September 26, 2002
United Natural Foods, Inc.
260 Lake Road
Dayville, CT 06241
Attention: Todd Weintraub, Chief Financial Officer
RE: Second Amendment to Loan and Security Agreement
Dear Todd:
Reference is made to the Loan and Security Agreement dated as of August
31, 2001 (as amended, the "Loan Agreement") among United Natural Foods, Inc.
("UNF"), Mountain People's Warehouse Incorporated ("MPW"), Nutrasource, Inc.
("Nutrasource"), Rainbow Natural Foods, Inc. ("Rainbow"), Stow Mills, Inc.
("SMI"), United Natural Foods Pennsylvania, Inc. ("UNFPA" and together with UNF,
MPW, Nutrasource, Rainbow and SMI, the "Borrowers") each of the Lenders
identified under the caption "Lenders" on the signature pages thereto and Fleet
Capital Corporation as administrative and collateral agent for the Lenders (the
"Agent"), Citizens Bank of Massachusetts (the "Syndication Agent"), U.S. Bank
National Association (the "Documentation Agent") and Fleet Securities, Inc. (the
"Arranger"), as amended by First Amendment dated April 16, 2002. Capitalized
terms not defined herein shall have the meanings ascribed thereto in the Loan
Agreement.
UNF is entering into a certain Asset Purchase Agreement with Blooming
Prairie Cooperative Warehouse ("BPC") pursuant to which UNF will purchase
certain assets and assume certain liabilities of BPC, all as described therein
(the "BPC Transaction"). UNF has requested the consent of the Lenders to the BPC
Transaction and the Lenders have agreed to consent thereto, on the terms and
conditions set forth herein.
Accordingly, the parties hereto hereby agree as follows:
1. Waivers and Amendments
a. Exhibits. Effective on the date that the BPC Transaction is
consummated (the "BPC Closing Date"), Exhibits C, F, L, M, N and Q to the Loan
Agreement shall be deemed to be supplemented with (and thereafter shall be
deemed to include) the information listed on Supplemental Exhibits C, F, L, M, N
and Q hereto.
b. Acquisition of over $5,000,000. Section 9.2.1(a) is hereby waived
insofar as it applies to the BPC Transaction.
c. Subordination of Note. Section 9.2.1(f) is hereby waived insofar
as it requires the execution of a subordination agreement with respect to the
promissory note in the
maximum amount of $3,000,000 from UNF to BPC dated as of the BPC Closing Date
(the "BPC Note"), which shall be unsecured.
d. Permitted Indebtedness. Section 9.2.3 is hereby waived insofar as
it would prohibit UNF from (i) executing and delivering the BPC Note and
incurring the indebtedness evidenced thereby, (ii) assuming indebtedness of BPC
to Iowa City Bank and Trust in connection with the BPC Transaction so long as
such indebtedness is repaid at or about the BPC Closing Date, and (iii) assuming
trade indebtedness of BPC not in excess of $13,000,000 in connection with the
BPC Transaction.
e. Disposition of Assets. Section 9.2.9 is hereby waived insofar as
it would prohibit UNF from selling the real property to be acquired from BPC
located at 2340 Heinz Road, Iowa City, Iowa (the "BPC Real Estate"), so long as
proceeds of sale of such real property in excess of amounts used to pay expenses
incurred in connection with such sale are sufficient to repay the BPC Note and
are in fact so used, with any excess proceeds to be remitted to Agent to be
applied against outstanding Revolving Credit Loans.
2. Covenants and Agreements. In consideration of the Lenders' agreements
set forth herein, the Borrowers hereby agree as follows. The agreements set
forth below shall be deemed to constitute covenants under the Loan Agreement.
a. Within 30 days after the BPC Closing Date, the Borrowers agree to
provide to Agent a landlord waiver and consent in form reasonably acceptable to
Agent with respect to any location listed on Supplemental Exhibit C hereto.
b. Within 3 days after the BPC Closing Date, the Borrowers shall
provide to the Agent insurance certificates otherwise complying with the terms
of the Loan Agreement and including all additional locations listed on
Supplemental Exhibit C hereto.
c. Within 30 days after the BPC Closing Date, UNF shall provide to
the Agent a duly executed Mortgage and Security Agreement with respect to the
BPC Real Estate, together with a title insurance policy and survey or site plan,
all reasonably acceptable to Agent.
d. Within 15 days after the BPC Closing Date, UNF shall take such
actions as may be necessary to ensure that the Agent holds a duly perfected
security interest in all notes, instruments and other investment property
constituting a part of the assets purchased pursuant to the BPC Transaction,
including endorsing and delivering possession of any such property to Agent.
e. Within 30 days after the BPC Closing Date, UNF shall take such
actions as may be necessary to ensure that the Agent holds a duly perfected
security interest in all registered trademarks purchased pursuant to the BPC
Transaction, including such filings with the United States Patent and Trademark
Office as may be required by Agent.
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f. Within 30 days after the BPC Closing Date, UNF shall provide
evidence that it is qualified to do business as a foreign corporation in the
state of each location listed on Supplemental Exhibit C.
g. UNF shall complete the BPC Transaction substantially in
accordance with the terms of the Asset Purchase Agreement delivered pursuant to
Section 4(b) hereof, without material amendment or waiver, not later than
October 30, 2002.
h. UNF agrees that Agent shall complete a field exam with respect to
the assets and liabilities of BPC, including without limitation, inventory and
accounts, on or before the BPC Closing Date; and further agrees that if such a
field exam is not completed by such date, Agent may, in its discretion, impose
reserves or reduce advance rates with respect to inventory and accounts
purchased from BPC and used for purposes of calculating the Borrowing Base,
until such a field exam is completed.
3. Representations and Warranties. The Borrowers hereby represent and
warrant as follows:
a. Power, Authority, Etc. The Borrowers have the power and authority
for the making and performing of this Second Amendment. This Second Amendment
has been duly executed and delivered by or on behalf of the Borrowers pursuant
to authority legally adequate therefor, and this Second Amendment is in full
force and effect and is a legal, valid and binding obligation of the Borrowers
enforceable in accordance with its terms subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws and equitable principles
affecting the enforcement of creditors' rights generally.
b. Incorporation of Representations and Warranties. The
representations and warranties of the Borrowers contained in the Loan Agreement,
after giving effect to the amendments thereto contemplated hereby, and except
for any changes resulting only from the passage of time, are true and correct on
and as of the date hereof as though made on and as of the date hereof and such
representations and warranties are hereto incorporated in this Second Amendment
as though fully set forth herein.
c. Corporate Purposes. The Borrowers hereby represent that the BPC
Transaction is within the UNF's general corporate purposes.
4. Conditions Precedent. This Amendment and the Lender's obligations
hereunder shall not be effective until each of the following conditions are
satisfied (the "Amendment Effective Date"):
a. Borrowers shall have duly executed and delivered this Amendment;
b. Borrowers shall have delivered to Agent or its counsel a complete
copy of the Asset Purchase Agreement evidencing the BPC Transaction, including
all exhibits and schedules thereto, certified as true and complete.
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c. All requisite corporate action and proceedings of the Borrower in
connection with this Amendment shall be satisfactory in form and substance to
Agent; and
d. There shall have occurred no Default or Event of Default under
the Loan Agreement.
5. Miscellaneous
a. Counterparts. This Second Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Second Amendment by signing any such
counterpart.
b. Force and Effect. Except as amended or modified by this Second
Amendment, the Loan Agreement and each of its terms and provisions, shall
continue in full force or effect.
c. Loan Document. This Second Amendment and all other documents
executed in connection herewith are "Loan Documents" as such term is defined in
the Loan Agreement. This Second Amendment and the other documents executed and
delivered in connection herewith set forth the entire agreement of the parties
with respect to the subject matter thereof and supersede any prior agreement and
contemporaneous oral agreements of the parties concerning their subject matter.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this agreement as of the
date first above written.
UNITED NATURAL FOODS, INC.
By: /s/ TODD WEINTRAUB
------------------
Name: Todd Weintraub
Title: Chief Financial Officer
MOUNTAIN PEOPLE'S WAREHOUSE
INCORPORATED
By: /s/ MICHAEL S. FUNK
-------------------
Name: Michael S. Funk
Title: Chief Executive Officer and Vice
Chairman of the Board
NUTRASOURCE, INC.
By: /s/ MICHAEL S. FUNK
-------------------
Name: Michael S. Funk
Title: Chief Executive Officer and Vice
Chairman of the Board
RAINBOW NATURAL FOODS, INC.
By: /s/ MICHAEL S. FUNK
-------------------
Name: Michael S. Funk
Title: Chief Executive Officer and Vice
Chairman of the Board
STOW MILLS, INC.
By: /s/ STEVEN TOWNSEND
-------------------
Name: Steven Townsend
Title: President and Director
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UNITED NATURAL FOODS OF
PENNSYLVANIA, INC.
By: /s/ STEVEN TOWNSEND
-------------------
Name: Steven Townsend
Title: President and Director
FLEET CAPITAL CORPORATION,
as Administrative Agent
By: /s/ KIM B. BUSHEY
-----------------
Name: Kim B. Bushey
Title: Senior Vice President
FLEET CAPITAL CORPORATION, as a Lender
By: ____________________________
Name: ______________________
Title: _____________________
CITIZENS BANK OF MASSACHUSETTS, as a Lender
By: /s/ PAUL R. CRIMLISK
--------------------
Name: Paul R. Crimlisk
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ JOHN W. BALL
----------------
Name: John W. Ball
Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION, a Lender
By: /s/ JOHN C. WILLIAMS
----------------
Name: John C. Williams
Title: Vice President
NATIONAL CITY BANK, a Lender
By: ____________________________
Name: ______________________
Title: _____________________
FIRST PIONEER FARM CREDIT, ACA, a Lender
By: /s/ CAROL L. SOBSON
---------------
Name: Carol L. Sobson
Title: Assistant Vice President
ISRAEL DISCOUNT BANK
OF NEW YORK, a Lender
By: ____________________________
Name: ______________________
Title: _____________________
WEBSTER BANK, a Lender
By: ____________________________
Name: ______________________
Title: _____________________
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SOVEREIGN BANK, a Lender
By: /s/ CHRISTOPHER T. PHELAN
---------------------
Name: Christopher T. Phelan
Title: Senior Vice President
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