated of even date herewith between
Drug Emporium, Inc., a Delaware corporation (the "Borrower") and the Bank (the
"Loan Agreement") and amends and restates in its entirety that certain Second
Amended and Restated Security Agreement dated as of May 12, 1995 between the
Company and the Bank. The parties agree as follows:
Section 1. Definitions.
1.1. Additional Definitions. In addition to the terms defined
elsewhere in this Agreement or the Loan Agreement, the following terms have the
following meanings:
"Account" means and includes all accounts (whether or not earned by
performance), contract rights, chattel paper, instruments, documents, general
intangibles (including, without limitation, general customer lists,
prescription lists, prescription files containing the names and addresses of
prescription customers and the prescription histories of such customers, tax
refunds, tax refund claims, patents, trademarks, trade names, good will, blue
prints and drawings relating thereto) and all other forms of obligations owing
to the Company, whether secured or unsecured, whether now existing or hereafter
created, and whether or not specifically assigned to the Bank under this
Agreement, all guarantees and other security therefor, all merchandise returned
to or repossessed by the Company, and all rights of stoppage in transit and all
other rights and remedies of an unpaid vendor, lienor or secured party.
"Collateral" means and includes all Accounts, Equipment, Inventory, all
property now or at any time hereafter in the Bank's possession (including
claims and credit balances), and all other property in which the Company at any
time grants a Lien to the Bank pursuant to the Loan Documents or otherwise,
whether now existing or hereafter acquired or arising, together with (a) all
books, records, ledger cards and other property pertaining to any of the
foregoing, and any equipment on which any such items are stored or maintained
and (b) all products and proceeds of any of the foregoing, and all insurance
proceeds related to any of the foregoing, including, without limitation, any
claims against third parties for loss or damage to or destruction of any or all
of the foregoing and any cash, negotiable instruments and other instruments of
money, chattel paper, security agreements or other documents.
"Collateral Location" means each of the locations listed on the
Collateral Locations Exhibit, attached hereto and made a part hereof, and such
other locations as may be established as such pursuant to this Agreement.
<PAGE> 97
"Customer" means any Person who is obligated as an account debtor or
other obligor on, under, or in connection with, any Account.
"Default" means any Event of Default and any event, condition or
circumstance which, with the giving of notice or lapse of time, or both, may
become an Event of Default.
"Equipment" means and includes all equipment, furniture and fixtures
used in the business of the Company or located at any Collateral Location,
whether now owned or hereafter acquired, and all documents of title or other
documents representing the foregoing. The term "Equipment" shall include
computers, modems, printers, software, and related Equipment, media and data
necessary to run software owned or used by the Company to keep track of its
Inventory or Accounts.
"Event of Default" means any of the events specified in Section 8 of the
Loan Agreement as an Event of Default, provided that any requirement for the
giving of notice or lapse of time has been satisfied in connection with such
event.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with the accounting principles reflected in the financial statements
furnished to the Bank under, and which comply with the requirements of, the
Loan Agreement.
"Inventory" means all raw materials, work in process, finished goods and
materials and supplies of any kind, nature or description which are or might be
used or consumed in the business of the Company or used in connection with the
manufacturing, packing, shipping, advertising, selling or finishing of such
goods, merchandise and other personal property, and all goods, merchandise and
other personal property wherever located, to be furnished by the Company under
any contract or contract for service or held for sale or lease, whether now
owned or hereafter acquired, and all documents of title or other documents
representing the foregoing.
"Junior Obligations" means those Obligations of the Borrower or any
Subsidiary to the Bank defined by item (e) of the definition of the term
"Obligations," as such term is defined in this Section 1.1.
"Loan Documents" means this Agreement, the Loan Agreement and all other
instruments or agreements required or contemplated hereby or thereby.
"Obligations" means (a) the obligations of the Borrower or any
Subsidiary to the Bank under this Agreement or any of the Loan Documents, (b)
the obligations of the Borrower or any Subsidiary to the Bank under any other
instrument or agreement required or contemplated hereby or thereby, (c) all
costs and expenses incurred by the Bank or any participating Persons, as such
Persons are contemplated by Section 9 of the Loan Agreement, in the collection
or the enforcement of any such obligations of the Borrower, or realization upon
the Collateral, including without limitation reasonable attorneys' fees and
legal expenses, (d) all future advances made by the Bank for the maintenance,
protection or preservation of, the Collateral or any portion thereof, including
without limitation advances for storage, insurance premiums, transportation
charges,
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<PAGE> 98
and the like and (e) all other obligations of the Borrower to the Bank,
howsoever created, arising, or evidenced, whether direct or indirect, absolute
or contingent, or now or hereafter existing or due or to become due.
"Requirement of Law" means, for any Person, any term, condition, or
provision of any law, rule, judgment, regulation, order, writ, injunction or
decree of any court or government, domestic or foreign and any ruling of any
arbitrator to which such Person is a party or by which such Person or any of
its assets or property is bound or affected or from which such Person derives
benefits, and, if such Person is a corporation, its charter documents and
bylaws.
"Senior Obligations" means those Obligations of the Borrower or any
Subsidiary to the Bank defined by items (a), (b), (c) or (d) of the definition
of the term "Obligations,"as such term is defined in this Section 1.1.
"UCC" means Chapters 1301 through 1309 of the Ohio Revised Code as in
effect on the date of this Agreement and as the same may be supplemented or
amended from time to time hereafter.
1.2. Rules of Construction. All accounting terms used in this
Agreement not otherwise specifically defined in this Agreement shall be
construed in accordance with GAAP. Any capitalized term not defined herein but
defined in the Loan Agreement shall be construed in accordance with the
definition of such term as set forth in the Loan Agreement. Any other term not
specifically defined in this Agreement or the Loan Agreement shall be construed
in accordance with the meaning for such terms under the UCC. The meaning of
any defined term used in this Agreement shall apply equally to the singular,
plural and other forms of the term defined.
Section 2. Grant of Security Interest.
2.1. Lien. As security for the full and timely payment or
performance of the Obligations in accordance with the terms thereof, the
Company agrees that the Bank shall have, and there is hereby granted to and
created in favor of the Bank, a Lien under the UCC, and otherwise in accordance
with applicable law, in and to the Collateral. The Lien created hereunder
shall be prior in interest to any other Lien affecting the Collateral. The
Lien created hereunder shall be and remain in full force and effect until all
of the Obligations shall have been paid and discharged in full and otherwise
satisfied and the Borrower shall no longer have any right to request any Loans
under the Loan Agreement. Notwithstanding any thing contained in this Section
2.1, all Liens created hereunder which secure Senior Obligations shall be prior
in interest to all Liens created hereunder which secure Junior Obligations.
2.2. Collateral. As an inducement to enter into this Agreement
and the Loan Agreement, the Company is hereby granting to the Bank a security
interest in, among other assets, its Accounts, Equipment and Inventory. The
Company understands that the Bank would not have entered into this Agreement or
the Loan Agreement if the Company was not granting a security interest to the
Bank in Accounts, Equipment and Inventory and that the indubitable equivalent
of any Lien in favor of the Bank against Accounts, Equipment and Inventory is
not provided to the
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<PAGE> 99
Bank by the substitution therefor of a Lien against real estate or any other
asset which is not as quickly convertible into cash as Accounts, Equipment or
Inventory.
Section 3. Representations and Warranties. The Company hereby
represents and warrants to the Bank that:
3.1. Title to Collateral. The Company has good, indefeasible
and marketable title to all the Collateral free of all Liens other than those
granted hereby, except for Liens of landlords under state statutes or Liens
permitted under the Loan Agreement. No financing or continuation statement
which names the Company as debtor has been filed in any state or other
jurisdiction except as provided for herein or as set forth on Schedule 3.1
hereto, and the Company has not agreed or consented to cause or to permit in
the future (upon the happening of a contingency or otherwise) any of the
Collateral, whether now owned or hereafter acquired, to be subject to a Lien.
3.2. Perfection of Lien. The Company has taken or caused to be
taken all actions necessary to establish the Bank's Lien in the Collateral as a
valid, enforceable and perfected Lien, first and prior to all other Liens
except Liens permitted under the Loan Agreement.
3.3. Books and Records; Chief Executive Office. All books and
records of the Company concerning the Collateral are accurate, complete and
maintained in accordance with GAAP. The Collateral Locations Exhibit correctly
sets forth the address of (a) the chief executive office, registered office and
principal place of business of the Company, (b) any plant or division of the
Company maintaining a separate principal place of business, registered office
or chief executive office, (c) all other places of business of the Company and
the location of all Collateral and (d) the name and business address of each
landlord and mortgagee with any interest in any Collateral Location. The only
original books of account and records of the Company relating to any Accounts
of the Company are, and will continue to be, kept at the offices of the Company
set forth on the Collateral Locations Exhibit opposite the name of the division
or the plant of the Company where such Accounts originated. The only locations
at which Equipment and Inventory are located are set forth on the Collateral
Locations Exhibit opposite the name of the division or the plant of the Company
or other location where such Equipment and Inventory are located.
3.4. Accounts. The Accounts arose out of bona fide sales or
services, are collectible in the ordinary course of business and are not
disputed or subject to offset.
Section 4. Affirmative Covenants. On and after the date of this
Agreement and until all of the Obligations shall have been paid and discharged
in full or otherwise satisfied and the Company shall no longer have any right
to request any Loans under the Loan Agreement:
4.1. Insurance. The Company shall at all times: (a) maintain
or cause to be maintained insurance upon the Collateral with responsible and
reputable insurers of such character and in such amounts as are usually
maintained by Persons engaged in a like business; (b) furnish to the Bank,
prior to the execution of this Agreement and annually thereafter certificates
of
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<PAGE> 100
insurance with respect to all insurance policies required to be maintained
hereunder, in form and detail satisfactory to the Bank; (c) require each policy
of insurance to contain a provision whereby it cannot be canceled, amended or
modified except after 30 days' prior written notice to the Bank; (d) require
each policy of insurance covering any of the Collateral to be written or
endorsed so as to make losses, if any, payable to the Bank, in addition to the
Company; and (e) require each policy of insurance covering any of the
Collateral to contain an agreement by the insurer that any loss shall be
payable to the Bank notwithstanding any act or negligence of the Company which
might otherwise result in forfeiture of said insurance. If the Company fails
to pay or cause to be paid the premium on any such insurance, the Bank may, in
its sole discretion, do so for the account of the Company, add the cost thereof
to the Obligations and be reimbursed by the Company therefor on demand.
4.2. Notice of Default. If any Default or Event of Default
occurs, the Company shall give prompt notice of such happening to the Bank.
4.3. Inspection. The Company shall permit any Person
designated by the Bank to enter, examine, audit and inspect the Collateral and
all properties, corporate books and financial records pertaining to the
Collateral, or the operation, business, affairs and financial condition of the
Company at any reasonable time and from time to time, and shall permit such
Persons to copy and make excerpts of such books and records.
4.4. Sale of Inventory. Notwithstanding the security interest
in the Collateral granted hereunder, the Company shall have the right to sell,
lease or otherwise dispose of its Inventory in the ordinary course of its
business, free and clear of such security interest; but, in such event, such
security interest shall continue in the proceeds of such sale, lease or other
disposition.
4.5. Company's Rights to Collect Accounts. Notwithstanding the
security interest in the Accounts granted under this Agreement, the Company
shall endeavor to collect the Accounts at its own cost and expense, until such
time as the Bank shall have notified the Company, pursuant to Section 4.6, that
the Bank has revoked the Company's right to collect the Accounts.
4.6. Collection of Accounts by the Bank. If an Event of
Default shall have occurred, the Bank shall have the right at any time and
without affecting the liability of the Company to the Bank (a) to revoke any
right of the Company to collect its Accounts, pursuant to Section 4.5, by
written notice to the Company to such effect, (b) to take over and direct
collection of the Accounts of the Company, (c) to give notice of the security
interest of the Bank in the Accounts to any or all of the Customers, (d) to
give notice to the Customers to make payment of the Accounts directly to the
Bank (and, at the request of the Bank, the Company shall indicate on all
billings to Customers that payments thereon are to be made to the Bank), and
(e) to take control of the Accounts of the Company and the Proceeds thereof,
and to take possession of all of the Company's books and records relating
thereto, with full power and authority in the name of the Bank or of the
Company to enforce, collect, sue for, receive, compromise, settle and give
receipts for any and all of the Accounts. If any Account becomes evidenced by
a promissory
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note, trade acceptance, chattel paper or other writing or instrument for the
payment of money, and there is at the time a Default, the Company shall, at the
request of the Bank, promptly deliver any such instrument to the Bank duly
endorsed to the order of the Bank as additional Collateral under this
Agreement. It is understood and agreed by the Company that the Bank shall have
no liability whatsoever to the Company under this Section 4.6.
4.7. Account Verification. The Bank may at any time, without
notice to the Company, verify with any Customer the status of any Account
payable by such Customer; provided, however, that, prior to the occurrence of
an Event of Default, no request for verification shall be made in the name of
the Bank, nor shall the Bank disclose the purpose of such request. The Company
from time to time will execute and deliver such instruments and take all such
action as the Bank may reasonably request in order to effectuate the purpose of
this Section 4.7.
4.8. Preservation and Protection of Security Interests. The
Company shall faithfully preserve and protect the Bank's security interest in
the Collateral and shall, at its own cost and expense, cause such security
interest to be perfected and continue perfected so long as the Obligations or
any portion thereof are outstanding and unpaid, and for such purpose the
Company shall from time to time at the request of the Bank file or record, or
cause to be filed or recorded, such instruments, documents and notices,
including without limitation financing and continuation statements, as the Bank
may deem necessary or advisable from time to time in order to preserve, perfect
and continue perfected said security interest. The Company shall do all such
other acts and things and shall execute and deliver all such other instruments
and documents, including without limitation further security agreements,
pledges, endorsements, assignments and notices, as the Bank may deem necessary
or advisable from time to time in order to perfect and preserve the priority of
said security interest as a perfected first Lien in the Collateral prior to the
rights of any other secured party or lien creditor. The Bank, and its
officers, employees and authorized agents, or any of them, are hereby
irrevocably appointed the attorneys-in-fact of the Company to do all acts and
things which the Bank may deem necessary or advisable to preserve, perfect and
continue perfected the Bank's security interest in the Collateral, including
without limitation the signing of financing, continuation or other similar
statements and notices on behalf of the Company.
4.9. Maintenance of Collateral. The Company shall (a) from
time to time replace and repair all parts of the Collateral which are or become
worn, broken, damaged, or deteriorated, maintain the Collateral now or
hereafter owned or acquired by it, and every part thereof, in good working
order and repair and pay the costs of such repairs, replacements, and
maintenance as well as any costs of storing the same; and (b) pay and discharge
all taxes, assessments, fees, and other governmental charges or levies imposed
upon it or any of the Collateral as well as all lawful claims of materialmen,
mechanics, carriers, warehousemen, landlords and other similar Persons for
labor, materials, supplies and rentals which, if unpaid, might by law become a
Lien on the Collateral or any part thereof. If the Company fails to make any
payments it is required to make under this Section 4.9, the Bank may do so for
the account of the Company and may add the amount of such payments to the
Obligations.
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4.10. Inventory. The Company shall maintain the Inventory in
good condition, salable at the Company's normal prices in the ordinary course
of its business.
4.11. New Stores. Prior to the opening of any retail store not
presently operated by the Company, the Company shall give written notice to the
Bank and shall perform such acts as may be necessary or advisable to grant to
the Bank a perfected Lien, subject to no other Liens other than Liens permitted
under the Loan Agreement, in the Collateral located or to be located in such
new retail store.
4.12. Annual Certificate. The Company shall furnish to the
Bank within 45 days after the close of each fiscal year, a certificate of the
chief financial officer or controller of the Company certifying that he has
reviewed the locations where the Equipment and Inventory are located and that
appropriate filings have been made for the Company and each Subsidiary so that
the Bank continues to have a perfected Lien hereunder, subject to no other Lien
other than Liens permitted under the Loan Agreement.
4.13. Removal of the Equipment.
4.13.1. If no Event of Default shall have occurred, in
any instance where the Company in its discretion determines that any items of
the Equipment have become inadequate, obsolete, worn out, unsuitable,
undesirable or unnecessary, Company may remove such items of the Equipment from
any Collateral Location and sell, trade-in, exchange or otherwise dispose of
them (as a whole or in part) without any responsibility or accountability to
Bank, provided, however that Company shall either:
(a) Substitute and install anywhere on such
Collateral Location other machinery, furnishing, equipment or related property
having equal or greater value (but not necessarily having the same function) in
the operation of its business for the purpose for which it is intended;
provided, further, however such removal and substitution shall not be out of
the ordinary course of business, all of which substituted machinery,
furnishings, Equipment or related property shall be free of all liens (other
than Permitted Liens) and shall become a part of the Collateral; or
(b) Not make any such substitution and
installation; provided, further, however that in the case of (i) the sale of
any such Equipment to anyone other than itself or the scrapping thereof, or
(ii) the trade-in of such Equipment for other machinery on such Collateral
Location, Company shall use the proceeds of such sale for the reduction of the
Obligations.
4.13.2. Company shall promptly report to Bank each
removal, substitution, sale or other disposition of Equipment described in
Section 4.13.1 above and shall pay to Bank such amounts as are required by the
provisions of Section 4.13.1 (b) promptly after the sale, trade-in or other
disposition requiring such payment. Company shall not remove, or permit the
removal of, any of the Equipment from any Collateral Location except in
accordance with the provisions of this Section 4.13.
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4.13.3. Upon compliance with this Section 4.13, Bank
agrees to deliver any releases reasonably deemed necessary by Company with
respect to the removal of such Equipment.
Section 5. Negative Covenants. On and after the date of this Agreement
and until all of the Obligations shall have been paid and discharged in full or
otherwise satisfied and the Borrower shall no longer have the right to request
Loans under the Loan Agreement:
5.1. Liens. The Company shall not create, assume, incur or
suffer to exist or agree or consent to cause or permit in the future (upon the
happening of a contingency or otherwise) to be created, assumed, incurred or to
exist any Lien upon any of the Collateral (other than Permitted Liens) except
with the prior written consent of the Bank to each such Lien.
5.2. Negative Pledge. Except as permitted by the Loan
Agreement, the Company shall not, without the prior written consent of the
Bank, (a) sell, assign, or transfer any of its right, title and interest in the
Collateral, except the Company may sell Inventory in the ordinary course of
business pursuant to Section 4.4, (b) permit any levy or attachment to be made
against any of the Collateral, or (c) file any financing statement with respect
to any of the Collateral, except financing statements in favor of the Bank.
5.3. Corporate Name. The Company shall not change its
corporate name unless, before the effective date of such change, the Company
delivers to the Bank such financing statements executed by the Company that the
Bank may request to reflect such name change, together with such other
documents and instruments that the Bank may request in connection with such
name change. The Company shall not hold its right, title or interest in, nor
maintain its records relating to, any Collateral in any name other than its
corporate name.
5.4. Change of Locations. The Company shall not change any of
the Collateral Locations unless, before the effective date of such change, (a)
the Company shall have given to the Bank 10 days prior written notice of its
intention to so change any such Collateral Location, clearly describing each
such new Collateral Location and providing any other information in connection
therewith that the Bank may reasonably request and (b) with respect to each
such new Collateral Location, it shall have taken such action, satisfactory to
the Bank (including, without limitation, the execution and delivery to the Bank
of such financing statements executed by the Company that the Bank may request
to reflect such change in Collateral Location together with such other
documents and instruments that the Bank may request in connection with such
change), as may be necessary to maintain the security interest of the Bank in
the Collateral at all times fully perfected and in full force and effect.
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Section 6. Application of Moneys.
6.1. Payments. Except as otherwise provided herein, all monies
which the Bank shall receive either upon realization of the Lien granted
hereunder or otherwise may be applied by or at the direction of the Bank as
follows:
6.l.1. First, to the payment or reimbursement of all
reasonable advances, expenses and disbursements of the Bank (including, without
limitation, the fees and disbursements of its counsel and agents) incurred in
connection with the administration and enforcement of, or the preservation of
any rights under, this Agreement or the Loan Documents or in the collection of
the Obligations.
6.1.2. Second, to the payment of the then existing
Senior Obligations, matured and unmatured, in such order and in such manner as
the Bank may elect.
6.1.3. Third, to the payment of the then existing
Junior Obligations, matured and unmatured, in such order and in such manner as
the Bank may elect.
6.1.4. Fourth, after discharge and repayment of all of
the Obligations, any remaining funds shall be paid by the Bank to the Borrower.
6.2. Reserved Rights. The Bank shall have the continuing and
exclusive right to apply or reverse and re-apply any and all payments to any
portion of the Obligations. To the extent that the Borrower makes a payment or
payments to the Bank or the Bank receives any payment or proceeds of the
Collateral for the Borrower's benefit, which payment(s) or proceeds or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party under any bankruptcy act, state or federal law, common law or
equitable cause, then, to the extent of such payment or proceeds received, the
Obligations or the part thereof intended to be satisfied shall be revived and
continue in full force and effect as if such payment or proceeds had not been
received by the Bank.
Section 7. Events of Default and Remedies.
7.1. Rights on Event of Default.
7.1.1. Upon the occurrence of any Event of Default,
the Bank shall have the right, upon notice to the Company, (except that upon
the occurrence of an Event of Default under Section 8(h) or 8(i) of the Loan
Agreement, no notice shall be required) to declare the Obligations immediately
due and payable and may, without demand of performance or other demand,
advertisement or notice of any kind to or upon the Company or any other Person
(all and each of which demands, advertisements and/or notices are hereby
expressly waived), forthwith exercise such rights and remedies as are provided
by the UCC and such other rights and remedies in respect thereof as it may have
at law or in equity or under any of the Loan Documents, including without
limitation the right to enter any premises where any of the Collateral is
located and take
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<PAGE> 105
possession of the same without demand or notice and without prior judicial
hearing or legal proceedings, which the Company hereby expressly waives, and to
sell all or any portion of the Collateral at public or private sale, without
prior notice to the Company except as otherwise required by law (and, if notice
is required by law, after 10 days prior written notice), at such place or
places and at such time or times and in such manner and upon such terms,
whether for cash or on credit, as the Bank in its sole discretion may
determine. Upon any such sale of any of the Collateral, the Bank may purchase
all or any of the Collateral being sold, free from any equity or right of
redemption. The Bank shall apply the proceeds of any such sale as provided in
Section 6. If such proceeds are insufficient to pay the amounts required by
law, the Company shall be liable for any deficiency in the amount so realized
from the Collateral.
7.1.2. The Company shall promptly pay or reimburse all
costs and expenses of the Bank and any participating Persons, as such Persons
are contemplated by Section 9 of the Loan Agreement, including, but not limited
to, attorneys' fees, incurred with respect to the enforcement or preservation
of any of the Bank's rights hereunder.
7.1.3. Except as otherwise provided in this Agreement,
the Company hereby waives presentment, demand, protest or any notice (to the
extent permitted by applicable law) of any kind in connection with this
Agreement or any Collateral.
7.1.4. The Bank shall not incur any liability as a
result of the sale of any Collateral, or any part thereof, at any private sale
conducted in a commercially reasonable manner, in compliance with any
applicable law. The Company hereby waives any claims against the Bank arising
by reason of the fact that the price at which any of the Collateral may have
been sold at such a private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount of the
Obligations, even if the Bank accepts the first offer received and does not
offer any Collateral to more than one offeree, provided that the Bank has acted
in a commercially reasonable manner in conducting such private sale.
7.1.5. Upon any sale of all or any part of any
Collateral made either under the power of sale given hereunder or under
judgment or decree in any judicial proceedings for foreclosure or otherwise for
the enforcement of this Agreement, the Bank is hereby irrevocably appointed the
true and lawful attorney of the Company, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment, and transfer or
conveyance of the property thus sold. For that purpose, the Bank may execute
all such documents and instruments. This power of attorney shall be deemed
coupled with an interest, and the Company hereby ratifies and confirms all that
its said attorney, or its substitute or substitutes, shall lawfully do by
virtue of this Agreement. If so requested by the Bank or by any purchaser of
the Collateral or a portion thereof, the Company shall further ratify and
confirm any such sale or transfer by executing and delivering to the Bank or to
such purchaser or purchasers at the Company's expense all reasonable and proper
deeds, bills of sale, instruments of assignment, conveyance or transfer and
releases as may be designated in any such request.
7.1.6. When authorized in accordance with this Section
7.1, the Bank may proceed to realize upon the security interest in the
Collateral against any one or more of the types
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of Collateral, at any one time or from time to time, as the Bank shall
determine in its sole discretion, subject to the provisions of this Section
7.1. The Bank shall not be required to realize upon any one type of Collateral
before proceeding to realize upon the security interest granted in any other
type of Collateral. The proceeds of any sale of, or other realization upon, or
other receipt from, all or any Collateral shall be applied by the Bank in the
manner set forth in Section 6 hereof.
7.2. Remedies Cumulative; Delay or Omission Not a Waiver. To
the extent permitted by law and not otherwise provided to the contrary under
this Agreement, no remedy given hereunder to the Bank shall be exclusive of any
other remedy, and every such remedy shall be cumulative and in addition to
every other remedy given hereunder or now or hereafter given by statute, law,
equity or otherwise to the extent not contrary to or inconsistent with the
terms of this Agreement. The Bank may, in its absolute discretion, exercise
all or any of the powers, rights or remedies given to it hereunder or which may
be now or hereafter given by statute, law or equity or otherwise. No course of
dealing between the Company and the Bank or any delay or omission of the Bank
to exercise any right, remedy or power accruing upon any Default or Event of
Default shall impair any right, remedy or power or shall be construed to be a
waiver of any such Default or Event of Default or of any right of the Bank or
acquiescence therein, and every right, remedy and power given by this Agreement
to the Bank may, to the extent permitted by law, be exercised from time to time
and as often as may be deemed expedient by the Bank.
7.3. Assembling of Collateral. Upon the occurrence of any
Default, the Company, upon demand by the Bank, shall promptly assemble the
Collateral, or any part thereof designated by the Bank, and make it available
to the Bank at a place to be designated by the Bank which shall be reasonably
convenient to the Bank and the Company. The right of the Bank under this
Section 7.3 to have the Collateral assembled and made available to it is of the
essence of this Agreement and the Bank may, at its election, enforce such right
by an action for specific performance.
7.4. No Requirement to Marshal Collateral. The Company, to the
extent that it has any right, title or interest in any of the Collateral,
waives and releases any right to require the Bank to collect any of the
Obligations from any portion of the Collateral under any theory of marshaling
of assets, or otherwise, and specifically authorizes the Bank to apply any of
its Collateral against any of the Obligations in any manner that the Bank may
determine.
Section 8. Termination of Agreement. Upon the last to occur of (a)
satisfaction of all obligations of the Company under this Agreement, (b)
payment of all of the Obligations, (c) termination of the Commitment, (d)
termination of all outstanding Letters of Credit or (e) payment in full of the
Notes, this Agreement and the estate and rights hereby granted by the Company
in the Collateral shall automatically cease, terminate and be void
simultaneously therewith. Any of the Collateral remaining at the time of such
termination shall be fully released and discharged from the Lien hereof and
delivered to the Company by the Bank, and this Agreement shall thereupon be
released by the Bank, all at the expense of the Company.
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<PAGE> 107
Section 9. Miscellaneous.
9.1. Expenses. All fees, costs or expenses, including
reasonable fees and expenses of outside legal counsel, incurred by the Bank or
any participating Persons, as such Persons are contemplated by Section 9 of the
Loan Agreement, in connection with either the preparation, administration,
amendment, modification or enforcement of this Agreement or any other
instruments, documents, or agreements to be delivered pursuant thereto
(including, without limitation, (a) all expenses incurred in obtaining all
necessary judicial and other approvals of the transactions contemplated hereby,
(b) all expenses incurred in conducting any examinations or appraisals which
the Bank, in its sole discretion, deems necessary or appropriate, (c) all
expenses incurred in assigning or otherwise transferring control of post office
boxes to the Bank or (d) out-of-pocket collateral administration expenses)
shall be paid by the Company on demand.
9.2. Term of Agreement; Successors and Assigns. This Agreement
and all covenants, agreements, representations and warranties made herein and
in the certificates delivered pursuant hereto shall survive the execution and
delivery hereof and shall continue in full force and effect until the
termination of this Agreement as set forth in Section 8. Whenever in this
Agreement either of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
terms and provisions of this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective permitted successors and
assigns. The Company may not assign its rights or obligations hereunder
without the prior consent of the Bank. The Bank may assign all or any of its
rights or obligations hereunder without the prior consent of the Company.
9.3. Notices. Notices, demands and communications shall be
deemed to have been properly given to the Company only when faxed to (614)
548-6541 or when made in writing and deposited in the United States mail,
registered or certified, postage prepaid, and addressed to the Company at 155
Hidden Ravines Drive, Powell, Ohio 43065, Attention: Chief Executive Officer,
whether or not the same are actually received by the Company. Any
communication to the Bank shall be deemed properly given if faxed to (614)
248-5518 or similarly mailed and addressed to the Bank at Commercial Loan
Department, 100 East Broad Street, Columbus, Ohio 43271-0121.
9.4. No Implied Waivers. No delay on the part of the Bank in
exercising any right, power or privilege granted hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof. The rights
and remedies herein expressly specified are cumulative and not exclusive of any
other rights and remedies which the Bank would otherwise have.
9.5. Amendments, Modifications, Etc. No amendment,
modification, termination, or waiver of any provision of this Agreement nor
consent to any departure by the Company therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Bank, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No notice or demand on the Company in
any case shall entitle the Company to any other or further notice or demand in
similar or other circumstances.
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<PAGE> 108
9.6. Applicable Law. This Agreement shall be deemed to be a
contract made under the laws of the State of Ohio, and for all purposes shall
be construed in accordance with the laws of such state.
9.7. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
9.8. Counterparts. This Agreement may be signed in any number
of counterparts with the same effect as if the signatures thereto were upon the
same instrument. Complete sets of counterparts shall be lodged with the
Company and the Bank.
9.9. Merger. This Agreement, the Notes, the Loan Agreement and
the other Loan Documents reflect the entire understanding of the parties with
respect to their subject matter and supersede all prior agreements or
understandings with respect thereto in their entirety.
9.10. Headings. Headings of the sections of this Agreement are
for convenience only and shall not affect the construction of this Agreement.
9.11. Effective Date. This Agreement shall become effective
upon the execution of a counterpart hereof by each of the parties.
9.12. Confession of Judgment. The Company hereby authorizes
any attorney at law to appear for the Company, in an action on this Agreement,
at any time after any obligation hereunder becomes due, as herein provided, in
any court of record in or of the State of Ohio, or elsewhere, to waive the
issuing and service of process against the Company and to confess judgment in
favor of the Bank or the party entitled to the benefits of this Agreement
against the Company for the amount that may be due, with interest at the
default rate provided for in the Loan Documents and costs of suit, and to waive
and release all errors in said proceedings and judgment, and all petitions in
error, and right of appeal from the judgment rendered.
9.13. Consent to Jurisdiction; Service. As a specifically
bargained inducement for the transactions set forth herein, the parties hereto
specifically agree that any action, suit or proceeding in respect of or arising
from or out of this Agreement, its validity or performance, shall be initiated
and prosecuted as to all parties and their successors and assigns at Columbus,
Ohio except to the extent that such exclusive jurisdiction would be
inconsistent with the Bank's exercise of its rights under Section 9.12 hereof.
The parties hereto consent to and submit to the exercise of jurisdiction over
their person by any court situated at Columbus, Ohio, including without
limitation the United States District Court for the Southern District of Ohio
and having jurisdiction over the subject matter hereof and the Company hereby
irrevocably appoints and designates ____________________, its current agent for
service of process in the State of Ohio (the "Agent"), as its true and lawful
attorney in fact and duly authorized agent for service of legal process and
agrees that service of such process upon such attorney in fact shall constitute
personal service of such process upon such party. The Company hereby agrees to
maintain the
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<PAGE> 109
Agent as its statutory agent for service of process in the State of Ohio during
the term of the Agreement.
9.14. WAIVER OF JURY TRIAL. THE BANK AND THE COMPANY HEREBY
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE BANK AND THE COMPANY ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE COMPANY
AND THE BANK IN CONNECTION WITH THIS AGREEMENT, THE LOAN AGREEMENT, OR ANY
OTHER AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR THE TRANSACTIONS RELATED HERETO OR THERETO. THIS PROVISION IS A
MATERIAL INDUCEMENT TO THE BANK TO ENTER INTO THE FINANCING TRANSACTIONS WITH
THE COMPANY. IT SHALL NOT IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY THE
BANK'S ABILITY TO PURSUE ITS REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN THIS AGREEMENT, THE
LOAN AGREEMENT OR ANY OTHER DOCUMENT RELATED HERETO OR THERETO.
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<PAGE> 110
The parties hereto have caused this Agreement to be duly executed by
their respective duly authorized officers as of the day and year first above
written.
BANK ONE, COLUMBUS, NA
By:
--------------------------------
Thomas D. Igoe
Senior Vice President
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A
COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED
TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY
HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS,
FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THIS
AGREEMENT, OR ANY OTHER CAUSE.
[**SUBSIDIARY**]
By:
-------------------------------
David L. Kriegel, President
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<PAGE> 111
COLLATERAL LOCATIONS
EXHIBIT
[**To be prepared by the Company as
anticipated by Section 3.3**]
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<PAGE> 112
EXHIBIT 4.1(k)
FORM OF BORROWER'S COUNSEL'S OPINION
1. The Company and each of its Wholly Owned Subsidiaries are corporations
duly organized, and each other Subsidiary is a corporation duly
incorporated, and the Company and each Subsidiary is validly existing
and in good standing under the laws of the jurisdictions in which
incorporated. The Company and each of its Subsidiaries have all
requisite power and authority, corporate or otherwise, to own or lease
their property and carry on their businesses as and in the places where
such properties are now located, leased or operated or such businesses
are now conducted and the Company has such power and authority to enter
into and perform all of its obligations under the Agreement, the Notes,
the Security Agreement, and the Pledge Agreement. Each Wholly Owned
Subsidiary has all requisite power and authority, corporate or
otherwise, to enter into and perform all of its obligations under its
Subsidiary Guaranty and Subsidiary Security Agreement.
2. The execution, delivery and performance by the Company of the
Agreement, the Notes, the Security Agreement and the Pledge Agreement
has been duly authorized by all necessary corporate action. The
Agreement, the Notes, the Security Agreement and the Pledge Agreement
have been duly executed and delivered by the Company. The Agreement,
the Notes, the Security Agreement and the Pledge Agreement constitute
the legal, valid and binding obligation of the Company, and are
enforceable against the Company in accordance with their terms, subject
as to enforceability to bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and subject to
general principles of equity.
3. The execution, delivery and performance by each of the Wholly Owned
Subsidiaries of its Subsidiary Guaranty and Subsidiary Security
Agreement has been duly authorized by all necessary corporate action.
Each of the Subsidiary Guaranties and Subsidiary Security Agreements
has been duly executed and delivered by the applicable Wholly Owned
Subsidiary. Each of the Subsidiary Guaranties and Subsidiary Security
Agreements constitutes the legal, valid and binding obligation of the
applicable Wholly Owned Subsidiary, and is enforceable against such
Wholly Owned Subsidiary in accordance with its terms, subject as to
enforceability to bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally and subject to
general principles of equity.
4. Each of the Notes issued and delivered to the Bank pursuant to the
provisions of the Agreement (assuming its due execution and delivery)
is a valid, binding and enforceable obligation of the Company in
accordance with its terms, subject as to enforceability to bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally and subject to general principles of
equity.
5. To the best of our knowledge, after due inquiry, neither the Company
nor any of its Subsidiaries is in violation of or in default under any
provision of: its Certificate of
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<PAGE> 113
Incorporation or Bylaws (each as amended to date); any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award presently in effect and having applicability to the Company or
any of its Subsidiaries; or any loan, indenture, credit agreement,
lease or other instrument which violation or default could materially
adversely affect the business, Consolidated financial position or
Consolidated results of operations of the Company and its Subsidiaries.
6. To the best of our knowledge, after due inquiry, the execution,
delivery and performance of the Agreement, the Notes, the Security
Agreement and the Pledge Agreement by the Company and of the Subsidiary
Guaranties and Subsidiary Security Agreements by each of the Wholly
Owned Subsidiaries does not result in a violation of any terms or
conditions of the Certificate of Incorporation or Bylaws of the Company
or any Wholly Owned Subsidiary, or breach any term or provision of, or
constitute a default under, any agreement, note or other agreement to
which the Company or any of its Subsidiaries is a party, which
violation, breach or default could materially adversely affect the
business, Consolidated financial position or Consolidated results of
operations of the Company and its Subsidiaries.
7. To the best of our knowledge, after due inquiry, there is no action,
proceeding or investigation pending or threatened which questions the
validity of the Agreement, the Notes or any of the Loan Documents or
any action taken or to be taken pursuant thereto, or which might
result, either in any case or in the aggregate, in any material and
adverse change in the business, operations, affairs or condition of the
Company or any of its Subsidiaries, their properties and assets or in
any material liability on the part of the Company or any of its
Subsidiaries.
8. All amounts due or to become due to the Bank under the Agreement are
"Senior Indebtedness" as that term is defined in the Indenture. The
Debentures are subordinated and subject in right to the prior payment
in full of all amounts due or to become due to the Bank under the
Agreement to the extent and in the manner set forth in the subsections
of Article Fourteen of the Indenture.
9. Each Note is, or, upon issuance, will be, entitled to the benefits of,
and is secured by valid Liens created by, the Pledge Agreement, the
Security Agreement, the Subsidiary Guaranties and the Subsidiary
Security Agreements.
10. The provisions of the Pledge Agreement, the Security Agreement and the
Subsidiary Security Agreements are effective to create in favor of the
Bank legal, valid and enforceable security interests as between the
parties to those agreements, but specifically excluding any opinion as
to the perfection of those security interests except as provided in
paragraph 11 below, in all right, title, and interest of the Company
and the Wholly Owned Subsidiaries in the Collateral, as defined
therein, and further subject as to enforceability to bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally and subject to general principles of
equity.
-2-
<PAGE> 114
11. Assuming (i) the accuracy and completeness of the list of Store
Locations set forth on attached Exhibit B, and (ii) that, other than
[**Centerline, Inc. as to the State of Delaware and Drug Emporium, Inc.
as to the States of South Carolina, Indiana and New Hampshire**], each
debtor has a place of business in more than one county of each state
listed opposite its respective name on attached Exhibit C, and based
solely upon our review of Ohio law and the CCH Secured Transaction
Guide as to the other jurisdictions, the filing of financing statements
in substantially the form of Exhibit A, with appropriate names of the
debtor inserted therein and appropriate exhibits appended thereto (the
"Financing Statements") with the Secretary of State and County Recorder
(or other comparable official) of the states and counties listed on
attached Exhibit C will be sufficient to perfect the Bank's security
interest described in the Security Agreement and the Subsidiary
Security Agreements in the Collateral as defined therein, and the
delivery to the Bank of the Collateral, as defined in the Pledge
Agreement, is sufficient to perfect the Bank's security interest
described in the Pledge Agreement, except as follows:
(a) in the case of "instruments" [as such term is defined in
Uniform Commercial Code Section 9-105 (1)(i) (Ohio Revised
Code Section 1309.01(A)(9)] not constituting part of "chattel
paper" [as such term is defined in Uniform Commercial Code
Section 9-105(1)(b) (Ohio Revised Code Section 1309.01(A)(2)],
the security interest of the Bank therein cannot be perfected
through the filing of the Financing Statements but will be
perfected if possession thereof is obtained by the Bank;
(b) insofar as the Bank's security interest relates to
after-acquired Collateral, such security interest will be
perfected only when the Company or a Subsidiary acquires
rights in such Collateral;
(c) the effectiveness of the Financing Statements terminates five
years after the date of filing, unless a continuation
statement is filed prior to such termination in accordance
with Uniform Commercial Code Section 9-403(2)-(3) [Ohio
Revised Code Section 1309.40(B)-(C)];
(d) in the case of nonidentifiable cash proceeds, continuation of
perfection of the Bank's security interest therein is limited
to the degree set forth in Uniform Commercial Code Section
9-306 (Ohio Revised Code Section 1309.25);
(e) if the Company or a Subsidiary so changes its name, identity,
or corporate structure that any Financing Statement becomes
seriously misleading, the filing of such Financing Statement
will, pursuant to Uniform Commercial Code Section 9-402(7)
[Ohio Revised Code Section 1309.39(G)], be ineffective to
perfect a security interest in collateral acquired by the
Company or any such Subsidiary more than four months after the
change, unless a new appropriate financing statement is filed
before the expiration of that period;
(f) in the case of either (1) the movement of certain tangible
collateral to a state in which a Financing Statement has not
been filed or (2) a change in the location of
-3-
<PAGE> 115
the Company or a Subsidiary to a state in which a Financing
Statement has not been filed, the Bank's security interest
will become unperfected unless a new appropriate financing
statement is filed in the new state within four months in
accordance with Uniform Commercial Code Section 9-103 (Ohio
Revised Code Section 1309.03); and
(g) under certain circumstances described in Uniform Commercial
Code Sections 9-307 and 9-308 (Ohio Revised Code Sections
1309.26 and 1309.27), purchasers of collateral may take the
same free of a perfected security interest.
12. To the best of our knowledge, after due inquiry (such inquiry
consisting solely of (a) a certificate delivered to us by the Company,
and (b) our review of the results of searches conducted by, and made
available to us by, the Bank, as set forth on attached Exhibit D), the
Bank's perfected security interest in the Collateral described in the
Security Agreement and the Subsidiary Security Agreements is prior to
any other security interest in such Collateral evidenced by the filing
of a financing statement, but only to the extent a security interest in
such Collateral created by the Security Agreement and the Subsidiary
Security Agreements may be perfected by the filing of financing
statement(s), and, assuming that the Bank has no notice of any adverse
claim in favor of any third person in the Collateral described in the
Pledge Agreement, the Bank's perfected security interest in the
Collateral described in the Pledge Agreement is prior to any Liens,
except for the following:
(a) the Bank's security interest is subordinate to the Liens
described on Exhibit D attached hereto and made a part hereof;
(b) the Bank's security interest is subordinate to Liens expressly
permitted under the Agreement or the Pledge Agreement, the
Security Agreement or the Subsidiary Security Agreements; and
(c) insofar as the Bank's security interest relates to
after-acquired Collateral, such security interest may be
subordinated in priority to the conflicting security interest
of a purchase-money creditor pursuant to Uniform Commercial
Code Section 9-312(3)-(4) [Ohio Revised Code Section
1309.31(C)-(D)] or to a federal tax lien properly filed more
than 45 days before such security interest arises (or a lesser
period, if the Bank acquires knowledge of such federal tax
lien), pursuant to 26 U.S.C. Section 6323(c).
-4-
<PAGE> 116
EXHIBIT 5.9
PENDING LITIGATION
Nortex Drug Distributors, Inc. v. Drug Emporium, Inc., Case No.
C2-93-767, filed August 6, 1993, and Texas Drug Distributors, Inc. v. Drug
Emporium, Inc., Case No. C2-93-847, filed August 30, 1993, both of which are
pending in the United States District Court, Southern District of Ohio, Eastern
Division. The plaintiffs in the two suits are both franchisees of the Company.
The claims set forth in the complaints are substantially the same in both suits
and allege that the Company failed to perform as required under the Company's
franchise agreements with plaintiffs and under Texas law. Plaintiffs also claim
that the Company imposed a mandatory pricing structure on plaintiffs which
violated state and federal antitrust laws. The plaintiffs are seeking treble
damages and a declaration that the noncompetition clause in the franchise
agreements is unenforceable. No specific amount of damages is claimed. The
Company is aggressively defending these suits.
<PAGE> 117
EXHIBIT 5.16
LIST OF SUBSIDIARIES AND AFFILIATES
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
Name Shares Owned Percentage Owned
- --------------------------------------------------------------------------------------------------------
<S> <C> <C>
Centerline, Inc. 10 100.00%
- --------------------------------------------------------------------------------------------------------
Winter Fern Drug Distributors, Inc. 100 100.00%
- --------------------------------------------------------------------------------------------------------
RJR Drug Distributors Inc. 1,190 100.00%
- --------------------------------------------------------------------------------------------------------
Houston Venture, Inc. 100 100.00%
- --------------------------------------------------------------------------------------------------------
Emporium Venture, Inc. 100 100.00%
- --------------------------------------------------------------------------------------------------------
Drug Emporium of Maryland, Inc. 100 100.00%
- --------------------------------------------------------------------------------------------------------
Drug Emporium of Michigan, Inc. 100 100.00%
- --------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 118
EXHIBIT 6.4(i)
DRUG EMPORIUM, INC.
BORROWING BASE CERTIFICATE
Date: ____________________
COLLATERAL ACTIVITY
<TABLE>
<S> <C>
1. Gross FIFO Inventory owned by Drug Emporium and its
Wholly-Owned Subsidiaries as of _____________, 199__ __________________________
2. LESS: Any Inventory as to which the Bank does not have a
first perfected security interest as detailed on the
attached schedule __________________________
3. LESS: Reserve for shrink __________________________
4. LESS: All other Inventory reserves, if any, other than
LIFO reserves __________________________
5. Net FIFO Inventory (Line 1 minus Lines 2, 3 and 4) __________________________
6. LESS: Pharmacy Inventory __________________________
7. LESS: Inventory in Transit __________________________
8. LESS: 285% of outstanding Term Loan Balance __________________________
9. LESS: Face amount of Borrower guaranties of obligations
of Affiliates and Subsidiaries, other than Wholly-Owned
Subsidiaries, engaged in the Core Business (not to exceed
$1,000,000) __________________________
10. Eligible Inventory as of ________________________ __________________________
11. Funds Available: 40% of Line 10 until and including the
Reduction Date, as defined in the Loan Agreement, and 35%
of Line 10 thereafter __________________________
</TABLE>
-1-
<PAGE> 119
LOAN ACTIVITY
<TABLE>
<S> <C>
12. Beginning Revolving Credit Loan Balance (from Line 15 of
previous certificate) __________________________
13. LESS: Payments made since last report __________________________
14. PLUS: Revolving Credit Loans received since last report __________________________
15. New Revolving Credit Loan Balance as of ______________ __________________________
16. Remaining Availability (Line 11 - Line 15) __________________________
</TABLE>
The undersigned represents and warrants that the foregoing information
is true, complete and correct, and the collateral reflected herein complies with
the conditions, terms, warranties, representations and covenants set forth in
the Third Amended and Restated Revolving Credit and Term Loan Agreement between
the undersigned and BANK ONE, COLUMBUS, NA and supplements and amendments, if
any, thereto. The undersigned promises to pay to the order of BANK ONE,
COLUMBUS, NA the new loan balance reflected above, plus interest, as set forth
in the Third Amended and Restated Revolving Credit Agreement and supplements and
amendments, if any, thereto.
DRUG EMPORIUM, INC. Date _______________________
Authorized Signature ___________________________
Title __________________________________________
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<PAGE> 120
EXHIBIT 6.4(k)
LANDLORD'S WAIVER AND CONSENT
THIS LANDLORD'S WAIVER AND CONSENT is executed as of this ______ day of
__________, 199__, by _________________, located at ________________
("Landlord"), for the benefit of Bank One, Columbus, NA, a national banking
association located at 100 East Broad Street, Columbus, Ohio 43215 (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank has made or is about to make one or more loans,
advances, and/or other financial accommodations to Drug Emporium, Inc. (the
"Borrower"), to be secured in whole or in part by a guaranty ______________ of
(the "Subsidiary"), which guaranty is to be secured in whole or in part by a
security agreement covering among other things, the inventory, furniture,
fixtures and equipment of the Subsidiary (the "Collateral"); and
WHEREAS, the Collateral is or may be kept at the premises located at
______________ (the "Premises") which are owned by the Landlord and leased to
the Subsidiary, pursuant to a lease agreement (the "Lease").
1. The Landlord consents to the location of the Collateral in the
Premises, and agrees that any right, title or interest in or to the Collateral
it may have or acquire under statute or through any other means by reason of the
location in the Premises of the Collateral, or possession thereof, or otherwise,
is subordinate to the right, title and interest of the Bank in and to the
Collateral to the full extent the Collateral secures or may hereafter secure any
and all obligations and indebtedness of every kind, now existing or hereafter
arising, and the Landlord hereby agrees that, so long as the Borrower is
obligated or indebted to the Bank, the Landlord shall not exercise any rights,
assert any claim or interest, take any action or institute any proceedings with
respect to the Collateral.
2. The Bank and its agents and representatives may enter the Premises and
remove and take possession of the Collateral at any time in accordance with said
security agreement and the Bank shall have the right to occupy the Premises for
such purposes. The Landlord will not hinder the Bank's actions in assembling the
Collateral located on the Premises, will permit the Bank to remove the
Collateral from the Premises without charge and will not hinder the Bank's
actions in enforcing its liens in the Collateral.
3. The Landlord shall and does hereby waive and relinquish in favor of the
Bank any right, claim, interest and lien which the Landlord now has or may
hereafter have in and to the Collateral, including, without limitation, any
right to levy upon the Collateral and any right to distraint with respect
thereto under any law now or hereafter in force.
-1-
<PAGE> 121
4. In connection with exercising any of its rights pursuant to this Waiver
and Consent, the Bank agrees that it will repair any and all damage caused to
any of the real property improvements located on the Premises so as to cause
such real property improvements to be returned to the same condition they were
in immediately prior to the taking of any such actions by the Bank.
5. The provisions hereof shall remain in full force and effect until the
Borrower has fully paid and performed all of its obligations to the Bank under
all security agreements, present and future, and any extensions, modifications
and renewals thereof at any time made.
THIS LANDLORD'S WAIVER AND CONSENT shall be binding upon and inure to the
benefit of the parties herein named and their respective assigns and successors
in interest.
IN WITNESS WHEREOF, the Landlord has duly executed this Landlord's Waiver
and Consent as of the day and year first above written.
Witnesses
________________________________________ _________________________________
Print Name:_____________________________
________________________________________
Print Name:_____________________________
-2-
<PAGE> 122
[Individual Landlord]
STATE OF___________________________
COUNTY OF__________________________, SS:
BE IT REMEMBERED, that on this_____________ day of ______________,
199__, before me the subscriber, a Notary Public in and for said County and
State, personally came the above-named_________________________ who acknowledged
the signing of the foregoing Waiver and Consent to be his voluntary act and
deed.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year first aforesaid.
_______________________________
Notary Public
[Corporate Landlord]
STATE OF____________________,
COUNTY OF___________________, ss:
BEFORE ME, the undersigned authority, on this date personally
appeared____________ of ____________, a corporation, known to me to be the
person and officer whose name is subscribed to the foregoing instrument and
being by me first duly sworn acknowledged to me that he executed the same as the
act and deed of such corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this _______ day of______________,
199__.
_____________________________________________
Notary Public.
-3-
<PAGE> 123
[Partnership Landlord]
STATE OF____________________ :
: SS
COUNTY OF___________________ :
BE IT REMEMBERED, that on this ___________ day of _____________, 199__,
before me, the subscriber, a Notary Public in and for said county, personally
came__________________ , ________________________________ , and
_______________________, being all the general partners
of________________________, the Landlord in the foregoing instrument, and
acknowledged the signing thereof on behalf of the_______________.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed by
seal on this day and year aforesaid.
___________________________
Notary Public
This instrument prepared by:
Record and Return to:
Kathleen A. Kress, Esq.
Schwartz, Kelm, Warren & Ramirez
41 South High Street
Columbus, Ohio 43215
(614) 222-3000
-4-
<PAGE> 124
APPLICATION AND AGREEMENT
[BANK ONE LOGO] FOR COMMERCIAL LETTER OF CREDIT
TO:
Date ___________________
Gentlemen:
Please issue an irrevocable Letter of Credit in accordance with this
application and forward same to your correspondent for delivery to the
beneficiary as indicated below (by check "X"). In issuing the Credit you are
expressly authorized to make such changes from the terms herein below set forth
as you in your sole discretion may deem advisable provided that no such changes
shall vary the principal terms hereof.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Transmit by / / Airmail / / Airmail, with Short Preliminary Cable Advice / / Cable, with Airmail Confirmation
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
This part for bank use unless you designate advising bank Applicant
- -----------------------------------------------------------------------------------------------------------------------------------
Beneficiary Maximum Amount
In words
In figures
- -----------------------------------------------------------------------------------------------------------------------------------
Expiration date
in the country of the beneficiary unless otherwise indicated
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
Available by drafts at ________________________________________________ drawn
(Indicate Tenor - Sight, 30, 60, 90 Days, Etc.)
on you or at your option, any of your correspondents.
Discount charges, if any, for the account of the / / applicant / / beneficiary.
DRAFTS MUST BE ACCOMPANIED BY THE FOLLOWING DOCUMENTS (AS CHECKED):
/ / Signed commercial invoice in ______________ copies
/ / Special U.S. Customs invoice in ___________ copies
/ / Negotiable Marina/Air Insurance Policy or Certificate in duplicate for 110%
of invoice value (unless otherwise specified) covering all risks, and war
risks and
/ / Other risks (please Specify) ____________________________________________ or
/ / Insurance effected by ourselves. We agree to keep insurance coverage in
force until this transaction is completed.
/ / Full set of clean on board ocean bills of lading issued to order of
____________________________________________________________________________
/ / Clean air waybill, consigned to: ___________________________________________
(Name)
- --------------------------------------------------------------------------------
(Address)
*marked freight collect/prepaid and marked notify ______________________________
(Name)
- --------------------------------------------------------------------------------
(Address)
Bills of lading to be dated no later than ______________________________________
/ / Packing list in __________________ copies.
/ / Other documents, if any: __________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Covering shipment of: ________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please maximum commodity only, offering assets as to grade,
quality, etc., if possible)
/ / C.I.F. / / C & F / / C & I / / F.O.B. _______________________________
(Name of city, port or airport)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
Shipments from: Partial shipments / / Are / / Are not permitted
To: Transhipments / / Are / / Are not permitted
/ / All banking charges outside the United States for beneficiary's account.
Unless otherwise instructed, documents will be forwarded to you in one airmail by the negotiating bank.
- -----------------------------------------------------------------------------------------------------------------------------------
Special Instructions
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 125
TERMS AND CONDITIONS OF APPLICATION AND AGREEMENT
FOR COMMERCIAL LETTER OF CREDIT
In consideration of your issuing, at our request, your Commercial
Letter of Credit (herein called "the Credit") substantially in accordance with
the Application appearing on the first page hereof, the undersigned agree as
follows:
1. We certify that each draft or acceptance under or purporting to be
under the Credit will grow out of transactions pursuant to definite bona fide
contracts for the shipment of goods within a specified reasonable time.
2. As to drafts or acceptance under or purporting to be under the
Credit, which are payable in United States Currency, we agree (a) in the case
of each sight draft, to reimburse you at your issuing office, on demand, in
United States legal tender, the amount paid on such draft, or, if so demanded
by you, to pay to you at said office, in advance in such legal tender the
amount required to pay such draft; and (b) in the case of each acceptance, to
pay to you, at said office, in United States legal tender, the amount thereof,
on demand but in any event not later than one business day prior to maturity,
or, in case the acceptance is not payable at your said office, then on demand,
but in any event in time to reach the place of payment in the usual course of
the mails not later than one business day prior to maturity.
3. As to drafts or acceptances under or purporting to be under the
Credit, which are payable in currency other than United States currency, we
agree (a) in the case of each sight draft, to reimburse you, at your issuing
office, on demand, the equivalent of the amount paid, in United States legal
tender at the rate of exchange then current for cable transfers to the place of
payment in the currency in which such draft is drawn, and (b) in the case of
each acceptance, to furnish you, at said office, on demand, but in any event in
time to reach the place of payment in the usual course of the mails not later
than one business day prior to maturity, with first class banker's demand bills
of exchange to be approved by you for the amount of the acceptance, payable in
the currency of the acceptance and bearing our endorsement, or, if you so
request, to pay to you at said office, on demand, the equivalent of the
acceptance in United States legal tender at the rate of exchange then current
for cable transfers to the place of payment in the currency in which the
acceptance is payable. A demand made on one of us shall fix the exchange rate
as to all of us, if for any reason whatsoever there shall be at the time of
your demand for reimbursement or payment no rate of exchange current for
effective cable transfers to the place of payment in the currency in which any
such draft is drawn or any such acceptance is payable, we agree to pay you, on
demand, in United States legal tender an amount which in your sole judgement
shall be sufficient to meet our obligations hereunder, which amount may be
applied by you at any time as a payment on account of such obligations, or, at
your option, held as security therefor; it being understood, however, that we
shall remain liable for any deficiency which may result if such amount in
United States legal tender shall prove insufficient to effect full payment or
reimbursement to you at the time when a rate of exchange for such cable
transfers shall be again current.
4. We also agree to pay to you, on demand, your commission and all
charges and expenses (including all charges for legal services) paid or
incurred by you in connection with the Credit, plus correspondents' charges, if
any, and interest where chargeable.
5. That, if the foregoing application requests the inclusion in the
Credit of any provision for Clean Advances to the beneficiary, you may place in
the Credit such a provision in that respect as you may deem appropriate, under
which any bank entitled to negotiate drafts under the Credit, acting in its
discretion in each instance and upon the request and receipt in writing from
the beneficiary, may make any one or more Clean Advances at any time on or
prior to the date by which the drafts are to be negotiated under the Credit.
The aggregate of such advances shall in no event be more than the amount
specified in the Application for Clean Advances, and in no event shall any such
advance exceed the amount remaining available under the Credit at the time of
the advance. While it is expected by us that each such advance will be repaid
to the bank that made the advance by the beneficiary from the proceeds of any
drafts drawn under the Credit, should any such advances not be thus repaid, we
will on demand pay you the amounts thereof as if such advances were evidenced
by drafts drawn under the Credit, together with interest on each such amount
for the period that the same shall have been outstanding at such rate as you
may find at the time of demand to be payable. It is understood that neither you
nor any bank which may make such advances shall be obligated to inquire into
the use that may be made thereof by the beneficiary and that you and each such
bank shall be without liability for any wrongful use that may be made by the
beneficiary of any such funds so advanced.
6. We hereby recognize and admit your unqualified right to the
possession and disposal of all property shipped or warehoused under or pursuant
to or in connection with the Credit or in any way relative thereto or to the
drafts drawn thereunder, whether or not released to any of us on trust or
bailee receipt or otherwise, and also in and to all shipping documents,
warehouse receipts, policies or certifications of insurance and other documents
accompanying or relative to drafts drawn under the Credit, and in and to the
proceeds of each and all of the foregoing, until such time as all the
obligations and liabilities of us or any of us to you at any time existing
under or with reference to the Credit or this agreement, or any other credit or
any other obligation or liabilities of us or any of us to you at any time
existing under or with reference to the Credit or this agreement, or any other
credit or any other obligation or liability to you, whether now existing or
hereafter created or arising, have been fully paid and discharged, all as
security for such obligations and liabilities; and that all or any of such
property and documents, and the proceeds of any thereof, coming into the
possession of you or any of your correspondents, may be held and disposed of by
you as herein provided; and the receipt by you, or any of your correspondents,
at any time of other security, of whatever nature, including cash, shall not be
deemed a waiver of any of your rights of powers herein recognized.
7. Unless otherwise instructed by you, we agree from time to time to
give you trust receipts in any form acceptable to you for any property or
documents released by you to any of us and to sign and deliver to you such
Statements of Trust Receipt Financing, such Security Agreements and/or such
Financing Statements as you may from time to time request in any form
acceptable to you. We will pay any relative filing fees in the event you
receive some, but not all, of the documents against which availments may be
made and, at our request, you deliver such documents to us, against trust
receipt or otherwise, prior to the presentation of the relative draft, we agree
to pay you on demand the amount of any claim made against you by reason thereof
and authorize you to pay or accept (as the case may be) such draft when it is
presented, regardless of whether or not such draft or any document which may
accompany it complies with the terms of the Credit.
8. Except so far as otherwise expressly stated in the Credit, we agree
(a) that you and any of your correspondents may receive and accept, as a "Bill
of Lading" relative to the Credit, any document issued or purporting to be
issued by or on behalf of any carrier which acknowledges receipt of property for
transportation, whatever the specific provisions of such document, and any such
bill of lading issued by or on behalf of an ocean carrier may be accepted by you
as an "Ocean Bill of Lading" whether or not the entire transportation is by
water, and the date of every bill of lading shall be deemed the date of shipment
of the property mentioned therein; and (b) that you and any of your
correspondents may receive and accept as sufficient and controlling the
description of the property contained in the invoice and also receive and accept
bills of lading, insurance and other documents, however variant in description
from that contained in the invoice; and (c) that you and any of your
correspondents may receive and accept bills of lading containing stamped,
written, or typewritten provisions thereon, whether or not signed or initialed,
and you or any of your correspondents may assume conclusively that the same were
placed with proper authority on the bill of lading at the time of its signing
and issuance by the carrier or any agent thereof; and (d) that, if the Credit
states that except so far as otherwise expressly stated it is subject to the
Uniform Customs and Practice for Documentary Credits (1983 Revision), and any
subsequent revision thereof, fixed by the International Chamber of Commerce
(Publication No. 400) (herein called the "Uniform Customs"), the Credit shall be
so subject in all respects; and (e) that, if the Credit does not state that
except so far as otherwise expressly stated it is subject to the Uniform
Customs, you and any of your correspondents may, without limiting the type of
document acceptable according to any other provisions of this agreement, accept
documents of any character which comply with the Uniform Customs or which comply
with the laws or regulations in force and customs and usages of the place of
negotiation; and (f) that you and any of your correspondents may receive and
accept as documents of insurance under the Credit either insurance policies or
insurance certificates which need to be for an amount of insurance greater than
the amount paid by you under or relative to the Credit; and (g) that you and any
of your correspondents may receive, accept and pay as complying with the terms
of the Credit, any drafts or other documents, otherwise in order, which may be
signed by, or issued to, the administrator or executor of, or the trustee in
bankruptcy of, or the receiver for any of the property of, the party in whose
name the Credit provides that any drafts or other documents should be drawn or
issued.
<PAGE> 126
9. Except as otherwise expressly stated in the Credit, we agree (a)
that part shipments may be made under the Credit and that you may honor the
relative drafts without inquiry regardless of any apparent disproportion
between the quantity shipped and the amount of the relative draft and the total
amount of the Credit and the total quantity to be shipped under the Credit; and
(b) that if the Credit specifies shipments in installments within stated
periods and the shipper fails to ship in any designated period, shipments of
subsequent installments may nevertheless be made in their respective designated
periods and you may honor the relative drafts.
10. We agree that in the event of any extension of the maturity or time
for presentation of drafts, acceptances or documents, or any other modification
of the terms of the Credit, at the request of any of us, with or without
notification to the others, or in the event of any increase in the amount of the
Credit at our request, this agreement shall be binding upon us with regard to
the Credit so increased or otherwise modified, to drafts, documents and property
covered thereby, and to any action taken by you or any of your correspondents in
accordance with such extension, increase or other modification.
11. We hereby expressly authorize you and any of your correspondents to
accept and pay at your option any drafts drawn under or purporting to be drawn
under the Credit notwithstanding any discrepancies or irregularities between the
drafts and documents presented and those required by the terms of the Credit;
provided that as to discrepancies and irregularities not otherwise covered by
the provisions of this agreement, you or your correspondent so accepting or
paying must be furnished with an indemnity satisfactory to you which, running in
our favor as well as yours covers the discrepancies or irregularities but is
limited to the actual damage directly attributable to such discrepancies or
irregularities.
12. We assume all risks of the acts or omissions of the users of the
Credit. We agree that should the beneficiary under the Credit, upon receipt of
advice by cable, or otherwise, of the issuance of the Credit, but prior to its
actual receipt, negotiate drafts by virtue of such advice, such negotiation
shall be considered a proper one and shall be included under the terms and
subject to all conditions hereof, and we assume all the risks of the misuse of
the Credit whatsoever. Neither you nor your correspondents shall be responsible;
for the existence, character, description, quality, quantity, weight, condition,
packing, value, or delivery of the property purporting to be represented by
documents; for any difference in character, description, quality, quantity,
weight, condition, packing or value of the property from that expressed in
documents; for the form, validity, sufficiency, genuineness or legal effect of
documents, even if such documents should in fact prove to be in any or all
respects invalid, insufficient, fraudulent or forged; for the time, place,
manner or order in which shipment is made; for partial or incomplete shipment,
or failure or omission to ship any or all of the property referred to in the
Credit; for the character, adequacy, validity, or genuineness of any insurance;
for the solvency or responsibility of any insurer, or for any other risk
connected with insurance; for any deviation from instructions, delay, default or
fraud by the shipper or anyone else in connection with the property or the
shipping thereof; for the solvency, responsibility or relationship to the
property of any party issuing any documents in connection with the property; for
delay in arrival or failure to arrive of either the property or any of the
documents relating thereto; for delay in giving or failure to give notice of
arrival or any other notice; for any breach of contract between the shippers or
vendors and ourselves or any of us; for the validity or sufficiency of any
instrument assigning or purporting to assign the Credit or the rights or
benefits thereunder or proceeds thereof in whole or in part, which may prove to
be invalid or ineffective for any reason; for the failure of any draft to bear
any reference or adequate reference to the Credit, or failure of documents to
accompany any draft at negotiation, or failure of documents to accompany any
draft at payment if sent by duplicate mail, or failure of any person to note the
amount of any draft on the reverse of the Credit or to surrender to take up the
Credit or to send forward documents apart from drafts as required by the terms
of the Credit, each of which provisions, if contained in the Credit itself, it
is agreed may be waived by you, or for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
wireless or otherwise, whether or not they be in cipher; nor shall you be
responsible for any error, neglect, or default of any of your correspondents for
errors in translation or for errors in interpretation of technical terms or for
any consequences arising from causes beyond your control; and none of the above
shall affect, impair, or prevent the vesting of any of your rights or powers
hereunder. You shall have the right to transmit the terms of the Credit without
translating them. We shall protect you and any other drawee in paying any draft
dated on or before the expiration of any time limit expressed in the Credit
regardless of when drawn and when or whether negotiated. If the Credit provides
that payment is to be made by your correspondent, neither you nor such
correspondent shall be responsible for the failure of any of the documents
specified in the Credit to come into your hands or for any delay in connection
therewith, and our obligation to reimburse you for payments made or obligations
incurred shall not be affected by such failure or delay in the receipt by you of
any of such documents. In furtherance and extension and not in limitation of the
specific provisions hereinbefore set forth, we agree that any action taken by
you or any correspondent of yours, under or in connection with the Credit or the
relative drafts, documents or property, if taken in good faith, shall be binding
on us, and shall not put you or your correspondent under any resulting liability
to us; and we make like agreement as to any inaction or omission, unless in
breach of good faith.
You shall not in any way be liable for any failure by you or anyone else
to pay or accept any draft or acceptance under the Credit resulting from any
censorship, law, control or restriction rightfully or wrongfully exercised by
any de facto or de jure domestic or foreign government or agency or from any
other cause beyond your control or the control of your correspondents, agents or
sub-agents or for any loss or damage to us or anyone else resulting from any
such failure to pay or accept, all such risks being expressly assumed by us, and
we agree to indemnify and hold you harmless from any claim, loss, liability or
expense arising by reason of any such failure to pay or accept. We are
responsible to you for all obligations imposed upon you with respect to the
Credit or the relative drafts, documents or property.
13. We agree to procure promptly any necessary import and export or
other licenses for the import or export or shipping of the property and to
comply with all foreign and domestic governmental regulations in regard to the
shipment of the property or the financing thereof, and to furnish such
certificates in that respect as you may at any time require, and to keep the
property adequately covered by insurance satisfactory to you, in companies
satisfactory to you, and to assign the policies or certificates of insurance to
you, or to make the loss or adjustment, if any, payable to you, at your option;
and to furnish you if demanded with evidence of acceptance by the insurers of
such assignment.
14. Each of us agrees, at any time and from time to time, on demand, to
deliver to you, as a security for any and all of the liabilities of us and any
of us hereunder and all other liabilities of us and any of us to you, direct or
contingent, joint, several or independent, now or hereafter existing, due or to
become due, whether created directly or acquired by assignment or otherwise,
additional property satisfactory to you or to make such payment as you may
require. Each of us agrees that the balance of every account of us or any of us
with you and each claim of us or any of us against you existing from time to
time, shall be subject to a lien and subject to be set off against any and all
such liabilities of us or any of us; and you may at any time or from time to
time at your option and without notice appropriate and apply toward the payment
of any of such liabilities of us or any of us the balance of each such account
of us or any of us with you and each such claim of us or any of us against you,
and we and each of us will continue liable for any deficiency. Each of us agrees
that all property of every description, now or hereafter in your possession or
custody or in transit to you for any purpose including safekeeping, collection
or pledge, for the account of us or any of us, or as to which we or any of us
may have any interest, right or power, whether or not such property is in whole
or in part released to us or any of us on trust or bailee receipt, are hereby
made security and subject to a lien and security interest in your favor for any
and all such liabilities of us or any of us. You may at any time and from time
to time, without notice, transfer into your own name or that of your nominee any
property so held as collateral. Each of us agrees that upon the failure of us or
any of us at all times to keep a margin of security with you satisfactory to
you, or upon the nonpayment or nonfulfillment of any such liabilities of us or
any of us when they shall become due or be made due, or upon the death or
insolvency of us or any of us, or upon the suspension of business of us or any
of us, or upon the issuance of any warrant of attachment against the credits or
any of the property of us or any of us, or upon the making by us or any of us of
an assignment for the benefit of creditors, or upon the application for the
appointment or the appointment of a trustee or receiver for us or any of us or
for any of the property of us or any of us, or upon the taking possession by any
public official having regulatory powers over any of us of the property of any
of us for the purpose of conserving the assets of any of us, or upon any
proceedings being commenced by or against us or any of us under or purporting to
be under any bankruptcy, reorganization, arrangement, readjustment of debt,
receivership, liquidation, dissolution, winding up, adjustment, compensation or
liquidation law or statute of any jurisdiction, then and in any such event, (a)
any and all such liabilities of us or any of us shall, at your option, become
and be
<PAGE> 127
immediately due and payable, without notice, presentation, demand of payment or
protest, all such being hereby expressly waived, and notwithstanding any credit
or time allowed to any of us, or any instrument evidencing such liabilities or
otherwise, and (b) you shall have the right from time to time to sell, resell,
assign, and deliver all or any part of the property securing any liabilities of
us or any of us, arrived or to arrive, at any Broker's Board of Exchange, or at
public or private sale, at your option, without having the property at the
place of sale, in such parcel or parcels and at such time or times and at such
place or places, and upon such terms and conditions as you may deem proper, and
in connection therewith may grant options, all without demand, advertisement or
notice to us or any of us, all of which are hereby expressly waived, and to
apply the net proceeds of such sale or sales to the payment of any and all such
liabilities and we and each of us will continue liable to you for any
deficiency, with interest. Upon each such sale, you may purchase the whole or
any part of the property of us or any of us being sold, free from any right of
redemption, which we and each of us hereby expressly waive and release. Demands
or calls for collateral on or any notices to us or any of us respectively (a)
may be made or given by you by leaving same at the last known address of us or
any of us respectively or by mailing, telegraphing, cabling, radioing,
telephoning or otherwise sending same to such address, with the same effect as
if delivered to all of us in person, (b) shall be considered made as of the
time of such leaving or mailing, telegraphing, cabling, radioing, telephoning
or other sending by public agencies of communication. Each of us agrees that
with or without notification to any of us, you may exchange, release,
surrender, realize upon, release on trust receipt to any of us, or otherwise
deal with any property by whomsoever pledged, mortgaged, or subjected to a
security interest to secure directly or indirectly any of the obligations
hereunder or for which any of the undersigned may be liable.
We will bear and pay all expenses of every kind (including all charges for
legal services) of the enforcement of any of your rights herein mentioned, of
any claim or demand by you against us or any of us, and of any actual or
attempted sale, exchange, enforcement, collection, maintenance, retention,
insurance, compromise, settlement, release, delivery on trust receipt, or
delivery of any such security, and of the receipt of proceeds thereof, and will
repay to you any such expenses incurred by you.
15. None of your options, powers or rights (including those hereunder) shall
be waived unless you or your authorized agent shall have signed such waiver in
writing. No such waiver, unless expressly as stated therein, shall be effective
as to any transaction which occurs subsequent to the date of such waiver, nor as
to any continuance of a breach after such waiver. No segregation or specific
allocation by you of specified collateral against any liability shall waive or
affect any lien of any sort against other securities or property or any of your
options, powers or rights (including those hereunder).
16. The word "property" as used in this agreement includes goods,
merchandise, securities, funds, changes in action, and any and all other forms
of property, whether real, personal or mixed and any right or interest therein.
Property in your possession shall include property in possession of anyone for
you in any manner whatsoever. Your options, powers and rights specified in this
agreement are in addition to those otherwise created. You are hereby expressly
given the right and power in furtherance of any right, power or privilege which
you may have hereunder or in connection with the Credit to execute
endorsements, assignments or other instruments of conveyance or transfer in our
name, place and stead covering any property standing in our name or belonging
to us of every kind and description which you may hold or which may come into
your possession under the Credit or by reason of this agreement.
17. If the undersigned is a banking institution, the undersigned hereby
appoints you as its agent to the extent of issuing the Credit in accordance
with, and subject to the terms and provisions of, the foregoing Application and
Agreement for Commercial Letter of Credit.
18. If the undersigned is a partnership, the obligations hereof shall
continue in force, and apply, notwithstanding any change in the membership of
such partnership, whether arising from the death or retirement of one or more
partners or the addition of one or more new partners.
19. This agreement shall be binding upon us, our heirs, executors,
administrators, successors and assigns, and shall inure to the benefit of, and
to be enforceable by, you, your heirs, executors, administrators, successors,
transferees and assigns. If this agreement should be terminated or revoked by
operation of law as to us, or any of us, we will indemnify and save you
harmless from any loss which may be suffered or incurred by you in acting
hereunder prior to the receipt by you, or your transferees or assigns, of
notice in writing of such termination or revocation. If this agreement is
signed by two or more parties, it shall be the joint and several agreement of
such parties and whenever used herein, the singular number shall include the
plural, and the plural the singular. The agreement shall be governed by and
construed in accordance with the law of the state in which the Bank One
affiliate specified in this application and agreement has its principal office.
20. In the event that we fail to pay you on demand any amounts due you
arising under the terms of this Application we will pay you in the
following manner: ________ (a) in addition to the aforesaid amounts,
interest on the amounts due you at the rate equivalent to your "Prime
Lending Rate" in effect from time to time, plus ________% per annum
calculated on a ________ day year basis, calculated on the actual number
of days elapsed during the lending period. "Prime Lending Rate" means the
rate announced from time to time by Bank One as its Prime Lending Rate
which rate may not be the lowest rate of interest offered by Bank One.
The rate of interest will be adjusted on the same day as Bank One's Prime
Lending Rate changes. All amounts due hereunder including interest and
principal shall be payable upon demand by you.
________ (b) We request that you activate the Promissory Note in your
possession payable to you which we have heretofore executed.
Any deferred payments to be made under (a) or (b) above shall be:
________ unsecured (subject however, to the rights granted you in this
Application). ________ secured by the following described property and
the proceeds thereof (which property is in addition to that otherwise
described in this Application); _________________________________________
_________________________________________________________________________
_________________________________________________________________________
which property has been deposited with you, or to which a security
interest is hereby given to you. You shall have all the rights and
remedies in connection with said property as set forth in this
Application in addition to those arising under the Uniform Commercial
Code.
21. We hereby certify that transactions in the merchandise covered by this
application are not prohibited under the Foreign Assets Control Regulations of
the United States Treasury Department and that any importation covered by this
application conforms in every respect with all existing United States
Government requisitions and executive orders.
Very Truly Yours,
___________________________________ _________________________________ (SEAL)
(Corporation or Firm) (Individual)
By ________________________________ _________________________________ (SEAL)
(Authorized Signature and Title) (Individual)
<PAGE> 1
DRUG EMPORIUM, INC.
COMPUTATION OF EARNINGS PER SHARE
- Exhibit 11 -
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
November 25, November 26, November 25, November 26,
1995 1994 1995 1994
----------- ----------- ----------- -----------
(Unaudited)
(In thousands, except per share data)
<S> <C> <C> <C> <C>
Primary:
Weighted average number of
common shares outstanding 13,183 13,171 13,182 13,165
Net effect of dilutive
stock options -- based on
treasury stock method using
estimated average market
price . . . . . . . . . . (a) (a) (a) (a)
------ ------ ------ ------
Weighted average common and
common equivalent shares 13,183 13,171 13,182 13,165
====== ====== ====== ======
Net income . . . . . . . $347 $(7,892) $1,302 $(7,396)
====== ====== ====== ======
Net income per common and
common equivalent share . $0.03 $(0.60) $0.10 $(0.56)
====== ====== ====== ======
Fully Diluted:
Weighted average number of
common shares outstanding 13,183 13,171 13,182 13,165
Net effect of dilutive
stock options -- based on
treasury stock method using
closing market price . . (a) (a) (a) (a)
------ ------ ------ ------
Fully diluted shares . . 13,183 13,171 13,182 13,165
====== ====== ====== ======
Net income (Loss) . . . . $347 $(7,892) $1,302 $(7,396)
====== ====== ====== ======
Net income (Loss) per common share
assuming full dilution . $0.03 $(0.60) $0.10 $(0.56)
====== ====== ====== ======
<FN>
(a) Excluded as amounts are antidilutive.
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> MAR-02-1996
<PERIOD-START> AUG-27-1995
<PERIOD-END> NOV-25-1995
<EXCHANGE-RATE> 1
<CASH> 739
<SECURITIES> 0
<RECEIVABLES> 11,977
<ALLOWANCES> 0
<INVENTORY> 192,878
<CURRENT-ASSETS> 209,667
<PP&E> 59,320
<DEPRECIATION> 30,942
<TOTAL-ASSETS> 244,909
<CURRENT-LIABILITIES> 133,351
<BONDS> 64,059
<COMMON> 1,318
0
0
<OTHER-SE> 46,181
<TOTAL-LIABILITY-AND-EQUITY> 244,909
<SALES> 503,839
<TOTAL-REVENUES> 503,839
<CGS> 395,549
<TOTAL-COSTS> 497,271
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 4,398
<INCOME-PRETAX> 2,170
<INCOME-TAX> 868
<INCOME-CONTINUING> 1,302
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,302
<EPS-PRIMARY> .10
<EPS-DILUTED> .10
</TABLE>
