Exhibit 10.2
December 18, 2003
United Natural Foods, Inc.
000 Xxxx Xxxx
Xxxxxxxx, XX 00000
Stow Xxxxx, Inc.
00 Xxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Xxxxxx Natural Foods Pennsylvania, Inc.
00 Xxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Albert's Organics, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Chief Financial Officer
RE: Second Amendment to Term Loan Agreement
Dear Xxxx:
Reference is made to that certain Term Loan Agreement dated as of April
28, 2003 as amended by the Amendment to Term Loan Agreement dated August 26,
2003 (the "Loan Agreement") among United Natural Foods, Inc. ("UNFI"), Stow
Xxxxx, Inc. ("SMI"), United Natural Foods Pennsylvania, Inc. ("UNFPA") and
Albert's Organics, Inc. ("Albert's" and together with UNFI, SMI and UNFPA, the
"Borrowers") and Fleet Capital Corporation (the "Lender"). Capitalized terms not
defined herein shall have the meanings ascribed thereto in the Loan Agreement.
This Second Amendment to Term Loan Agreement shall be referred to as the "Second
Amendment".
The Borrowers have requested that the Lender agree to increase the
principal amount of the Term Loan made pursuant to the Loan Agreement to
$38,833,331.33 and the Lender has agreed to such increase, subject to the terms
and conditions of this Second Amendment to Term Loan Agreement ("Second
Amendment").
1. Amendments to the Loan Agreement. Subject to the terms and conditions
of this Second Amendment, Borrowers and Lender agree that the Loan Agreement
shall be amended as follows:
a. The First Recital of the Loan Agreement is deleted and replaced
with the following:
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"WHEREAS, the Borrowers have requested that the Lender extend credit
to the Borrowers in the principal amount of THIRTY-EIGHT MILLION
EIGHT HUNDRED THIRTY THREE THOUSAND THREE HUNDRED THIRTY-ONE DOLLARS
AND THIRTY THREE CENTS ($38,833,331.33); and"
b. Section 1.1.1 of the Loan Agreement is hereby deleted and
replaced with the following:
"1.1.1 Term Loan. The Lender agrees to make a Term Loan to Borrowers
on the Second Amendment Closing Date in the principal amount of
$38,833,331.33, which shall be repayable in accordance with the term
of the Term Note and shall be secured by all the Collateral."
c. Appendix A to the Loan Agreement is amended to add the following
defined terms following the definition of "Restricted Investment":
"Second Amendment - the Second Amendment to Term Loan Agreement
dated as of December 12, 2003."
"Second Amendment Closing Date - the date on which all the
conditions precedent in Section 4 of the First Amendment are
satisfied and the Term Loan made under the Agreement."
d. Appendix A to the Loan Agreement is amended to delete the defined
term "Term Note" and the definition thereof and to substitute the following in
place thereof:
"Term Note - the Amended and Restated Term Promissory Note executed
by Borrower on the Second Amendment Closing Date in favor of Lender
to evidence the Term Loan, which shall be in the form of Exhibit A
to the Second Amendment."
e. Appendix A to the Loan Agreement is amended to delete the defined
term "Total Credit Facility" and the definition thereof and to substitute the
following in place thereof:
"Total Credit Facility - $38,833,331.33"
2. Amendment Commitment Fee. The Borrowers agree to pay to Lender an
amendment commitment fee of $50,000, which fee shall be nonrefundable and due
and payable on the Second Amendment Closing Date.
3. 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 Second Amendment to Loan Agreement. This
Second Amendment to Loan Agreement has been duly executed and delivered by or on
behalf of the Borrowers pursuant to authority legally adequate therefor, and
this Second Amendment to Loan Agreement is in full force and effect and is a
legal, valid and binding obligation of the Borrowers
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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,
except for any changes resulting only from the passage of time and which do not
otherwise constitute a Default or Event of Default hereunder, 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 Second
Amendment to Loan Agreement as though fully set forth herein.
4. Conditions Precedent. Notwithstanding any of the provisions of the Loan
Agreement or any of the other Loan Documents, and without affecting in any
manner the rights of Lender under any other sections of the Loan Agreement or
this Second Amendment, Lender shall not be required to make the Term Loan under
this Second Amendment unless and until each of the following conditions has been
and continues to be satisfied (the date when such conditions are satisfied shall
be the "Second Amendment Closing Date").
a. Documentation. Lender shall have received, in form and substance
satisfactory to Lender, a duly executed copy of this Second Amendment, the
Amended and Restated Term Promissory Note in substantially the form of Exhibit A
hereto, the amendments to Mortgages, the amendments of collateral assignments
and such additional documents, instructions and certificates as Lender shall
require in connection therewith, all in form and substance satisfactory to
Lender and its counsel.
b. No Default. No Default or Event of Default shall exist.
c. Corporate Documents. All requisite corporate action and
proceedings of the Borrowers in connection with this Second Amendment and all
documentation and certificates required by Lender and/or its counsel in
connection therewith shall be satisfactory in form and substance to Lender and
its counsel;
d. Opinions of Counsel. The receipt by Lender of an opinion, dated
the Second Amendment Closing Date, of (i) Cameron & Xxxxxxxxx LLP, counsel to
Borrowers and Guarantors covering such matters as the Lender may reasonably
request, and (ii) local counsel of Borrowers in the jurisdictions where the Real
Property is located, covering such matters as the Lender may reasonably request;
e. Payment of Fees. The payment by Borrowers of such fees as
Borrowers have agreed to pay or deliver to Lender including, without limitation
the amendment commitment fee, the reasonable fees and expenses of Xxxxx Xxxxxxx
Berlack Israels LLP and of other counsel to Lender and all fees and expenses of
title insurance companies;
f. Title Insurance. Borrowers shall have obtained and delivered to
Lender endorsements to the title insurance policies previously delivered to
Lender, insuring the Mortgages as increased by the Term Loan provided for herein
and as may be requested by Lender for any changes or modifications in the Real
Property, all in form and substance satisfactory to Lender;
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g. Participant Consent. Lender shall have received the written
consent of its participant in the increase to the Term Loan pursuant to this
Second Amendment and to the participant's participation therein in form and
substance satisfactory to Lender;
h. Eighth Amendment. The Required Lenders (as defined in the Working
Capital Facility) shall have consented to the increase in the Term Loan to
$38,833,331.33; and
i. Other Documents. Such other agreements, instruments, and
documents as Lender may reasonably require in connection with this Second
Amendment.
5. Miscellaneous.
a. Counterparts. This Second Amendment to Loan Agreement 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 Second
Amendment to Loan Agreement by signing any such counterpart.
b. Force and Effect. The Loan Agreement and each other Loan
Document, as amended by this Second Amendment, are hereby ratified, confirmed
and approved, and shall continue in full force or effect.
c. Loan Document. This Second Amendment to Loan Agreement and all
other documents executed in connection herewith are "Loan Documents" as such
term is defined in the Loan Agreement. This Second Amendment shall be governed
by the laws of the State of Connecticut. This Second Amendment to Loan Agreement
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 Second Amendment to Loan Agreement
IN WITNESS WHEREOF, the parties have executed this Second Amendment to
Loan Agreement as of the date first above written.
BORROWERS: UNITED NATURAL FOODS, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
STOW XXXXX, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
UNITED NATURAL FOODS
PENNSYLVANIA, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
ALBERT'S ORGANICS, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
LENDER: FLEET CAPITAL CORPORATION
By: /s/ Xxx X. Xxxxxx
-----------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
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RATIFICATION OF GUARANTY AGREEMENT
The undersigned Guarantors acknowledge receipt of the foregoing Second
Amendment to Term Loan Agreement ("Second Amendment") and hereby (a) accept and
agree to the terms and provisions of the Second Amendment including, without
limitation, to the increase in the Term Loan to $38,833,331.33 and (b) ratify,
confirm, and approve all of the terms and conditions of each of the Guaranty
Agreements.
IN WITNESS WHEREOF, the parties have executed the Ratification of Guaranty
Agreement on this 18th day of December, 2003.
NATURAL RETAIL GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
UNITED NATURAL TRADING CO.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
MOUNTAIN PEOPLE'S WAREHOUSE
INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
NUTRASOURCE, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
RAINBOW NATURAL FOODS, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
UNITED NORTHEAST, LLC
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
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