AMENDMENT NUMBER SEVEN TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NUMBER SEVEN TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made as of this 28th day of February, 1997 by and among BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION d/b/a SEAFIRST BANK, successor by
merger to Bank of America NW, N.A., successor by name change to Seattle-First
National Bank, a national banking association ("Seafirst"), UNITED STATES
NATIONAL BANK OF OREGON, a national banking association ("U.S. Bank"), HONGKONG
BANK OF CANADA, assignee in interest to The Hongkong and Shanghai Banking
Corporation, Limited, an extra national banking institution ("Hongkong Bank")
(each individually a "Lender" and collectively the "Lenders"), SEAFIRST, as
agent for the Lenders (the "Agent") and UNITED GROCERS, INC., an Oregon
corporation (the "Borrower").
RECITALS
A. The Lenders, the Borrower and the Agent are parties to that certain
Amended and Restated Credit Agreement dated as of May 31, 1996, as amended by
that certain Amendment Number One to Amended and Restated Credit Agreement dated
as of July 25, 1996, by that certain Amendment Number Two to Amended and
Restated Credit Agreement dated as of September 27, 1996 , by that certain
Amendment Number Three to Amended and Restated Credit Agreement dated as of
October 28, 1996, by that certain Amendment Number Four to Amended and Restated
Credit Agreement dated as of November 29, 1996, by that certain Amendment Number
Five to Amended and Restated Credit Agreement dated as of December 26, 1996 and
by that certain Waiver and Amendment Number Six to Amended and Restated Credit
Agreement dated as of January 31, 1997 (as the same has been or may be amended,
modified or extended from time to time the "Credit Agreement"). Capitalized
terms not otherwise defined in this Amendment shall have the meanings given in
the Credit Agreement.
B. The Credit Agreement contains certain financial covenants binding upon
the Borrower. The Borrower has requested that the Agent and the Lenders modify
the required fixed charge coverage ratio set forth in Section 7.13 of the Credit
Agreement through its fiscal quarter ending March 25, 1998. The Agent and the
Lenders are prepared to modify the fixed charge coverage ratio on the terms and
conditions set forth below.
NOW, THEREFORE, the parties agree as follows:
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AGREEMENT
1. DEFINITIONS. Capitalized terms not otherwise defined in this Amendment
shall have the meanings given in the Credit Agreement.
2. AMENDMENT TO CREDIT AGREEMENT. Section 7.13 of the Credit Agreement is
hereby deleted and the following substituted in its stead:
SECTION 7.13 FIXED CHARGE COVERAGE. Borrower shall maintain on a
consolidated basis a Fixed Charge Coverage ratio (for the four most recent
fiscal quarters) as follows:
PERIOD RATIO
December 28, 1996 through at least 1.0 to 1.0
June 27, 1997
June 28, 1997 through at least 1.15 to 1.0
September 26, 1997
September 27, 1997 through at least 1.2 to 1.0
December 26, 1997
December 27, 1997 through at least 1.25 to 1.0
March 25, 1998
As used in this Agreement, "Fixed Charge Coverage" means for any period
the ratio derived by dividing (a) the sum of net income for such period
(before income taxes, patronage dividends, and extraordinary items) plus
Fixed Charges by (b) Fixed Charges. As used in this Agreement, "Fixed
Charges" means the sum of (a) interest expense on all of Borrower's
Indebtedness, (b) the amortization of any discount applied in advancing
Funded Debt to Borrower, and (c) gross rental expense net of pass-through
rental income from Borrower's members.
3. CONDITIONS TO EFFECTIVENESS. Notwithstanding anything contained herein
to the contrary, this Amendment shall not become effective until each of the
following conditions is fully and simultaneously satisfied on or before February
28, 1997:
3.1 DELIVERY OF AMENDMENT. The Borrower, the Agent and each Lender
shall have executed and delivered counterparts of this Amendment to Agent.
3.2 REIMBURSEMENT FOR EXPENSES. The Borrower shall have reimbursed
the Agent for all expenses actually incurred by
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the Agent in connection with the preparation of the Credit Agreement and the
other Loan Documents and shall have paid all other amounts due and owing under
the Loan Documents.
3.3 BORROWER CORPORATE AUTHORITY. The Agent shall have received such
evidence of corporate authority as the Agent shall request.
3.4 REPRESENTATIONS TRUE; NO DEFAULT. The representations of the
Borrower as set forth in Article 6 of the Credit Agreement shall be true on and
as of the date of this Amendment with the same force and effect as if made on
and as of this date. No Event of Default and no event which, with notice or
lapse of time or both, would constitute a Event of Default, shall have occurred
and be continuing or will occur as a result of the execution of this Amendment.
4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Lenders and the Agent that each of the representations and
warranties set forth in Article 6 of the Credit Agreement is true and correct in
each case as if made on and as of the date of this Amendment and the Borrower
expressly agrees that it shall be an additional Event of Default under the
Credit Agreement if any representation or warranty made hereunder shall prove to
have been incorrect in any material respect when made.
5. NO FURTHER AMENDMENT. Except as expressly modified by the terms of this
Amendment, all of the terms and conditions of the Credit Agreement and the other
Loan Documents shall remain in full force and effect and the parties hereto
expressly reaffirm and ratify their respective obligations thereunder.
6. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Washington.
7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original, and all of which taken
together shall constitute one and the same agreement.
8. ORAL AGREEMENTS NOT ENFORCEABLE.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT
OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment Number
Seven to Amended and Restated Credit Agreement as of the date first above
written.
BORROWER: UNITED GROCERS, INC.
By /s/ Xxxx X. xxxxx
Its Vice President
LENDERS: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Xxxxxx X. Xxxx
Its Vice President
UNITED STATES NATIONAL BANK OF
OREGON
By /s/ Xxxxxxx X. Xxxx
Its Vice President
HONGKONG BANK OF CANADA
By /s/ Xxxxx Xxxx
Its Senior Vice President
AGENT: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Xxxxxx X. Xxxxxxx
Its Vice President
By /s/ Xxxx X. Xxxxx
Its Assistant Vice President
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