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EXHIBIT 4.26
AMENDMENT NO. 1
TO
SECURED REVOLVING CREDIT AGREEMENT
This Amendment No. 1 To Secured Revolving Credit Agreement dated as of
November 18, 1999 (the "Amendment"), is entered into by and among Unified
Western Grocers, Inc., a California corporation operating primarily on a
cooperative basis (the "Borrower"), the Lenders (as defined below), and
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New
York Branch ("Rabobank"), not in its individual capacity, but solely as
Administrative Agent for the benefit of the Lenders (the "Administrative
Agent").
Recitals
A. The Borrower has entered into that Secured Revolving Credit Agreement
dated as of September 29, 1999 (as the same may from time to time be amended,
modified, supplemented or restated, the "Credit Agreement"), among the Borrower,
the Lenders party thereto (which term shall include the Issuing Bank) (and their
successors and assigns) (collectively, the "Lenders") and Rabobank, not in its
individual capacity but solely in its capacity as the Administrative Agent (the
"Agent").
B. The Lenders have extended credit to the Borrower for the purposes
permitted in the Credit Agreement.
C. Each Guarantor is indebted to the Lenders pursuant to and on the terms
set forth in, among other things, those unconditional Guaranties executed by
each Guarantor in respect of the Obligations.
D. The Borrower, the Lenders and the Agent have agreed to amend certain
provisions of the Credit Agreement, but only to the extent, in accordance with
the terms and subject to the conditions and in reliance upon the representations
and warranties set forth below.
Agreement
Now, Therefore, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meanings given to them in the Credit Agreement.
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2. Amendments To Credit Agreement.
2.1 Section 1.1 (Definitions). A definition of the term
"Administrative Agent" is added to read as follows:
"Administrative Agent" means Rabobank, not when acting in its
individual capacity, but solely when acting in its capacity as the
administrative agent under this Agreement or any of the other Loan
Documents, and any successor administrative agent.
2.2 Section 1.1 (Definitions). The definition of "Agent" is amended
in its entirety and replaced with the following:
"Agent" means the Administrative Agent.
2.3 Section 1.1 (Definitions). A definition of the term
"Documentation Agent" is added to read as follows:
"Documentation Agent" means Foothill Capital Corporation, not
when acting in its individual capacity, but solely when acting in its
capacity as the documentation agent under this Agreement or any of the
other Loan Documents, and any successor documentation agent.
2.4 Section 1.1 (Definitions). The definition of "Issuing Bank" is
amended in its entirety and replaced with the following:
"Issuing Bank" means (a) (i) Rabobank and (ii) solely with
respect to the issuance of a single $1,000,000 Letter of Credit issued
during November 1999, for the benefit of a landlord of United Grocers,
Bank of the West, or (b) such other Lender as shall replace Rabobank
or Bank of the West, as the case may be, with the consent of Requisite
Lenders, as the Lender designated to issue Letters of Credit for the
account of the Borrower pursuant to the terms and conditions of this
Agreement.
2.5 Section 1.1 (Definitions). A definition of the term "Syndication
Agent" is added to read as follows:
"Syndication Agent" means Bank of Montreal, not when acting in
its individual capacity, but solely when acting in its capacity as the
syndication agent under this Agreement or any of the other Loan
Documents, and any successor syndication agent.
2.6 Section 1.1 (Definitions). The definition of "Applicable
Commitment Fee Percentage" is amended by replacing in the second line of the
text thereof the reference to "Section 2.9(b)" with "Section 2.8(a)".
2.
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2.7 Section 1.1 (Definitions). The definition of "Assignee" is
amended by replacing in the first line of the text thereof the reference to
"Section 11.2(a)" with "Section 12.2(a)".
2.8 Section 1.1 (Definitions). The definition of "Assignment and
Acceptance" is amended by replacing in the first line of the text thereof the
reference to "Section 11.2(a)" with "Section 12.2(a)".
2.9 Section 1.1 (Definitions). The definition of "Lenders" is amended
by replacing in the last line of the text thereof the reference to "Section
11.2(a)" with "Section 12.2(a)".
2.10 Section 3.1 (Taxes). Section 3.1 of the Credit Agreement is
amended by replacing in the second line of clauses (g)(i)(1) and (g)(ii)(1) of
the text thereof the references to "Section 11.2(a)" with "Section 12.2(a)".
2.11 Section 3.8 (Removal of a Lender). Section 3.8 of the Credit
Agreement is amended by (i) replacing in the third and fifth lines of clause (a)
of the text thereof the references to "Section 11.2(a)" with "Section 12.2(a)"
and (ii) replacing in the last line of the last full paragraph of the text
thereof the reference to "Section 11.2(a)" with "Section 12.2(a)".
2.12 Section 11.4 (Reliance by Agent). Section 11.4 of the Credit
Agreement is amended by replacing in the third line of clause (b) of the text
thereof the reference to "Section 11.2(a)" with "Section 12.2(a)".
2.13 Section 11.10 (Exculpatory Provisions). Article XI of the Credit
Agreement is amended to include a Section 11.10 to read as follows:
Section 11.10 (Exculpatory Provisions). None of the Agent-Related
Persons shall (a) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross
negligence or willful misconduct), or (b) be responsible in any manner
to any of the Lenders for any recital, statement, representation or
warranty made by the Borrower or any Affiliate of the Borrower or any
of their respective Affiliates or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate,
report, statement or other document referred to or provided for in, or
received by the Agent under or in connection with this Agreement or
any other Loan Document, or for the value of any Collateral or the
validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement, the Notes or any other Loan Document, or for any
failure of the Borrower or any other party to any Loan Document to
perform its obligations hereunder or thereunder. No Agent-Related
Person shall be under
3.
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any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Borrower or any of its
Affiliates. Neither Bank of Montreal, as the "Syndication Agent," nor
Foothill Capital Corporation, as the "Documentation Agent," shall have
any right, power, obligation, responsibility, duty or liability under
this Agreement other than those applicable to all Lenders as such and,
without limiting the foregoing, shall not have or be deemed to have
any fiduciary relationship with any Lender. Each Lender acknowledges
that it has not relied, and will not rely, on Bank of Montreal or
Foothill Capital Corporation in deciding to enter into this Agreement
or in taking or not taking any action hereunder.
3. Limitation Of Amendments.
3.1 The amendments set forth in Section 2, above, are effective for
the purposes set forth herein and shall be limited precisely as written and
shall not be deemed to (i) be a consent to any amendment, waiver or modification
of any other term or condition of any Loan Document, or (ii) otherwise prejudice
any right or remedy which the Lenders or the Agent may now have or may have in
the future under or in connection with any Loan Document.
3.2 This Amendment shall be construed in connection with and as part
of the Loan Documents and all terms, conditions, representations, warranties,
covenants and agreements set forth in the Loan Documents, except as herein
amended, are hereby ratified and confirmed and shall remain in full force and
effect.
4. Representations And Warranties. In order to induce the Lenders and the
Agent to enter into this Amendment, the Borrower hereby represents and warrants
to each Lender and the Agent as follows:
4.1 Immediately after giving effect to this Amendment (i) the
representations and warranties contained in the Loan Documents (except to the
extent such representations and warranties relate to an earlier date, in which
case they are true and correct as of such date) are true, accurate and complete
in all material respects as of the date hereof and (ii) no Potential Event of
Default or Event of Default has occurred and is continuing;
4.2 The Borrower has the corporate power and authority to execute and
deliver this Amendment and to perform its obligations under the Credit
Agreement, as amended by this Amendment;
4.3 The articles of incorporation, bylaws and other organizational
documents of the Borrower delivered to each Lender on the Closing Date remain
true, accurate and complete and have not been amended, supplemented or restated
and are and continue to be in full force and effect;
4.4 The execution and delivery by the Borrower of this Amendment and
the performance by Borrower of its obligations under the Credit Agreement, as
amended by this Amendment, have been duly authorized by all necessary corporate
action on the part of the Borrower;
4.
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4.5 The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of its obligations under the Credit Agreement,
as amended by this Amendment, do not and will not contravene (i) any law or
regulation binding on or affecting the Borrower, (ii) the articles of
incorporation or bylaws of the Borrower, (iii) any order, judgment or decree of
any court or other governmental or public body or authority, or subdivision
thereof, binding on the Borrower, or (iv) any contractual restriction with a
Person other than an Affiliate binding on the Borrower;
4.6 The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of its obligations under the Credit Agreement,
as amended by this Amendment, do not require any order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with, or exemption by any governmental or public body or authority, or
subdivision thereof, binding on the Borrower, except as already has been
obtained or made; and
4.7 This Amendment has been duly executed and delivered by the
Borrower and is the binding obligation of the Borrower, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar
laws of general application and equitable principles relating to or affecting
creditors' rights.
5. Consent Regarding Issuing Bank. The execution and delivery of this
Amendment by the Lenders shall evidence the Requisite Lenders' consent to the
issuance of a single $1,000,000 Letter of Credit issued during November 1999,
for the benefit of a landlord of United Grocers, by Bank of the West as the
Issuing Bank, for the account of the Borrower pursuant to the terms and
conditions of the Credit Agreement.
6. Counterparts. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
7. Effectiveness. This Amendment shall be deemed effective upon the
satisfaction of all of the following conditions precedent:
7.1 Amendment. The Borrower, each Lender and the Agent shall have
duly executed and delivered this Amendment to the Agent.
7.2 Acknowledgment Of Amendment And Reaffirmation Of Guaranties. The
Agent shall have received the Acknowledgment of Amendment and Reaffirmation of
Guaranties, duly executed and delivered by each Guarantor to the Agent.
8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
5.
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In Witness Whereof, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
Borrower Unified Western Grocers, Inc.,
a California corporation
By: _________________________________
David A. Woodward
Treasurer
Administrative Agent Cooperatieve Centrale Raiffeisen-
and Lender Boerenleenbank B.A., "Rabobank
Nederland", New York Branch,
as the Administrative Agent and as a Lender
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Lenders Foothill Capital Corporation
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Union Bank of California, N.A.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
[Amendment No. 1]
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SunTrust Bank, Central Florida, N.A.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
U.S. Bancorp Ag Credit, Inc.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Fleet Bank, N.A.
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Bank of the West
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
National Bank of Canada
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Bank Of Montreal
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
[Amendment No. 1]
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Harris Trust and Savings Bank
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
[Amendment No. 1]
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ACKNOWLEDGMENT OF AMENDMENT
AND REAFFIRMATION OF GUARANTIES
Section 1. Each Guarantor hereby acknowledges and confirms that it has
reviewed and approved the terms and conditions of the Amendment No. 1 to Secured
Revolving Credit Agreement dated as of even date herewith (the "Amendment").
Section 2. Each Guarantor hereby consents to the Amendment and agrees that
the Guaranty relating to the Obligations of the Borrower under the Credit
Agreement shall continue in full force and effect, shall be valid and
enforceable and shall not be impaired or otherwise affected by the execution of
the Amendment or any other document or instrument delivered in connection
herewith.
Section 3. Each Guarantor severally represents and warrants that, after
giving effect to the Amendment, all representations and warranties contained in
the Guaranty are true, accurate and complete as if made the date hereof.
Dated as of November 18, 1999
Guarantor Crown Grocers, Inc.
Grocers Development Center, Inc.
Grocers Equipment Co.
Grocers General Merchandise Company
Grocers Specialty Company
Northwest Process, Inc.
Preferred Public Storage Company
Sav Max Foods, Inc.
United Grocers, Inc.
Western Passage Express, Inc.
Western Security Services, Ltd.
By: ________________________________
David A. Woodward
As Treasurer for each Guarantor
