Exhibit 10.37
FOURTH AMENDMENT AGREEMENT
FOURTH AMENDMENT AGREEMENT (this “Agreement”) dated as of November 27, 2007, by and among United Natural Foods, Inc., United Natural Foods West, Inc., United Natural Trading Co., Distribution Holdings, Inc., Springfield Development, LLC, and Millbrook Distribution Services Inc. (collectively, the “Borrowers”), Bank of America, N.A. (“Bank of America”) and the other Lenders currently party thereto (the “Existing Lenders”), the other lending institutions identified under the caption “Lenders” on the signature pages hereto, each of which is becoming a Lender on the date hereof (collectively, the “New Lenders” and, collectively with the Existing Lenders, collectively, the “Lenders”), and Bank of America, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).
W I T N E S S E T H:
WHEREAS, the Borrowers, the Existing Lenders, the Administrative Agent, and the Documentation Agent, Syndication Agent and Arranger identified therein entered into a certain Amended and Restated Loan and Security Agreement dated April 30, 2004, as amended by a First Amendment dated as of December 30, 2004, a Second Amendment dated as of January 31, 2006 and a Third Amendment dated as of November 2, 2007 (as amended, the “Loan Agreement”); and
WHEREAS, the Borrowers have requested that the Lenders waive certain Events of Default which exist under the Loan Agreement, increase the aggregate Revolving Credit Commitments and amend certain other provisions of the Loan Agreement; and
WHEREAS, certain of the Existing Lenders are willing to increase their Revolving Credit Commitments and the New Lenders are willing to become parties to the Loan Agreement as Lenders thereunder and to make Revolving Credit Commitments, and the Lenders are willing to waive such Events of Default and agree to the amendments set forth herein, all on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
§1. Definitions. Capitalized terms used herein without definition that are defined in the Loan Agreement shall have the meanings given to such terms in the Loan Agreement, as amended hereby.
§2. Representations and Warranties; Acknowledgment. The Borrowers hereby represent and warrant to the Lenders as follows:
(a) Each of the Borrowers has adequate power to execute and deliver this Agreement and each other document to which it is a party in connection herewith and to perform its obligations hereunder or thereunder. This Agreement and each other document executed in connection herewith have been duly executed and delivered by each of the Borrowers and do not contravene any law, rule or regulation applicable to any Borrower or any of the terms of any other indenture, agreement or undertaking to which
any Borrower is a party. The obligations contained in this Agreement and each other document executed in connection herewith to which any of the Borrowers is a party, taken together with the obligations under the Loan Documents, constitute the legal, valid and binding obligations enforceable against any such Borrower in accordance with their respective terms.
(b) After giving effect to the transactions contemplated by this Agreement, all the representations and warranties made by the Borrowers in the Loan Documents are true and correct on the date hereof as if made on and as of the date hereof and are so repeated herein as if expressly set forth herein or therein, except to the extent that any of such representations and warranties expressly relate by their terms to a prior date.
(c) After giving effect to the transactions contemplated by this Agreement, no Event of Default under and as defined in any of the Loan Documents has occurred and is continuing on the date hereof.
§3. Amendments to Loan Agreement. The Loan Agreement is hereby amended as follows:
3.1. Amendments to Appendix A.
(a) The following definitions in Appendix A of the Loan Agreement (or, in the case of the definition of SwingLine Loan Ceiling, the existing definition that was set forth in Section 3.1.3 but not in Appendix A but which is now being added to Appendix A hereby) are hereby amended and restated in their entirety to read as follows:
Borrowing Base - as at any time of determination thereof, an amount equal to the lesser of:
(i) $400,000,000; or
(ii) an amount equal to:
(a) 90% of the net amount of Eligible Accounts outstanding at such date provided that dilution with respect to Eligible Accounts, as determined by Agent, shall be less than five (5%) percent and, if such dilution, as determined by the Agent, exceeds five (5%) percent, such advance rate may be decreased by Agent, in its discretion, to 85%; PLUS
(b) (x) prior to the Post-Fourth Amendment Inventory Appraisal Date, the lesser of (1) $150,000,000 or (2) 70% of the value of Eligible Inventory at such date, calculated on the basis of the lower of cost or market, with the cost of raw materials and finished goods calculated on a first-in, first-out basis, and (y) on and after the Post-Fourth Amendment Inventory Appraisal Date, the lesser of (1) $240,000,000 or (2) the lesser of (A) 85% of the NOLV of the Eligible Inventory at such date or (B) 70% of the value of Eligible Inventory at such date, calculated on the basis of
the lower of cost or market, with the cost of raw materials and finished goods calculated on a first-in, first-out basis.
For the purposes hereof, the net amount of Eligible Accounts at any time shall be the face amount of such Eligible Accounts less any and all returns, rebates, discounts (which may, at Agent’s option, be calculated on shortest terms), credits, allowances or excise taxes of any nature at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with such Accounts at such time.
Maturity Date - November 27, 2012.
Revolving Credit Commitment - for each Lender, the obligation of such Lender to make Revolving Credit Loans and participate in the Swingline Loans and LC Amount in an aggregate principal amount at any one time outstanding up to but not exceeding the amount set forth on Schedule 1 hereto, as such amount may be reduced or increased from time to time pursuant to the terms hereof, or reduced or increased from time to time by assignments by or to such Lender pursuant to Sections 4.4.2, 12.10, and 13.3 hereof. The aggregate amount of the Revolving Credit Commitments of the Lenders on the Fourth Amendment Effective Date is $400,000,000. If this Agreement is terminated pursuant to Section 5.2.1 or 5.2.2, the Revolving Credit Commitments shall thereafter be zero.
Revolving Credit Commitment Termination Date - November 27, 2012.
SwingLine Loan Ceiling - at any time, an amount equal to the product of (a) the sum of the Revolving Credit Commitments at such time multiplied by (b) seven percent (7%).
(b) The following new definitions are added in alphabetical order to Appendix A of the Loan Agreement to read as follows:
Fourth Amendment Agreement - the Fourth Amendment Agreement dated as of November 27, 2007 among the Borrowers, the Lenders, and the Administrative Agent with respect to this Loan Agreement.
Fourth Amendment Effective Date - the date on which all of the conditions precedent set forth in Section 6 of the Fourth Amendment Agreement have been satisfied (or waived by the Required Lenders).
LC Sublimit Amount - at any time, an amount equal to the product of (a) the sum of the Revolving Credit Commitments at such time multiplied by (b) eight percent (8%).
Material Acquisition - any acquisition or investment or series of acquisitions or investments in respect of which the consideration therefor exceeds (i) $10,000,000 for any single acquisition or investment and $25,000,000 in the aggregate for all acquisitions and/or investments in any fiscal year of Borrowers paid in cash and/or incurred Indebtedness by Borrowers, (ii) in cases in which the consideration paid by Borrowers is shares of UNF common stock, $25,000,000 in value for all such acquisitions in any fiscal
year of Borrowers or (iii) in transactions involving any combination of cash, incurred Indebtedness and/or UNF common stock, subject to the foregoing limits (subject in all such cases to the limitations of Section 11.1.12 hereof).
NOLV - as of any date, the net liquidation value of the Eligible Inventory on such date, as calculated based on the liquidation values for each category of Inventory set forth in the Post-Fourth Amendment Inventory Appraisal.
Post-Fourth Amendment Inventory Appraisal - as of any date after the Fourth Amendment Effective Date, the most recent appraisal, if any, in form and substance acceptable to the Administrative Agent, by an appraiser selected by the Administrative Agent, of the liquidation values of each category of Inventory of the Borrowers.
Post-Fourth Amendment Inventory Appraisal Date - the first date after the Fourth Amendment Effective Date that a Post-Fourth Amendment Inventory Appraisal is delivered to the Administrative Agent in form and substance acceptable to the Administrative Agent.
Revolving Credit Increase Effective Date - as defined in subsection 1.4.4 of the Agreement.
$16,000,000 Availability Proviso - as defined in subsection 7.2.5 of the Agreement.
Transfer Notice - as defined in subsection 7.2.5 of the Agreement.
3.2. Amendment to Section 1.2
Section 1.2 of the Loan Agreement is hereby amended by deleting “TWENTY MILLION DOLLARS ($20,000,000).” in the eighth line thereof and substituting therefor “the LC Sublimit Amount.”
3.3. Addition of Section 1.4
The following Section 1.4 is hereby added to the Loan Agreement after Section 1.3 thereof:
1.4 Increase in Revolving Credit Facility.
1.4.1 Request for Increase. Provided there exists no Default or Event of Default, upon notice to the Administrative Agent (which shall promptly notify the other Lenders), the Borrowers may, on a one-time basis, request an increase in the aggregate amount of the Revolving Credit Commitments by an amount not exceeding $50,000,000 in the aggregate; provided that any such request for an increase shall be in a minimum amount of $10,000,000 and, if in excess of $10,000,000, shall be in an amount that is an integral multiple of $10,000,000. At the time of sending such notice, the Borrowers (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders).
1.4.2 Lender Elections to Increase. Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Revolving Credit Commitment and, if so, whether by an amount equal to, greater than, or less than its Revolving Credit Percentage of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Revolving Credit Commitment. Any decision by a Lender to increase its Revolving Credit Commitment shall be in such Lender’s sole and absolute discretion.
1.4.3 Notification by Administrative Agent; Additional Lenders. The Administrative Agent shall notify the Borrowers and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, and subject to the approval of the Administrative Agent of the identity and credit standing of each proposed additional Lender, the Borrowers may also invite additional institutional lenders to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.
1.4.4 Effective Date and Allocations. If the aggregate amount of the Revolving Credit Commitments is increased in accordance with this Section, the Administrative Agent and the Borrowers shall determine the effective date (the “Revolving Credit Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrowers and the Lenders of the final allocation of such increase and the Revolving Credit Increase Effective Date.
1.4.5 Conditions to Effectiveness of Increase. As a condition precedent to such increase, (a) the Borrowers shall deliver to the Administrative Agent a certificate of each Borrower dated as of the Revolving Credit Increase Effective Date (in sufficient copies for each Lender) signed by the chief executive officer or chief financial officer of such Borrower (i) certifying and attaching the resolutions adopted by such Borrower approving or consenting to such increase, and (ii) certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Section 8 hereof and in the other Loan Documents are true and correct on and as of the Revolving Credit Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 1.4, the representations and warranties contained in the first sentence of Section 8.10 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of subsection 9.1.3, and the representations and warranties contained in the second sentence of Section 8.1.10 shall be deemed to refer to the last day of the most recent fiscal year of the Borrowers ended prior to the date of such certificate for which financial statements have been delivered to the Lenders, and (B) no Default or Event of Default exists, (b) the Borrowers shall prepay any Revolving Credit Loans outstanding on the Revolving Credit Increase Effective Date (and pay any additional amounts required pursuant to subsection 3.2.5) to the extent necessary to keep the outstanding Revolving Credit Loans ratable with any revised Revolving Credit Commitment Percentages arising from any nonratable increase in the Revolving Credit Commitments under this Section, (c) the Borrowers shall pay such closing fees as may be acceptable to the Lenders that make Revolving Credit Commitments or increase their Revolving Credit Commitments pursuant to this
Section, and (d) to the extent requested by the Administrative Agent, the Borrowers shall deliver new or substituted, as applicable, Revolving Credit Notes in the amounts of the respective aggregate Revolving Credit Commitments of the Lenders that increase their Revolving Credit Commitments or make new Revolving Credit Commitments, (ii) a reaffirmation agreement from all Guarantors, (iii) UCC searches for the jurisdictions requested by the Administrative Agent, and (iv) such other documents, including, without limitation, any opinion letters requested, as are reasonably required by the Administrative Agent, all of the documents referred to in clauses (i) through (iv) to be in form and substance satisfactory to the Administrative Agent.
3.4. Amendment to Section 2.6
The second to last sentence of Section 2.6 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
Audit and appraisal fees shall be payable on the first day of the month following the date of issuance by Agent of a request for payment thereof to Borrowers.
3.5. Amendment to Subsection 3.1.3
Subsection 3.1.3(ii) of the Loan Agreement is hereby amended by deleting “SEVENTEEN MILLION FIVE HUNDRED THOUSAND DOLLARS ($17,500,000) (the “SwingLine Loan Ceiling”).” in the eighth and ninth lines thereof and substituting therefor “the amount of the SwingLine Loan Ceiling.”
3.6. Amendment to Subsection 7.2.5
The fourth, fifth and sixth sentences of Subsection 7.2.5 of the Loan Agreement are hereby amended and restated in their entirety to read as follows:
Borrowers shall issue to any such banks an irrevocable letter of instruction directing such banks to deposit all payments or other remittances received in the lockbox to the Dominion Account and to comply with Agent’s notice, given at any time and from time to time in its discretion (or when directed by the Required Lenders) (a “Transfer Notice”), directing such banks to transfer all such payments and remittances to the Payment Account for application on account of the Obligations; provided, however, that Borrowers acknowledge and agree that if at any time Availability is less than $16,000,000 and within ten (10) days of such occurrence Borrowers fail to provide or are unable to provide Availability projections demonstrating, to the satisfaction of the Required Lenders, that within sixty (60) days Availability will increase to be in excess of $16,000,000 and continue thereafter to exceed such amount, Agent shall give the foregoing Transfer Notice to such banks to transfer all payments and remittances to the Payment Account (this proviso, the “$16,000,000 Availability Proviso”). All funds deposited in any Dominion Account shall immediately become the property of Agent for the account of Lenders, and Borrowers shall obtain the agreement by such banks in favor of Agent to waive any right of recoupment or setoff (subject only to such exceptions as may be acceptable to Agent) against the funds so deposited, and to waive any security interest in the funds so deposited. Agent agrees with Borrowers that, except pursuant to
the $16,000,000 Availability Proviso, Agent shall not give a Transfer Notice unless a Default or an Event of Default has occurred and is continuing.
3.7. Amendment to Subsection 9.1.1
The following sentence is hereby added at the end of Subsection 9.1.1 of the Loan Agreement to read as follows:
Agent may conduct one (1) appraisal, at Borrowers’ expense, during each twelve (12) month period and as many as the Agent or the Required Lenders may deem necessary or appropriate, at Borrowers’ expense, if a Default or an Event of Default has occurred and is continuing.
3.8. Amendment to Subsection 9.2.1
Subsection 9.2.1 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
9.2.1 Mergers; Consolidations; Acquisitions. Merge or consolidate, or permit any Subsidiary of Borrowers to merge or consolidate, with any Person (except for mergers or consolidations among the Borrowers or mergers or consolidations of Subsidiaries with a Borrower or Borrowers); nor acquire or permit any of its Subsidiaries to acquire all or any substantial part of the Properties or stock or securities of any Person, provided, that Borrowers may purchase businesses in the lines of business conducted by the Borrowers which Borrowers have determined, in their reasonable business judgment, would enhance the business, operations, prospects and condition (financial or otherwise) of the Borrowers provided that each of the following conditions are satisfied (each such transaction a “Permitted Acquisition”): (a) in respect of any Material Acquisition, UNF shall have delivered to the Administrative Agent and each Lender not less than ten (10) Business Days prior to the earlier of (i) the execution of a definitive or binding agreement to enter into the proposed Permitted Acquisition and (ii) the consummation of such proposed Permitted Acquisition, a copy of the proposed acquisition agreement and a statement, certified by the principal financial or accounting officer of UNF, setting forth, in reasonable detail, computations evidencing on a pro forma basis (determined in a manner acceptable to the Administrative Agent) compliance with the financial covenants contained in Section 9.3 hereof, immediately prior to and after giving effect to such proposed Permitted Acquisition; (b) UNF shall have delivered to the Administrative Agent and each Lender not less than ten (10) Business Days prior to the earlier of (i) the execution of a definitive or binding agreement to enter into the proposed Permitted Acquisition and (ii) the consummation of such proposed Permitted Acquisition, a statement, certified by the principal financial or accounting officer of UNF, setting forth, in reasonable detail, computations (determined in a manner reasonably acceptable to the Administrative Agent) evidencing Availability immediately prior to and after giving effect to the proposed Permitted Acquisition in an amount equal to or in excess of (x) in respect of any Material Acquisition, 20% of the Borrowing Base and (y) in all other respects, 15% of the Borrowing Base, and such principal financial or accounting officer shall have delivered to the Administrative Agent and each Lender not more than two (2) Business Days prior to the consummation of the proposed Permitted Acquisition a
statement certifying that the conditions in clause (a) (in respect of Material Acquisitions only) and clause (b) of this subsection 9.2.1 continue to be satisfied, which statement shall be accompanied by execution copies of the acquisition agreement and all material documents to be executed in connection therewith; (c) no Default or Event of Default shall exist before or after giving effect to the proposed Permitted Acquisition; (d) the Borrowers shall furnish to the Agent and each Lender notice and copies of any letter of intent or other memorandum of understanding and purchase documents for any acquisition they may contemplate and in the event that Borrowers wish to have the Accounts and Inventory of the entity to be acquired or invested in be included in the Borrowing Base, Borrowers’ shall arrange for Agent and its representatives to have reasonable access to financial information and the assets and Properties to be acquired which will, upon consummation of the acquisition, become Collateral for the Obligations; (e) if any such acquisition is structured as the acquisition of stock or other securities of a Person to be acquired or Borrowers create a Subsidiary to make the acquisition, at the election of the Agent, such entity shall become a Borrower hereunder by entering into a joinder agreement in form and substance satisfactory to Agent, or Borrowers shall cause such entity to enter into a guaranty of the Obligations and, in each case, such entity shall grant to Agent a security interest such of its assets that would constitute Collateral hereunder to secure such guaranty reasonably satisfactory to the Agent; and (f) if any indebtedness is to be issued to any seller in connection with any such transaction, the holder of such indebtedness shall enter into a subordination agreement in favor of the Agent and Lenders in form and substance satisfactory to Agent. The Agent agrees to enter into confidentiality agreements with the Persons that Borrowers may acquire on terms mutually agreeable to Agent and such Person.
3.9. Amendment to Subsection 9.2.7
Clauses (c) and (d) of subsection 9.2.7 of the Loan Agreement are hereby deleted and the following clause (c) is substituted therefor (and the word “and” is added after clause (b)):
(c) other Distributions, provided that a Distribution shall only be permitted pursuant to this clause (c) if (i) UNF shall have delivered to the Administrative Agent and each Lender between two (2) and five (5) Business Days prior to the date of such Distribution a statement, certified by the principal financial or accounting officer of UNF, setting forth, the nature, amount and recipients of the proposed Distribution and setting forth, in reasonable detail, computations evidencing on a pro forma basis (determined in a manner acceptable to the Administrative Agent) (A) compliance with the financial covenants contained in Section 9.3 hereof, immediately prior to and after giving effect to such proposed Distribution, and (B) Availability immediately prior to and after giving effect to the proposed Distribution in an amount equal to or in excess of 20% of the Borrowing Base, and (ii) no Default or Event of Default shall exist before or after giving effect to the proposed Distribution.
3.10.Amendment to Subsection 12.10.2
The word “and” is deleted from the end of clause (iv) of subsection 12.10.2, the period at the end clause (v) is deleted and “; and” substituted therefor and the following clause (vi) is added after clause (v) of subsection 12.10.2:
(vi) notwithstanding the foregoing provisions of this subsection 12.10.2, (a) the execution of the Fourth Amendment Agreement shall constitute the consent of the Borrowers and the Administrative Agent to assignments of Revolving Credit Commitments to (x) Persons that are designated as “New Lenders” in such Fourth Amendment Agreement becoming Lenders and (y) certain of the Persons that are designated as “Existing Lenders” in such Fourth Amendment Agreement, in each case to the extent that the aggregate of the amounts of Revolving Credit Commitments of each Lender listed on Schedule 1 attached to the Fourth Amendment Agreement include such assignments (and the execution of such Fourth Amendment Agreement shall also constitute such consent of UNF and the Administrative Agent, in accordance with clause (ii) of this subsection, to the amounts being assigned), (b) the master assignment agreement referred to in clause (g) of Section 6 of the Fourth Amendment Agreement shall be executed with respect to the assignments referred to in clause (a) of this clause (vi) rather than the Assignment and Assumption Agreements and Notices of Assignment referred to in clause (iii) of this subsection, and (c) the fee referred to in clause (v) of this subsection shall not be payable with respect to the assignments referred to in clause (a) of this clause (vi).
3.11. Amendment of Section 13.8
Section 13.8 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
13.8 Notice. Except as otherwise provided herein, all notices, requests and demands to or upon a party hereto, to be effective, shall be in writing and shall be sent by certified or registered mail, return receipt requested, by personal delivery against receipt, by overnight courier or by facsimile and, unless otherwise expressly provided herein, shall be deemed to have been validly served, given or delivered immediately when delivered against receipt, one (1) Business Day after being sent by overnight courier, three (3) Business Days after deposit in the mail, postage prepaid, or, in the case of facsimile notice, when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient) or, in the case of electronic notice delivery as provided below in this Section 13.8 below, addressed as follows:
| If to Agent: | Bank of America, N.A. |
| | 200 Glastonbury Boulevard |
| | Glastonbury, CT 06033 |
| | Attention: Edgar Ezerins |
| | Electronic Mail Address: |
| | edgar.ezerins@bankofamerica.com |
| | Facsimile No.: (860) 368-6029 |
| With a copy to: | Bingham McCutchen LLP |
| | One State Street |
| | Hartford, CT 06103 |
| | Attention: Daniel I. Papermaster, Esq. |
| | Electronic Mail Address: daniel.papermaster@bingham.com |
| | Facsimile No.: (860) 240-2521 |
| | |
| If to Borrowers: | United Natural Foods, Inc. |
| | 260 Lake Road |
| | Dayville, CT 06241 |
| | Attention: Mark Shamber, Vice President, Chief Financial Officer and Treasurer |
| | Electronic Mail Address: mshamber@unfi.com |
| | Facsimile No.: (860) 779-5678 |
| | |
| With a copy to: | Cameron & Mittleman |
| | 56 Exchange Terrace |
| | Providence, RI 02903 |
| | Attention: Joseph A. Anesta, Esq. |
| | Electronic Mail Address: janesta@cm-law.com |
| | Facsimile No.: (401) 331-5787 |
| | |
| If to any Lender: | To the address set forth on Schedule 1 hereto, or on the Notice of Assignment executed by such Lender, whichever is applicable, |
or to such other address as each party may designate for itself by notice given in accordance with this Section 13.8; provided, however, that any notice, request or demand to or upon Agent pursuant to subsection 3.1.1, 3.2.5 or 5.2.2 hereof shall not be effective until received by Agent.
Notices and other communications to the Lenders and any issuer of Letters of Credit hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Agent, provided that the foregoing shall not apply to notices to any Lender or the issuer of Letters of Credit pursuant to Section 1 and Section 3 if such Lender or such issuer, as applicable, has notified the Agent that it is incapable of receiving notices under such Section by electronic communication. The Agent or the Borrowers may, in their discretion, agree to accept notices and other communications to them hereunder by electronic communications pursuant to procedures approved by them, provided that approval of such procedures may be limited to particular notices or communications.
Unless the Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient,
and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
3.12. Addition of Schedule 1.
Schedule 1 attached to this Agreement is hereby added to the Loan Agreement as Schedule 1 thereto.
3.13. Amended Exhibits.
Exhibits A, B, C, D, E, F, G, H, I, J, K, N, O, Q, S and V to the Loan Agreement are hereby amended and restated as set forth on Exhibits A, B, C, D, E, F, G, H, I, J, K, N, O, Q, S and V, respectively, attached to this Agreement.
3.14. Agent Titles.
All references in the Loan Agreement and the other Loan Documents to Citizens Bank of Massachusetts as Syndication Agent and to U.S. Bank National Association as Documentation Agent are hereby deleted and replaced with the following: (a) RBS Citizens, National Association (as successor by merger with Citizens Bank of Massachusetts) as Co-Syndication Agent, (b) U.S. Bank National Association as Co-Syndication Agent, (c) BMO Capital Markets Financing, Inc. as Co-Documentation Agent and (d) Royal Bank of Canada as Co-Documentation Agent. All references to the Syndication Agent and/or the Documentation Agent in the Loan Agreement and the other Loan Documents shall hereafter be deemed to be references to the Co-Syndication Agents and the Co-Documentation Agents, or either of them, as applicable. The last sentence of Section 12.1.4 is hereby amended and restated in its entirety to read as follows:
The designation of a Lender as a “Co-Documentation Agent” or a “Co-Syndication Agent” shall have no substantive effect, and such Lenders shall have no additional powers, duties or responsibilities as a result thereof.
§4. Ratification, etc. All of the obligations and liabilities to the Lenders and the Administrative Agent as evidenced by or otherwise arising under the Loan Agreement, the Notes and the other Loan Documents, are, by the Borrowers’ execution of this Agreement, ratified and confirmed in all respects. In addition, by each Borrower’s execution of this Agreement, such Borrower represents and warrants that neither it nor any of its Subsidiaries has any counterclaim, right of set-off or defense of any kind with respect to such obligations and liabilities. This Agreement and the Loan Agreement shall hereafter be read and construed together as a single document, and all references in the Loan Agreement or any related agreement or instrument to the Loan Agreement shall hereafter refer to the Loan Agreement as amended by this Agreement.
§5. Waivers. Subject to the satisfaction of the conditions set forth herein, the Lenders waive those Events of Default that have occurred under the Loan Agreement as a result of the Borrowers’ failure on or before the date hereof to comply with those sections of the Loan
Agreement set forth on Schedule 2 attached hereto. The waivers set forth in this Section 5 shall be effective only for those Events of Default contained in the Loan Agreement as specified in Schedule 2 which occurred on or before the date hereof and such waiver shall not entitle the Borrowers to any future waiver in similar or other circumstances. Without limiting the foregoing, upon the occurrence and during the continuation of an Event of Default not set forth in Schedule 2, subject to the provisions of the Loan Agreement, the Lenders shall be free in their sole and absolute discretion to accelerate the payment in full of the Obligations, and may, if the Lenders so elect, proceed to enforce any or all of their rights under or in respect of the Loan Agreement and the other Loan Documents and applicable law. Except as otherwise expressly provided for herein, nothing in this Agreement shall extend to or affect in any way the Borrowers’ obligations or the Lenders’ rights and remedies arising under the Loan Agreement or the other Loan Documents, and no Lender shall be deemed to have waived any or all of its remedies with respect to any Event of Default (other than the Events of Default described on Schedule 2 attached hereto, and then only to the extent set forth therein) or event or condition which, with notice or the lapse of time, or both would become an Event of Default and which upon the Borrowers’ execution and delivery of this Agreement might otherwise exist or which might hereafter occur.
§6. Conditions to Effectiveness. The effectiveness of the amendments set forth in Section 3 of this Agreement and the waivers set forth in Section 5 of this Agreement are subject to the prior satisfaction, on or before November 27, 2007, of the following conditions precedent (the date of such satisfaction herein referred to as the “Fourth Amendment Effective Date”):
(a) Representations and Warranties. The representations and warranties of the Borrowers contained herein shall be true and correct.
(b) No Event of Default. There shall exist no Event of Default or event or circumstance which, with the giving of notice and/or the lapse of time would result in an Event of Default.
(c) Corporate or Limited Liability Company Action. The Administrative Agent shall have received evidence reasonably satisfactory to the Administrative Agent that all requisite corporate or limited liability company, as applicable, action necessary for the valid execution, delivery and performance by the Borrowers of this Agreement and all other instruments and documents delivered by the Borrowers in connection herewith has been taken.
(d) Delivery of this Agreement. The Borrowers, the Administrative Agent and the Lenders shall have executed and delivered this Agreement and each Guarantor shall have acknowledged its acceptance of or agreement to this Agreement and its ratification of the continuing effectiveness of its Guaranty.
(e) Amendment of Intercreditor Agreement. The Intercreditor Agreement dated as of April 30, 2004 between Bank of America, N.A., as Administrative Agent for the Lenders under the Loan Agreement, and the holders of the Term Loan made pursuant to the Term Loan Agreement shall have been amended in such manner as may be deemed by the Administrative Agent to be necessary or appropriate in connection with the amendments set forth herein, provided that such amendment shall not amend the Intercreditor Agreement in a manner adverse to the interests of the Lenders without the consent of the Required Lenders.
(f) Guarantor Reaffirmation. Each of the Guarantors shall have reaffirmed their respective obligations under their respective Guaranty Agreements pursuant to reaffirmation agreements each in form and substance satisfactory to the Agent.
(g) Assignments of Loans. The Lenders shall have entered into a master assignment agreement, in form and substance acceptable to each of the Lenders, pursuant to which those Existing Lenders whose Revolving Credit Commitment Percentage are being reduced by the increases in the Revolving Credit Commitment Percentages of the other Existing Lenders and by the making of Revolving Credit Commitments by the New Lenders will assign to the other Existing Lenders and the New Lenders such amount of their Revolving Credit Loans as will result in each Lender holding an amount of Revolving Credit Loans that represents such Lender’s Revolving Credit Commitment Percentage of all outstanding Revolving Credit Loans, and each New Lender shall have executed and delivered to the Administrative Agent such documents as are customarily required by the Administrative Agent to be executed or delivered by Persons who become Lenders under the Loan Agreement.
(h) Payment of Expenses. The Borrowers shall have paid to the Administrative Agent all amounts payable to the Administrative Agent under Section 7 hereof.
(i) Organic Brands Subordination Agreement. UNF, the Agent and Organic Brands, LLC shall have entered into a Subordination Agreement with respect to that certain Promissory Note dated March 30, 2007 executed by UNF in favor of Organic Brands, LLC, such Subordination Agreement to be in form and substance satisfactory to the Agent.
(j) Amendment of Term Loan Agreement. The Term Loan Agreement shall have been amended by an amendment in form and substance satisfactory to the Lenders.
(k) Payment of Arranger Fee. The Borrowers shall have paid to Bank of America, N.A., in its capacity as Arranger, an arrangement fee in the amount provided for in the fee letter dated November 27, 2007 between Bank of America, N.A. and the Borrowers.
§7. Expenses, Etc. Without limitation of the amounts payable by the Borrowers under the Loan Agreement and other Loan Documents, the Borrowers shall pay to the Administrative Agent and its counsel upon demand an amount equal to any and all out-of-pocket costs or expenses (including reasonable legal fees and disbursements and appraisal expenses) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Agreement and the matters related thereto.
§8. Time is of the Essence; No Waivers by Lenders. TIME IS OF THE ESSENCE WITH RESPECT TO ALL COVENANTS, CONDITIONS, AGREEMENTS OR OTHER PROVISIONS HEREIN. Except as otherwise expressly provided for herein, nothing in this Agreement shall extend to or affect in any way the Borrowers’ obligations or the Lenders’ and Administrative Agent’s rights and remedies arising under the Loan Agreement or the other Loan Documents.
§9. Fourth Amendment Closing Fees. In consideration of the agreement by the Lenders to the provisions of this Agreement, the Borrowers shall pay to the Administrative Agent on the Fourth Amendment Effective Date, in addition to the other fees payable under this Agreement, the fee letter referred to in Section 6(k) hereof, and the Loan Agreement, the following amounts (clauses (a) and (b) below collectively, the “Fourth Amendment Closing Fees”):
(a) The Borrowers shall pay to the Administrative Agent for the account of each Existing Lender (i) a fee in the amount of the product of (A) the Revolving Credit Commitment as in effect prior to the increase on the Fourth Amendment Effective Date multiplied by (B) 0.125%, and (ii) a fee in the amount of the product of (A) the amount by which the Revolving Credit Commitment of such Existing Lender increased on the Fourth Amendment Effective Date multiplied by (B) 0.25%.
(b) The Borrowers shall pay to the Administrative Agent for the account of each New Lender a fee in the amount of the product of (i) the Revolving Credit Commitment of such New Lender on the Fourth Amendment Effective Date multiplied by (ii) 0.25%.
§10. Governing Law. This Agreement shall for all purposes be construed according to and governed by the laws of the State of Connecticut (excluding the laws thereof applicable to conflicts of law and choice of law).
§11. Effective Date. The amendments set forth in Section 3 hereof shall become effective among the parties hereto as of the Fourth Amendment Effective Date. Until the Fourth Amendment Effective Date, the terms of the Loan Agreement prior to its amendment hereby shall remain in full force and effect. This Agreement is effective as to all provisions other than the amendments set forth in Section 3 hereof at the time that the Borrowers, the Administrative Agent and the Lenders have executed and delivered this Agreement.
§12. Entire Agreement; Counterparts. This Agreement sets forth the entire understanding and agreement of the parties with respect to the matters set forth herein, including the amendments set forth herein, and this Agreement supersedes any prior or contemporaneous understanding or agreement of the parties as to any such amendment of the provisions of the Loan Agreement or any Loan Document, except for any such contemporaneous agreement that has been set forth in writing and executed by the Borrowers, the Administrative Agent and the Required Lenders. This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which counterparts taken together shall be deemed to constitute one and the same instrument. A facsimile or other electronic transmission of an executed counterpart shall have the same effect as the original executed counterpart.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers, as of the day and year first above written.
BORROWERS:
UNITED NATURAL FOODS, INC.
By: /s/ Mark E. Shamber
Name: Mark Shamber
Title: Vice President, CFO and Treasurer
UNITED NATURAL FOODS WEST, INC.
By: /s/ Mark E. Shamber
Name: Mark Shamber
Title: Vice President, Secretary and Treasurer
UNITED NATURAL TRADING CO.
By: /s/ Mark E. Shamber
Name: Mark Shamber
Title: Vice President, Secretary and Treasurer
DISTRIBUTION HOLDINGS, INC.
By: /s/ Mark E. Shamber
Name: Mark Shamber
Title: Vice President, Secretary and Treasurer
SPRINGFIELD DEVELOPMENT, LLC
By: /s/ Mark E. Shamber
Name: Mark Shamber
Title: Vice President, Secretary and Treasurer
MILLBROOK DISTRIBUTION
SERVICES INC.
By: /s/ Mark E. Shamber
Name: Mark Shamber
Title: Vice President, Secretary and Treasurer
[Signature Page to Fourth Amendment Agreement - United Natural Foods, Inc., et al]
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
By: /s/ Edgar Ezerins
Name: Edgar Ezerins
Title: Senior Vice President
LENDERS:
BANK OF AMERICA, N.A.,
By: /s/ Edgar Ezerins
Name: Edgar Ezerins
Title: Senior Vice President
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
RBS CITIZENS, NATIONAL ASSOCIATION,
(as successor by merger with Citizens Bank of
Massachusetts) individually and as Co-Syndication
Agent
By: /s/ Peter Coates
Name: Peter Coates
Title: Vice President
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
U.S. BANK NATIONAL ASSOCIATION,
individually and as Co-Syndication Agent
By: /s/ Mark A. Reinert
Name: Mark Reinert
Title: Vice President
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Brian Conway
Name: Brian Conway
Title: Vice President
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
FIRST PIONEER FARM CREDIT, ACA
By: /s/ Thomas W. Cosgrove
Name: Thomas W. Cosgrove
Title: Vice President
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
WEBSTER BANK, NATIONAL ASSOCIATION
(f/k/a Webster Bank)
By: /s/ John H. Frost
Name: John H. Frost
Title: Vice President
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ George Ahlmeyer
Name: George Ahlmeyer
Title: Senior Vice President
By: /s/ Marc Merritt
Name: Mark Merritt
Title: First Vice President
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
ROYAL BANK OF CANADA, individually and as
Co-Documentation Agent
By: /s/ Gordon MacArthur
Name: Gordon MacArthur
Title: Authorized Signatory
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
BMO CAPITAL MARKETS FINANCING, INC.,
individually and as Co-Documentation Agent
By: /s/ Graeme Robertson
Name: Graeme Robertson
Title: Vice President
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.,
“RABOBANK NEDERLAND”, NEW YORK BRANCH
By: /s/ Claire Laury
Name: Claire Laury
Title: Vice President
By: /s/ Rebecca O. Morrow
Name: Rebecca O. Morrow
Title: Executive Director
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
JPMORGAN CHASE BANK, N.A.
By: /s/ Joseph A Lisack
Name: Joseph A Lisack
Title: Vice President
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
CREDIT SUISSE, CAYMAN ISLANDS BRANCH
By: /s/ Doreen Barr
Name: Doreen Barr
Title: Vice President
By: /s/ Christopher Reo Day
Name: Christopher Reo Day
Title: Associate
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
Each of the undersigned Guarantors
acknowledges and agrees to the foregoing,
and ratifies and confirms in all respects
such Guarantor’s obligations under the
Guaranty Agreements:
NATURAL RETAIL GROUP, INC.
By: /s/ Mark E. Shamber
Name: Mark Shamber
Title: Vice President, Secretary and Treasurer
ALBERT’S ORGANICS, INC.
By: /s/ Mark E. Shamber
Name: Mark Shamber
Title: Vice President, Secretary and Treasurer
[Signature Page to Fourth Amendment Agreement - United Natural Foods Inc., et al]
Schedule 1
Revolving Credit Commitments
Lender Names and Addresses for Notices | Revolving Credit
Commitment | Revolving Credit
Commitment Percentage |
Bank of America, N.A. 200 Glastonbury Boulevard Glastonbury, CT 06033 Attn: Edgar Ezerins Phone: 860-368-6024 Fax: 860-368-6029 Email: edgar.ezerins@bankofamerica.com | $83,000,000 | 20.75% |
RBS Citizens, National Association (as successor by merger with Bank of Massachusetts) 53 State Street, 14th Floor Boston, MA 02109 Attn: Peter Coates Phone: 617-994-7250 Email: peter.coates@rbsbusinesscapital.com | $43,000,000 | 10.75% |
U.S. Bank National Association 950 17th Street, Suite 300 Denver, CO 80202 Attn: Mark Reinert Phone: 303-585-8904 Email: mark.reinert@usbank.com | $46,000,000 | 11.5% |
Webster Bank, National Association (f/k/a Webster Bank) 80 Elm Street New Haven, CT 06510 Attn: Jack Frost Phone: 203-782-4544 Fax: 203-782-4577 Email: jfrost@websterbank.com | $18,000,000 | 4.5% |
Lender Names and Addresses for Notices | Revolving Credit
Commitment | Revolving Credit
Commitment Percentage |
PNC Bank, National Association 70 East 55th Street, 14th Floor New York, NY 10022 Attn: Brian Conway Phone: 212-303-0044 Email: brian.conway@pncbusinesscredit.com | $32,000,000 | 8.0% |
First Pioneer Farm Credit, ACA 174 South Road Enfield, CT 06082 Attn: Tom Cosgrove Phone: 860-741-4380 Fax: 860-741-4389 Email: tom.cosgrove@firstpioneer.com | $43,000,000 | 10.75% |
Israel Discount Bank of New York 511 Fifth Avenue, 6th Floor New York, NY 10017 Attn: George Ahlmeyer Phone: 212-551-8227 Fax: 212-551-8720 Email: gahlmeyer@IDBNY.com | $20,000,000 | 5.0% |
Royal Bank of Canada New York Branch One Liberty Plaza, 3rd Floor New York, NY 10006-1404 Attn:Manager, Loans Administration Fax: 212-428-2372 With a copy to: Attn: Gordon C. MacArthur Phone: 212-428-2324 Fax: 212-428-6459 Email: gordon.macarthur@rbccm.com | $35,000,000 | 8.75% |
BMO Capital Markets Financing, Inc. 111 West Monroe Street, 20th Floor West Chicago, IL 60603 Attn: Graeme Robertson Phone: 312-461-2669 Fax: 312-765-1030 Email: graeme.robertson@bmo.com | $35,000,000 | 8.75% |
Lender Names and Addresses for Notices | Revolving Credit
Commitment | Revolving Credit
Commitment Percentage |
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch 245 Park Ave. New York, NY 10167 Attn: Corporate Services Dept. Phone: 201-499-5200 Fax: 201-499-5326 Email: [not accepting e-mail notice] | $10,000,000 | 2.5% |
JPMorgan Chase Bank, N.A. 530 5th Avenue, 8th Floor New York, NY 10036 Attn: Donna DiForio Phone: 212-837-3212 Fax: 212-837-3301 Email: donna.diforio@chase.com | $25,000,000 | 6.25% |
Credit Suisse, Cayman Islands Branch Eleven Madison Avenue New York, NY 10010 Attn: Doreen Barr Phone: 212-325-9914 Fax: 212-743-2737 Email: doreen.barr@credit-suisse.com | $10,000,000 | 2.5% |
Total | $400,000,000 | 100.00% |
Schedule 2
Events of Default
1. The Event of Default that occurred under Section 11.1.4 of the Loan Agreement as a result of the Borrowers’ failure to comply with Section 9.2.1(e) and Section 9.2.6 of the Loan Agreement in respect of the Indebtedness incurred by UNF owing to Organic Brands, LLC evidenced by that certain Promissory Note dated March 30, 2007 executed by UNF in favor of Organic Brands, LLC.
2. The Event of Default that occurred under Section 11.1.4 of the Loan Agreement as a result of the Borrowers’ failure to comply with Section 9.2.3 and Section 9.2.5 of the Loan Agreement in respect of the Indebtedness incurred by Millbrook Distribution Services Inc. owing to General Electric Company and the Lien in respect thereof.
3. The Event of Default that occurred under Section 11.1.4 of the Loan Agreement as a result of the Borrowers’ failure to comply with Section 9.2.5 of the Loan Agreement in respect of the Lien incurred by Albert’s Organics, Inc. in favor of City National Bank.
4. The Events of Default that occurred under Section 11.1.18 of the Loan Agreement as a result of the events of default that occurred under the Term Loan Agreement as a result of the events described in 2 and 3 above.
Exhibit A
Amended and Restated Exhibit A
EXHIBIT A
FORM OF
AMENDED AND RESTATED REVOLVING CREDIT NOTE
| $[AMOUNT] | November 27, 2007
Hartford, Connecticut |
FOR VALUE RECEIVED, the undersigned, UNITED NATURAL FOODS, INC., a Delaware corporation with its chief executive office and principal place of business located at 260 Lake Road, Dayville, Connecticut 06241 (“UNF”), UNITED NATURAL FOODS WEST, INC. (f/k/a Mountain People's Warehouse Incorporated), a California corporation with its chief executive office and principal place of business located at 1101 Sunset Boulevard, Rocklin, California 95765 (“UNFW”), UNITED NATURAL TRADING CO., a Delaware corporation with its chief executive office and principal place of business located at 96 Executive Drive, Edison, New Jersey 08817 (“UNT”), DISTRIBUTION HOLDINGS, INC., a Delaware corporation with its chief executive office and principal place of business located at 260 Lake Road, Dayville, Connecticut 06241 (“Holdings”), SPRINGFIELD DEVELOPMENT, LLC (f/k/a United Northeast LLC), a Delaware limited liability company with its chief executive office and principal place of business located at 260 Lake Road, Dayville, Connecticut 06241 (“SDLLC”), and MILLBROOK DISTRIBUTION SERVICES INC., a Delaware corporation with its chief executive office and principal place of business located at 88 Huntoon Memorial Hwy, Leicester, Massachusetts 01524 (“Millbrook” together with UNF, UNFW, UNT, Holdings and SDLLC, collectively, the “Borrowers”) jointly and severally promise to pay to the order of [_______________] (“Lender”), at the office of Agent, defined below, located at 200 Glastonbury Boulevard, Glastonbury, Connecticut 06033, in lawful money of the United States of America and in immediately available finds, the principal amount of [______________] Dollars ($[_______]) or such lesser sum as may constitute Lender's Pro Rata share of the outstanding amount of all Revolving Credit Loans made pursuant to the Loan Agreement referred to below, in accordance with the terms thereof.
This Amended and Restated Revolving Credit Note (the “Note”) is a Revolving Credit Note referred to in, and is issued pursuant to, that certain Amended and Restated Loan and Security Agreement among Borrowers, Bank of America, N.A. (as successor to Fleet Capital Corporation) as administrative agent (“Agent”) for itself and the lenders from time to time a party thereto (“Lenders”), and certain other parties, dated April 30, 2004, as amended from time to time (hereinafter, as amended from time to time, the “Loan Agreement”), and is entitled to all of the benefits and security of the Loan Agreement. All of the terms, covenants and conditions of the Loan Agreement and the Security Documents are hereby made a part of this Note and are deemed incorporated herein in full. All capitalized terms used herein, unless otherwise specifically defined in this Note, shall have the meanings ascribed to them in the Loan Agreement.
This Note amends and restates that certain Revolving Credit Note dated April 30, 2004 in the original principal amount of $[__________] executed and delivered by the Borrowers to the
Lender (the “Original Note”). This Note is executed and delivered in substitution for, but not in satisfaction of, the Original Note.
The rate of interest in effect hereunder shall be calculated with reference to the Base Rate or LIBOR, as applicable, as more specifically provided in the Loan Agreement. The interest due shall be computed and shall be payable in the manner provided in the Loan Agreement.
Except as otherwise expressly provided in the Loan Agreement, if any payment on this Note becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day, and with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. Notwithstanding the foregoing, if any portion of the Revolving Credit Loans evidenced by this promissory note constitutes a LIBOR Advance, and an extension of the maturity of any payment hereon would cause the maturity thereof to occur during the next calendar month, then such payment shall mature on the next preceding Business Day.
This Note shall be subject to mandatory prepayment in accordance with the provisions of Section 3.3 of the Loan Agreement. Borrowers may also terminate the Loan Agreement and, in connection with such termination, prepay this Note in the manner provided in Section 5.2.2 of the Loan Agreement.
Upon the occurrence and continuation of any one or more of the Events of Default specified in the Loan Agreement which have not been cured by Borrowers or waived by Agent, Agent may declare all Obligations evidenced hereby to be immediately due and payable (except with respect to any Event of Default set forth in Subsection 11.1.10 of the Loan Agreement, in which case all Obligations evidenced hereby shall automatically become immediately due and payable without the necessity of any notice or other demand) without presentment, demand, protest or any other action or obligation of Agent or Lender.
Time is of the essence of this Note. Borrowers hereby waive presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
Wherever possible, each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Note shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or remaining provisions of this Note. No delay or failure on the part of Agent or Lender in the exercise of any right or remedy hereunder shall operate as a waiver thereof, nor as an acquiescence in any default, nor shall any single or partial exercise by Agent or Lender of any right or remedy preclude any other right or remedy. Subject to the terms of the Loan Agreement, Agent, at its option, may enforce its rights against any collateral securing this Note without enforcing its rights against Borrowers, any guarantor of the indebtedness evidenced hereby or any other property or indebtedness due or to become due to Borrowers. Borrowers agree that, without releasing or impairing Borrowers' liability hereunder, Agent may at any time release, surrender, substitute or exchange any collateral securing this Note and may at any time release any party primarily or secondarily liable for the indebtedness evidenced by this Note.
The validity, interpretation and enforcement of this promissory note shall be governed by the internal laws of the State of Connecticut without giving effect to the conflict of laws principles thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
| UNITED NATURAL FOODS, INC. |
| |
| |
| |
| By:______________________ |
| Name: |
| Title: |
| |
| UNITED NATURAL FOODS WEST, |
| INC. |
| |
| |
| |
| By:______________________ |
| Name: |
| Title: |
| |
| |
| UNITED NATURAL TRADING CO. |
| |
| |
| |
| By:______________________ |
| Name: |
| Title: |
| |
| |
| DISTRIBUTION HOLDINGS, INC. |
| |
| |
| |
| By:______________________ |
| Name: |
| Title: |
| |
| |
| SPRINGFIELD DEVELOPMENT, LLC |
| |
| |
| |
| By:______________________ |
| Name: |
| Title: |
| MILLBROOK DISTRIBUTION |
| SERVICES INC. |
| |
| |
| |
| By:______________________ |
| Name: |
| Title: |
Exhibit B
Amended and Restated Exhibit B
EXHIBIT B
FORM OF
AMENDED AND RESTATED SWINGLINE NOTE
| $[AMOUNT] | November __, 2007
Hartford, Connecticut |
FOR VALUE RECEIVED, the undersigned, UNITED NATURAL FOODS, INC., a Delaware corporation with its chief executive office and principal place of business located at 260 Lake Road, Dayville, Connecticut 06241 (“UNF”), UNITED NATURAL FOODS WEST, INC. (f/k/a Mountain People's Warehouse Incorporated), a California corporation with its chief executive office and principal place of business located at 1101 Sunset Boulevard, Rochlin, California 95765 (“UNFW”), UNITED NATURAL TRADING CO., a Delaware corporation with its chief executive office and principal place of business located at 96 Executive Drive, Edison, New Jersey 08817 (“UNT”), DISTRIBUTION HOLDINGS, INC., a Delaware corporation with its chief executive office and principal place of business located at 260 Lake Road, Dayville, Connecticut 06241 (“Holdings”), SPRINGFIELD DEVELOPMENT, LLC (f/k/a United Northeast LLC), a Delaware limited liability company with its chief executive office and principal place of business located at 260 Lake Road, Dayville, Connecticut 06241 (“SDLLC”), and MILLBROOK DISTRIBUTION SERVICES INC., a Delaware corporation with its chief executive office and principal place of business located at 88 Huntoon Memorial Hwy, Leicester, Massachusetts 01524 (“Millbrook” together with UNF, UNFW, UNT, Holdings and SDLLC, collectively, the “Borrowers”) jointly and severally promise to pay to the order of [__________] (“Lender”), at the office of Agent, defined below, located at 200 Glastonbury Boulevard, Glastonbury, Connecticut 06033, in lawful money of the United States of America and in immediately available funds, the principal amount of [__________] Dollars ($[_______]) or such lesser sum as may constitute the outstanding amount of all SwingLine Loans made pursuant to the Loan Agreement referred to below, in accordance with the terms thereof.
This SwingLine Note (the “Note”) is the SwingLine Note referred to in, and is issued pursuant to, that certain Amended and Restated Loan and Security Agreement among Borrowers, Bank of America, N.A. (as successor to Fleet Capital Corporation) as administrative agent (“Agent”) for itself and the lenders from time to time a party thereto (“Lenders”), and certain other parties, dated April 30, 2004, as amended from time to time (hereinafter, as amended from time to time, the “Loan Agreement”), and is entitled to all of the benefits and security of the Loan Agreement. All of the terms, covenants and conditions of the Loan Agreement and the Security Documents are hereby made a part of this Note and are deemed incorporated herein in full. All capitalized terms used herein, unless otherwise specifically defined in this Note, shall have the meanings ascribed to them in the Loan Agreement.
This Note amends and restates that certain Swingline Note dated April 30, 2004 in the original principal amount of $17,500,000 executed and delivered by the Borrowers to the Lender (the “Original Note”). This Note is executed and delivered in substitution for, but not in satisfaction of, the Original Note.
The rate of interest in effect hereunder shall be calculated with reference to the Base Rate, as more specifically provided in the Loan Agreement. The interest due shall be computed and shall be payable in the manner provided in the Loan Agreement.
Except as otherwise expressly provided in the Loan Agreement, if any payment on this Note becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day, and with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.
This Note shall be subject to mandatory prepayment in accordance with the provisions of Section 3.3 of the Loan Agreement. Borrowers may also terminate the Loan Agreement and, in connection with such termination, prepay this Note in the manner provided in Section 5.2.2 of the Loan Agreement.
Upon the occurrence and continuation of any one or more of the Events of Default specified in the Loan Agreement which have not been cured by Borrowers or waived by Agent, Agent may declare all Obligations evidenced hereby to be immediately due and payable (except with respect to any Event of Default set forth in subsection 11.1.10 of the Loan Agreement, in which case all Obligations evidenced hereby shall automatically become immediately due and payable without the necessity of any notice or other demand) without presentment, demand, protest or any other action or obligation of Agent or Lender.
Time is of the essence of this Note. Borrowers hereby waive presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
Wherever possible, each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Note shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or remaining provisions of this Note. No delay or failure on the part of Agent or Lender in the exercise of any right or remedy hereunder shall operate as a waiver thereof, nor as an acquiescence in any default, nor shall any single or partial exercise by Agent or Lender of any right or remedy preclude any other right or remedy. Subject to the terms of the Loan Agreement, Agent, at its option, may enforce its rights against any collateral securing this Note without enforcing its rights against Borrowers, any guarantor of the indebtedness evidenced hereby or any other property or indebtedness due or to become due to Borrowers. Borrowers agree that, without releasing or impairing Borrowers' liability hereunder, Agent may at any time release, surrender, substitute or exchange any collateral securing this Note and may at any time release any party primarily or secondarily liable for the indebtedness evidenced by this Note.
The validity, interpretation and enforcement of this promissory note shall be governed by the internal laws of the State of Connecticut without giving effect to the conflict of laws principles thereof.
| UNITED NATURAL FOODS, INC. |
| |
| |
| By:______________________ |
| Name: |
| Title: |
| |
| UNITED NATURAL FOODS WEST, |
| INC. |
| |
| |
| By:______________________ |
| Name: |
| Title: |
| |
| |
| UNITED NATURAL TRADING CO. |
| |
| |
| By:______________________ |
| Name: |
| Title: |
| |
| |
| DISTRIBUTION HOLDINGS, INC. |
| |
| |
| By:______________________ |
| Name: |
| Title: |
| |
| |
| SPRINGFIELD DEVELOPMENT, LLC |
| |
| |
| By:______________________ |
| Name: |
| Title: |
| MILLBROOK DISTRIBUTION |
| SERVICES INC. |
| |
| |
| By:______________________ |
| Name: |
| Title: |
Exhibit C
Amended and Restated Exhibit C
EXHIBIT C
Chief Executive Offices and Registered Agents
| Chief Executive Offices: | |
| | |
| Borrowers: | |
| | |
| United Natural Foods, Inc. | 260 Lake Road |
| | Dayville, CT 06241 |
| | |
| United Natural Foods West, Inc. | 1101 Sunset Boulevard |
| | Rocklin, CA 95765 |
| | |
| United Natural Trading Co. | 96 Executive Drive |
| | Edison, NJ 08817 |
| | |
| Distribution Holdings, Inc. | 260 Lake Road |
| | Dayville, CT 06241 |
| | |
| Springfield Development, LLC | 260 Lake Road |
| | Dayville, CT 06241 |
| | |
| Millbrook Distribution Services Inc. | 88 Huntoon memorial Hwy |
| | Leicester, MA 01524 |
| | |
| Guarantors: | |
| | |
| Natural Retail Group, Inc. | Seabreeze Shopping Plaza |
| | 30555 US Hwy 19N |
| | Palm Harbor, FL |
| | |
| Albert's Organics, Inc. | 3268 E. Vernon Ave |
| | Vernon, CA 90058 |
| | |
| Registered Agents: | |
| | |
| Borrowers: | |
| | |
| United Natural Foods, Inc.: | The Corporation Trust Company |
| | Corporation Trust Center |
| | Wilmington, DE 19801 |
| | 302-658-7581 |
| CT Corporation System |
| 1200 South Pine Island Road |
| Plantation, FL 33324 |
| |
| CT Corporation System |
| One Corporate Center |
| 11th Floor |
| Hartford, CT 06103 |
| |
| CT Corporation System |
| 400 Cornerstone Drive |
| Suite 240 |
| Williston, VT 05495 |
| |
| CT Corporation System |
| 1201 Peachtree Street |
| Atlanta, GA 30361 |
| |
| The Corporation Company |
| 1675 Broadway |
| Suite 1200 |
| Denver, CO 80202 |
| |
| CT Corporation System |
| Philadelphia, PA 19136 |
| |
| CT Corporation System |
| 100 S 5th Street |
| #1075 |
| Minneapolis, MN 55402 |
| |
| CT Corporation System |
| 2222 Grand Avenue |
| Des Moines, IA 50312 |
| |
| CT Corporation System |
| 314 Thayer Avenue |
| Bismarck, ND 58501 |
| |
| CT Corporation System |
| 818 West Seventh Street |
| Los Angeles, CA 90017 |
| |
| CT Corporation System (being appointed) |
| 707 Virginia Street East |
| Charleston, WV 25301 |
| | CT Corporation System |
| | 75 Beattie Place |
| | Greenville, SC 29601 |
| | |
| | CT Corporation System |
| | Kentucky Home Life Building |
| | Louisville, KY 40202 |
| | |
| | CT Corporation System |
| | 155 Federal Street |
| | Suite 700 |
| | Boston, MA 02110 |
| | |
| | CT Corporation System |
| | 9 Capitol Street |
| | Concord, NH 03301 |
| | |
| | The Corporation Trust Company |
| | 820 Bear Tavern Road |
| | West Trenton, NJ 08628 |
| | |
| | CT Corporation System |
| | 111 Eight Avenue |
| | New York. NY 1001 1 |
| | |
| | CT Corporation System |
| | 251 E. Ohio Street |
| | Suite 1100 |
| | Indianapolis, IN 46204 |
| | |
| | |
| | |
| United Natural Foods West, Inc.: | CT Corporation System |
| | 818 West Seventh Street |
| | Los Angeles, CA 90017 |
| | |
| | The Corporation Company |
| | 1675 Broadway |
| | Suite 1200 |
| | Denver, CO 80202 |
| | |
| | CT Corporation System |
| | 123 East Marcy |
| | Santa Fe, New Mexico 87501 |
| | CT Corporation System |
| | 2394 E Camelback Road |
| | Phoenix, AZ 85016 |
| | |
| | |
| | CT Corporation System |
| | 388 State Street |
| | Suite 420 |
| | Salem, OR 97301 |
| | |
| | CT Corporation System |
| | 1801 West Bay Drive NW |
| | Suite 206 |
| | Olympia, WA 98502 |
| | |
| | CT Corporation System |
| | 1111 West Jefferson |
| | Suite 530 |
| | Boise, ID 83702 |
| | |
| | Franz Weber |
| | PO BOX 247 |
| | KEALAKEKUA HI 96750 |
| | |
| | CT Corporation System |
| | 9360 Glacier Hwy |
| | Suite 202 |
| | Juneau AK 99801 |
| | |
| | |
| United Natural Trading Co.: | The Corporation Trust Company |
| | Corporation Trust Center |
| | Wilmington, DE 19801 |
| | 302-658-7581 |
| | |
| | CT Corporation System |
| | 818 West Seventh Street |
| | Los Angeles, CA 90017 |
| | |
| | The Corporation Trust Company |
| | 820 Bear Tavern Road |
| | West Trenton, N.J. 08628 |
| | |
| | |
| Distribution Holdings, Inc. | Corporation Service Company |
| | 2711 Centerville Road |
| | Suite 400 |
| | Wilmington, DE 19808 |
| | 302-636-5401 |
| | |
| Springfield Development, LLC | The Corporation Trust Company |
| | Corporation Trust Center |
| | 1209 Orange Street |
| | Wilmington, DE 19801 |
| | 302-658-7581 |
| | |
| | |
| Millbrook Distribution Services Inc. | Corporation Service Company |
| | 2711 Centerville Road |
| | Suite 400 |
| | Wilmington, DE 19808 |
| | 302-636-5401 |
| | |
| | Corporation Service Company |
| | 84 State Street |
| | Boston, MA 02109 |
| | |
| | Corporation Service Company |
| | 1201 Hays Street |
| | Tallahassee, FL 32301 |
| | |
| | Corporation Service Company |
| | 50 Weston Street |
| | Hartford, CT 06120 |
| | |
| | Corporation Service Company |
| | 222 Jefferson Boulevard |
| | Suite 200 |
| | Warwick, RI 02888 |
| | |
| | Corporation Service Company |
| | 2338 W Royal Palm Road |
| | Suite J |
| | Phoenix, AZ 85021 |
| | |
| | Corporation Service Company |
| | 300 Spring Building |
| | Suite 900 |
| | 300 S Spring Street |
| | Little Rock, AR 72201 |
| | Corporation Service Company |
| | 45 Memorial Circle |
| | Augusta, ME 04330 |
| | |
| | Lawyers Incorporating Service |
| | d/b/a Lawyers Inc Service |
| | 14 Centre Street |
| | Concord, NH 03301 |
| | |
| | Corporation Service Company |
| | 159 State Street |
| | Montpelier, VT 05602 |
| | |
| | Corporation Service Company |
| | 1560 Broadway |
| | Suite 2090 |
| | Denver, CO 80202 |
| | |
| | CORPORATION SERVICE COMPANY |
| | d/b/a CSC - LAWYERS INCORPORATING |
| | SERVICE |
| | P.O. Box 526036 |
| | Sacramento, CA 95852 |
| | |
| | |
| Guarantors: | |
| | |
| Natural Retail Group, Inc.: | The Corporation Trust Company |
| | Corporation Trust Center |
| | Wilmington, DE 19801 |
| | 302-658-7581 |
| | |
| | CT Corporation System (being appointed) |
| | 1200 South Pine Island Road |
| | Plantation, FL 33324 |
| | |
| | CT Corporation System |
| | 155 Federal Street |
| | Suite 700 |
| | Boston, MA 02110 |
| | |
| | The Corporation Trust Incorporated |
| | 300 E. Lombard Street |
| | Baltimore, MD 21202 |
| Albert's Organics, Inc.: | Kathryn Courtney |
| | 3268 Vernon Avenue |
| | Vernon, CA 90058 |
| | |
| | CT Corporation System |
| | 1200 South Pine Island Road |
| | Plantation, FL 33324 |
| | |
| | The Corporation Company |
| | 1675 Broadway |
| | Suite 1200 |
| | Denver, CO 80202 |
| | |
| | CT Corporation System |
| | Philadelphia, PA 19136 |
| | |
| | CT Corporation System |
| | 405 2nd Avenue S |
| | Minneapolis, MN 55401 |
| | |
| | CT Corporation System |
| | 225 Hillsborough Street |
| | Raleigh, NC 27603 |
| | |
| | The Corporation Trust Company |
| | Corporation Trust Center |
| | 1209 Orange Street |
| | Wilmington, DE 19801 |
| | |
| | The Corporation Trust Company |
| | 820 Bear Tavern Road |
| | West Trenton, N.J. 08628 |
