EXHIBIT 99.12
AMENDMENT NO. 1 TO LLC AGREEMENT
AMENDMENT NO. 1 TO LLC AGREEMENT made as of January 30, 2003 by the
undersigned, Nutritional Sourcing Corporation (formerly Pueblo Xtra
International, Inc.), a Delaware corporation ("NSC"), in its capacity as the
sole member of Pueblo International, LLC, a limited liability company organized
under the law of the State of Delaware.
Pursuant to a Limited Liability Company Agreement and Single Member
Declaration (the "LLC AGREEMENT") made as of November 2, 2001 by NSC, Pueblo
International, LLC (the "COMPANY") was formed under the Delaware Limited
Liability Company Act. Terms defined in the LLC Agreement and used herein are
used herein as defined therein.
NSC, the Company and XTRA Super Foods Centers, Inc., a Delaware
corporation, certain Banks and The Bank of Nova Scotia, as Administrative Agent,
are parties to an Amended and Restated Credit Agreement dated as of April 29,
1997 (the "CREDIT AGREEMENT") pursuant to which said Banks have made loans to
the Company, and issued letters of credit for the account of the Company. The
obligations of the Company to said Banks in respect of such loans and letters of
credit are due and payable on February 1, 2003 and, in that connection, NSC and
the Company have requested Westernbank Puerto Rico ("WESTERNBANK") to purchase
from said Banks the loans and other obligations of the Company outstanding under
the Credit Agreement on or before said due date. In that connection, it is
proposed that NSC, the Company and various of its subsidiaries and affiliates
will enter into an Extension and Modification Agreement (the "EXTENSION AND
MODIFICATION AGREEMENT") providing, inter alia, (i) for such purchase from said
Banks of the loans and other obligations of the Company under the Credit
Agreement, (ii) for the extension of the maturity of the loans and other
obligations under the Credit Agreement, (iii) the modification and supplement of
certain of the provisions of the Credit Agreement, (iv) the making of additional
loans, and the issuance of additional letters of credit, by Westernbank under
the Credit Agreement as so modified and extended, and (v) the agreement of
Westernbank, subject to the terms and conditions thereof, to enter into, and
provide permanent financing pursuant to, the Definitive Financing Agreements
referred to therein (collectively, the "DEFINITIVE FINANCING AGREEMENTS").
In that connection, and in order to induce Westernbank to enter into
such Extension and Modification Agreement and to purchase the obligations of the
Company under the Credit Agreement and to extend credit to the Company under the
Credit Agreement as modified by the Extension and Modification Agreement, and to
enter into and extend credit to the Company under the Definitive Financing
Agreements, NSC wishes to pledge and grant a security interest in all of the
Membership Units held by it. To effect the foregoing, NSC wishes to amend the
LLC Agreement in certain respects and accordingly states as follows:
Section 1. Override of Restrictions on Transfer and Encumbrance.
Anything in the LLC Agreement to the contrary notwithstanding, the pledge and
grant of security interests to Westernbank (and its successors and assigns)
under or in connection with the Extension and Modification Agreement or the
Definitive Financing Agreements, and the exercise by Westernbank (or any such
successor or assign) of remedies in respect of such pledge and grant, shall be
deemed to be permitted under the LLC Agreement and, to the extent required, to
have been consented to by each Member. Without limiting the generality of the
foregoing, NSC, as sole Member of the Company, hereby states as follows:
(a) Nothing in Section 5.1 or 5.2 of the LLC Agreement
shall be deemed (i) to prohibit the pledge and grant of a security
interest by NSC or any other Member of Membership Units, whether now or
hereafter existing, to Westernbank (or any of its successors or
assigns) pursuant to the Extension and Modification Agreement
(including any security or other agreements executed and delivered in
connection therewith) or the Definitive Financing Agreements, (ii) to
require the consent of any Member to any other Member pledging and
granting a security interest in such other Member's Membership Units or
(iii) to prohibit the exercise of remedies by Westernbank (or any such
successor or assign) with respect to such pledge and security interest,
including to sell, transfer, assign or otherwise dispose of all or any
portion of a Member's Membership Units upon foreclosure of such pledges
and security interest.
(b) Any pledge and grant of a security interest to
Westernbank (or any of its successor and assigns) as described in
paragraph (a) above, and any such sale, transfer, assignment or other
disposition upon an exercise of remedies by Westernbank (or any such
successor and assign) as described in said paragraph (a), is hereby
deemed for purposes of Section 5.2 of the LLC Agreement to be in
compliance with the terms of the LLC Agreement.
(c) None of Section 5.3.1, 5.3.3 or 5.4 of the LLC
Agreement shall be applicable to any pledge and grant of a security
interest by NSC or any other Member of Membership Units to Westernbank
as described in paragraph (a) above, nor to any sale, transfer,
assignment or other disposition of any Member's Membership Units upon
any exercise of remedies or foreclosure as described in said paragraph
(a).
Section 2. Miscellaneous. This Amendment No. 1 shall be governed
by and construed in accordance with the law of the State of Delaware. Except as
herein provided, the LLC Agreement shall remain unchanged and in full force and
effect.
IN WITNESS WHEREOF, the undersigned has executed this Amendment No. 1
to LLC Agreement on the day and year first above written.
NUTRITIONAL SOURCING CORPORATION,
(formerly Pueblo Xtra International, Inc.)
/s/ Xxxxxxx X. Xxxx, III
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XXXXXXX X. XXXX, III
Authorized Representative
