AMENDMENT NUMBER FIVE
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER FIVE TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment"), dated as of September 30, 1996, is entered into by
and among CERTIFIED GROCERS OF CALIFORNIA, LTD., a California corporation
("Certified"), GROCERS GENERAL MERCHANDISE COMPANY, a California corporation
("GGMC"), and GROCERS SPECIALTY COMPANY, a California corporation ("GSC")
(Certified, GGMC, and GSC are jointly and severally referred to herein as
"Borrower"), on the one hand, and the financial institutions which are
signatories hereto (hereinafter collectively referred to as the "Lenders" and
individually as a "Lender"), BT COMMERCIAL CORPORATION, a Delaware corporation ,
as agent ("Agent"), UNION BANK OF CALIFORNIA, N.A., a national banking
association, as co-agent, and THE FIRST NATIONAL BANK OF BOSTON, a national
banking association, as co-agent, on the other hand, in light of the following
facts:
R E C I T A L S
A. The parties hereto have previously entered into that certain
Amended and Restated Loan and Security Agreement, dated as of March 17, 1994, as
amended by that certain Amendment Number One to Amended and Restated Loan and
Security Agreement, dated as of November 1, 1994, as further amended by that
certain Amendment Number Two to Amended and Restated Loan and Security
Agreement, dated as of December 3, 1994, as further amended by that certain
Amendment Number Three to Amended and Restated Loan and Security Agreement,
dated as of May __, 1996, and as further amended by that certain Amendment
Number Four to Amended and Restated Loan and Security Agreement, dated as of
June 27, 1996 (collectively, the "Agreement").
B. Borrower has requested that Lenders agree to extend the maturity
date of the Agreement.
C. Lenders are agreeing hereby to extend the maturity date of the
Agreement, subject and pursuant to the terms of this Amendment.
NOW THEREFORE, the parties hereto agree as follows:
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D. A G R E E M E N T
1. DEFINED TERMS. All initially capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Agreement.
2. AMENDMENT TO RECITALS. Recital B to the Agreement is deleted in
its entirety and replaced with the following:
B. Borrower, Lenders and Agents desire to amend the Prior
Agreement subject to the terms hereof, to, among other things: (1)
extend the maturity date of the Prior Agreement, and (2) increase the
credit facility under the Agreement to One Hundred Thirty-Five Million
Dollars ($135,000,000); and
3. EXTENSION OF MATURITY DATE. The definition of the term "Maturity
Date" set forth in Section 1.1 of the Agreement is hereby deleted in its
entirety and replaced by the following:
"Maturity Date" means March 17, 1999, or such subsequent
date to which such date may be extended pursuant to Section 3.1.
4. DELETION OF THE DEFINITION OF "GCC NOTE". In light of the fact
that the GCC Note has been repaid in full and cancelled, the definition of the
term "GCC Note" set forth in Section 1.1 of the Agreement is hereby deleted in
its entirety.
5. DELETION OF THE DEFINITION OF "GCC SUBORDINATION AND SECURITY
AGREEMENT". In light of the fact that the GCC Note has been repaid in full and
cancelled, the definition of the term "GCC Subordination and Security Agreement"
set forth in Section 1.1 of the Agreement is hereby deleted in its entirety.
6. AMENDMENT TO SECTION 6.21. Section 6.21 of the Agreement is
deleted in its entirety and replaced with the following:
6.21 USE OF PROCEEDS. Borrower shall use the proceeds of
the Loans made hereunder solely: (a) to replace and refinance the
Prior Agreement, (b) to prepay the Existing Subordinated Debt in
accordance with Section 6.3(g), and (c) for general working capital
purposes.
7. AMENDMENT TO SECTION 6.26. Section 6.26 of the Agreement is
amended to delete subsection (a) in its entirety and to replace such subsection
with the following:
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8. (a) Intentionally omitted.
9. AMENDMENT FEE. Concurrently with the effectiveness of this
Amendment, Borrower shall pay to Agent a fee (the "Amendment Fee") in an amount
equal to one-tenth of one percent (0.1%) of the Commitment, for the account of
Lenders, pro-rata in accordance with each Lender's share of the Commitment.
10. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
(a) Agent shall have received this Amendment duly executed by
Borrower and the Lenders.
(b) Agent shall have received a consent and affirmation duly
executed by each of Certified, GGMC, and GSC indicating the consent by each such
guarantor to the execution and delivery by Borrower of this Amendment and the
affirmation of the continued effectiveness of each such guarantor's guaranty of
the Obligations.
(c) Agent shall have received payment of the Amendment Fee and
of all other fees due.
(d) Agent shall have received payment of all Agents Expenses
incurred by Agent in connection with the negotiation, preparation and execution
of this Amendment.
11. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in
any number of counterparts and by different parties on separate counterparts,
each of which when so executed and delivered shall be deemed to be an original.
All such counterparts, taken together, shall constitute but one and the same
Amendment. This Amendment shall become effective upon the fulfillment of all of
the conditions set forth in Section 5 hereof.
12. REAFFIRMATION OF THE AGREEMENT. Except as specifically amended
by this Amendment, the Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed at Los Angeles, California as of the date first hereinabove written.
CERTIFIED GROCERS OF CALIFORNIA,
LTD., a California corporation
By______________________________
Title:___________________________
GROCERS GENERAL MERCHANDISE
COMPANY, a California corporation
By______________________________
Title:___________________________
GROCERS SPECIALTY COMPANY,
a California corporation
By______________________________
Title:___________________________
BT COMMERCIAL CORPORATION, a Delaware
corporation, individually and as Agent
By______________________________
Title:___________________________
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THE FIRST NATIONAL BANK OF BOSTON,
a national banking association, individually and
as Co-Agent
By______________________________
Title:___________________________
UNION BANK OF CALIFORNIA, N.A.,
individually and as Co-Agent
By______________________________
Title:___________________________
DG BANK DEUTSCHE
GENOSSENSCHATFTSBANK, a German bank
acting through its New York branch
By______________________________
Title:___________________________
By______________________________
Title:___________________________
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XXXXXXXX XXXX, XX, Xxx Xxxxxxx agency and
Grand Cayman Branch, as a bank
By______________________________
Title:___________________________
By______________________________
Title:___________________________
NATIONAL BANK OF CANADA , a Canadian
Chartered Bank, New York Branch
By______________________________
Title:___________________________
By______________________________
Title:___________________________
SANWA BANK CALIFORNIA, a California
banking corporation
By______________________________
Title:___________________________
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SANWA BUSINESS CREDIT CORPORATION,
a Delaware corporation
By______________________________
Title:___________________________
THE SAKURA BANK, LIMITED, a Japanese
bank acting through its Los Angeles agency
By______________________________
Title:___________________________
By______________________________
Title:___________________________
MANUFACTURERS BANK
By______________________________
Title:___________________________
CITY NATIONAL BANK, a national banking
association
By______________________________
Title:___________________________
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CONSENT OF GUARANTORS
Each of the undersigned, as a guarantor of the obligations of
CERTIFIED GROCERS OF CALIFORNIA, LTD., a California corporation ("Certified"),
GROCERS GENERAL MERCHANDISE COMPANY, a California corporation ("GGMC"), and
GROCERS SPECIALTY COMPANY, a California corporation ("GSC") (Certified, GGMC and
GSC are collectively referred to herein as "Borrower"), arising out of that
certain Amended and Restated Loan and Security Agreement, dated as of March 17,
1994, as amended by that certain Amendment Number One to Amended and Restated
Loan and Security Agreement, dated as of November 1, 1994, as further amended by
that certain Amendment Number Two to Amended and Restated Loan and Security
Agreement, dated as of December 3, 1994, as further amended by that certain
Amendment Number Three to Amended and Restated Loan and Security Agreement,
dated as of May __, 1996, and as further amended by that certain Amendment
Number Four to Amended and Restated Loan and Security Agreement, dated as of
June 27, 1996 (collectively, the "Agreement"), among BT Commercial Corporation,
a Delaware corporation, Union Bank of California, N.A., a national banking
association, The First National Bank of Boston, a national banking association
(collectively, "Agents"), and the other lenders party thereto (collectively,
"Lenders"), on the one hand, and Borrower, on the other hand, hereby
acknowledges receipt of a copy of that certain Amendment Number Five to Amended
and Restated Loan and Security Agreement, dated as of September 30, 1996, among
Agents, Lenders and Borrower, consents to the terms contained therein, and
agrees that the Continuing Guaranty executed by each of the undersigned shall
remain in full force and effect as a continuing guaranty of the obligations of
Borrower owing to Agents and Lenders under the Agreement.
Although Agents have informed us of the matters set forth above, and
we have acknowledged same, we understand and agree that Agents have no duty
under the Agreement, the Guaranties or any other agreement between us to so
notify us or to seek an acknowledgment, and nothing contained herein is intended
to or shall create such a duty as to any advances or transactions hereafter.
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IN WITNESS WHEREOF, each of the undersigned has caused this Consent of
Guarantors to be duly executed by their respective authorized officers as of
September 30, 1996.
CERTIFIED GROCERS OF CALIFORNIA,
LTD., a California corporation
By______________________________
Title:___________________________
GROCERS GENERAL MERCHANDISE
COMPANY, a California corporation
By______________________________
Title:___________________________
GROCERS SPECIALTY COMPANY, a California
corporation
By______________________________
Title:___________________________
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