Exhibit 4.3
Member-Patron/Affiliate
Subordination Agreement
(Subordination of Required Deposit)
The undersigned Member-Patron of Unified Western Grocers, Inc. ("Unified
Western") acknowledges that pursuant to the APPLICATION AND AGREEMENT FOR
SERVICE AFFILIATION AS A MEMBER-PATRON WITH UNIFIED WESTERN GROCERS, INC. AND
PLEDGE AND SECURTY AGREEMENT ("Membership Agreement") executed by the
undersigned and pursuant to Unified Western's Bylaws and its rules, regulations
and policies for the servicing of accounts, the undersigned is required to
maintain a deposit account or deposit accounts with Unified Western in at least
such amount (the "Required Deposit") as may from time to time be established by
Unified Western.
In consideration of financial accommodation given, to be given or continued
to be given to the undersigned by Unified Western and in consideration of
Unified Western's servicing of the undersigned's account and in compliance with
rules and regulations for the servicing of accounts as established by Unified
Western, the undersigned agrees:
(A) that any and all deposit accounts which the undersigned now has or
may in the future have with Unified Western are and shall be partially
subordinated deposit account(s) ("Deposit Account" or "Deposit Accounts")
which shall in all respects except as modified by this Subordination
Agreement continue to be governed by and subject to the Membership
Agreement and all provisions thereof regarding deposits and deposit
accounts; and
(B) that all Deposit Accounts of the undersigned are non-transferable
without the consent of Unified Western, which will normally be withheld,
and may be withheld in Unified Western's absolute discretion, and have been
and are hereby assigned and pledged to Unified Western as security for the
full and prompt payment and performance of any and all contracts,
agreements, obligations or liabilities of the undersigned, or any of them,
to Unified Western, or any of its subsidiaries, existing at any time,
including but not limited to full and prompt compliance by the undersigned,
and each of them, with any and all requirements and obligations regarding
the use, care and return of equipment and other property of Unified
Western, or any of its subsidiaries, now or hereafter in the possession or
under the control of the undersigned, or any of them.
Further, in consideration of financial accommodation given, to be given or
continued to be given to the undersigned by Unified Western, and in
consideration of Unified Western's servicing of the undersigned's account, and
in consideration of the providing of financing to Unified Western by the holders
of Senior Indebtedness as hereinafter defined, and in order to induce such
financing, the undersigned agrees that that portion of each Deposit Account
which consists of the Required Deposit shall be subordinate and subject in right
of payment, to the extent and in the manner hereinafter set forth, to the prior
payment in full of all Senior Indebtedness. "Senior Indebtedness" means all
indebtedness, liabilities or obligations of Unified Western, contingent or
otherwise, whether existing on the date of execution of this Subordination
Agreement or thereafter incurred, (A) in respect of borrowed money; (B)
evidenced by bonds, notes, debentures or other instruments of indebtedness; (C)
evidenced by letters of credit, bankers'
1
acceptances or similar credit instruments; (D) in respect of Capitalized Lease
Obligations; (E) in respect of the deferred purchase price of property or assets
(whether real, personal, tangible or intangible) or in respect of any mortgage,
security agreement, title retention agreement or conditional sale contract; (F)
in respect of any interest rate swap agreement, interest rate collar agreement
or other similar agreement or arrangement designed to provide interests rate
protection; (G) in respect of all indebtedness, liabilities or obligations of
others of any of the types referred to in clauses (A) through (F) for which
Unified Western is responsible or liable as obligor, guarantor or otherwise or
in respect of which recourse may be had against any of the property or assets
(whether real, personal, tangible or intangible) of Unified Western; and (H) in
respect of all modifications, renewals, extensions, replacements and refundings
of any indebtedness, liabilities or obligations of any of the types described in
clauses (A) through (G); provided, however, that the term "Senior Indebtedness"
shall not mean any indebtedness, liabilities or obligations of Unified Western,
contingent or otherwise, whether existing on the date of execution of this
Subordination Agreement or thereafter incurred, (i) to trade creditors arising
or incurred in the ordinary course of Unified Western's business, (ii) in
respect of any redemption, repurchase or other payments on capital stock, (iii)
in respect of Patrons' Deposits, or (iv) in respect of Patronage Dividend
Certificates.
For purposes of the foregoing definition, "Capitalized Lease Obligations"
means the discounted present value of the rental obligations of any person or
entity under any lease of any property which, in accordance with generally
accepted accounting principles, has been recorded on the balance sheet of such
person or entity as a capitalized lease; "Patrons' Deposits" means the deposits
from time to time required to be made or maintained with Unified Western by its
patrons or customers in accordance with the Bylaws of Unified Western in effect
from time to time or in accordance with the policies for the servicing of
accounts of patrons or customers established from time to time by Unified
Western, and any deposits from time to time made or maintained with Unified
Western by its patrons or customers in excess of such required deposits; and
"Patronage Dividend Certificates" means any notes, revolving fund certificates,
retain certificates, certificates of indebtedness, patronage dividend
certificates or any other written evidences of indebtedness of Unified Western
at any time outstanding which evidence the indebtedness of Unified Western
respecting the distribution by Unified Western of patronage dividends.
That portion of each Deposit Account which consists of the Required Deposit
shall be subordinate and junior in right of payment to all Senior Indebtedness
in the following respects:
(1) In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization, arrangement or other similar
proceedings in connection therewith, relative to Unified Western or to its
creditors, as such, or to its property or assets (whether real, personal,
tangible or intangible), or in the event of any proceedings for voluntary
liquidation, dissolution or other winding up of Unified Western, whether or
not involving insolvency or bankruptcy, then the holders of Senior
Indebtedness shall be entitled to receive payment in full of all Senior
Indebtedness (whether accrued prior or subsequent to the commencement of
such case or proceedings) before the undersigned is entitled to receive any
payment with respect to that portion of any Deposit Account which consists
of the Required Deposit, and to that end (but subject to the power of a
court of competent jurisdiction to make other equitable provision
reflecting the rights conferred herein upon the Senior Indebtedness and the
holders thereof with respect to that portion of any Deposit Account which
consists of the Required
2
Deposit and the undersigned by a lawful plan of reorganization under
applicable bankruptcy law) the holders of Senior Indebtedness shall be
entitled to receive for application in payment thereof any payment or
distribution of any kind or character, whether in cash or property or
securities, or by set off or otherwise, which may be payable or deliverable
in any such proceedings in respect of that portion of any Deposit Account
which consists of the Required Deposit (other than securities which are
subordinate and junior in right of payment, at least to the extent provided
herein with respect to the Required Deposit, to the payment of all Senior
Indebtedness then outstanding) and the undersigned irrevocably authorizes
and empowers such holders of Senior Indebtedness to demand, xxx for,
collect and receive any such payment or distribution and to receipt
therefor, and to file all such claims and take all such action, in the name
of the undersigned or otherwise, as such holders of Senior Indebtedness may
determine to be necessary or appropriate for the enforcement of these
subordination provisions, and the undersigned will also execute and deliver
such instruments confirming such authorizations and such powers of
attorney, proofs of claim, assignments of claim and other instruments as
may be requested by such holders of Senior Indebtedness in order to enable
such holders to enforce any and all claims upon or in respect of that
portion of any Deposit Account which consists of the Required Deposit; and
upon any such insolvency or bankruptcy proceedings, receivership,
liquidation, reorganization, arrangement or other similar proceedings, or
voluntary liquidation, dissolution or other winding up, any payment or
distribution of assets of Unified Western of any kind or character, whether
in cash, property or securities or by set off or otherwise (other than
securities which are subordinate and junior in right of payment, at least
to the extent provided herein with respect to the Required Deposit, to the
payment of all Senior Indebtedness then outstanding) to which the
undersigned would be entitled, except for the provisions hereof, shall be
paid by Unified Western or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or
distribution directly to the holders of Senior Indebtedness (pro rata to
each such holder on the basis of the respective amounts of Senior
Indebtedness held by such holder) or their representatives, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness;
(2) In the event that any default shall occur and be continuing with
respect to the payment of Senior Indebtedness, unless payment in full shall
have first been made on all Senior Indebtedness or such default with
respect to such Senior Indebtedness shall have been cured or waived in
accordance with the terms of such Senior Indebtedness, no payment shall be
made with respect to that portion of any Deposit Account which consists of
the Required Deposit (including any such payment which would cause such
default and including any payment in connection with the acquisition by
Unified Western of the Required Deposit for cash or property other than
capital stock of Unified Western); and
(3) In the event that any default (other than those referred to in
paragraph (2) above shall occur and be continuing with respect to any
Senior Indebtedness permitting the holders of such Senior Indebtedness to
accelerate the maturity thereof,
3
unless payment in full shall have first been made on all Senior
Indebtedness or such default with respect to such Senior Indebtedness shall
have been cured or waived in accordance with the terms of such Senior
Indebtedness, all payments with respect to that portion of any Deposit
Account which consists of the Required Deposit (including any such payment
which would cause such default and including any payment in connection with
the acquisition by Unified Western of the Required Deposit for cash or
property other than capital stock of Unified Western) shall be suspended
during any period:
(a) of 180 days after the giving of written notice of such
default by the holders of Senior Indebtedness to Unified Western;
provided, that only one such notice shall be given pursuant to this
clause (3)(a) in any 12 consecutive months; or
(b) in which judicial proceedings shall be pending in respect of
such default, a notice of acceleration of the maturity of such Senior
Indebtedness shall have been transmitted to Unified Western in respect
of such default and such judicial proceedings shall be diligently
pursued in good faith.
In the event that any payment or other distribution is made to or received
by the undersigned in contravention of the provisions of paragraphs (1), (2)
and/or (3) above, then such payment or other distribution shall be held by the
undersigned for the benefit of, and shall be paid over and delivered to, the
holders of Senior Indebtedness (pro rata as their interests shall appear) or to
their representative or the trustee under the indenture or other agreement (if
any) pursuant to which Senior Indebtedness may have been issued, for application
to the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness then due and payable in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness.
The undersigned Member-Patron has duly executed this Subordination
Agreement this date and by such execution agrees that each and all of the
covenants, terms and provisions of this Subordination Agreement shall be
effective and binding on the undersigned Member-Patron from and after this date.
Dated:________________
_____________________________________
Member-Patron
By: ________________________________
________________________________
4
