EXHIBIT 10 UNITED NATURAL FOODS, INC.
000 XXXX XXXX
XXXXXXXX, XXXXXXXXXXX 00000
As of March 1, 1997
FLEET CAPITAL CORPORATION
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Re: First Amendment to Amended and Restated Loan Agreement
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Ladies and Gentlemen:
Reference is made to the Amended and Restated Loan and Security
Agreement dated February 20, 1996 ("Loan Agreement") and all promissory notes,
mortgages, guaranties, agreements, documents and instruments entered into by
United Natural Foods, Inc., Mountain People's Warehouse Incorporated, Natural
Retail Group, Inc., Rainbow Natural Foods, Inc., and Nutrasource, Inc.
(collectively, the "Borrowers") and any other person or obligor pursuant thereto
(collectively, the "Loan Documents") with or for the benefit of Fleet Capital
Corporation ("Lender"). Except as otherwise defined herein, capitalized terms
used herein shall have the meanings given them in the Loan Agreement. This First
Amendment to Loan Agreement is referred to as the "First Amendment".
Background. The Borrowers have requested that the Lender agree to (a)
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decrease the interest rates charged on the Loans, (b) provide mortgage financing
in connection with contemplated purchases of real estate in Denver, Colorado and
Auburn, California, (c) provide up to $10,000,000 in Loans to finance the
acquisition of businesses by the Borrowers and (d) to extend the term of the
Loan Agreement. The Lender has agreed to the foregoing changes, subject to the
terms and conditions of this First Amendment.
Subject to the satisfaction of the terms and conditions hereof,
Lender and Borrower have agreed that the Loan Agreement shall be amended as
follows:
1. Amendments to the Loan Agreement.
--------------------------------
1.1 Section 1.2 of the Loan Agreement is amended to add the
following subsection 1.2.3 thereto:
"1.2.3 Real Estate Acquisition Loans. The Lender agrees
-----------------------------
to make to the Borrowers two additional Loans (the "Real Estate Acquisition
Loans") in the original principal amounts of up to $7,500,000 for the purchase
of real Property in Denver, Colorado and up to $5, 500,000 for the purchase of
real Property in Auburn, California. Such Real Estate Acquisition Loans shall
(a) amortize in equal monthly payments over a twenty (20) year period, (b) be
due and payable at the first to occur of (i) at the election of Lender upon and
during the existence of an Event of Default or (ii) upon the expiration of the
term of this Agreement, and (c) be secured by all the Collateral. In addition,
the making of such Real Estate Acquisition Loans will be subject to the
satisfaction of
Fleet Capital Corporation
March 1, 1997
Page 2
such conditions as the Lender normally and customarily requires upon the making
of a mortgage loan including, without limitation, (a) the receipt of a Secured
Promissory Real Estate Note duly executed by the Borrowers in substantially the
form of Exhibit A-2 hereto, (b) the receipt of duly executed mortgages, deeds of
trust or security deeds and collateral assignments in form and substance
satisfactory to the Lender covering the real Property to be purchased, (c) the
recording of such collateral documents in each office where such recording is
required to constitute a valid Lien on the real Property, (d) delivery to the
Lender of title insurance policies issued by companies satisfactory to Lender
insuring the Lender's valid first Lien on the real Property and with such
coverages and subject to such exceptions as the Lender may require or accept,
and (e) delivery to the Lender of environmental assessments, surveys and other
due diligence and other information concerning the real Property as the Lender
may reasonably request."
1.2 Section 1 of the Loan Agreement is amended to add the
following subsection 1.4 thereto:
"1.4 Acquisition Loans. The Lender agrees to make
-----------------
Loans ("Acquisition Loans") from time to time to the Borrowers to be used for
the purpose of purchasing businesses in the lines of business conducted by the
Borrowers which the Borrowers have determined, in their reasonable business
judgment, would enhance the business, operations, prospects and condition
(financial and otherwise) of the Borrowers. The aggregate amount of Acquisition
Loans made under this subsection shall not exceed $10,000,000 during the term of
this Agreement. All Acquisition Loans shall be evidenced by and payable in
accordance with the terms of the Secured Promissory Acquisition Term Note in the
form of Exhibit A-1 hereto and will be secured by all the Collateral. The
Borrowers agree to furnish to the Lender notice and copies of any letter of
intent or memorandum of understanding and purchase documents for any acquisition
they may contemplate and allow Lender and its representatives reasonable access
to financial information and the assets and properties to be acquired which
will, upon consummation of the acquisition, become Collateral for the
Obligations. If any such acquisition is structured as the acquisition of the
stock or other securities of a Person to be acquired or Borrowers create a
subsidiary to make the acquisition, Borrowers shall cause such entity to enter
into a guaranty of the Obligations and to grant to Lender a security interest in
its assets to secure such guaranty reasonably satisfactory to the Lender. The
Lender agrees to enter into confidentiality agreements with the Persons that
Borrower may acquire on terms mutually agreeable to Lender and any such Person."
1.3 Subsection 2.1.1 of the Loan Agreement is amended to delete
subparagraphs (i) and (ii) thereof and to replace such subparagraphs with the
following:
"(i) For each Revolving Credit Loan bearing interest
based upon the Base Rate, at a fluctuating rate per annum equal to the Base
Rate; and
(ii) For each Euro-Dollar Revolving Credit Loan, at a
rate per annum equal to one percent (1.00%) plus the Euro-Dollar Rate for the
applicable Euro-Dollar Interest Period selected by Borrowers in conformity with
this Agreement."
Fleet Capital Corporation
March 1, 1997
Page 3
1.4 Section 3 of the Loan Agreement is amended to add the
following subsection 3.1.4 thereto:
3.1.4. Fixed Rate Loan Requests. (a) Notwithstanding the
------------------------
provisions of Section 3.1.1 above, in the event that Borrowers shall request a
Fixed Rate Loan under this Agreement, Borrowers shall give Lender not less than
three (3) Business Days prior irrevocable written notice thereof specifying (i)
the date of the requested Fixed Rate Loan (which shall be a Business Day), (ii)
the amount of such Fixed Rate Loan which shall be not less than $1,000,000.00 or
an integral multiple thereof, and (iii) the duration of the Fixed Rate Interest
Period of such Fixed Rate Loan.
(b) Borrowers shall indemnify Lender against all out-
of-pocket costs and expenses (including, without limitation, any cancellation or
similar fees paid by Lender to lenders of funds borrowed by it to make or carry
any Loan as a Fixed Rate Loan and any loss sustained by Lender in connection
with the reemployment of funds with respect to any Fixed Rate Loan) which Lender
may sustain (i) if the making of any Loan as a Fixed Rate Loan does not occur on
the date specified therefor in the notice of borrowing given by Borrowers
pursuant to Section 3.1.1 hereof, (ii) if Borrowers fail to give the required
notice of its intent to prepay a Fixed Rate Loan, (iii) if any prepayment of a
Fixed Rate Loan occurs on a date which is not the expiration date of the Fixed
Rate Interest Period of such Fixed Rate Loans, (iv) if any prepayment of a Fixed
Rate Loan is not made on the date specified in a notice of prepayment given by
Borrowers, or (v) as a consequence of any default by Borrowers under this
Agreement. The amount payable upon any such prepayment shall equal Lender's out-
of-pocket costs plus an amount computed as follows: the latest rate preceding
the date of prepayment for United States Treasury Notes or Bills (Bills on a
discounted basis shall be converted to a bond equivalent) as determined by the
Bank with a maturity date closest to the scheduled maturity date on the term of
the Fixed Rate applicable to the Loan, or portion thereof, to be prepared shall
be subtracted from the Fixed Rate applicable to the Fixed Rate Loan, or portion
thereof, to be prepaid. If the result is zero or a negative number, there shall
be no prepayment premium. If the result is a positive number, then the resulting
percentage shall be multiplied by the amount of the Loan principal balance being
prepaid. The resulting amount shall be divided by 360 and multiplied by the
number of days remaining in the term of the Fixed Rate Loan as to which the
prepayment is made. Said amount shall be reduced to present value calculated by
using the number of months remaining in the term of such Fixed Rate Loan and
using the above referenced United States Treasury Note or Xxxx rate and the
number of days remaining on the term of the Fixed Rate Loan as of the date of
the prepayment. A statement by Lender claiming compensation under this Section
shall be sent to the Borrowers and shall set forth the additional amount or
amounts to be paid to Lender hereunder. Such statement shall be conclusive and
binding on Borrowers, absent manifest error.
(c) Notwithstanding any other provision hereof, if
any applicable law, treaty, regulation or direction, or any change therein or in
the interpretation or application thereof, shall make it unlawful for Lender to
make or maintain its Fixed Rate Loans, or if with respect to any Fixed Rate
Interest Period, the Lender is unable to determine the Fixed Rate relating
thereto, or adverse or unusual conditions in or changes in applicable law
relating to the applicable interbank
Fleet Capital Corporation
March 1, 1997
Page 4
federal discount market make it, in the reasonable good faith judgment of
Lender, impracticable to fund any Fixed Rate Loans or make the projected Fixed
Rate unreflective of the actual costs of funds therefor to Lender, the
obligation of Lender to make Fixed Rate Loans hereunder shall forthwith be
canceled and the Borrowers shall, if any affected Fixed Rate Loans are then
outstanding, promptly upon request of Lender, either pay all such affected Fixed
Rate Loans or convert such affected Fixed Rate Loans into Loans of another type.
If such payment or conversion of any Fixed Rate Loan is made on a day that is
not applicable to such Fixed Rate Loan, Borrowers shall pay Lender, upon
Lender's request, such amount or amounts as may be necessary to compensate
Lender for any loss or expense sustained or incurred by Lender in respect of
such Fixed Rate Loan as a result of such payment or conversion, including (but
not limited to) any interest or other amounts payable by Lender to lenders of
funds obtained by Lender to make or maintain such Fixed Rate Loan. A certificate
as to any additional amounts payable pursuant to the foregoing sentence
submitted by Lender to Borrowers shall be conclusive absent manifest error.
1.5 Subsection 4.1 is amended to delete the date "July 31,
1998" therefrom and to substitute in place thereof the date "July 31, 2002"
1.6 Subsection 4.2.3 is deleted in its entirety and the
following is substituted therefore:
"4.2.3 Termination Charges. At the effective date of
-------------------
termination of this Agreement by Borrowers for any reason, Borrowers shall pay
to Lender (in addition to the then outstanding principal, accrued interest and
other charges owing under the terms of this Agreement and any of the other Loan
Documents) in lieu of the payment of financing fees and charges that would
otherwise be charged by Lender upon the closing of the Loans and otherwise as
liquidated damages for the loss of the bargain and not as a penalty, (a) an
amount equal to one percent (1%) of the Average Monthly Loan Balance (during the
prior 12 months) if termination occurs during the period from March 1, 1997
through July 31, 1998, (b) an amount equal to three quarter percent (3/4%) of
the Average Loan Balance (during the prior 12 months) if termination occurs
during the period from August 1, 1998 through July 31, 1999, (c) an amount equal
to one half percent (1/2%) of the Average Monthly Loan Balance (during the prior
12 months) if termination occurs during the period from August 1, 1999 through
July 31, 2000, an amount equal to one-quarter percent (1/4%) from August 1, 2000
to July 31, 2001, and (d) from and after August 1, 2001, no termination charge
will be required to be paid."
1.7 Subsections 8.3.1, 8.3.2 and 8.3.3 are hereby deleted in
their entirety.
1.8 Appendix A. General Definitions is hereby amended as
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follows:
(a) The following definitions are added between the
definitions "Accounts" and "Adjusted Net Earnings from Operations":
"Acquisition Loans - the Loans described in Subsection 1.4
-----------------
of the Agreements.
Fleet Capital Corporation
March 1, 1997
Page 5
"Acquisition Note - the Secured Promissory Acquisition Loan
----------------
Note to be executed by Borrowers to evidence the Acquisition Loans which shall
be in substantially the form of Exhibit A-1 to the Agreement."
(b) The following definition is added between the
definitions "Availability" and "Bank":
"Average Monthly Loan Balance - for any month, the amount
----------------------------
obtained by adding up the unpaid balance of the Loans and LC Guaranties at the
end of each day for each day during the applicable month and by dividing such
sum by the number of days in such month."
(c) The definition of Borrowing Base is amended to
delete clause (i) thereof and to substitute in place thereof:
"(i) $50,000,000 minus the unpaid principal balance of
-----
(a) the Term Loan; (b) the Real Estate Term Loan; (c) the Acquisition Loans; (d)
the Real Estate Acquisition Loans; and (d) the face amount of any LC Guaranty
outstanding at such date; or"
(d) The following definitions are added between the
definitions of "Event of Default" and "GAAP":
"Fixed Rate - with respect to any Fixed Rate
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Interest Period, a fixed interest rate per annum equal to the sum of:
(i) the rate to maturity of U.S. Treasury
issues maturing on, or as nearly as possible prior to, the last day of such
Fixed Rate Interest Period, such rate to be determined by the Bank as of the
Business Day immediately preceding the first day of such Fixed Rate Interest
Period; plus
(ii) Lender's cost (expressed as a percentage
per annum) to acquire such U.S. Treasury issues; plus
(iii) one and one-quarter (1.25%) percent
The determination of the Fixed Rate by Lender shall, in the
absence of manifest error, be conclusive.
Fixed Rate Interest Period - with respect to each Fixed Rate
--------------------------
Loan, the period commencing on (and including) the date that such Fixed Rate
Loan is made and ending on (but excluding) the numerically corresponding
maturity date of the U.S. Treasury issue by which the Fixed Rate is established,
provided that:
Fleet Capital Corporation
March 1, 1997
Page 6
(a) each such Fixed Rate Interest Period occurring after the
initial Fixed Rate Interest Period shall commence on the day on which the next
preceding Fixed Rate Interest Period expires,
(b) if any Fixed Rate Interest Period would otherwise commence or
expire on a day which is not a Business Day, such Fixed Rate Interest Period
shall commence or expire, as the case may be, on the next succeeding Business
Day unless the result would be to cause such Fixed Rate Interest period to
commence or expire, as the case may be, in another calendar month, in which case
such Fixed Rate Interest Period shall commence or expire on that next preceding
Business Day,
(c) if any Fixed Rate Interest Period commenced on the last
Business Day in a calendar month and there is no numerically corresponding day
in the month in which such Fixed Rate Interest Period ends, such Fixed Rate
Interest period shall expire on the last day in such later month,
(d) no Fixed Rate Interest period shall extend beyond the last
day of the Original Term or any Renewal Term, as applicable.
Fixed Rate Loans - any portion of the Term Loan, Real Estate
----------------
Loan, Real Estate Acquisition Loans or Acquisition Loans on which Borrowers
elect pursuant to the terms of the applicable Note or this Agreement, to pay
interest at a fixed rate of interest equal to the Fixed Rate for the applicable
Fixed Rate Interest period."
(e) The following definitions are added between the definitions
of "Purchase Money Loan" and "Real Estate Loan":
"Real Estate Acquisition Loans - the Loans described in
-----------------------------
subsection 1.2.3.
Real Estate Acquisition Notes - the Real Estate Acquisition
-----------------------------
Term Notes to be executed by Borrowers to evidence the Real Estate Acquisition
Loans which shall be in substantially the form of Exhibit A-2 to the Agreement."
(f) All references in the Agreement to Loans or to specific Loans
shall be amended to include references to the Acquisition Loans and Real Estate
Acquisition Loans and the context may require.
2. Representations and Warranties.
------------------------------
To induce Lender to enter into this First Amendment, each
Borrower warrants, represents and covenants to Lender that:
(a) Organization and Qualification. Each Borrower is a
------------------------------
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its
Fleet Capital Corporation
March 1, 1997
Page 7
incorporation. Each Borrower is duly qualified or is authorized to do business
and is in good standing as a foreign corporation or limited liability company in
all states and jurisdictions in which the failure of such Borrower to be so
qualified would have a material adverse effect on the financial condition,
business or properties of the Borrower.
(b) Corporate Power and Authority. Each Borrower is
-----------------------------
duly authorized and empowered to enter into, execute, deliver and perform this
First Amendment, the Amended and Restated Real Estate Term Note, the Acquisition
Note (collectively the "Amended and Additional Notes) and each of the Loan
Documents to which it is a party. The execution, delivery and performance of
this First Amendment and each of the other Loan Documents have been duly
authorized by all necessary corporate action and do not and will not (i) require
any consent or approval of the shareholders or members of a Borrower; (ii)
contravene any Borrower's charter, by-laws or operating agreement; (iii)
violate, or cause Borrower to be in default under, any provision of any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award in effect having applicability to any Borrower; (iv) result in a breach of
or constitute a default under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which any Borrower is a party or by
which Borrower's Properties may be bound or affected; or (v) result in, or
require, the creation or imposition of any Lien (other than Permitted Liens)
upon or with respect to any of the Properties now owned or hereafter acquired by
Borrower.
(c) Legally Enforceable Agreement. This First
-----------------------------
Amendment, the Amended and Additional Notes and each of the other Loan Documents
when delivered under this First Amendment will be, a legal, valid and binding
obligation of each Borrower, enforceable against each Borrower in accordance
with its respective terms.
(d) No Material Adverse Change. Since the date of the
--------------------------
last financial statements provided by the Borrower to the Lender, there has been
no material adverse change in the condition, financial or otherwise, of any
Borrower as shown on the Consolidated balance sheet as of such date and no
change in the aggregate value of Equipment and real property owned by Borrowers,
except changes in the ordinary course of business, none of which individually or
in the aggregate has been materially adverse.
(e) Continuous Nature of Representations and
----------------------------------------
Warranties. Each representation and warranty contained in the Loan Agreement and
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the other Loan Documents remains accurate, complete and not misleading in any
material respect on the date of this First Amendment, except for representations
and warranties that explicitly relate to an earlier date and changes in the
nature of any Borrower's business or operations that would render the
information in any exhibit attached thereto either inaccurate, incomplete or
misleading, so long as such changes were disclosed in the Form S-1 Registration
Statement of UNF as filed with the Securities and Exchange Commission on
September 4, 1996, as amended, or Lender has consented to such changes or such
changes are expressly permitted by the Loan Agreement.
Fleet Capital Corporation
March 1, 1997
Page 8
3. Conditions Precedent.
--------------------
Notwithstanding any other provision of this First Amendment
or any of the other Loan Documents, and without affecting in any manner the
rights of Lender under the other sections of this First Amendment, this First
Amendment shall not be effective as to Lender unless and until each of the
following conditions has been and continues to be satisfied:
(a) Documentation. Lender shall have received, in
-------------
form and substance satisfactory to Lender and its counsel, a duly executed copy
of this First Amendment and the Amended and Additional Notes in the form
attached hereto, together with such additional documents, instruments and
certificates as Lender and its counsel shall require in connection therewith,
all in form and substance satisfactory to Lender and its counsel.
(b) No Default. No Default or Event of Default shall
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exist except as previously disclosed to and consented to by Lender.
(c) No Litigation. Except as previously disclosed to
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and consented to by Lender, no action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain or prohibit, or to
obtain damages in respect of, or which is related to or arises out of the Loan
Agreement or this First Amendment or the consummation of the transactions
contemplated thereby or hereby.
4. Acknowledgment of Obligations.
-----------------------------
Each Borrower hereby (1) reaffirms and ratifies all of the
promises, agreements, covenants and obligations to Lender under or in respect of
the Loan Agreement and other Loan Documents as amended hereby and (2)
acknowledges that it is unconditionally liable for the punctual and full payment
of all Obligations, including, without limitation, all charges, fees, expenses
and costs (including reasonable attorneys' fees and expenses) under the Loan
Documents, as amended hereby, and that it has no defenses, counterclaims or
setoffs with respect to full, complete and timely payment and performance of all
Obligations.
5. Confirmation of Liens.
---------------------
Each Borrower acknowledges, confirms and agrees that the
Loan Documents, as amended hereby, are effective to grant to Lender duly
perfected, valid and enforceable first priority security interests and liens in
the Collateral described therein and that the locations for such Collateral
specified in the Loan Documents have not changed. Borrower further acknowledges
and agrees that all Obligations of Borrower are and shall be secured by the
Collateral.
Fleet Capital Corporation
March 1, 1997
Page 9
6. Miscellaneous.
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Except as set forth herein, the undersigned confirms and
agrees that the Loan Documents remain in full force and effect without amendment
or modification of any kind. Each Borrower hereby acknowledges its obligation to
pay to Lender's reasonable attorneys' fees and costs incurred in connection with
this First Amendment, as set forth in the Loan Agreement. The execution and
delivery of this First Amendment by Lender shall not be construed as a waiver by
Lender of any Default or Event of Default under the Loan Documents. This First
Amendment, together with the Loan Agreement and other Loan Documents,
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior dealings, correspondence, conversations
or communications between the parties with respect to the subject matter hereof.
This First Amendment and the transactions hereunder shall be deemed to be
consummated in the State of Connecticut and shall be governed by and interpreted
in accordance with the laws of that state. This First Amendment and the
agreements, instruments and documents entered into pursuant hereto or in
connection herewith shall be "Loan Documents" under and as defined in the Loan
Agreement.
Executed under seal on the date set forth above.
ATTEST: UNITED NATURAL FOODS, INC.
/s/ XXXX X. XXXXXXX By: /s/ XXXXXX XXXXXXXX
--------------------------- ------------------------------------
Name: XXXXXX XXXXXXXX
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Title: CHIEF FINANCIAL OFFICER
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ATTEST: MOUNTAIN PEOPLE'S WAREHOUSE, INC.
/s/ XXXX X. XXXXXXX By: /s/ XXXXXX XXXXXXXX
--------------------------- ------------------------------------
Name: XXXXXX XXXXXXXX
-------------------------------
Title: CHIEF FINANCIAL OFFICER
-------------------------------
ATTEST: NATURAL RETAIL GROUP, INC.
/s/ XXXX X. XXXXXXX By: /s/ XXXXXX XXXXXXXX
--------------------------- ------------------------------------
Name: XXXXXX XXXXXXXX
-------------------------------
Title: CHIEF FINANCIAL OFFICER
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Fleet Capital Corporation
March 1, 1997
Page 10
ATTEST: NUTRASOURCE, INC.
/s/ XXXX X. XXXXXXX By: /s/ XXXXXX XXXXXXXX
--------------------------- ------------------------------------
Name: XXXXXX XXXXXXXX
-------------------------------
Title: CHIEF FINANCIAL OFFICER
-------------------------------
ATTEST: RAINBOW NATURAL FOODS, INC.
/s/ XXXX X. XXXXXXX By: /s/ XXXXXX XXXXXXXX
--------------------------- ------------------------------------
Name: XXXXXX XXXXXXXX
-------------------------------
Title: CHIEF FINANCIAL OFFICER
-------------------------------
Accepted in Glastonbury, Connecticut
on March 25, 1997
FLEET CAPITAL CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
------------------------
Name: XXXXXXX X. XXXXXXX
--------------------
Title: VICE PRESIDENT
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EXHIBIT A-1
SECURED PROMISSORY ACQUISITION TERM NOTE
$10,000,000.00 March 1, 0000
Xxxxxxxxxxx, Xxxxxxxxxxx
FOR VALUE RECEIVED, the undersigned (hereinafter, jointly and severally,
"Borrowers"), hereby promise to pay to the order of FLEET CAPITAL CORPORATION, a
Rhode Island corporation (hereinafter "Lender"), in such coin or currency of the
United States which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, the principal sum of TEN MILLION
DOLLARS ($10,000,000.00) or so much as has been loaned to Borrowers as
Acquisition Loans under the Loan Agreement (as hereinafter defined) together
with interest from and after the date hereof on the unpaid principal balance
outstanding as set forth herein.
This Secured Promissory Acquisition Term Note (the "Note") is the
Acquisition Note referred to in, and is issued pursuant to, that certain Amended
and Restated Loan and Security Agreement between Borrowers and Lender dated
February 20, 1996, as amended by a First Amendment thereto of even date
(hereinafter, as further amended from time to time, the "Loan Agreement"), and
is entitled to all of the benefits and security of the Loan Agreement. All of
the terms, covenants and conditions of the Loan Agreement and the Security
Documents are hereby made a part of this Note and are deemed incorporated herein
in full. All capitalized terms used herein, unless otherwise specifically
defined in this Note, shall have the meanings ascribed to them in the Loan
Agreement.
The unpaid principal (not at the time overdue) under this Note shall
bear interest, at the Borrowers' election subject to the terms and conditions of
the Loan Agreement, at (i) a variable rate per annum equal to Base Rate, (ii)
the Euro-Dollar Rate plus 1.25% for the applicable Euro-Dollar Interest Period
selected in accordance with the Loan Agreement or (iii) the Fixed Rate for the
Fixed Rate Interest Period applicable to such Fixed Rate Loan. Accrued interest
on the unpaid principal under this Note shall be payable as provided below.
The rate of interest in effect hereunder for Loans bearing interest
based upon the Base Rate shall increase or decrease by an amount equal to any
increase or decrease in the Base Rate, effective as of the opening of business
on the date that any such change in the Base Rate occurs. The Euro-Dollar Rate
and the Fixed Rate shall be determined as provided in the Loan Agreement.
Interest shall be computed in the manner provided in subsection 2.2 of the Loan
Agreement.
For so long as no Event of Default shall have occurred the principal
amount and accrued interest of this Note shall be due and payable on the dates
and in the manner hereinafter set forth:
1
(a) Interest shall be due and payable monthly, in arrears, on the first
day of each month, commencing on the first day of the month following the date
that the first Acquisition Loan is made hereunder, and continuing until such
time as the full principal balance, together with all other amounts owing
hereunder, shall have been paid in full; and
(b) The entire principal amount then outstanding, together with any and
all other amounts due hereunder, shall be due and payable on July 31, 2002.
Notwithstanding the foregoing, the entire unpaid principal balance and accrued
interest on this Note shall be due and payable immediately upon any termination
of the Loan Agreement pursuant to Section 4 thereof.
This Note shall be subject to mandatory prepayment in accordance with
the provisions of Section 3.2.5 of the Loan Agreement. Prepayment of this Note
is permitted provided that Borrowers pay any amount due upon the prepayment of a
Euro-Dollar Loan prior to this applicable Euro-Dollar Interest Period and any
Fixed Rate Loan prior to the applicable Fixed Rate Interest Period. Borrower may
also terminate the Loan Agreement and, in connection with such termination,
prepay this Note in the manner provided in Section 4 of the Loan Agreement. All
computations of interest payable under this Note shall be made by the Lender on
the basis of the actual number of days elapsed divided by 360.
Upon the occurrence of an Event of Default, Lender shall have all of the
rights and remedies set forth in Section 10 of the Loan Agreement and the unpaid
principal outstanding hereunder shall bear interest, payable on demand, at the
rate set forth in 2.1.2 of the Loan Agreement.
Borrower shall pay a late payment fee equal to 5% of the amount of any
installment of principal or interest, or both, required hereunder which is
received by Lender more than 10 days after the due date thereof.
Time is of the essence of this Note. To the fullest extent permitted by
applicable law, Borrower, for itself and its legal representatives, successors
and assigns, expressly waives presentment, demand, protest, notice of dishonor,
notice of non-payment, notice of maturity, notice of protest, presentment for
the purpose of accelerating maturity, diligence in collection, and the benefit
of any exemption or insolvency laws.
Wherever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provision or remaining provisions of
this Note. No delay or failure on the part of Lender in the exercise of any
right or remedy hereunder shall operate as a waiver thereof, nor as an
acquiescence in any default, nor shall any single or partial exercise by Lender
of any right or remedy preclude any other right or remedy. Lender, at its
option, may enforce its rights against any collateral securing this Note without
enforcing its rights against Borrowers, any guarantor of the indebtedness
evidenced hereby or any other property or indebtedness due or to become due to
any Borrower. Each Borrower agrees that, without releasing
2
or impairing Borrowers' liability hereunder, Lender may at any time release,
surrender, substitute or exchange any collateral securing this Note and may at
any time release any party primarily or secondarily liable for the indebtedness
evidenced by this Note.
EACH BORROWER HEREBY WAIVES SUCH RIGHTS AS IT MAY HAVE TO NOTICE AND/OR
HEARING UNDER ANY APPLICABLE FEDERAL OR STATE LAWS INCLUDING, WITHOUT
LIMITATION, CONNECTICUT GENERAL STATUTES SECTIONS 52-278A, ET-SEQ., AS AMENDED,
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PERTAINING TO THE EXERCISE BY LENDER OF SUCH RIGHTS AS THE LENDER MAY HAVE
INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO SEEK PREJUDGMENT REMEDIES AND/OR
DEPRIVE BORROWERS OF OR AFFECT THE USE OF OR POSSESSION OR ENJOYMENT OF
BORROWERS' PROPERTY PRIOR TO THE RENDITION OF A FINAL JUDGMENT AGAINST A
BORROWER. EACH BORROWER FURTHER WAIVES ANY RIGHT IT MAY HAVE TO REQUIRE LENDER
TO PROVIDE A BOND OR OTHER SECURITY AS A PRECONDITION TO OR IN CONNECTION WITH
ANY PREJUDGMENT REMEDY SOUGHT BY LENDER.
This Note shall be governed by, and construed and enforced in accordance
with, the laws of the State of Connecticut.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, each Borrower, jointly and severally, has caused
this Note to be duly executed and delivered in Glastonbury, Connecticut, on the
date first above written.
ATTEST: UNITED NATURAL FOODS,
INC.
/s/ XXXXXX XXXXXXXX By: /s/ XXXXXX XXXXXXXX
---------------------------- -------------------------------------
Secretary Name:
-------------------------------
[CORPORATE SEAL] Title:
------------------------------
ATTEST: MOUNTAIN PEOPLE'S WAREHOUSE
INCORPORATED
/s/ XXXXXX XXXXXXXX By: /s/ XXXXXX XXXXXXXX
---------------------------- -------------------------------------
Secretary Name:
-------------------------------
[CORPORATE SEAL] Title:
------------------------------
ATTEST: NATURAL RETAIL GROUP, INC.
/s/ XXXXXX XXXXXXXX By: /s/ XXXXXX XXXXXXXX
---------------------------- -------------------------------------
Secretary Name:
-------------------------------
[CORPORATE SEAL] Title:
------------------------------
ATTEST: NUTRASOURCE, INC.
/s/ XXXXXX XXXXXXXX By: /s/ XXXXXX XXXXXXXX
---------------------------- -------------------------------------
Secretary Name:
-------------------------------
[CORPORATE SEAL] Title:
------------------------------
ATTEST: RAINBOW NATURAL FOODS, INC.
/s/ XXXXXX XXXXXXXX By: /s/ XXXXXX XXXXXXXX
---------------------------- -------------------------------------
Secretary Name:
-------------------------------
[CORPORATE SEAL] Title:
------------------------------
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