EXHIBIT 4.1
APPLICATION AND AGREEMENT FOR
SERVICE AFFILIATION AS A MEMBER-PATRON WITH
UNIFIED WESTERN GROCERS, INC.
AND
PLEDGE AND SECURITY AGREEMENT
The undersigned applies for affiliation as a member-patron ("Member-Patron"
or "Member") with Unified Western Grocers, Inc. ("Unified Western") in
accordance with the following to which the undersigned agrees:
1. To qualify for and retain such affiliation as a Member-Patron
("Membership"), the undersigned must:
(a) Be of good and approved financial standing engaged in selling
groceries and related merchandise at retail or wholesale.
(b) Patronize Unified Western in such amounts and manner as may be
prescribed from time to time by its Bylaws or its rules and
regulations or policies for the servicing of Member accounts (the
"Service Rules").
(c) Purchase and hold one hundred shares of Unified Western's Class A
Shares and such amount of its Class B Shares as may be specified by
requirements regarding the holding of Class B Shares as may from time
to time be established by Unified Western's Board of Directors.
(d) Execute such further agreements as may from time to time be required
of Member-Patrons, including but not limited to an agreement
subordinating deposits.
(e) Comply with the conditions and agreements contained in this
Application and Agreement ("this Agreement"), with each other
agreement which the undersigned may enter into with Unified Western or
any of its subsidiaries, with Unified Western's Articles of
Incorporation and Bylaws and with the Service Rules.
2. Acceptance of this application for Membership is subject to approval by
the Board of Directors of Unified Western.
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3. Subject to the obligations of the undersigned under any supply contract,
the undersigned may terminate membership at any time by written resignation. The
undersigned's membership may be terminated by Unified Western at any time upon
the undersigned's failure to meet any requirement of Membership hereunder or
otherwise now or hereafter in effect or upon the occurrence of any event now or
hereafter set forth in the Bylaws as a ground for termination of Membership.
Termination, however, shall neither release nor discharge any obligations
incurred by the undersigned, or any of them, to Unified Western or any of its
subsidiaries. Membership does not obligate Unified Western to make any sale of
merchandise or services or any extension of credit. Membership is not
transferable either voluntarily or by operation of law.
4. The undersigned agrees to comply with Unified Western's Bylaws and the
Service Rules, including without limitation, rules prescribing service fees,
late payment charges, amounts and manner of purchases, required deposits,
subordination of deposits, guarantees, credit requirements and other terms of
service, purchases and payment of accounts.
5. The undersigned will maintain such deposits with Unified Western as may
be prescribed by its Bylaws or the Service Rules. In the event Membership is
terminated, Unified Western, with respect to such deposits, shall only be
obligated to return an amount which is equal to the amount of such deposits less
all amounts that may be owing Unified Western or any of its subsidiaries.
6. All Class A Shares and Class B Shares of Unified Western at any time
held by the undersigned shall be governed by Division 8 of the California
Uniform Commercial Code, the California Corporations Code, by Unified Western's
Articles of Incorporation, its Bylaws and by this Agreement. Such shares are
subject to restrictions on transfer and subject to redemption or repurchase by
Unified Western on termination of the undersigned's membership and on other
events, all as provided in Unified Western's Articles of Incorporation or
Bylaws.
7. Unified Western or its nominee shall have an exclusive right to purchase
said Class A Shares and Class B Shares upon or at any time after termination of
my membership at a purchase price equal to the redemption or repurchase price
for such shares as may be set forth in Unified Western's Articles of
Incorporation or its Bylaws.
8. All Class A Shares and Class B Shares at any time held by the
undersigned are pledged to, and the certificates for said shares shall be held
by, Unified Western to secure the prohibition against their transfer, to secure
Unified Western's rights to purchase or redeem or repurchase said shares and as
security for the payment of any and all obligations of the undersigned to
Unified Western or any of its subsidiaries.
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9. I authorize the Secretary of Unified Western, or any of his successors,
without notice to me, to receive on my behalf notice of purchase or of
redemption or repurchase of said Class A and/or Class B Shares, to surrender
such shares for purchase or for redemption or repurchase and to receive the
proceeds therefrom, and to such purposes I irrevocably appoint said Secretary
and his successors and each of them with full powers of substitution, as my
attorney in fact.
10. In consideration of financial accommodation given, to be given, or
continued to be given by Unified Western, or any of its subsidiaries, the
undersigned grants to Unified Western a security interest in and assigns and
pledges to Unified Western all Class A Shares and Class B Shares at any time
held by the undersigned, the proceeds from their sale or redemption, all deposit
accounts and all other accounts now or hereafter deposited with or held by
Unified Western or any of its subsidiaries, and all property, money and funds of
mine of every description now or hereafter held by Unified Western as a pledge
or for safekeeping or otherwise (collectively "Collateral"), as security for the
full and prompt payment and performance of any and all contracts, agreements
obligations or liabilities of the undersigned, or any of them, to Unified
Western, or any of its subsidiaries, existing at any time (collectively
"Obligations"). At the option of Unified Western and without necessity of demand
or notice, all or any part of the Obligations shall immediately become due and
payable irrespective of any agreed maturity, upon the happening of any of the
following events: (1) termination of membership, (2) default in any requirement
of membership, (3) failure to pay or perform any of the Obligations or any part
thereof when due, (4) the levy of any attachment, execution, or other process
against the undersigned, or any of them, or any of the Collateral, (5) the
death, insolvency or failure in business of the undersigned, or any of them, (6)
the commission of an act of bankruptcy or the making of an assignment for the
benefit of creditors by the undersigned, or any of them, or (7) the filing by or
against the undersigned, or any of them, of any petition or action for relief
under any bankruptcy, arrangement, reorganization, insolvency, or moratorium
law, or any other law for the relief of or relating to debtors. Upon the
happening of any of the foregoing specified events, any agreement for further
financial accommodation by Unified Western or any of its subsidiaries shall
terminate at its option.
I irrevocably appoint Unified Western's Secretary and his successors,
with powers of substitution, as the undersigned's attorney in fact, in the
undersigned's name, to give such notices and file such financing or other
statements as Unified Western may choose, with respect to any security whether
granted hereby or otherwise.
11. In the event that it is necessary for Unified Western to employ an
attorney for the collection of any amounts owing it, the undersigned agrees to
pay all costs involved including reasonable attorneys' fees.
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12. Any forbearance, failure, or delay by Unified Western in exercising any
right, power, or remedy hereunder or otherwise shall not be deemed to be a
waiver of such right, power, or remedy, and any single or partial exercise of
any right, power, or remedy hereunder or otherwise shall not preclude the
further exercise thereof; and every right, power, and remedy of Unified Western
shall continue in full force and effect until such right, power, or remedy is
specifically waived by an instrument in writing executed by Unified Western.
13. If this Agreement is executed by more than one person, each of the
agreements contained herein shall be joint and several obligations of the
undersigned. As used in this Agreement, the terms "I," "me" and "my" refer to
the undersigned, and each of them.
14. The undersigned acknowledges receipt of a copy of Article VIII of the
Bylaws of Unified Western and hereby consents that the amount of any
distributions with respect to the undersigned's patronage, which are made in
written notices of allocation (as defined in 00 Xxxxxx Xxxxxx Code Section 1388)
and which are received by the undersigned from Unified Western, will be taken
into account by the undersigned at their stated dollar amounts in the manner
provided in 00 Xxxxxx Xxxxxx Code Section 1385(a) in the taxable year in which
such written notices of allocation are received by the undersigned. This consent
shall remain in effect until revoked in the manner provided in 00 Xxxxxx Xxxxxx
Code Section 1388.
15. The validity, construction and performance of this Agreement shall be
governed by the laws, without regard to the laws as to choice or conflict of
laws, of the State of California.
16. Any notice, demand or other communication which Unified Western is
required or desires to give to the undersigned, or any of them, may be either
served personally at or sent by prepaid, first-class mail to the address set
forth below. Any such notice, demand or communication shall be deemed given to
the undersigned, and each of them, upon delivery to said address, if personally
served, and within 48 hours from the time of deposit in the United States mail,
if served by mail. The address of the undersigned may be changed only by giving
written notice to Unified Western at its principal office, but such change shall
not be deemed effective until actually received. Any other notice which the
undersigned may desire to give shall be given to Unified Western at its
principal office but shall not be deemed given until actually received.
17. If any term or provision of this Agreement or the application thereof
to any person or circumstances shall to any extent be invalid, illegal or
unenforceable, the remainder of this Agreement or the application of such term
or provision to any person or circumstances other than those as to which it is
invalid, illegal or enforceable shall not be
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affected thereby and each term and provision of this Agreement shall be valid
and enforceable to the fullest extent permitted by law.
_______________________________________________
Name of Applicant (print or type)
Dated: _____, 2000 By: ___________________________________________
Signature: ___________________________________________
Its: ___________________________________________
By: ___________________________________________
Signature: ___________________________________________
Its: ___________________________________________
Mailing Address
(print or type)
_________________________________________________
Number and Street
_________________________________________________
City State Zip
_________________________________________________
Telephone Number
Applicant is:[_] a sole proprietorship; [_] a partnership; [_]a
corporation; [_] a limited liability company; [_] other.
Applicant is an affiliate of
The following existing
Member-Patron: _________________________________
Print Name
The basis of affiliation is: ___________________
_________________________________________________
Federal Taxpayer Identification No.: ___________
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APPLICATION ACKNOWLEDGMENT
1. We hereby acknowledge receipt of payment for the following:
Application Fee $
One hundred shares Class A Shares or 10%
down payment to be applied toward the purchase
of one hundred Class A Shares* $
To be placed in Deposit Fund Account $
TOTAL PAYMENT* $
2. We hereby acknowledge that Applicant is an affiliate [_]
of the existing member-patron described above and
waive the requirement that Applicant purchase
Class A Shares.
3. The Applicant is accepted with the effective date set forth below.
4. Unified Western Grocers, Inc. agrees that it will distribute its net
earnings from business transacted by it with its member-patrons and
associate-patrons in accordance with the provisions of Article VII of its
Bylaws which provisions are subject to revision or deletion at any time
from time to time by Unified Western, provided however any such revision or
deletion shall be effective prospectively only.
UNIFIED WESTERN GROCERS, INC.
By: _______________________________
Effective date: _______________,
Account No.: ________________________
Account Name (Print): ______________________
_________________
* Based on prior fiscal year-end book value; estimated if not determined on
the date of this agreement and subject to adjustment to actual when prior
year-end book value is determined.
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