FIRST AMENDMENT TO NOTE AGREEMENT
THE FIRST AMENDMENT TO THE NOTE AGREEMENT, dated as of February 12,
1993 (this "Amendment"), by and among UNITED GROCERS, INC. (the "Company"), an
Oregon corporation, and EACH OF THE NOTEHOLDERS NAMED ON THE SIGNATURE Pages
HEREOF (collectively, the "Holders").
WHEREAS, the Company and the Holders have entered into a Note Agreement
dated as of September 20, 1991 (the "Note Agreement"); and
WHEREAS, pursuant to the Note Agreement, the Company issued its 9.15%
Senior Notes, due October 1, 2000, in an aggregate principal amount of
$30,000,000 (the "Notes"); and
WHEREAS, pursuant to the provisions of Section 7 of the Note Agreement,
the Company and the Holders wish to amend Section 5.14 of the Note Agreement in
certain respects as set forth herein.
NOW, THEREFORE, in consideration of the agreement herein contained the
parties agree as follows:
Part I
AMENDMENT TO NOTE AGREEMENT
Subject to the satisfaction of the conditions set forth in Section 7 of
the Note Agreement, the Note Agreement is amended in accordance with this Part
I. Except as so amended, the Note Agreement shall continue in full force and
effect.
SUBPART 1.1. Section 5.14 - Restricted Payments and Restricted
Investments. Section 5.14(a)(ii) is hereby amended to read in its entirety as
follows:
(ii) the Company and its Restricted Subsidiaries may make
Restricted Payments and Restricted Investments, provided that
immediately after giving effect to any such Restricted Payment or
Restricted Investment, (A) no Default or Event of Default would exist,
(B) the Company would be able to incur at least $1.00 of additional
Senior funded Debt under Section 5.10, and (C) the aggregate amount of
all Restricted Payments made during the period from and after October
1, 1990 to and including the date of such Restricted Payment or
Restricted Investment, together with the amount of Outstanding
Restricted Investments, would not exceed the sum of (1) $6,000,000 plus
50% of Consolidated Net Income for such period, computed on a
cumulative basis for said entire period (or if such Consolidated Net
Income is a deficit figure, then minus 100% of such deficit), and (2)
100% of the amount of any issuance of new capital stock. The Company or
any Restricted Subsidiary will not declare a dividend which constitutes
a Restricted Payment payable more than 60 days
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after the date of declaration thereof. For the purposes of this Section
5.14(a) the amount of any Restricted Payment or Restricted Investment
declared, made, paid or distributed in property of the Company or any
Restricted Subsidiary shall be deemed to be the greater of the book
value or fair market value (as determined in good faith by the Board of
Directors of the corporation making the payment) of such property at
the time of making such Restricted Payment or Restricted Investment.
Part II
CONDITION PRECEDENT TO AMENDMENT
SUBPART 2.1. Required percentage. Holders holding at least 66 2/3% in
aggregate principal amount of the outstanding Notes shall have executed and
delivered counterparts of this Amendment.
Part III
MISCELLANEOUS PROVISIONS
SUBPART 3.1. Ratification of and References to the Note Agreement. This
Amendment shall be deemed to be an amendment to the Note Agreement, and the Note
Agreement, as amended hereby, is ratified, approved and confirmed in each and
every respect by each of the Holders. All references to the Note Agreement in
any other document instrument, agreement or writing executed under or in
connection with the Note Agreement shall hereafter be deemed to refer to the
Note Agreement as amended.
SUBPART 3.2. Execution in Counterparts, Effectiveness, etc.. This
Amendment to the Note Agreement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same agreement. This Amendment shall
become effective when counterparts hereof executed on behalf of the Company and
each of the Holders, shall have been received by the Holders and notice thereof
shall have been given by the Company to each of the Holders.
SUBPART 3.3. Severability. Any provision of this Amendment or any other
instrument delivered in connection herewith which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Amendment or such instrument or affecting the validity or
enforceability of such provision in any other jurisdiction.
SUBPART 3.4. Waivers and Amendments. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated orally, or by any
action or inaction, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought (provided that Section 7, of each of the Amended Note Agreements shall
continue to govern any amendments and waivers with respect thereto.)
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SUBPART 3.5. Section Headings. The titles of the sections hereof appear
as a matter of convenience only, do not constitute a part of this Agreement and
shall not affect the construction hereof.
SUBPART 3.6. Governing Law; Entire Agreement. THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH COLORADO LAW. This Amendment and
such other documents constitute the entire understanding among the parties
hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers (as applicable) thereunto duly authorized
as of the day and year first above written.
UNITED GROCERS, INC.
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: President and C.E.O.
Accepted as of April 22, 1997.
GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Private Placement Investments
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
Private Placement Investments
UNITED OF OMAHA LIFE
INSURANCE COMPANY
By: /s/ X. X. Xxxxxxxxxx
Name: X. X. Xxxxxxxxxx
Title: Second Vice President
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MUTUAL OF OMAHA
INSURANCE COMPANY
By: /s/ X. X. Xxxxxxxxxx
Name: X. X. Xxxxxxxxxx
Title: Second Vice President
COMPANION LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Vice President and Actuary
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Second Vice President
& Assistant Treasurer
AMERICAN REPUBLIC
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President & Chief Financial
Officer
By: /s/ G. Xxxxx Xxxxxxx
Name: G. Xxxxx Xxxxxxx
Title: Senior Vice President, Investments
UNITED WORLD LIFE
INSURANCE COMPANY
By: /s/ X. X. Xxxxxxxxxx
Name: X. X. Xxxxxxxxxx
Title: Authorized Signer
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