EXHIBIT 10.27
UNITED NATURAL FOODS, NC.
260 LAKE ROAD
DAYVILLE, CONNECTICUT 06241
As of July 31, 1999
FLEET CAPITAL CORPORATION
200 Glastonbury Boulevard
Glastonbury, Connecticut 06033
Re: Fourth Amendment to Amended and Restated Loan Agreement
Ladies and Gentlemen:
Reference is made to the Amended and Restated Loan and Security Agreement
dated February 20, 1996 as amended ("Loan Agreement") and all promissory notes,
mortgages, guaranties, agreements, documents and instruments entered into by
United Natural Foods, Inc., Mountain People's Warehouse Incorporated, Natural
Retail Group, Inc., Rainbow Natural Foods, Inc., Nutrasource, Inc., Stow Mills,
Inc. and RB Acquisition L.L.C. (collectively, the "Borrowers") and any other
person or obligor pursuant thereto (collectively, the "Loan Documents") with or
for the benefit of Fleet Capital Corporation ("Agent" or "FCC") and the
financial institutions identified under the caption "Lenders" on the signature
page to that Agency and Interlender Agreement dated as of December 1, 1997 (the
"Interlender Agreement"). Except as otherwise defined herein, capitalized terms
used herein shall have the meanings given them in the Loan Agreement. This
Fourth Amendment to Loan Agreement is referred to as the "Fourth Amendment".
1. Background. The Borrowers have requested that the Lenders waive the
Borrowers' noncompliance on July 31, 1999 with Section 8.3.4 of the Loan
Agreement and agree to amend such Section.
2. Waiver. The Lenders waive Borrowers' non-compliance with Section 8.3.4.
as of July 31, 1999.
3. Amendments to the Loan Agreement. Subject to the satisfaction of the
terms and conditions hereof, Lenders and Borrowers agree that the Loan Agreement
be deleted in its entirety and the following substituted in its place:
"8.3.4. Cash Flow. Achieve Cash Flow of not less than $1,000,000 at
each fiscal quarter end for the period of the prior four consecutive
fiscal quarters of the Borrowers."
4 Representations and Warranties.
To induce Lenders to enter into this Fourth Amendment, each Borrower
warrants, represents and covenants to the Lenders and Agent that
(a) Organization and Qualification. Each Borrower is a corporation
duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation. Each Borrower is duly
qualified or is authorized to do business and is in good standing as a
foreign corporation or limited liability company in all states and
jurisdictions in which the failure of such Borrower to be so qualified
would have a material adverse effect on the financial condition,
business or properties of such Borrower.
(b) Corporate Power and Authority. Each Borrower is duly authorized
and empowered to enter into, execute, deliver and perform this Fourth
Amendment and each of the Loan Documents to which it is a party. The
execution, delivery and performance of this Fourth Amendment and each
of the other Loan Documents have been duly authorized by all necessary
corporate action and do not and will not (i) require any consent or
approval of the shareholders or members of a Borrower; (ii) contravene
any Borrower's charter, by-laws or operating agreement; (iii) violate,
or cause Borrower to be in default under, any provision of any law,
rule, regulation, order, writ, judgment, injunction, decree,
determination or award in effect having applicability to any Borrower;
(iv) result in a breach of or constitute a default under any indenture
or loan or credit agreement or any other agreement, lease or
instrument to which any Borrower is a party or by which Borrower's
Properties may be bound or affected; or (v) result in, or require, the
creation or imposition of any Lien (other than Permitted Liens) upon
or with respect to any of the Properties now owned or hereafter
acquired by Borrower.
(c) Legally Enforceable Agreement. This Fourth Amendment and each of
the other Loan Documents when delivered under this Fourth Amendment
will be, a legal, valid and binding obligation of each Borrower,
enforceable against each Borrower in accordance with its respective
terms.
(d) No Material Adverse Change. Since the date of the last financial
statements provided by the Borrowers to the Lenders, there has been no
material adverse change in the condition, financial or otherwise, of
any Borrower as shown on the Consolidated balance sheet as of such
date and no change in the aggregate value of the Collateral, except
changes in the ordinary course of business, none of which individually
or in the aggregate has been materially adverse.
(e) Continuous Nature of Representations and Warranties. Each
representation and warranty contained in the Loan Agreement and the
other Loan Documents remains accurate, complete and not misleading in
any material respect on the date of this Fourth Amendment, except for
representations and warranties that explicitly relate to an earlier
date and changes in the nature of any Borrower's business or
operations that would render the information in any exhibit attached
thereto either inaccurate, incomplete or misleading, so long as such
changes were disclosed in the Form S-1 Registration Statement of UNF
as filed with the Securities and Exchange Commission on September 4,
1996, as amended, in the amended Exhibits attached hereto or Lenders
have consented to such changes or such changes are expressly permitted
by the Loan Agreement.
5. Conditions Precedent.
Notwithstanding any other provision of this Fourth Amendment or any of
the other Loan Documents, and without affecting in any manner the rights of
Lenders under the other sections of this Fourth Amendment, this Fourth Amendment
shall not be effective as to Lenders unless and until each of the following
conditions has been and continues to be satisfied (the "Fourth Amendment Closing
Date"):
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(a) Documentation. Lenders shall have received, in form and substance
satisfactory to Lenders and their counsel, a duly executed copy of this Fourth
Amendment, together with such additional documents, instruments, opinions of
Borrowers' counsel and certificates as FCC and its counsel shall require in
connection therewith, all in form and substance satisfactory to Lenders and
their counsel.
(b) No Default. No Default or Event of Default shall exist except as
previously disclosed to and consented to by Lenders
(c) No Litigation. Except as previously disclosed to and consented to
by Lender, no action, proceeding, investigation, regulation or legislation shall
have been instituted, threatened or proposed before any court, governmental
agency or legislative body to enjoin, restrain or prohibit, or to obtain damages
in respect of, or which is related to or arises out of the Loan Agreement or
this Fourth Amendment or the consummation of the transactions contemplated
thereby or hereby.
6. Acknowledgment of Obligations.
Each Borrower hereby (1) reaffirms and ratifies all of the promises, agreements,
covenants and obligations to Lenders under or in respect of the Loan Agreement
and other Loan Documents as amended hereby and (2) acknowledges that it is
unconditionally liable for the punctual and full payment of all Obligations,
including, without limitation, all charges, fees, expenses and costs (including
reasonable attorneys' fees and expenses) under the Loan Documents, as amended
hereby, and that it has no defenses, counterclaims or setoffs with respect to
full, complete and timely payment and performance of all Obligations.
7. Confirmation of Liens.
Each Borrower acknowledges, confirms and agrees that the Loan Documents, as
amended hereby, are effective to grant to Agent and to Lenders duly perfected,
valid and enforceable first priority security interests and liens in the
Collateral described therein and that the locations for such Collateral
specified in the Loan Documents have not changed. Each Borrower further
acknowledges and agrees that all Obligations of such Borrower are and shall be
secured by the Collateral.
8. Miscellaneous.
Except as set forth herein, the undersigned confirms and agrees that the Loan
Documents remain in full force and effect without amendment or modification of
any kind. Each Borrower hereby acknowledges its obligation to pay to Lenders'
and Agent's reasonable attorneys' fees and costs incurred in connection with
this Fourth Amendment, as set forth in the Loan Agreement. The execution and
delivery of this Fourth Amendment by Lenders and Agent shall not be construed as
a waiver by Lenders of any Default or Event of Default under the Loan Documents.
This Fourth Amendment, together with the Loan Agreement and other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior dealings, correspondence,
conversations or communications between the parties with respect to the subject
matter hereof. This Fourth Amendment and the transactions hereunder shall be
deemed to be consummated in the State of Connecticut and shall be governed by
and interpreted in accordance with the laws of that state. This Fourth Amendment
and the agreements, instruments and documents entered into pursuant hereto or in
connection herewith shall be "Loan Documents" under and as defined in the Loan
Agreement.
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EACH BORROWER HEREBY WAIVES SUCH RIGHTS AS IT MAY HAVE TO NOTICE AND/OR HEARING
UNDER ANY APPLICABLE FEDERAL OR STATE LAWS INCLUDING, WITHOUT LIMITATION,
CONNECTICUT GENERAL STATUTES SECTIONS 52-278A, ET-SEQ., AS AMENDED, PERTAINING
TO THE EXERCISE BY AGENT AND/OR LENDERS OF SUCH RIGHTS AS THE AGENT AND/OR
LENDERS MAY HAVE INCLUDING, BUT NOT LIMJTED TO, THE RIGHT TO SEEK PREJUDGMENT
REMEDIES AND/OR DEPRIVE BORROWERS OF OR AFFECT THE USE OF OR POSSESSION OR
ENJOYMENT OF BORROWERS' PROPERTY PRIOR TO THE RENDITION OF A FINAL JUDGMENT
AGAINST A BORROWER. EACH BORROWER FURTHER WAIVES ANY RIGHT IT MAY HAVE TO
REQUIRE AGENT AND/OR LENDERS TO PROVIDE A BOND OR OTHER SECURITY AS A
PRECONDITION TO OR IN CONNECTION WITH ANY PREJUDGMENT REMEDY SOUGHT BY AGENT
AND/OR LENDERS.
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Executed under seal on the date set forth above.
ATTEST: UNITED NATURAL FOODS, INC.
By: /s/ Kevin T. Michel
Name: Kevin T. Michel
Title: Chief Financial Officer
ATTEST: MOUNTAIN PEOPLE'S WAREHOUSE, INC.
By: /s/ Kevin T. Michel
Name: Kevin T. Michel
Title: Chief Financial Officer
ATTEST: NATURAL RETAIL GROUP, INC.
By: /s/ Kevin T. Michel
Name: Kevin T. Michel
Title: Chief Financial Officer
ATTEST: NUTRASOURCE, INC.
By: /s/ Kevin T. Michel
Name: Kevin T. Michel
Title: Chief Financial Officer
ATTEST: RAINBOW NATURAL FOODS, INC.
By: /s/ Kevin T. Michel
Name: Kevin T. Michel
Title: Chief Financial Officer
ATTEST: STOW MILLS, INC.
By: /s/ Kevin T. Michel
Name: Kevin T. Michel
Title: Chief Financial Officer
ATTEST: RB ACQUISITION, L.L.C.
By: /s/ Kevin T. Michel
Name: Kevin T. Michel
Title: Chief Financial Officer
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Accepted in Glastonbury, Connecticut on September 10, 1999
FLEET CAPITAL CORPORATION, as Agent
By: /s/Howard Handman
Name: Howard Handman
Title: Senior Vice President
FLEET CAPITAL CORPORATION, as a Lender
By: /s/Howard Handman
Name: Howard Handman
Title: Senior Vice President
FIRST UNION NATIONAL BANK OF CONNECTICUT, as a Lender
By: /s/ Stephen T. Doresh
Name: Stephen T. Doresh
Title: Vice President
NATIONS BANK, N A., as a Lender
By:
Name:
Title:
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