EXHIBIT 99.3
April 28, 2003
United Natural Foods, Inc.
000 Xxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Chief Financial Officer
RE: Sixth Amendment to Loan and Security Agreement
Dear Xxxx:
Reference is made to the Loan and Security Agreement dated as of August
31, 2001 (as amended, the "Loan Agreement") among United Natural Foods, Inc.
("UNF"), Mountain People's Warehouse Incorporated ("MPW"), Nutrasource, Inc.
("Nutrasource"), Rainbow Natural Foods, Inc. ("Rainbow"), Stow Xxxxx, Inc.
("SMI"), United Natural Foods Pennsylvania, Inc. ("UNFPA"), United Natural
Trading Co. ("UNT") and United Northeast LLC ("UNLLC" and together with UNF,
MPW, Nutrasource, Rainbow, UNT and SMI, the "Borrowers") each of the Lenders
identified under the caption "Lenders" on the signature pages thereto and Fleet
Capital Corporation as administrative and collateral agent for the Lenders (the
"Agent"), Citizens Bank of Massachusetts (the "Syndication Agent"), U.S. Bank
National Association (the "Documentation Agent") and Fleet Securities, Inc. (the
"Arranger"), as amended by First Amendment dated April 16, 2002, Second
Amendment dated September 26, 0000, Xxxxx Xxxxxxxxx dated October 17, 0000,
Xxxxxx Xxxxxxxxx dated October 26, 2002 and Fifth Amendment dated February 14,
2003. Capitalized terms not defined herein shall have the meanings ascribed
thereto in the Loan Agreement.
Background. UNF, SMI, UNFPA and Albert's Organics, Inc. (the "Mortgagors")
are entering into a certain Term Loan Agreement (the "Term Loan Agreement") with
Fleet Capital Corporation ("FCC") pursuant to which FCC will loan $30,000,000 to
the Mortgagors (the "Term Loan") and Mortgagors will grant mortgages on the Real
Property (excluding the properties located in Vernon, California and
Brattleboro, Vermont) to FCC (the "Term Loan Mortgages"). The Borrowers have
requested the consent of all Lenders to the release of the Mortgages on the Real
Property (excluding the properties located in Vernon, California and
Brattleboro, Vermont) and the amendment of the UCC-1 fixture filings and any
other applicable UCC-1 filings on the Real Property (excluding the properties
located in Vernon, California and Brattleboro, Vermont) to release that portion
of the Collateral set forth on Exhibit A attached hereto that secure the
Obligations under the FCC Loan Agreement and to the transactions contemplated in
the Term Loan Agreement and all of the Lenders have agreed to consent thereto,
on the terms and conditions set forth herein.
Accordingly, the parties hereto hereby agree as follows:
1. Waivers and Amendments.
a. Pursuant to Section 13.3(vi) of the Loan Agreement all of the
Lenders hereby consent to the release and discharge of the Mortgages and the
amendment of the UCC-1 fixture filings and any other applicable UCC-1 filings to
release that portion of the Collateral set forth on Exhibit A attached hereto on
the Real Property held by the Agent on behalf of the Lenders as security for the
Obligations.
b. Section 9.2.3 of the Loan Agreement is hereby waived insofar as
it would prohibit the Mortgagors from executing and delivering the promissory
note in the amount of $30,000,000 from the Mortgagors to FCC (the "Term Note")
and incurring the Indebtedness evidenced thereby. Section 9.2.3 of the Loan
Agreement is amended to delete the "and" at the end of clause (vii), to change
clause "(viii)" to clause "(ix)" and to insert the following after clause (vii):
c. "(viii) Indebtedness not to exceed $30,000,000 in principal
amount pursuant to the Term Loan Agreement and the interest rate hedging
agreements and instruments relating thereto; and Section 9.2.5 of the Loan
Agreement is hereby waived insofar as it would prohibit the Mortgagors from
granting mortgages on any of the Real Property to FCC. Section 9.2.5 of the Loan
Agreement is amended to delete the "and" at the end of clause (viii), to change
clause "(ix)" to clause "(x)" and to insert the following after clause (viii):
"(ix) Term Loan Mortgages, Collateral Assignments of Leases
and Rents, Collateral Assignments of Contracts, Licenses and
Permits, Collateral Assignment of Payments and Proceeds and
Environmental Indemnity Agreement relating to the Real Property
or securing the Indebtedness permitted under Section 9.2.3;"
d. Section 9.2.16 of the Loan Agreement is hereby waived insofar as
it would prohibit any Borrower or any Guarantor from guarantying the obligations
of the Mortgagors in connection with the Real Property Transaction. Section
9.2.16 of the Loan Agreement is amended to insert "and" between the word
"payment" and "(c)" in the eighth line thereof and to insert the following at
the end of Section 9.2.16:
"and (d) Guaranties and Environmental Indemnity Agreement
relating to the obligations of the Mortgagors in connection
with the Term Loan."
e. Section 11.1 of the Loan Agreement is amended to add the
following Section 11.1.18 thereto:
"11.1.18 Default under Term Loan. There shall occur a default
or an event of default under the Term Loan Agreement."
f. Appendix A of the Loan Agreement is amended to include the terms
"Term Loan", "Term Loan Agreement", and "Term Loan Mortgages" with definitions
as set
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forth in the Background section to this Amendment and to include the term
"Intercreditor Agreement" as defined in Section 1.g. of this Amendment. Appendix
A of the Loan Agreement is further amended by adding at the end of the
definition of "Real Property" the following: "Real Property does not include (i)
that certain real property owned by Albert's Organics, Inc. and located in
Vernon, California, as long as it is subject to that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing between Albert's
Organics, Inc. and City National Bank dated April 28, 2000, and (ii) that
certain unimproved property owned by United Northeast LLC and located in
Brattleboro, Vermont."
g. In connection with the Term Loan and this Sixth Amendment, the
Lenders hereby authorize and direct the Agent to enter into the Intercreditor
Agreement with respect to the Term Loan in substantially the form attached to
this Sixth Amendment.
h. National City Bank is hereby no longer a Lender, and the
signature page of the Loan Agreement which contains the signature and Commitment
Amount of National City Bank is hereby deleted from the Loan Agreement. In
connection therewith, National City Bank is contemporaneously herewith assigning
its $15,000,000 Commitment to the other Lenders. Accordingly, the current
Revolving Credit Commitment for each Lender, subject to change as provided in
the definition of Revolving Credit Commitment in the Loan Agreement, is set
opposite the name of such Lender on the signature pages hereto. Any amount set
opposite the name of each Lender on the signature pages to the original Loan
Agreement is hereby deleted and the amount set opposite the name of such Lender
on the signature pages hereto is substituted in its place.
2. Representations and Warranties. The Borrowers hereby represent and
warrant as follows:
a. Power, Authority, Etc. The Borrowers have the power and authority
for the making and performing of this Sixth Amendment. This Sixth Amendment has
been duly executed and delivered by or on behalf of the Borrowers pursuant to
authority legally adequate therefor, and this Sixth Amendment is in full force
and effect and is a legal, valid and binding obligation of the Borrowers
enforceable in accordance with its terms subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws and equitable principles
affecting the enforcement of creditors' rights generally.
b. Incorporation of Representations and Warranties. The
representations and warranties of the Borrowers contained in the Loan Agreement,
after giving effect to the amendments thereto contemplated hereby, and except
for any changes resulting only from the passage of time, are true and correct on
and as of the date hereof as though made on and as of the date hereof and such
representations and warranties are hereto incorporated in this Sixth Amendment
as though fully set forth herein.
c. Corporate Purposes. The Borrowers hereby represent that the
transaction contemplated by the Term Loan Agreement is within the UNF's general
corporate purposes.
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3. Conditions Precedent. This Sixth Amendment and the Lenders' obligations
hereunder shall not be effective until each of the following conditions are
satisfied (the "Amendment Effective Date"):
a. Borrowers shall have duly executed and delivered this Sixth
Amendment;
b. All requisite corporate action and proceedings of the Borrower in
connection with this Sixth Amendment shall be satisfactory in form and substance
to Agent;
c. There shall have occurred no Default or Event of Default under
the Loan Agreement;
d. FCC and the Mortgagors shall have entered into the Term Loan
Agreement and all conditions to the making of the Term Loan shall have been
satisfied or waived; and
e. Agent, FCC and Borrowers shall have entered into the
Intercreditor Agreement.
4. Miscellaneous.
a. Counterparts. This Sixth Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Sixth Amendment by signing any such
counterpart.
b. Force and Effect. Except as amended or modified by this Sixth
Amendment, the Loan Agreement and each of its terms and provisions, shall
continue in full force or effect.
c. Loan Document. This Sixth Amendment and all other documents
executed in connection herewith are "Loan Documents" as such term is defined in
the Loan Agreement. This Sixth Amendment and the other documents executed and
delivered in connection herewith set forth the entire agreement of the parties
with respect to the subject matter thereof and supersede any prior agreement and
contemporaneous oral agreements of the parties concerning their subject matter.
[remainder of page intentionally left blank]
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Signature Page to Sixth Amendment to Loan and Security Agreement
IN WITNESS WHEREOF, the parties have executed this Sixth Amendment as of
the date first above written.
BORROWERS: UNITED NATURAL FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
MOUNTAIN PEOPLE'S WAREHOUSE
INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
NUTRASOURCE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
RAINBOW NATURAL FOODS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
STOW XXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
UNITED NATURAL FOODS
PENNSYLVANIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
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UNITED NORTHEAST LLC
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
UNITED NATURAL TRADING CO.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
GUARANTORS: NATURAL RETAIL GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
UNITED NATURAL TRADING CO.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
ALBERT'S ORGANICS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
AGENT: FLEET CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxx X. Xxxxxx
--------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
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LENDERS:
FLEET CAPITAL CORPORATION, as a
Lender Commitment Amount: $34,250,000
By: /s/ Xxx X. Xxxxxx
-----------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
CITIZENS BANK OF MASSACHUSETTS, as
a Lender Commitment Amount: $25,000,000
By: /s/ Xxxx X. Xxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a
Lender Commitment Amount: $24,750,000
By: /s/ Xxxx Xxxx
-----------------------
Name: Xxxx Xxxx
Title: VP
PNC BANK, NATIONAL ASSOCIATION, a
Lender Commitment Amount: $24,750,000
By: /s/ Xxxx X. Xxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
NATIONAL CITY BANK, a Lender Commitment Amount:
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxxxx
Title: SVP
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FIRST PIONEER FARM CREDIT, ACA, a
Lender Commitment Amount: $11,000,000
By: /s/ Xxxxx X. Sabson
-----------------------
Name: Xxxxx X. Sabson
Title: Assistant Vice President
XXXXXXX BANK, a Lender Commitment Amount: $11,000,000
By: /s/ Xxxx X. Xxxxx
-----------------------
Name: Xxxx X. Xxxxx
Title: Vice President
SOVEREIGN BANK, a Lender Commitment Amount: $13,750,000
By: /s/ Xxxxxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: SVP
ISRAEL DISCOUNT BANK Commitment Amount: $5,500,000
OF NEW YORK, a Lender
By: /s/ Xxxx Xxxxxx
-----------------------
Name: Xxxx Xxxxxx
Title: VP
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EXHIBIT A
The following fixtures and personal property related to the applicable
Real Property (also known as the "Real Estate") and owned by each Mortgagor:
A. Fixtures. All real estate fixtures or items which by agreement of the
parties may be deemed to be such fixtures, now or hereafter owned by Mortgagor,
or in which Mortgagor has or hereafter obtains an interest, and now or hereafter
located in or upon the Real Estate, or now or hereafter attached to, installed
in, or used in connection with any of the Real Estate, including, but not
limited to, any and all portable or sectional buildings, bathroom, plumbing,
heating, lighting, refrigerating, ventilating and air-conditioning apparatus and
equipment, garbage incinerators and receptacles, elevators and elevator
machinery, boilers, furnaces, stoves, tanks, motors, sprinkler and fire
detection and extinguishing systems, doorbell and alarm systems, window shades,
screens, awnings, screen doors, storm and other detachable windows and doors,
mantels, partitions, built-in cases, counters and other fixtures whether or not
included in the foregoing enumeration (collectively, "Fixtures"), but excluding,
racking, machinery, equipment and other property that is readily removable and
is not primarily used in the operation of the Real Estate;
B. Awards. All of the right, title and interest of Mortgagor in and to any
award or awards heretofore made or hereafter to be made by any municipal,
county, state or federal authorities to the present or any subsequent owners of
any of the Real Estate, or the Fixtures, or the appurtenances relating to the
Real Estate, or the Leases (as defined below) or the Personal Property (as
defined below), including, without limitation, any award or awards, or
settlements or payments, or other compensation hereafter made resulting from (x)
condemnation proceedings or the taking of the Real Estate, or the Fixtures, or
such appurtenances, or the Leases or the Personal Property, or any part thereof,
under the power of eminent domain, or (y) the alteration of grade or the
location or discontinuance of any street adjoining the Real Estate or any
portion thereof, or (z) any other injury to or decrease in value of the
Mortgaged Property (collectively, "Awards");
C. Leases. All leases now or hereafter entered into of the Real Estate, or
any portion thereof, and all rents, issues, profits, revenues, earnings and
royalties therefrom, and all right, title and interest of Mortgagor thereunder,
including, without limitation, cash, letters of credit, or securities deposited
thereunder to secure performance by the tenants or occupants of their
obligations thereunder, whether such cash, letters of credit, or securities are
to be held until the expiration of the terms of such leases or occupancy
agreements or applied to one or more of the installments of rent coming due
prior to the expiration of such terms, including, without limitation, the right
to receive and collect the rents thereunder (collectively, "Leases");
D. Purchase and Sale Agreements. All purchase and sale agreements now or
hereafter entered into of the Real Estate, or any portion thereof, including,
without limitation, cash, letters of credit or securities deposited thereunder
to secure performance by the purchasers of their obligations thereunder
(collectively, "Purchase and Sale Agreements"); and
E. Personal Property. All the following personal property now owned or at
any time hereafter acquired by Mortgagor used in connection with the Real
Estate: the security deposits; utility deposits; any insurance or tax reserves
deposited with Lender; claims to rebates, refunds or abatements of real estate
taxes or any other taxes; contract rights; plans and specifications; licenses,
permits, approvals and other rights; the rights of Mortgagor under contracts
with respect to the Real Estate or any portion of the personal property related
thereto; signs, brochures, advertising, the name by which the Real Estate is
known and any variation of the words thereof; all proceeds paid for any damage
or loss to all or any portion of the Real Estate, the Fixtures, the
appurtenances related to the Real Estate, or any other portion of the Real
Estate or personal property related thereto (collectively, "Insurance
Proceeds"); all Awards; all Leases; all Purchase and Sale Agreements; all books
and records; and all proceeds, products, additions, accessions, substitutions
and replacements to any one or more of the foregoing (collectively, the
"Personal Property").
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