EXHIBIT 10.27
UNITED NATURAL FOODS, INC.
000 XXXX XXXX
XXXXXXXX, XXXXXXXXXXX 00000
As of July 1, 1997
FLEET CAPITAL CORPORATION
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Re: Second 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 as amended by a First Amendment thereto dated as of
March 1, 1997 ("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 Second Amendment to Loan Agreement is referred to as
the "Second Amendment". Background. The Borrowers have requested that the
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Lender agree to amend the Loan Agreement to make certain modifications and
amendments to the covenants set forth in Section 8 thereof. Subject to the
satisfaction of the terms and conditions hereof, Lender and Borrowers have
agreed that the Loan Agreement shall be amended as follows:
Amendments to the Loan Agreement.
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Section 8.2.1 of the Loan Agreement is deleted in its entirety and the following
provision is inserted in place thereof:
"8.2.1 Mergers; Consolidations; Acquisitions. Merge or consolidate or
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permit any Subsidiary or New Subsidiary of Borrowers to merge or
consolidate, with any Person (except for mergers or consolidations among
the Borrowers or mergers or consolidations of Subsidiaries or New
Subsidiaries with a Borrower or Borrowers); nor acquire or permit any of
its Subsidiaries to acquire all or any substantial part of the Properties
or stock or securities of any Person except that Borrowers may purchase
businesses in the lines of business conducted by the Borrowers which
Borrowers have determined, in their reasonable business judgment, would
enhance the business. operations, prospects and condition (financial or
otherwise) of the Borrowers. Whether or not the Borrowers utilize
Acquisition Loans pursuant to Section 1.4 hereof in connection with such
acquisition, the Borrowers agree to furnish to the Lender notice and copies
of any letter of intent or other 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 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 such
Person."
Section 8.2.2 of the Loan Agreement is amended to add the following clause to
the end of the first sentence therein:
"and Borrowers may make loans or other advances of money between and
among the Borrowers in the ordinary course of business."
Subsection 8.2.3 of the Loan Agreement is deleted in its entirety and the
following is inserted in place thereof:
"8.2.3 Total Indebtedness. Create, assume, suffer to exist, or permit
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any Subsidiary of Borrowers to create, incur or suffer to exists, any
Indebtedness except:
(i) Obligations owing to Lender;
(ii) obligations to pay Rentals permitted by Subsection 8.2.13; and
(iii) Indebtedness (inclusive of the Obligations but excluding the
obligations under paragraph (ii) above and the Indebtedness evidenced by the
ESOP Notes) which does not result in aggregate Indebtedness for the Borrowers
and their Subsidiaries taken as a whole, exceeding five times the Tangible Net
Worth of the Borrowers and their Subsidiaries taken as a whole, provided that at
all times each Borrower shall remain Solvent and such other Indebtedness shall
not be secured by a Lien (other than Permitted Purchase Money Indebtedness
secured by Liens permitted under subsection 8.2.5(iv)).
Section 8.2.6 is hereby deleted in its entirety and the following is inserted in
place thereof:
"8.2.6 Subordinated Debt. Issue or enter into any agreement to issue
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Subordinated Debt except upon terms and provisions relating to the maturity
and repayment thereof and terms relating to the subordination of payment
thereof to the Obligations, in each case reasonably acceptable to the
Lender.
Section 8.2.8 is hereby deleted in its entirety.
Section 8.2.16 is hereby amended to delete the following from clause (a)
thereof "New Subsidiaries in connection with the opening of retail stores" and
by inserting the following in lieu thereof "Borrowers and their Subsidiaries".
Section 8.2.18 is hereby deleted in its entirety and the following is inserted
in place thereof:
"8.2.18 Subsidiaries. Hereafter create any Subsidiary except as
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provided in subsections 1.4 or 8.2.1 hereof."
Section 8.2.21 is hereby deleted in its entirety.
Representations and Warranties.
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To induce Lender to enter into this Second Amendment, each Borrower
warrants, represents and covenants to Lender that:
(a) Organization and Qualification. Each Borrower is a corporation
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duly incorporated, validly existing and in good standing under the laws of the
jurisdiction of its 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
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and empowered to enter into, execute, deliver and perform this Second Amendment
and this Second Amendment has been duly authorized by all necessary corporate
action and does 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 Second Amendment is a legal,
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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
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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
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representation and warranty contained in the Loan Agreement and the other Loan
Documents remains accurate, complete and not misleading in any material respect
on the date of this Second 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.
Conditions Precedent.
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Notwithstanding any other provision of this Second Amendment or any of
the other Loan Documents, and without affecting in any manner the rights of
Lender under the other sections of this Second Amendment, this Second 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
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satisfactory to Lender and its counsel, a duly executed copy of this Second
Amendment 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 exist except as
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previously disclosed to and consented to by Lender.
(c) No Litigation. Except as previously disclosed to and consented to
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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 Second Amendment or the consummation of the transactions contemplated
thereby or hereby.
Acknowledgment of Obligations.
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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.
Confirmation of Liens.
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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.
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 Second Amendment, as set forth in the Loan Agreement. The execution and
delivery of this Second Amendment by Lender shall not be construed as a waiver
by Lender of any Default or Event of Default under the Loan Documents. This
Second 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 Second 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 Second 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
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Name: Xxxxxx Xxxxxxxx
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Title: Chief Financial Officer
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ATTEST: MOUNTAIN PEOPLE'S WAREHOUSE, INC.
/s/ Xxxxx Xxxx-Xxxxxx By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: CFO / Treasurer
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ATTEST: NATURAL RETAIL GROUP, INC.
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Chief Financial Officer
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ATTEST: NUTRASOURCE, INC.
/s/ Xxxxx Xxxx-Xxxxxx By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: CFO / Treasurer
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ATTEST: RAINBOW NATURAL FOODS, INC.
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Chief Financial Officer
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Accepted in Glastonbury, Connecticut
on September 2, 1997
FLEET CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: Vice President
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