EXHIBIT 4.24.1
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT AND NOTES
This SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT AND NOTES (this
"Amendment"), dated as of March 27, 2002, is entered into by and among the
following:
UNIFIED WESTERN GROCERS, INC. (formerly known as Certified Grocers of
California, Ltd.), a California corporation (the "Company"); and
JOHN HANCOCK LIFE INSURANCE COMPANY (formerly known as John Hancock
Mutual Life Insurance Company), in its capacity as a Noteholder and as
collateral agent for the below-defined Noteholders ("Collateral Agent"), JOHN
HANCOCK VARIABLE LIFE INSURANCE COMPANY, SIGNATURE 3 LIMITED, MELLON BANK, N.A.,
as Trustee for the Long-Term Investment Trust, SIGNATURE 6 LIMITED, MELLON BANK,
N.A., as Trustee for the Bell Atlantic Master Pension Trust, COMMONWEALTH OF
PENNSYLVANIA STATE EMPLOYES' RETIREMENT SYSTEM and JOHN HANCOCK REASSURANCE
COMPANY LTD. (collectively, the "Noteholders").
RECITALS
WHEREAS, the Company has issued $80,000,000 in aggregate principal
amount of its Senior Secured Notes due 2008 (the "Tranche A Notes") and
$40,000,000 in aggregate principal amount of its Senior Secured Notes due 2009
(the "Tranche B Notes" and, together with the Tranche A Notes, the "Notes"),
pursuant to that certain Note Purchase Agreement, dated as of September 29,
1999, by and among the Company and the purchasers listed on Schedule I thereto,
as amended by that certain Amendment No. 1 and Limited Waiver to Note Purchase
Agreement dated as of September 14, 2000 (the "Note Purchase Agreement").
WHEREAS, the Noteholders are the current holders of all of the
outstanding Notes.
WHEREAS, the Company has reported to the Collateral Agent the
existence of Events of Default under Section 9.1(c) of the Note Purchase
Agreement as a result of the Company's failure to comply with the financial
covenants contained in Section 8.6(c) and Section 8.6(d) of the Note Purchase
Agreement. The Company has requested that the Noteholders waive such Events of
Default and agree to certain amendments of the Note Purchase Agreement.
WHEREAS, the Noteholders are willing to grant such waivers and to
amend the Note Purchase Agreement upon the terms and subject to the conditions
set forth below.
NOW, THEREFORE, in consideration of the mutual benefits accruing to
the parties hereto and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
Second Amendment to Note Purchase Agreement
AGREEMENT
SECTION 1. Definitions. All capitalized terms defined above and elsewhere
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in this Amendment shall be used herein as so defined. Unless otherwise defined
herein, all other capitalized terms used herein shall have the respective
meanings given to those terms in the Note Purchase Agreement, as amended by this
Amendment.
SECTION 2. Defaults and Waiver.
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(a) For purposes of this Amendment, the "Existing Defaults" shall
mean the defaults existing on the Effective Date (as defined below) under
Section 9.1(c) of the Note Purchase Agreement solely with respect to the
Company's non-compliance, for the period ended September 28, 2001, with the
financial covenants set forth in Section 8.6(c) and Section 8.6(d) of the Note
Purchase Agreement.
(b) Subject to and upon the terms and conditions hereof, the
Noteholders hereby waive the Existing Defaults.
(c) Nothing contained in this Amendment shall be deemed a waiver of
(or otherwise affect the Noteholder's ability to enforce) any other Event of
Default, including, without limitation, (i) any Event of Default as may now or
hereafter exist and arise from or otherwise be related to the Existing Defaults
(including, without limitation, any cross-default arising under Section 9.1(g)
of the Note Purchase Agreement by virtue of any matters relating to any Existing
Default), and (ii) any Event of Default arising at any time after the Effective
Date (as defined below) and which is the same as any Existing Default.
SECTION 3. Amendments to the Note Purchase Agreement and Notes. Subject to
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the satisfaction of the conditions set forth in Section 5 below, the Note
Purchase Agreement and the Notes are hereby amended as follows:
(a) Amendment to Section 1.5(b) of the Note Purchase Agreement.
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Section 1.5(b) of the Note Purchase Agreement is hereby amended and replaced in
its entirety with the following:
"(b) From the Closing Date to the Tranche A Maturity Date, the
Tranche A Notes shall bear interest at the fixed rate of 7.72% per
annum; provided, however, that, if the Company satisfies each of the
terms and conditions set forth in Section 1.7(b) below, the Tranche A
Notes shall bear interest at the fixed rate of 7.22% per annum from
the Release Date (as defined in Section 1.7(b) below) to the Tranche A
Maturity Date (such applicable rate, the "Tranche A Interest Rate").
From the Closing Date to the Tranche B Maturity Date, the Tranche B
Notes shall bear interest at the fixed rate of 8.71% per annum;
provided, however, that, if the Company satisfies each of the terms
and conditions set forth in Section 1.7(b) below and the Company
requests that the Tranche B Notes be subordinated pursuant to Section
1.7(c) below, the Tranche B Notes shall
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bear interest from the Release Date to the Tranche B Maturity
Date at the fixed rate mutually agreed upon by the Noteholders
and the Company pursuant to Section 1.7(c) below (such
applicable rate, the "Tranche B Interest Rate").
Notwithstanding the foregoing, the Tranche A Interest Rate and
Tranche B Interest Rate shall be increased by 0.25% commencing
on December 6, 2001 and continuing until such time that
Consolidated Tangible Net Worth is increased to $80,000,000
after excluding future Consolidated Net Income generated after
September 29, 2001. Interest on the Notes shall be computed on
the basis of a 360-day year of twelve 30-day months. If the
Company shall have paid or agreed to pay any interest or
premium on any of the Notes in excess of that permitted by
law, then it is the express intent of the Company and the
holder thereof that all excess amounts previously paid or to
be paid by the Company be applied to reduce the principal
balance of such Note and that the provisions of such Note
immediately be deemed reformed and the amounts thereafter
collectable thereunder reduced, without the necessity of the
execution of any new document, so as to comply with then
applicable law but also so as to permit the recovery of the
fullest amount otherwise called for thereunder."
(b) Amendment to Section 8.6(c) of the Note Purchase
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Agreement. Section 8.6(c) of the Note Purchase Agreement is hereby amended and
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replaced in its entirety with the following:
"(c) The Company will not permit Consolidated Tangible Net
Worth at any time to be less than $60,000,000 through
September 28, 2002. Thereafter, the Company will not permit
Consolidated Tangible Net Worth at any time to be less than
the sum of (i) $80,000,000 plus (ii) an amount (but only if a
positive number) equal to 50% of Consolidated Net Income for
each Fiscal Year after September 29, 2001 minus (iii) the
aggregate amount paid by the Company since September 29, 2001
in redeeming Redeemable Class B Shares pursuant to Section
8.6(e)(v)."
(c) Amendment to Section 8.6(d) of the Note Purchase
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Agreement. Section 8.6(d) of the Note Purchase Agreement is hereby amended and
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replaced in its entirety with the following:
"(d) The Company will not permit as of the end of any Fiscal
Quarter the ratio of (i) Consolidated Income Available for
Fixed Charges to (ii) Fixed Charges to be less than 1.60 to
1.00 as of September 29, 2001 through March 30, 2002, then
1.70 to 1.00 as of June 29, 2002, then 1.80 to 1.00 as of
September 28, 2002 and thereafter for the period consisting of
the consecutive four Fiscal Quarters then ended."
(d) Amendment to Tranche A Notes. The first paragraph of
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each of the Tranche A Notes is hereby amended by inserting the following
sentence immediately following the first sentence of that paragraph:
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"Notwithstanding the foregoing, the applicable interest rate
on this Note shall be increased by 0.25% commencing on
December 6, 2001 and continuing until such time that
Consolidated Tangible Net Worth is increased to $80,000,000
after excluding future Consolidated Net Income generated after
September 29, 2001."
(e) Amendment to Tranche B Notes. The first paragraph of each
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of the Tranche B Notes is hereby amended by inserting the following sentence
immediately following the first sentence of that paragraph:
"Notwithstanding the foregoing, the interest rate on this Note
shall be increased by 0.25% commencing on December 6, 2001 and
continuing until such time that Consolidated Tangible Net
Worth is increased to $80,000,000 after excluding future
Consolidated Net Income generated after September 29, 2001."
SECTION 4. Representations and Warranties. The Company hereby
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represents and warrants to the Noteholders that the following are true and
correct on the date of this Amendment and that, after giving effect to the
waivers and amendments set forth in Sections 2 and 3 above, the following will
be true and correct on the Effective Date (as defined below):
(a) The representations and warranties of the Company set
forth in Section 3 of the Note Purchase Agreement and in the other Debt
Documents are true and correct in all material respects;
(b) No Default or Event of Default has occurred and is
continuing; and
(c) Each of the Debt Documents is in full force and effect.
(Without limiting the scope of the term "Debt Documents," the Company expressly
acknowledges in making the representations and warranties set forth in this
Section 4 that, on and after the date hereof, such term includes this
Amendment.)
SECTION 5. Effective Date. The waivers and amendments effected by
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Sections 2 and 3 above shall become effective as of December 6, 2001 (the
"Effective Date"), subject to receipt by the Noteholders on or prior to the date
hereof of the following, each in form and substance satisfactory to the
Noteholders and their respective counsel:
(a) This Amendment duly executed by the Company and each of
the Noteholders; and
(b) Such evidence as any Noteholder may reasonably request to
establish the accuracy and completeness of the representations and warranties
and the compliance with the terms and conditions contained in this Amendment and
the other Debt Documents.
SECTION 6. References to Note Purchase Agreement and the Notes.
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From and after the date hereof, any reference to the "Note Purchase Agreement"
contained in the documents
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executed in connection with the Note Purchase Agreement shall mean the Note
Purchase Agreement as amended by this Amendment. From and after the date hereof,
any reference to the "Tranche A Notes," the "Tranche B Notes" or the "Notes"
contained in the documents executed in connection with the Note Purchase
Agreement shall mean or include, as applicable, the Notes as amended by this
Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by and
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construed in accordance with the laws of the State of California, without
giving effect to conflict of law principles.
SECTION 8. Limitation of Amendment. Except as expressly amended
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hereby, this Amendment shall not be deemed to: (a) be a waiver or modification
of any other term, covenant or condition of the Note Purchase Agreement or the
Notes; or (b) prejudice any rights that the parties hereto may have in
connection with the Note Purchase Agreement, the Notes or any other documents
related thereto. Except as expressly amended hereby or otherwise waived in
writing by the Noteholders, all terms and provisions set forth in the Note
Purchase Agreement and the Notes are hereby ratified and confirmed in all
respects by the Noteholders and the Company and remain in full force and effect.
SECTION 9. Counterparts. This Amendment may be executed in any
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number of counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument. The signature
page or any counterpart may be removed therefrom and attached to any other
counterpart to evidence execution thereof by all of the parties hereto without
affecting the validity thereof.
Second Amendment to Note Purchase Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers duly authorized as of the date first
above written.
UNIFIED WESTERN GROCERS, INC.
By: _________________________________________________
David A. Woodward
Vice President and Treasurer
JOHN HANCOCK LIFE INSURANCE COMPANY
By: _________________________________________________
Dwayne Bertrand
Regional Director
JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By: _________________________________________________
Dwayne Bertrand
Authorized Signatory
SIGNATURE 3 LIMITED
By: John Hancock Life Insurance Company, as
Portfolio Advisor
By: _________________________________________________
Dwayne Bertrand
Regional Director
MELLON BANK, N.A., solely in its capacity as Trustee
for Bell Atlantic Master Pension Trust (as directed by
John Hancock Life Insurance Company), and not in its
individual capacity
By: _________________________________________________
Name:
Title:
Second Amendment to Note Purchase Agreement
MELLON BANK, N.A., solely in its capacity as
Trustee for The Long-Term Investment Trust (as
directed by John Hancock Life Insurance Company),
and not in its individual capacity
By: _____________________________________________
Name:
Title:
SIGNATURE 6 LIMITED
By: John Hancock Life Insurance Company, as
Portfolio Advisor
By: _____________________________________________
Dwayne Bertrand
Regional Director
COMMONWEALTH OF PENNSYLVANIA STATE EMPLOYES'
RETIREMENT SYSTEM
By: John Hancock Life Insurance Company, its
Investment Advisor
By: _____________________________________________
Dwayne Bertrand
Regional Director
JOHN HANCOCK REASSURANCE COMPANY LTD.
By: _____________________________________________
Dwayne Bertrand
Authorized Signatory
Second Amendment to Note Purchase Agreement