EXHIBIT 4.27
AMENDMENT NO. 2
AND LIMITED WAIVER
TO
SECURED REVOLVING CREDIT AGREEMENT
This Amendment No. 2 and Limited Waiver To Secured Revolving Credit
Agreement (the "Amendment") dated as of July 1, 2000, with an effective date of
July 1, 2000 (the "Effective Date") is entered into by and among Unified Western
Grocers, Inc., a California corporation operating primarily on a cooperative
basis (the "Borrower"), the Lenders (as defined below), and Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch
("Rabobank"), not in its individual capacity, but solely as Administrative Agent
for the benefit of the Lenders (the "Administrative Agent").
Recitals
A. The Borrower has entered into that Secured Revolving Credit Agreement
dated as of September 29, 1999, as amended by that Amendment No. 1 to Secured
Revolving Credit Agreement dated as of November 18, 1999 (as the same may from
time to time be amended, modified, supplemented or restated, the "Credit
Agreement"), among the Borrower, the Lenders party thereto (which term shall
include the Issuing Bank) (and their successors and assigns) (collectively, the
"Lenders") and Rabobank, not in its individual capacity but solely in its
capacity as the Administrative Agent (the "Agent").
B. The Lenders have extended credit to the Borrower for the purposes
permitted in the Credit Agreement.
C. Each Guarantor is indebted to the Lenders pursuant to and on the terms
set forth in, among other things, those unconditional Guaranties executed by
each Guarantor in respect of the Obligations.
D. The Borrower, the Lenders and the Agent have agreed to amend certain
provisions of the Credit Agreement, but only to the extent, in accordance with
the terms, subject to the conditions and in reliance upon the representations
and warranties set forth below.
Agreement
Now, Therefore, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meanings given to them in the Credit Agreement.
1.
2. Amendments To Credit Agreement.
2.1 Section 1.1 (Definitions). The definition of "Adjusted Tangible
Net Worth" is amended in its entirety and replaced with the following:
"Adjusted Tangible Net Worth" means, as measured at any date of
determination, on a consolidated basis, an amount equal to the sum of (a)
the aggregate value of the shareholders' equity of the Borrower and its
Subsidiaries, plus (b) the value of goodwill associated with the
consolidation of Sav Max in an amount not to exceed $25,000,000, plus (c)
the aggregate value of Patron Required Deposits then on deposit, plus (d)
the aggregate book value of the principal amount of all Patronage Dividend
Certificates that are first payable after the Maturity Date, plus (e) the
aggregate principal amount of any outstanding Subordinated Redemption
Notes, minus (f) the aggregate value of all intangible assets of the
Borrower and its Subsidiaries.
2.2 Section 1.1 (Definitions). A definition of the term "Subordinated
Redemption Notes" is added to read as follows:
"Subordinated Redemption Notes" has the meaning set forth in Section
7.3(k).
2.3 Section 1.1 (Definitions). The definition of the term "Total
Debt" is amended in its entirety and replaced with the following:
"Total Debt" means, as measured as any date of determination, the sum
of (a) Total Funded Debt, plus (b) the unpaid amount of all Patronage
Dividend Certificates that mature on or before the Maturity Date, plus (c)
the total amount of Indebtedness evidenced by Subordinated Redemption
Notes.
2.4 Section 1.1 (Definitions). The definition of the term "Total
Funded Debt" is amended by replacing clause (ii) of the text thereof in its
entirety with the following:
(ii) shall not include the value of Patronage Dividend Certificates,
Patron Required Deposits and Indebtedness evidenced by Subordinated
Redemption Notes.
2.5 Section 7.2(e) (Investments). Section 7.2(e) of the Credit
Agreement is amended by replacing the text thereof with the following:
(e) Investments hereafter made in Grocers Capital Company to the
extent necessary to comply with that certain Second Amended and Restated
Operating Agreement dated as of April 22, 1994, between the Borrower and
Grocers Capital Company, as such Second Amended and Restated Operating
Agreement shall be amended to increase Grocers Capital Company's minimum
tangible net worth covenant from Twelve Million Five Hundred Thousand
Dollars ($12,500,000) to Fifteen Million
2.
Dollars ($15,000,000); provided that the Borrower assigns to the Agent for
the benefit of the Lenders a note evidencing any such Investment, which
assignment shall secure the Indebtedness evidenced by this Agreement and
the Notes on a pari passu basis with the Xxxx Xxxxxxx Debt pursuant to an
intercreditor agreement in form and substance satisfactory to the Requisite
Lenders in their sole discretion.
2.6 Section 7.3 (Limitations on Indebtedness; Contingent
Obligations). Section 7.3 of the Credit Agreement is amended by deleting in the
third line of clause (i) the word "and", replacing in the third line of clause
(j) of the text thereof the period "." with "; and", and including a new clause
(k) to read as follows:
(k) Indebtedness consisting of subordinated redemption notes
("Subordinated Redemption Notes") at any time in an aggregate amount not to
exceed $7,538,000, issued by the Borrower to member-patrons to redeem Class
B Shares in excess of the minimal applicable Patron Required Deposits, so
long as the subordination provisions relating to such Subordinated
Redemption Notes are no less favorable to the Lenders than those that
relate to the Patronage Dividend Certificates under the Indenture;
3. Limitation Of Amendments.
3.1 The amendments set forth in Section 2, above, are effective for
the purposes set forth herein and shall be limited precisely as written and
shall not be deemed to (a) be a consent to any amendment, waiver or modification
of any other term or condition of any Loan Document, or (b) otherwise prejudice
any right or remedy which the Lenders or the Agent may now have or may have in
the future under or in connection with any Loan Document.
3.2 This Amendment shall be construed in connection with and as part
of the Loan Documents and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Loan Documents, except as herein
amended, are hereby ratified and confirmed and shall remain in full force and
effect.
4. Limited Waiver. Lenders hereby waive the limitation on Indebtedness
set forth in Section 7.3 of the Credit Agreement to the extent that the
Subordinated Redemption Notes already issued as of this date in an aggregate
principal amount of $3,011,847 would constitute a breach thereof and cause and
Event of Default or a Potential Event of Default.
5. Representations And Warranties. In order to induce the Lenders and the
Agent to enter into this Amendment, the Borrower hereby represents and warrants
to each Lender and the Agent as follows:
5.1 Immediately after giving effect to this Amendment (a) the
representations and warranties contained in the Loan Documents (except to the
extent such representations and warranties relate to an earlier date, in which
case they are true and correct as of such date) are true, accurate and complete
in all material respects as of the date hereof and (b) no Potential Event of
Default or Event of Default has occurred and is continuing;
3.
5.2 The Borrower has the corporate power and authority to execute and
deliver this Amendment and to perform its obligations under the Credit
Agreement, as amended by this Amendment;
5.3 The articles of incorporation, bylaws and other organizational
documents of the Borrower delivered to each Lender on the Closing Date remain
true, accurate and complete and have not been amended, supplemented or restated
and are and continue to be in full force and effect;
5.4 The execution and delivery by the Borrower of this Amendment and
the performance by Borrower of its obligations under the Credit Agreement, as
amended by this Amendment, have been duly authorized by all necessary corporate
action on the part of the Borrower;
5.5 The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of its obligations under the Credit Agreement,
as amended by this Amendment, do not and will not contravene (i) any law or
regulation binding on or affecting the Borrower, (ii) the articles of
incorporation or bylaws of the Borrower, (iii) any order, judgment or decree of
any court or other governmental or public body or authority, or subdivision
thereof, binding on the Borrower, or (iv) any contractual restriction with a
Person other than an Affiliate binding on the Borrower;
5.6 The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of its obligations under the Credit Agreement,
as amended by this Amendment, do not require any order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with, or exemption by any governmental or public body or authority, or
subdivision thereof, binding on the Borrower, except as already has been
obtained or made; and
5.7 This Amendment has been duly executed and delivered by the
Borrower and is the binding obligation of the Borrower, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
6. Consent Regarding Guaranty. The execution and delivery of this
Amendment by the Lenders shall evidence the Requisite Lenders' consent to the
Borrower's execution of that Guaranty Agreement dated April 26, 2000, to the
Arizona Department of Insurance in connection with the performance by
Springfield Insurance Company, an Insurance Subsidiary of Borrower, of its
obligations to its policyholders.
7. Counterparts. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
8. Effectiveness. This Amendment shall be deemed effective upon the
satisfaction of all of the following conditions precedent:
4.
8.1 Amendment. The Borrower, each Lender and the Agent shall have
duly executed and delivered this Amendment to the Agent.
8.2 Acknowledgment Of Amendment And Reaffirmation Of Guaranties. The
Agent shall have received the Acknowledgment of Amendment and Reaffirmation of
Guaranties, duly executed and delivered by each Guarantor to the Agent.
9. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
5.
In Witness Whereof, the parties hereto have caused this Amendment to be
duly executed and delivered as of the Effective Date.
Borrower Unified Western Grocers, Inc.,
a California corporation
By:________________________________
Xxxxx X. Xxxxxxxx
Treasurer
Administrative Agent Cooperatieve Centrale Raiffeisen-
and Lender Boerenleenbank B.A., "Rabobank
Nederland", New York Branch,
as the Administrative Agent and as
a Lender
By:________________________________
Name:______________________________
Title:_____________________________
By:________________________________
Name:______________________________
Title:_____________________________
Lenders Foothill Capital Corporation
By:________________________________
Printed Name:______________________
Title:_____________________________
Union Bank of California, N.A.
By:________________________________
Printed Name:______________________
Title:_____________________________
6.
SunTrust Bank (successor by merger to SunTrust Bank,
Central Florida, N.A.)
By:___________________________________
Printed Name:_________________________
Title:________________________________
U.S. Bancorp Ag Credit, Inc.
By:___________________________________
Printed Name:_________________________
Title:________________________________
Fleet Bank, N.A.
By:___________________________________
Printed Name:_________________________
Title:________________________________
Bank of the West
By:___________________________________
Printed Name:_________________________
Title:________________________________
National Bank of Canada
By:___________________________________
Printed Name:_________________________
Title:________________________________
Xxxxxx Trust and Savings Bank
By:___________________________________
Printed Name:_________________________
Title:________________________________
7.
ACKNOWLEDGMENT OF AMENDMENT
AND REAFFIRMATION OF GUARANTIES
Section 1. Each Guarantor hereby acknowledges and confirms that it has
reviewed and approved the terms and conditions of the Amendment No. 2 to Secured
Revolving Credit Agreement dated as of even date herewith (the "Amendment").
Section 2. Each Guarantor hereby consents to the Amendment and agrees that
the Guaranty relating to the Obligations of the Borrower under the Credit
Agreement shall continue in full force and effect, shall be valid and
enforceable and shall not be impaired or otherwise affected by the execution of
the Amendment or any other document or instrument delivered in connection
herewith.
Section 3. Each Guarantor severally represents and warrants that, after
giving effect to the Amendment, all representations and warranties contained in
the Guaranty are true, accurate and complete as if made the date hereof.
Dated as of July 1, 2000
Guarantor Crown Grocers, Inc.
Grocers Development Center, Inc.
Grocers Equipment Co.
Grocers General Merchandise Company
Grocers Specialty Company
Northwest Process, Inc.
Preferred Public Storage Company
Sav Max Foods, Inc.
United Grocers, Inc.
Western Passage Express, Inc.
Western Security Services, Ltd.
By:_______________________________________
Xxxxx X. Xxxxxxxx
As Treasurer for each Guarantor
8.
