AMENDMENT NUMBER FIVE TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NUMBER FIVE TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is made as of this 26th day of December, 1996 by and among 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 and by that certain Amendment Number Four to Amended and
Restated Credit Agreement dated as of November 29, 1996 (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. Subject to the terms and conditions of the Credit Agreement, Seafirst
and U.S. Bank have agreed to make Short-term Acquisition Loans to the Borrower
during the period beginning on the date of the Credit Agreement and ending on
the Short-term Acquisition Line Maturity Date.
C. The Borrower has requested that the Agent and the Lenders extend the
Short-term Acquisition Line Maturity Date until January 31, 1997 and extend the
Long-term Acquisition Line Maturity Date until January 31, 1998. The Agent and
the Lenders are prepared to extend the Short-term Acquisition Line Maturity Date
and extend the Long-term Acquisition Line Maturity Date 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. AMENDMENTS TO CREDIT AGREEMENT. In Section 1.1 of the Credit Agreement,
amendments are made to the definitions, as follows:
2.1 SHORT-TERM ACQUISITION LINE MATURITY DATE. The definition of
"Short-term Acquisition Line Maturity Date" is amended and restated to read as
follows:
"Short-term Acquisition Line Maturity
Date" means January 31, 1997.
2.2 LONG-TERM ACQUISITION LINE MATURITY DATE. The definition of
"Long-term Acquisition Line Maturity Date" is amended and restated to read as
follows:
"Long-term Acquisition Line Maturity
Date" means January 31, 1998.
3. PROMISSORY NOTES.
3.1 SHORT-TERM ACQUISITION NOTES. All references to the "Short-term
Acquisition Line Maturity Date" contained in the Short-term Acquisition Notes
shall mean the Short-term Acquisition Line Maturity Date as defined in the
Credit Agreement, as hereby amended.
3.2 LONG-TERM ACQUISITION NOTES. All references to the "Long-term
Acquisition Line Maturity Date" contained in the Long-term Acquisition Notes
shall mean the Long-term Acquisition Line Maturity Date as defined in the Credit
Agreement, as hereby amended.
4. 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 December
31, 1996:
4.1 DELIVERY OF AMENDMENT. The Borrower, the Agent and each Lender
shall have executed and delivered counterparts of this Amendment to Agent.
4.2 REIMBURSEMENT FOR EXPENSES. The Borrower shall have reimbursed
the Agent for all expenses actually incurred by 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.
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4.3 BORROWER CORPORATE AUTHORITY. The Agent shall have received such
evidence of corporate authority as the Agent shall request.
4.4 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.
5. 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.
6. 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.
7. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of Washington.
8. 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.
9. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment Number
Five to Amended and Restated Credit Agreement as of the date first above
written.
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BORROWER: UNITED GROCERS, INC.
By /s/ Xxxx X. Xxxxx*
Its Vice President
* Except for noncompliance of fixed charges as of 9/27/96
LENDERS: BANK OF AMERICA NW, N.A.
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 NW, N.A.
By /s/ Xxxx X. Xxxxx
Its Assistant Vice President
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