EXHIBIT 4.14.5
AMENDMENT NUMBER SIX
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER SIX TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment"), dated as of April 7, 1997, is entered into by and
among CERTIFIED GROCERS OF CALIFORNIA, LTD., a California corporation
("CerGro"), GROCERS GENERAL MERCHANDISE COMPANY, a California corporation
("GGMC"), and GROCERS SPECIALTY COMPANY, a California corporation ("GSC")
(Cergro, GGMC, and GSC are jointly and severally referred to herein as
"Borrower"), on the one hand, and the financial institutions which are
signatories hereto (hereinafter collectively referred to as the "Lenders" and
individually as a "Lender"), BT COMMERCIAL CORPORATION, a Delaware corporation,
as agent ("Agent"), UNION BANK OF CALIFORNIA, N.A., a national banking
association, as co-agent, and THE FIRST NATIONAL BANK OF BOSTON, a national
banking association, as co-agent, on the other hand, in light of the following
facts:
RECITALS
A. The parties hereto have previously entered into that certain Amended
and Restated Loan and Security Agreement, dated as of March 17, 1994, as amended
by that certain Amendment Number One to Amended and Restated Loan and Security
Agreement, dated as of November 1, 1994, as further amended by that certain
Amendment Number Two to Amended and Restated Loan and Security Agreement, dated
as of December 3, 1994, as further amended by that certain Amendment Number
Three to Amended and Restated Loan and Security Agreement, which is undated but
was executed in May of 1996, as further amended by that certain Amendment Number
Four to Amended and Restated Loan and Security Agreement, dated as of June 27,
1996, and as further amended by that certain Amendment Number Five to Amended
and Restated Loan and Security Agreement, dated as of September 30, 1996
(collectively, the "Agreement").
B. Borrower's subsidiary, Grocers Capital Company, currently owns
Sixty-Three Thousand (63,000) shares of preferred stock of Sav Max Foods, Inc.,
a California corporation ("Sav Max"), and Two Hundred Seventy-Five Thousand
(275,000) shares of common stock of Sav Max constituting ten percent (10%) of
the issued and outstanding common stock of Sav Max.
C. Borrower has requested that Lenders agree to allow Borrower to purchase
approximately Four Million Dollars ($4,000,000) of Sav Max's obligations to Well
Fargo Bank, National Association, as well as, to permit Borrower to convert
certain past due accounts receivable owned by Save Max to Borrower into a note
with an original principal amount of up to Four Million Dollars ($4,000,000).
D. Lenders are agreeing to permit the foregoing purchase and
conversion, subject and pursuant to the terms of this Amendment.
NOW THEREFORE, the parties hereto agree as follows:
A G R E E M E N T
1. Defined Terms. All initially capitalized terms used but not
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defined herein shall have the meanings assigned to such terms in the Agreement.
2. Amendment to Section 1.1. Section 1.1 of the Agreement is hereby
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amended by adding the following definitions thereto in alphabetical order:
"`Sav Max' means Sav Max Foods, Inc., a California corporation."
"`Sav Max Loan Purchase Agreement' means that certain Loan
Purchase Agreement, dated as of April __, 1997, by and between CerGro and Xxxxx
Fargo, respecting the obligations of Sav Max under the Xxxxx Fargo Loan
Agreement."
"`Xxxxx Fargo' means Xxxxx Fargo Bank, National Association, a
national banking association."
"`Xxxxx Fargo Loan Agreement' means that certain Credit
Agreement, dated as of February 5, 1996, by and between Sav Max and Xxxxx Fargo,
as amended, and as the same may be amended, replaced, supplemented or otherwise
modified from time to time."
3. Amendment to Section 6.21. Section 6.21 of the Agreement is hereby
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deleted in its entirety and replaced with the following:
"6.21 Use of Proceeds. Borrower shall use the proceeds of the Loans
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made hereunder solely: (a) to replace and refinance the Prior Agreement, (b) to
prepay the Existing Subordinated Debt in accordance with Section 6.3(g), (c) to
purchase the obligations of Sav Max to Xxxxx Fargo under the Xxxxx Fargo Loan
Agreement pursuant to the Sav Max Loan Purchase Agreement, and (d) for general
working capital."
4. Amendment to Section 6.25. Section 6.25 of the Agreement is hereby
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amended by adding the following subsection (l) at the end of such Section:
"(l) Borrower may acquire the Debt of Sav Max pursuant to the terms of
the Sav Max Loan Purchase Agreement."
5. Amendment to Section 6.26. Section 6.26 of the Agreement is amended
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to delete subsection (a) in its entirety and to replace such subsection with the
following:
"(a) Borrower may perform and maintain, but not amend (except as
required in connection with the closing of the GCC Credit Agreement) the GCC
Operating Agreement and GCC Investment Agreement. Borrower also may convert, up
to Four Million Dollars ($4,000,000) of past due Accounts owed to Borrower by
Sav Max into a promissory note, payable to the order of Borrower, in an original
principal amount not to exceed Four Million Dollars ($4,000,000), and in form
and substance satisfactory to Agent."
6. Amendment to Section 6.27. Section 6.27 of the Agreement is hereby
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amended by adding the following subsection (e) to the end of such Section:
"(e) Accommodation Obligations consisting of the Sav Max Loan Purchase
Agreement."
7. Conditions Precedent. The effectiveness of this Amendment is subject
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to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
(a) Agent shall have received this Amendment duly executed by
Borrower and the Lenders.
(b) Agent shall have received a consent and affirmation duly executed
by each of CerGro, GGMC, and GSC indicating the consent by each such guarantor
to the execution and delivery by Borrower of this Amendment and the
affirmation of the continued effectiveness of each such guarantor's guaranty of
the Obligations.
(c) Agent shall have received payment of all Agent's Expenses
incurred by Agent in connection with the negotiation, preparation and execution
of this Amendment.
(d) Agent shall have received an copy of the Sav Max Loan Purchase
Agreement substantially in the form to be executed by Borrower, and in form and
substance satisfactory to Agent.
8. Counterparts; Effectiveness. This Amendment may be executed in any
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number of counterparts and by different parties on separate counterparts, each
of which when so executed and delivered shall be deemed to be an original. All
such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the fulfillment of all of
the conditions set forth in Section 5 hereof.
9. Reaffirmation of the Agreement. Except as specifically amended by
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this Amendment, the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be executed
at Los Angeles, California as of the date first hereinabove written.
CERTIFIED GROCERS OF CALIFORNIA, LTD.,
a California corporation
By /s/ XXXXXX XXXX
---------------------------------------
Title: Senior Vice President, Finance &
Admin. and Chief Financial Officer
----------------------------------
GROCERS GENERAL MERCHANDISE COMPANY,
a California corporation
By /s/ XXXXXX XXXX
---------------------------------------
Title: Vice President and
Chief Financial Officer
----------------------------------
GROCERS SPECIALTY COMPANY,
a California corporation
By /s/ XXXXXX XXXX
---------------------------------------
Title: Vice President and
Chief Financial Officer
----------------------------------
BT COMMERCIAL CORPORATION,
a Delaware corporation,
individually and as Agent
By /s/ SIGNATURE ILLEGIBLE
---------------------------------------
Title: SVP
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4
THE FIRST NATIONAL BANK OF
BOSTON, a national banking association,
individually and as Co-Agent
By /s/ SIGNATURE ILLEGIBLE
----------------------------------
Title: VICE PRESIDENT
----------------------------
UNION BANK OF CALIFORNIA, N.A.,
individually and as Co-Agent
By /s/ SIGNATURE ILLEGIBLE
----------------------------------
Title: VICE PRESIDENT
----------------------------
DG BANK DEUTSCHE
GENOSSENSCHATFTSBANK,
a German bank acting through
its New York Branch
By /s/ S. Gaeusslen
----------------------------------
Title: S. Gaeusslen AT
----------------------------
By /s/ Xxxxxxxx Xxxxxxxx
----------------------------------
XXXXXXXX XXXXXXXX
Title: Senior Vice President
----------------------------
0
XXXXXXXX XXXX, XX,
Xxx Xxxx branch and
Grand Cayman Branch, as a bank
By /s/ Xxxx X. Xxxxxxx
----------------------------------
XXXX X. XXXXXXX
Title: Assistant Vice President
----------------------------
By /s/ Xxxxxxxxxxx X. Xxxxxxx
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XXXXXXXXXXX X. XXXXXXX
Title: Assistant Treasurer
----------------------------
NATIONAL BANK OF CANADA,
a Canadian Chrtered Bank,
New York Branch
By /s/ SIGNATURE ILLEGIBLE
----------------------------------
Title: Vice President
----------------------------
By /s/ SIGNATURE ILLEGIBLE
----------------------------------
Title: VICE PRESIDENT
----------------------------
SANWA BANK CALIFORNIA,
a California banking corporation
By__________________________________
Title:____________________________
6
SANWA BUSINESS CREDIT
CORPORATION, a Delaware corporation
By__________________________________
Title:____________________________
THE SAKURA BANK, LIMITED,
a Japanese bank acting through
its Los Angeles agency
By__________________________________
Title:____________________________
By__________________________________
Title:____________________________
MANUFACTURERS BANK
By /s/ SIGNATURE ILLEGIBLE
----------------------------------
Title: Vice President
----------------------------
CITY NATIONAL BANK,
a national banking association
By /s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX
Title: SENIOR VICE PRESIDENT
----------------------------
7
CONSENT OF GUARANTORS
Each of the undersigned, as a guarantor of the obligations of
CERTIFIED GROCERS OF CALIFORNIA, LTD., a California corporation ("CerGro"),
GROCERS GENERAL MERCHANDISE COMPANY, a California corporation ("GGMC"), and
GROCERS SPECIALTY COMPANY, a California corporation ("GSC") (CerGro, GGMC and
GSC are collectively referred to herein as "Borrower"), arising out of that
certain Amended and Restated Loan and Security Agreement, dated as of March 17,
1994, as amended by that certain Amendment Number One to Amended and Restated
Loan and Security Agreement, dated as of November 1, 1994, as further amended by
that certain Amendment Number Two to Amended and Restated Loan and Security
Agreement, dated as of December 3, 1994, as further amended by that certain
Amendment Number Three to Amended and Restated Loan and Security Agreement,
which is undated but was executed in May of 1996, as further amended by that
certain Amendment Number Four to Amended and Restated Loan and Security
Agreement, dated as of June 27, 1996, and as further amended by that certain
Amendment Number Five to Loan and Security Agreement, dated as of September 30,
1996 (collectively, the "Agreement"), among BT Commercial Corporation, a
Delaware corporation, Union Bank of California, N.A., a national banking
association, The First National Bank of Boston, a national banking association
(collectively, "Agents"), and the other lenders party thereto (collectively,
"Lenders"), on the one hand, and Borrower, on the other hand, hereby
acknowledges receipt of a copy of that certain Amendment Number Six to Amended
and Restated Loan and Security Agreement, dated as of April 7, 1997, among
Agents, Lenders and Borrower, consents to the terms contained therein, and
agrees that the Continuing Guaranty executed by each of the undersigned shall
remain in full force and effect as a continuing guaranty of the obligations of
Borrower owing to Agents and Lenders under the Agreement.
Although Agents have informed us of the matters set forth above, and
we have acknowledged same, we understand and agree that Agents have no duty
under the Agreement, the Guaranties or any other agreement between us to so
notify us or to seek an
acknowledgment, and nothing contained herein is intended to or shall create
such a duty as to any advances or transactions hereafter.
IN WITNESS WHEREOF, each of the undersigned has caused this Consent of
Guarantors to be duly executed by their respective authorized officers as of
March 21, 1997.
CERTIFIED GROCERS OF
CALIFORNIA, LTD., a California
corporation
By /s/ XXXXXX XXXX
----------------------------------
Title: Senior Vice President,
Finance & Admin. and Chief
Financial Officer
GROCERS GENERAL MERCHANDISE
COMPANY, a California corporation
By /s/ XXXXXX XXXX
----------------------------------
Title: Vice President and Chief
Financial Officer
GROCERS SPECIALTY COMPANY, a
California corporation
By /s/ XXXXXX XXXX
----------------------------------
Title: Vice President and Chief
Financial Officer
