AGENCY AND INTERLENDER AGREEMENT
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AGREEMENT made as of this 1st day of December, 1997 among Fleet Capital
Corporation ("FCC"), as agent ("Agent") for itself and each of the financial
institutions identified under the caption "LENDERS" on the signature page hereof
(together, FCC and such financial institutions are collectively referred to as
the "Lenders").
WHEREAS, FCC, as a Lender and United Natural Foods, Inc. Natural Retail
Group, Inc., Rainbow Natural Foods, Inc., Mountain People's Warehouse
Incorporated, Nutrasource Inc., Stow ▇▇▇▇▇, Inc. and RB Acquisition, L.L.C.
(collectively, the "Borrowers") are parties to a certain Amended and Restated
Loan and Security Agreement dated February 20, 1996 as amended (the "Loan
Agreement") pursuant to which FCC has made available to Borrowers credit
facilities aggregating $100,000,000 including revolving credit loans, term
loans, acquisition loans, real estate acquisition loans, and letters of credit
(the "Credit Facilities");
WHEREAS, pursuant to the Assignment and Acceptances of even date FCC has
assigned to the Lenders interests in the Credit Facilities with the Borrowers
and the Lenders have purchased such interests thereby becoming Lenders under the
Loan Agreement and other Loan Documents;
WHEREAS, in addition to (and in some instances, in lieu of) the provisions
set forth in the Loan Agreement and other Loan Documents, the Lenders, the Agent
and the Borrowers wish to memorialize their understandings and agreements with
respect to the Loan Agreement and the other Loan Documents;
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows. Capitalized terms not otherwise defined herein shall have the meanings
given in the Loan Agreement.
Appointment. FCC is hereby appointed as Agent under the Loan Agreement, the
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other Loan Documents and hereunder by each Lender and each Lender hereby
authorizes Agent to act hereunder, under the Loan Agreement and under the other
Loan Documents as its agent hereunder and thereunder. FCC agrees to act as such
upon the express conditions contained in this Agreement. The provisions of this
Agreement are solely for the benefit of Agent and Lenders, and Borrowers shall
not have any rights as third party beneficiaries of any of the provisions of
this Agreement. In performing its functions and duties under this Agreement,
Agent shall act solely as agent of Lenders and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust
with or for any Borrower.
Assignment of Interests on Collateral. FCC hereby assigns to itself as Agent
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for itself and the Lenders all of its right, title and interest in the
Collateral, the Liens granted by Borrowers and other obligors therein, and the
rights, remedies and claims therein provided under the Loan Documents and at law
or in equity. The Lenders acknowledge and agree that with respect to the
Collateral, the Liens thereon, the Guaranties, and their respective rights,
interest and claims therein, they will act only through the Agent as provided in
this Agreement. No Lender shall have any right
individually to enforce any such Lien or Guaranty or to otherwise realize upon
the security granted under the Loan Documents, it being understood and agreed
that such rights and remedies shall be exercised by the Agent for the benefit of
itself and the Lenders.
Pro Rata Share. For purposes hereof, and the Loan Agreement, the term Pro Rata
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Share shall mean, for any Lender, such Lender's relative interest, expressed as
a percentage in outstanding Loans and commitments to extend Loans, LC
Guaranties, Letters of Credit and the other credit extensions under the Loan
Agreement. Upon the purchase by each of the Lenders of their respective
interests in the Credit Facilities from FCC pursuant to the Assignment and
Acceptance, the Pro Rata Shares of the Lenders shall be as set forth in Exhibit
A hereto. The commitment of each Lender to make Loans and other extensions of
credit under the Loan Agreement and hereunder shall be on a several basis only
and not jointly with the other Lenders.
Procedures for Making Loans and issuing LC Guaranties and Letters of Credit.
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The Borrowers, acting through their agent UNF, shall make requests for Revolving
Credit Loans to the Agent pursuant to Sections 3.1.1 of the Loan Agreement not
later than 1:00 p.m. Hartford, Connecticut time on the date any Base Rate
Revolving Credit Loan is to be made and three (3) Business Days prior to the
date that any Euro-Dollar Rate Loan is to be made. In addition, the Borrowers,
acting through their agent UNF, may request that Loans bearing interest at the
Base Rate may be converted to Euro-Dollar Rate Loans or Fixed Rate Loans by
request made three (3) Business Days prior to the date that any such Euro-Dollar
Rate Loan or Fixed Rate Loan is to be made. The Agent shall thereupon notify
the Lenders of such request and on or before 2:00 p.m. Hartford, Connecticut
time on the date of any Base Rate Revolving Credit Loan request and 2:00 p.m.
Hartford, Connecticut time on the third business day following any such Euro-
Dollar Rate Loan or Fixed Rate Loan request, each Lender shall thereupon advance
to the Agent by wire transfer of immediately available funds such Lender's Pro
Rata Share of such Loan.
Borrowers shall request Acquisition Loans and Real Estate Acquisition Loans by
and through the Agent. Agent shall notify Lenders of any request by Borrowers
or UNF for an Acquisition Loan or Real Estate Acquisition Loan promptly
following receipt. Lenders will fund their Pro Rata Share of each such
Acquisition Loan or Real Estate Acquisition Loan by wire transfer of immediately
available funds on or before 2:00 p.m. Hartford, Connecticut time on the first
business day (or if the Acquisition Loan or Real Estate Acquisition Loan is to
be made as a Euro-Dollar Rate Loan or Fixed Rate Loan, on the third business
day) following receipt of notice from Agent of Borrowers' request therefore.
Borrowers shall request the issuance of LC Guaranties and Letters of Credit
pursuant to Section 1.3 of the Loan Agreement by and through the Agent and the
Agent shall arrange for the issuance of such LC Guaranties and Letters of Credit
and notify the Lenders thereof. Upon the issuance of an LC Guaranty and/or
Letter of Credit, each Lender shall each be deemed to have purchased a
participation interest therein equal to its Pro Rata Share.
Unless the Agent has been notified in writing by a Lender prior to the proposed
time for the funding of a borrowing that such Lender does not intend to deposit
with Agent such Lender's Pro Rata Share of the requested borrowing, the Agent
may assume that such Lender has deposited or promptly will deposit its Pro Rata
Share of such Loan with the Agent and Agent may advance funds on behalf of the
other Lenders hereunder, but shall have no obligation to do so. If a Lender's
Pro Rata Share of a borrowing is not deposited with the Agent as required
hereunder, then if Agent has disbursed to Borrowers an amount corresponding to
such share, such
Lender agrees to pay, and the Borrowers also agree to pay to Agent on demand
such corresponding amount together with interest thereon at the interest rate
applicable thereto under the Loan Agreement.
In order to facilitate the administration of the Loan, the Lenders agree and
authorize the Agent to request that FCC make Revolving Credit Loans for itself
and on behalf of the other Lenders on a daily basis subject to the weekly (or
more often at Agent's election) settlement among the Lenders as provided under
Section 5 hereof (provided that FCC shall have no obligation to make such
Loans). All Loans made hereunder or under subsection 4(d) hereof shall be
deemed to be Revolving Credit Loans under the Agreement and shall have all the
rights and benefits thereof.
Payments Made to Agent. All payments to be made by Borrowers in respect of the
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Loans, LC Guaranties and Letters of Credit under the Loan Agreement shall be
made to and received by FCC in its capacity as Agent for the benefit of Lenders.
On a weekly basis, or more often as determined by Agent in its discretion, Agent
shall transfer to each Lender in immediately available funds by wire transfer
any amounts then due to such Lender. If, pursuant to subsections 4(d) or (e)
the Agent determines that amounts are due from the Lenders to the Agent or FCC,
the Agent will notify the Lenders of the amounts due, deduct from payments made
by the Borrowers under the Loan Agreement the amounts so due to Agent and/or FCC
and each Lender will transfer to Agent in immediately available funds any
amounts then due from such Lender to FCC. If Agent shall pay an amount to any
Lender pursuant to this Agreement in the expectation that a related payment has
been or will be received or collected from Borrowers, and such related payment
is not received or collected by Agent from Borrowers, such Lender shall promptly
upon demand by Agent, return such amount to Agent, together with interest
thereon, at the rate applicable to Loans made hereunder. If Agent determines at
any time that any amounts received or collected by Agent on account of
Borrowers' Obligations must be returned to Borrowers or paid to any other Person
pursuant to the provisions of the Loan Documents or applicable laws, Agent shall
not be required to distribute any portion thereof to Lenders, and if Agent shall
have distributed any portion thereof to Lenders, each Lender shall promptly upon
demand by Agent repay such portion to Agent together with interest thereon at
the rate, if any, that Agent shall be required to pay to Borrowers or such other
Person with respect thereto.
Sharing of Interest and Fees. The Lenders shall receive interest (including
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interest at the Default Rate if and to the extent the Default Rate is required
to be paid and is paid under the Loan Agreement) in respect of the closing daily
balances in the Borrowers' Loan Accounts as such interest is earned and received
by FCC from the Borrowers pursuant to the Loan Agreement, to the extent of
Lenders' Pro Rata Share at a rate equal to rates specified for the various types
of Loans under the Loan Agreement. It is understood that notwithstanding
anything else to the contrary contained in the Loan Agreement or herein, the
interest earned and due to the Lenders hereunder, shall be the sole compensation
to the Lenders, except with respect to the following that Lenders will be
entitled to as set forth below to the extent that such amounts are earned or
payable and received from Borrowers under the Loan Agreement:
Fee Lenders
(a) Letter of Credit Fees under Section 2.4 Pro Rata Share
(exclusive of charges due to Bank)
(b) Reimbursement of Expenses under As provided under Loan Agreement
Section 2.8
(c) Bank Charges As provided under Loan Agreement
(d) Funding Losses under Section 3.8 Losses actually incurred
(e) Increased Costs under Section 3.9 Costs actually incurred
(f) Termination Charges under Section 4.2.3 Pro Rata Share
(g) Indemnity under Section 11.2 As provided under Loan Agreement
Sharing of Collateral, Payments and Setoffs. Agent and the Lenders agree that
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notwithstanding anything in any Loan Documents to the contrary, all proceeds of
Collateral and any amounts paid by any Guarantor under any Guaranty Agreement,
shall be distributed by Agent, after deduction and payment of all costs and
expenses incurred by the Agent and the repayment of all Loans made by Agent
and/or FCC under subsections 4(d) and (e) hereof, to the Lenders on a Pro Rata
Share basis. Each Lender agrees that if it shall, through the exercise of a
right of banker's lien, setoff, or counterclaim against any Borrower or any
Guarantor, obtain payment in respect of the Loans as a result of which the
unpaid portion of its Pro Rata Share of the Loans, LC Guaranties and Letters of
Credit is proportionately less than the unpaid portion of the Loans, LC
Guaranties and Letters of Credit of any other Lender it shall promptly purchase
at par (and shall be deemed to have thereupon purchased) from such other Lender
a participation in the Loans, LC Guaranties and Letters of Credit of such other
Lender, so that the aggregate unpaid principal amount of each Lender's Loans and
its participation in Loans, LC Guaranties and Letters of Credit of the other
Lenders shall be consistent with each such Lender's relative Pro Rata Share,
provided that if any such non-pro rata payment is thereafter recovered or
otherwise set aside such purchase of a participation shall be rescinded.
Overadvances.
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FCC shall not intentionally and with actual knowledge, make Revolving Credit
Loans to the Borrowers pursuant to the Loan Agreement that would cause an
Overadvance unless the Lenders expressly consent thereto in writing; provided
FCC may, without the consent of the Lenders , intentionally make Overadvances at
the request of the Borrowers provided that the aggregate amount of such advances
(the "Intentional Overadvance Loans") do not exceed Two Million Dollars
($2,000,000) at any time outstanding;
If an Overadvance exists, Agent agrees to demand the repayment thereof within
thirty (30) days of the date that Agent has actual knowledge that the
Overadvance occurred; provided that Agent agrees that, unless the Lenders shall
direct otherwise, to immediately demand the repayment of the full amount of any
Overadvance if the aggregate amount of such Overadvance exceeds Two Million
Dollars ($2,000,000).
The foregoing provisions shall not restrict Agent from making Loans for the
purpose of expending funds to be paid to parties other than the Borrowers to
preserve or protect the rights or interest of the Agent and the Lenders with
respect to the Collateral or the Loan Documents.
Agreement of Requisite Lenders. Except as otherwise specifically required
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hereby, upon any occasion requiring or permitting an approval, consent, waiver,
election or
other action on the part of the Lenders under the Loan Agreement and
the other Loan Documents, the action shall be taken by the Agent for and on
behalf or for the benefit of all Lenders upon the direction of the Requisite
Lenders (as defined below) or, if required by Section 10, all of the Lenders,
and any such action shall be binding on all Lenders. No amendment,
modification, consent, or waiver shall be effective except in accordance with
the provisions of Section 10 below. For purposes hereof, Requisite Lenders shall
mean at any time, at least two (2) Lenders holding Loans and participation
interests in LC Guaranties and Letters of Credit representing at least 51% of
the aggregate principal amount of the Loans, LC Guaranties and Letters of Credit
outstanding or, if no Loans are outstanding, at least two (2) Lenders having Pro
Rata Shares of at least 51%.
Amendments, Waivers and Actions Upon Default.
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Actions Requiring Unanimous Consent. Without the consent of each Lender, Agent
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shall not, prior to the end of the Original Term (or any Renewal Term, if
applicable): (i) change the interest rate or forgive or waive the payment of any
interest on any Loans or change the payment date for any interest under the Loan
Documents; (ii) change, forgive or waive the fees payable under the Loan
Agreement which are shared among or payable to the Lenders pursuant to Section 6
hereof other than fees payable solely to FCC in its capacity as Lender or Agent;
(iii) change or forgive the payment of the principal amount of Loans outstanding
any time; (iv) extend the date on which the Original Term (or any Renewal Term,
if applicable) ends; (v) except as otherwise provided in the Loan Documents,
release any Guarantor, or release any Collateral, unless the proceeds thereof
are applied as provided in the Loan Documents; (vi) change the date principal,
any fees or other amounts payable to or shared among the Lenders (other than
principal, fees, or other amounts payable solely to FCC, in its capacity as a
Lender or Agent) are due under the Loan Documents; (vii) increase the advance
rates used in the Borrowing Base or change to allow greater availability the
representations relating to accounts and inventory incorporated therein or any
definitions utilized in the calculation of the Borrowing Base; (viii) increase
the commitments of the Lenders under the Loan Documents; (ix) change in any
manner the reimbursement obligations with respect to any LC Guaranties or
Letters of Credit; or (x) change the terms of this provision or the definition
of "Requisite Lenders".
Actions Requiring Consent of Requisite Lenders. Without the consent of the
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Requisite Lenders or, if required by Section 10, all the Lenders, the Agent
shall not, prior to the end of the Original Term (or any Renewal Term, if
applicable): (i) agree to waive or modify any material provisions of the Loan
Documents requested by Borrowers or any other party liable for the Loans; or
(ii) consent to any matter requested by Borrowers or any other party liable for
the Loans which, under the Loan Documents, requires Agent's or Lenders' consent.
Notice and Consultation after Default or Proposed Acceleration. Upon the
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occurrence of an Event of Default of which Agent obtains actual knowledge, or if
Agent otherwise intends to accelerate and demand payment of the Loans, Agent
shall promptly notify each Lender of such event or intention and consult with
Lenders as to whether to accelerate and demand payment of the Loans and which
other rights and remedies Agent should pursue or refrain from pursuing. Lenders
shall promptly confer with Agent in a good faith effort to arrive at a mutually
acceptable course of action.
Procedure Following Notice and Consultation. After notice and consultation, as
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provided in subsection (c) above, Agent shall, with the consent of the Lenders
(or, if there are more than two Lenders, the consent of the Requisite Lenders):
(i)
accelerate or demand payment of the Loans, or refrain from doing so; and
(ii) thereafter exercise or refrain from exercising such rights and remedies to
collect or restructure the Loans as Agent may determine, in its opinion, to be
necessary or desirable to protect the Agent and the Lenders, including, without
limitation, terminating the commitments; requiring that Borrowers provide Agent
cash collateral to cover the LC Amount and all fees that may thereafter be
payable in respect of LC Guaranties and Letters of Credit; amending the Loan
Documents in connection with a workout of the Loans; and exercising any rights
and remedies provided in the Security Documents and other Loan Documents. The
Lenders agree to cooperate with any such actions (or inactions) which the Agent
is authorized to take under this subsection. If, prior to notice or
consultation, emergency action is required, in the opinion of Agent, to protect
the interests of Lenders or Agent, Agent may take such required action and the
Lenders shall be deemed to have consented thereto. In no event, however, shall
Agent, without the consent of the Lenders, take any action described in
subsection (a) above or any action in violation of Section 9 above.
Procedure in the Absence of Required Consent. If, after consultation, the
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Requisite Lenders (or each Lender, as may be required under (a) above) fail to
approve Agent's proposed course of action under subsections (c) or (d) above,
within a reasonable period of time (not exceeding ten (10) business days), Agent
shall accelerate and demand payment of the Loans, and liquidate the Collateral
and collect the Loans, as provided in the Loan Documents. After demand, any
advances made by Agent to facilitate collection of the Loans, or to preserve or
protect the Collateral shall be treated as costs and expenses of liquidation,
which shall be repaid prior to payment of amounts due under Loans or on account
of LC Guaranties and Letters of Credit previously made or issued. In addition,
FCC shall have the right to purchase any non-consenting Lender's Loans and other
interests in the credit facilities for the full amount thereof, together with
accrued interest, fees, costs and other amounts owing in connection therewith
upon not less than ten (10) business days prior notice.
Renewal Terms. The term of the Loan Agreement automatically renews for one (1)
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year periods unless terminated in accordance with Section 4.2 of the Loan
Agreement. Section 4.2.1 of the Loan Agreement provides that at the end of the
Original Term or any Renewal Term, upon at least ninety (90) days prior written
notice, Lenders may terminate the Loan Agreement as of the last day of the
Original Term or any Renewal Term (the date which is ninety-one (91) days prior
to the last day of the Original Term or any Renewal Term is herein the
"Termination Notice Date"). At least thirty (30) days prior to each Termination
Notice Date, FCC shall provide to the Lenders written notice of the Termination
Notice Date and shall request that the Lenders advise FCC if they will agree to
continue as a Lender in any such Renewal Term (such notice herein the "Renewal
Request Notice"). Within fifteen (15) days after the Renewal Request Notice
(the date which is fifteen (15) days after the Renewal Request Notice, herein
the "Lender Determination Date"), each Lender shall advise FCC if such Lender
will agree to continue as a Lender during the applicable Renewal Term. If a
Lender does not agree to such renewal or if a Lender fails to advise FCC of its
decision with respect to such renewal by the Lender Determination Date, FCC
shall either (a) terminate the Loan Agreement in accordance with Section 4.2.1
or (b) prior to or at the end of the Original Term or, if applicable, the then
current Renewal Term, purchase such Lender's Loans and other interests in the
credit facilities for the full amount thereof, together with all interests,
fees, costs or other amounts owing in respect thereof. In addition, if FCC
fails to give the Renewal Request Notice and does not then terminate the Loan
Agreement, then
prior to or at the end of the Original Term or, if applicable, the then current
Renewal Term, FCC agrees to purchase such Lender's Loans and other interests in
the Credit Facilities for the full amount thereof, together with all interests,
fees, costs or other amounts owing in respect thereof, provided that the
foregoing shall be the sole and exclusive obligation and liability of FCC to the
Lenders arising out of FCC's failure to give such notice.
Default by Lender. If any Lender defaults in its obligation to make Loans or to
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comply with the terms of any LC Guaranty or Letter of Credit executed or issued
by it, then, so long as such default exists, such Lender shall not be entitled
to exercise any right of consent under Sections 8, 9 or 10 above, so that Agent
shall be entitled to take any actions described in such subsections without the
consent of such Lender, and such Lender's Pro Rata Share shall not be considered
in determining whether the Requisite Lenders have consented to any action
requiring consent of the Requisite Lenders hereunder. Nothing herein shall
relieve any Lender from any liability for any damages, cost or expenses suffered
by the other Lenders or the Agent as a result of such Lender's default.
Assignment and Participation. Except as provided herein, the Lenders (exclusive
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of FCC) may not sell, assign or grant a participation interest in, in whole or
in part, its interests, rights or obligations in the Loans, LC Guaranties,
Letters of Credit or Loan Documents. Notwithstanding the foregoing, a Lender
may (a) grant a participation interest to any of its Affiliates so long as such
Lender retains its right and responsibility of enforcing the obligations of the
Borrowers hereunder, including without limitation its rights to approve
amendments, modifications and waivers of the terms hereof, or (b) sell or grant
participation interests or, during the continuance of an Event of Default,
assign its interests to Persons not affiliated with such Lender if it first
gives written notice of such offer to FCC. The written notice shall include all
material terms and conditions of the offer and shall be deemed for all purposes
to give FCC a first right of purchase (also known as a right of first refusal)
of such participation interest or assignment before any other action is taken by
such Lender to sell or grant such participation interest. Such first right of
purchase shall continue for 20 days from receipt of such written notice and if
the FCC elects to exercise its first right of purchase it will so notify such
Lender specifying the time and place for closing the purchase. If FCC declines
or fails to exercise its first right of purchase within the time period provided
herein, such Lender may, within 60 days from the date such right terminates,
sell or grant the participation interest or make such assignment, but only upon
the same terms and conditions offered to the FCC.
Benefit of Agreement. The provisions of this Agreement are solely for the
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benefit of the Lenders and the Agent and shall not confer any rights on, benefit
in any way or be deemed to be enforceable by the Borrowers.
Powers of Agent; General Immunity.
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Duties Specified. Each Lender irrevocably authorizes Agent to take such action
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on Lender's behalf and to exercise such powers hereunder and under the Loan
Agreement and other Loan Documents as are specifically delegated to Agent by the
terms hereof and thereof, together with such powers as are reasonably incidental
thereto. Agent shall have only those duties and responsibilities which are
expressly specified in this Agreement, the Loan Agreement and the other Loan
Documents, and it may perform such duties by or through its agents or employees.
The duties of Agent shall be mechanical and administrative in nature; Agent
shall not have by reason of this Agreement a fiduciary relationship in respect
of any Lender, and nothing in this Agreement, expressed or implied, is intended
to or shall be construed as to impose upon Agent any obligations in respect of
this Agreement or the other
instruments and agreements referred to herein except as expressly set
forth herein or therein.
No Responsibility for Certain Matters. Agent shall not be responsible to any
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Lender for execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of the Loan Agreement, or the other Loan
Documents, or the Notes issued hereunder, or for the validity or effectiveness
of any assignment, pledge, security agreement, financing statements, document or
instrument, or for the filing, recording, re-filing, continuing or recording
thereof, or for any representations, warranties, recitals or statement or in any
financial or other statements, instruments, reports, certificates or any other
documents in connection herewith or therewith furnished or made by Agent to
Lenders or by or on behalf of Borrowers to Agent or any Lender or be required to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein or therein or
as to the use of the proceeds of the Loans or of the existence or possible
existence of any Default or Event of Default. Anything contained in this
Agreement to the contrary notwithstanding, Agent shall have no liability arising
from (i) confirmations of the amount of outstanding Loans, or the component
amounts thereof, or (ii) arranging for the issuance of LC Guaranties or Letters
of Credit.
Exculpatory Provisions. None of Agent or any of its officers, directors,
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employees or agents shall be liable to Lenders for any action taken or omitted
hereunder or in connection herewith (including, without limitation, any act or
omission under the Loan Agreement or other Loan Documents) unless caused by its
or their gross negligence or willful misconduct. If Agent shall request
instructions from Lenders with respect to any act or action (including the
failure to take an action) in connection with this Agreement, or the Loan
Agreement or other Loan Documents, Agent shall be entitled to refrain from such
act or taking such action unless and until Agent shall have received
instructions from Lenders. Without prejudice to the generality of the
foregoing, (i) Agent shall be entitled to rely, and shall be fully protected in
relying, upon any communication, instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and shall be entitled to rely and shall be protected in relying on
opinions and judgments of attorneys (who may be attorneys for Borrowers),
accountants, experts and other professional advisors selected by it; and (ii) no
Lender shall have any right of action whatsoever against Agent as a result of
Agent acting or (where so instructed) refraining from action under this
Agreement or the other instruments and agreements referred to herein in
accordance with the instructions of Lenders.
Agent Entitled to Act as Lender. The agency hereby created shall in no way
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impair or affect any of the rights and powers of, or impose any duties or
obligations upon, FCC in its individual capacity as Lender hereunder. With
respect to its interests in the Loans, FCC shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
performing the duties and functions delegated to it hereunder as Agent and the
term "Lender" or "Lenders" or any similar term shall, unless the context clearly
otherwise indicates, include FCC in its individual capacity as a Lender. Agent
and each of its Affiliates may accept deposits from, lend money to and generally
engage in any kind of banking, trust, financial advisory or other business with
Borrowers or any Affiliate of Borrowers as if it were not performing the duties
specified herein, and may accept fees and other consideration from Borrowers for
services in connection with this Agreement and otherwise without having to
account for the same to Lenders.
Representations and Warranties; No Responsibility for Appraisal of
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Creditworthiness. Each Lender represents and warrants that it has made its own
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independent investigation of the financial condition and affairs of Borrowers in
connection with the making of the Loans and has made and shall continue to make
its own appraisal of the creditworthiness of the Borrowers. Agent shall not
have any duty or responsibility either initially or on a continuing basis to
make any such investigation or any such appraisal on behalf of Lenders or to
provide any Lender with any credit or other information with respect thereto
whether coming into its possession before the making of the Loans of any time or
times thereafter and Agent shall have no responsibility with respect the
accuracy of or the completeness of the information to Lenders.
Right to Indemnity. Each Lender severally agrees to indemnify Agent
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proportionately to its Pro Rata Share, to the extent Agent shall not have been
reimbursed by Borrowers, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, counsel fees and disbursements) or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against Agent in performing its duties hereunder or in any way relating
to or arising out of this Agreement, the Loan Agreement or the other Loan
Documents; provided that no Lender shall be liable for any portion of such
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liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from Agent's gross negligence or
willful misconduct. If any indemnity furnished to Agent for any purpose shall,
in the opinion of Agent, be insufficient or become impaired, Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified
against until such additional indemnity is furnished.
Payee of Note Treated as Owner. Agent may deem and treat the payee of any Note
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as the owner thereof for all purposes hereof unless and until a written notice
of the assignment or transfer thereof shall have been filed with Agent. Any
request, authority or consent of any person or entity who, at the time of making
such request or giving such authority or consent, is the holder of any Note
shall be conclusive and binding on any subsequent holder, transferee or assignee
of that Note or of any Note or Notes issued in exchange therefor.
Successor Agent. Agent may resign at any time by giving 30 days prior written
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notice thereof to Lenders and Borrowers, and Agent may be removed at any time
with or without cause by an instrument or concurrent instruments in writing
delivered to Borrowers and Agent and signed by Lenders. Upon any such notice of
resignation or any such removal, Lenders shall have the right, upon five days
notice to Borrowers, to appoint a successor Agent; provided that such
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appointment shall be subject to the consent of Borrowers, which consent shall
not be unreasonably withheld. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, the successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Agent, and the retiring or removed Agent shall be discharged
from its duties and obligations as Agent under this Agreement. After any
retiring or removed Agent's resignation or removal hereunder as Agent, the
provisions of this Section 16 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
Governing Law; Loan Document. This Agreement shall be governed by the laws of
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the State of Connecticut. This Agreement shall be deemed to be a Loan Document
under the Loan Agreement.
Address for Notices. The address for notices to Lenders for purposes of Section
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11.8 of the Loan Agreement and all other Loan Documents are as set forth on
the signature pages hereof:
EXECUTED as an instrument under seal on the date first above written.
FLEET CAPITAL CORPORATION, as Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
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Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Northeast Loan Administration
LENDERS:
FLEET CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
--------------------------
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Northeast Loan Administrator
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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Address: 767 5th Ave, 12 A
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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ACKNOWLEDGMENT BY BORROWERS
Each of the undersigned acknowledges receipt of the foregoing Agency
and Interlender Agreement and agrees to be bound thereby in all respects.
ATTEST: UNITED NATURAL FOODS, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: CFO
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ATTEST: MOUNTAIN PEOPLE'S WAREHOUSE, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: CFO
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ATTEST: NATURAL RETAIL GROUP, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: CFO
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ATTEST: NUTRASOURCE, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: CFO
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ATTEST: RAINBOW NATURAL FOODS, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: CFO
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ATTEST: STOW ▇▇▇▇▇, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: CFO
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ATTEST: RB ACQUISITION, L.L.C.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: CFO
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EXHIBIT A
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Lenders and Pro Rata Share
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Lender Pro Rata Share
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Fleet Capital Corporation 50%
First Union National Bank 25%
Nationsbank, N.A. 25%
