EXHIBIT 99.5
February 14, 2003
United Natural Foods, Inc.
000 Xxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Chief Financial Officer
RE: Fifth 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 Northeast LLC ("United") and United Natural Foods Pennsylvania,
Inc. ("UNFPA" and together with UNF, MPW, Nutrasource, Rainbow, SMI and United,
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, 2002 and Fourth Amendment dated October 26, 2002.
Capitalized terms not defined herein shall have the meanings ascribed thereto in
the Loan Agreement.
The Borrowers have requested that United Natural Trading Co., a wholly
owned subsidiary of UNF and a Guarantor under the Loan Agreement, become a
co-borrower under the Loan Agreement. The Lenders have agreed to consent to
United Natural Trading Co. becoming a co-borrower to the Loan Agreement subject
to the terms and conditions set forth herein.
Accordingly, the parties hereto hereby agree as follows:
Amendment to Loan Agreement. The term "Borrowers" as defined in Appendix A
General Definitions of the Loan Agreement shall be deemed to include "United
Natural Trading Co." wherever such term appears in the Loan Agreement or in any
other Loan Document.
Representations and Warranties. The Borrowers hereby represent and warrant as
follows:
Power, Authority, Etc. The Borrowers have the power and authority for the making
and performing of this Fifth Amendment. This Fifth Amendment has been duly
executed and delivered by or on behalf of the Borrowers pursuant to authority
legally adequate therefor, and this Fifth 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.
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 Fifth Amendment as though fully
set forth herein.
Conditions Precedent. This Amendment and the Agent's and Lenders' obligations
hereunder shall not be effective until each of the following conditions are
satisfied (the "Amendment Effective Date"):
Borrowers, Agent and the Required Lenders shall have duly executed and delivered
this Amendment;
The Borrowers shall provide the following items to the Agent, all in form and
content satisfactory to the Agent, and duly executed (where applicable) by all
parties thereto:
a Joinder Agreement pursuant to which United Natural Trading Co. shall become a
"Borrower" for all purposes under the Loan Agreement;
duly filed UCC financing statements which serve to perfect Agent's first
priority security interest in all of United Natural Trading Co.'s personal
property assets;
a stock pledge agreement pursuant to which UNF pledges 100% of the shares of
United Natural Trading Co. to Agent, together with stock powers and stock
certificates to perfect such pledge;
such other agreements as may be required by Agent (such as trademark security
agreements and the like) to ensure that Agent holds a duly perfected security
interest in all of United Natural Trading Co.'s assets;
a landlord's waiver for each location in which United Natural Trading Co. does
business or maintains assets;
evidence satisfactory to Agent (including UCC, tax lien and similar search
reports) that Agent holds a duly perfected, first priority security interest in
the assets of United Natural Trading Co., subject to no other Liens except as
permitted under the Loan Agreement;
evidence of corporate authorization of the transactions contemplated hereby;
updated casualty and liability insurance certificates with respect to United
Natural Trading Co. and its assets, consistent with the requirements set forth
in the Loan Agreement; and
payment of the reasonable fees and expenses of Agent's counsel in connection
with any of the transactions contemplated hereby.
UNF agrees that Agent may complete a field exam with respect to the assets and
liabilities of United Natural Trading Co., including without limitation,
inventory and accounts, on or before Agent advances against such assets and
liabilities and Agent may, in its discretion, impose reserves or reduce advance
rates with respect to United Natural Trading Co.'s inventory and accounts used
for purposes of calculating the Borrowing Base, until such a field exam is
completed.
All requisite corporate action and proceedings of the Borrower in connection
with this Amendment shall be satisfactory in form and substance to Agent; and
There shall have occurred no Default or Event of Default under the Loan
Agreement.
Receipt by Agent of all documentation required in connection with the execution
of the Second Amendment to Loan and Security Agreement and the Third Amendment
to Loan and Security Agreement, as well as satisfaction of all covenants,
agreements and conditions precedent contained therein.
Miscellaneous
Counterparts. This Fifth 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 Fifth Amendment by signing any such
counterpart.
Force and Effect. Except as amended or modified by this Fifth Amendment, the
Loan Agreement and each of its terms and provisions, shall continue in full
force or effect.
Loan Document. This Fifth Amendment and all other documents executed in
connection herewith are "Loan Documents" as such term is defined in the Loan
Agreement. This Fifth 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.
Reaffirmation. By executing this Fifth Amendment, the undersigned Guarantors
hereby assent to the execution and delivery of this Fifth Amendment and all
other instruments and documents required to be executed and delivered pursuant
thereto by the Borrowers, and to the performance by the Borrowers of their
agreements and obligations hereunder and thereunder. Guarantors further affirm
that neither the First Amendment to Loan and Security Agreement dated April 16,
2002, the Second Amendment to Loan and Security Agreement dated September 26,
2002, the Third Amendment to Loan and Security dated October 17, 2002 and the
Fourth Amendment to Loan and Security Agreement dated October 26, 2002 nor this
Fifth Amendment nor the performance or consummation of any transactions
contemplated thereby shall limit, restrict, extinguish or otherwise impair their
agreements and obligations under the Guaranty Agreements, and Guarantors hereby
acknowledge and reaffirm such obligations. Guarantors acknowledge, affirm and
agree that the Guaranty Agreements are hereby ratified and confirmed and benefit
the Lenders under the Loan Agreement, as amended.
Reaffirmation of Guaranty by United Natural Trading Co. United Natural Trading
Co. hereby confirms that the performance or consummation of any transactions
contemplated hereby shall not limit, restrict, extinguish or otherwise impair
its guaranty of the Obligations under its Guaranty Agreement, and hereby
acknowledges and reaffirms such obligations. Guarantor acknowledges, affirms and
agrees that its Guaranty Agreement is hereby ratified and confirmed and benefits
the Lenders under the Loan Agreement, as amended.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
BORROWERS: UNITED NATURAL FOODS, INC.
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
MOUNTAIN PEOPLE'S WAREHOUSE
INCORPORATED
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
NUTRASOURCE, INC.
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
RAINBOW NATURAL FOODS, INC.
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
STOW XXXXX, INC.
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
UNITED NORTHEAST LLC
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
UNITED NATURAL FOODS OF
PENNSYLVANIA, INC.
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
GUARANTORS: NATURAL RETAIL GROUP, INC.
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
UNITED NATURAL TRADING CO.
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
ALBERT'S ORGANICS, INC.
By: /s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
AGENT: FLEET CAPITAL CORPORATION, as Administrative Agent
By: /s/ XXX X. XXXXXX
------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
LENDERS: FLEET CAPITAL CORPORATION, as a Lender
By: /s/ XXX X. XXXXXX
------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
CITIZENS BANK OF MASSACHUSETTS, as a Lender
By: /s/ XXXX X. XXXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ XXXX X. XXXX
------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, a Lender
By: /s/ XXXX X. XXXXXXXX
------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
FIRST PIONEER FARM CREDIT, ACA, a Lender
By: /s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
ISRAEL DISCOUNT BANK
OF NEW YORK, a Lender
By: /s/ XXXX XXXXXX
------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
XXXXXXX BANK, a Lender
By: /s/ XXXXXXX XXXXX
------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
SOVEREIGN BANK, a Lender
By: /s/ XXXXXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
NATIONAL CITY BANK, as a lender
By:
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Name:
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Title:
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