WAIVER AND AMENDMENT NUMBER SIX TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS WAIVER AND AMENDMENT NUMBER SIX TO AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") is made as of this 31st day of January, 1997 by and
among BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION d/b/a SEAFIRST
BANK, successor by merger to 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, by that certain Amendment Number Four to Amended and Restated
Credit Agreement dated as of November 29, 1996 ("Amendment Four") and by that
certain Amendment Number Five to Amended and Restated Credit Agreement dated as
of December 26, 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 Credit Agreement contains certain financial covenants binding upon
the Borrower. It is known that the Borrower was in breach of the fixed charge
coverage ratio set forth in the Loan Agreement as of its fiscal year ended
September 27, 1996 and based on operating experience it is anticipated that the
Borrower's financial statements will disclose that the Borrower will be in
breach of such fixed charge coverage ratio as of its fiscal quarter ended
December 27, 1996.
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D. The Borrower has requested that the Agent and the Lenders waive their
rights to exercise remedies in respect of such defaults and has requested the
Lenders to extend the Short-term Acquisition Line Maturity Date until April 30,
1997 and extend the Long-term Acquisition Line Maturity Date until April 30,
1998. The Agent and the Lenders are prepared to grant such waivers and 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:
AGREEMENT
1. DEFINITIONS. Capitalized terms not otherwise defined in this Amendment
shall have the meanings given in the Credit Agreement.
2. WAIVER OF DEFAULTS.
2.1 ON OR BEFORE SEPTEMBER 27, 1996. Subject to the terms and
conditions of this Amendment, the Agent and the Lenders hereby waive their
respective rights to exercise remedies under the Credit Agreement in respect of
a breach occurring on or before September 27, 1996 of the Borrower's obligations
under Section 7.13 of the Credit Agreement.
2.2 ON OR BEFORE DECEMBER 27, 1996. Subject to the terms and
conditions of this Amendment, the Agent and the Lenders hereby waive their
respective rights to exercise remedies under the Credit Agreement in respect of
a breach occurring on or before December 27, 1996 of the Borrower's obligations
under Section 7.13 of the Credit Agreement provided, however, that the waiver
provided for in this Section 2.2 shall not become effective unless Borrower
shall have maintained, on a consolidated basis for the four consecutive fiscal
quarters ended December 27, 1996, a ratio of Fixed Charge Coverage of at least
1.0 to 1.0.
3. AMENDMENTS TO CREDIT AGREEMENT.
3.1 AMENDMENTS TO SECTION 1.1. In Section 1.1 of the Credit
Agreement, amendments are made to the definitions, as follows:
(a) INTERIM RATE. The definition of "Interim Rate" is amended
and restated to read as follows:
"Interim Rate" means, a per annum rate of interest equal to
the sum of (a) the per annum rate of interest established from time
to time by U.S. Bank as its "overnight money
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market rate" for loans of comparable amounts; and (b) one hundred
twenty-five (125) basis points (one and one-quarter percent)
changing as such "overnight money market rate" changes from time to
time.
(b) 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 April 30, 1997.
(c) 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 April 30, 1998.
3.2 AMENDMENT TO SECTION 2.5. In Section 2.5(a) of the Credit
Agreement, the definition of "LIBOR Rate" is amended and restated to read as
follows:
"LIBOR Rate" means, with respect to any LIBOR Loan for any
Applicable Interest Period, an interest rate per annum equal to the
sum of (a) one hundred twenty-five (125) basis points (one and
one-quarter percent) and (b) the product of (i) the Euro-dollar Rate
in effect for such Applicable Interest Period and (ii) the
Euro-dollar Reserves in effect on the first day of such Applicable
Interest Period.
3.3 AMENDMENT TO SECTION 3.3. In Section 3.3 of the Credit
Agreement, clause (b)(i) is hereby deleted and the following substituted in its
stead:
(i) one hundred twenty-five (125) basis
points (one and one-quarter percent) and the
Applicable Acceptance Rate; and
4. PROMISSORY NOTES.
4.1 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.
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4.2 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.
5. 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 January
31, 1997:
5.1 DELIVERY OF AMENDMENTS. The Borrower, the Agent and each Lender
shall have executed and delivered counterparts of this Amendment and Amendment
Four to Agent.
5.2 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.
5.3 BORROWER CORPORATE AUTHORITY. The Agent shall have received such
evidence of corporate authority as the Agent shall request.
5.4 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.
6. 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.
7. 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.
8. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Washington.
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9. 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.
10. 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 Waiver and
Amendment Number Six to Amended and Restated Credit Agreement as of the date
first above written.
BORROWER: UNITED GROCERS, INC.
By /s/ Xxxx X. Xxxxx
Its Vice President
LENDERS: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
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
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AGENT: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Xxxx X. Xxxxx
Its Assistant Vice President
By /s/ Xxxxxx X. Xxxxxxx
Its Vice President
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