WAIVER AND FIRST AMENDMENT TO NOTE AGREEMENT
THIS WAIVER AND FIRST AMENDMENT TO THE NOTE AGREEMENT, dated
as of May 9, 1997 (this "Amendment"), by and between UNITED GROCERS, INC., an
Oregon corporation (the "Company"), and PHOENIX HOME LIFE MUTUAL INSURANCE
COMPANY ("Holder").
WHEREAS, the Company and the Holder have entered into a Note
Agreement dated as of October 10, 1994 (the "Note Agreement");
WHEREAS, pursuant to the Note Agreement, the Company issued
its 8.42% Senior Notes, due November 1, 2005, in an aggregate principal amount
of $20,000,000 (the "Notes"); and
WHEREAS, pursuant to the provisions of Section 7 of the Note
Agreement, the Company and the Holder wish to waive specific Company covenants
contained in Section 5.6 and amend Section 5.6 of the Note Agreement in certain
respects as set forth herein.
NOW, THEREFORE, in consideration of the agreement herein
contained, the parties agree as follows:
PART I
WAIVER
Subject to the satisfaction of the conditions set forth in
Section 7 of the Note Agreement, the Holder hereby waives compliance of
Company's covenant at Section 5.6 Fixed Charges, for the quarters ending
September 1996, December 1996, and March 1997.
PART II
AMENDMENT TO NOTE AGREEMENT
Subject to the satisfaction of the conditions set forth in
Section 7 of the Note Agreement, the Note Agreement is amended in accordance
with this Part II. Except as so amended, the Note Agreement shall continue in
full force and effect.
SUBPART 2.1 Section 5.6 - Fixed Charges. Section 5.6 is hereby
amended to read in its entirety as follows:
The Company will keep and maintain the ratio of
Consolidated Net Income Available for Fixed Charges for the
immediately preceding 12-month period at not less than 1.4 to
1.0, except for:
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(a) quarters ending September 27, 1996; December 28,
1996; March 28, 1997; and June 28, 1997, wherein the ratio of
Consolidated Net Income Available for Fixed Charges for the
immediately preceding 12-month period to Fixed Charges for
such 12-month period shall not be less than 1.0 to 1.0;
(b) quarter ending October 3, 1997, wherein the ratio
of Consolidated Net Income Available for Fixed Charges for the
immediately preceding 12-month period shall not be less than
1.15 to 1.0;
(c) quarter ending January 2, 1998, wherein the ratio
of Consolidated Net Income Available for Fixed Charges for the
immediately preceding 12-month period to Fixed Charges for
such 12-month period shall not be less than 1.25 to 1.0.
PART III
CONDITION PRECEDENT TO AMENDMENT
SUBPART 3.1 Required Percentage. Holder(s), holding at least
66 2/3% in aggregate principal amount of the outstanding Notes, shall have
executed and delivered counterparts of this Amendment.
PART IV
MISCELLANEOUS PROVISIONS
SUBPART 4.1 Ratification of and Reference to the Note
Agreement. This Amendment shall be deemed to be an amendment to the Note
Agreement, and the Note Agreement, as amended hereby, is ratified, approved and
confirmed in each and every respect by the Holder. All references to the Note
Agreement in any other document, instrument, agreement, or writing executed
under or in connection with the Note Agreement shall hereafter be deemed to
refer to the Note Agreement, as amended.
SUBPART 4.2 Execution in Counterparts; Effectiveness, Etc.
This Amendment to the Note Agreement may be executed by the parties hereto in
several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement. This Amendment
shall become effective when counterparts hereof executed on behalf of the
Company and the Holder, if applicable, shall have been given by the Company to
the Holder.
SUBPART 4.3 Severability. Any provision of this Amendment or
any other instrument delivered in connection herewith which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Amendment or such
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instrument or affecting the validity or enforceability of such provision in any
other jurisdiction.
SUBPART 4.4 Waivers and Amendments. Neither this Amendment nor
any term hereof may be changed, waived, discharged, or terminated orally, or by
any action or inaction, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge, or termination is
sought (provided that Section 7 of each of the Amended Note Agreements shall
continue to govern any amendments and waivers with respect thereto).
SUBPART 4.5 Section Headings. The titles of the sections
hereof appear as a matter of convenience only, do not constitute a part of this
Amendment and shall not affect the construction hereof.
SUBPART 4.6 Governing Law; Entire Agreement. THIS AMENDMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH NEW YORK LAW. This
Amendment and such other documents constitute the entire understanding between
the parties hereto with respect to the subject matter hereof and supersede any
prior agreements, written or oral, with respect thereto.
IN WITNESS WHEREOF, the parties hereto caused this Amendment
to be executed by their respective officers (as applicable) thereunto duly
authorized as of the day and year first above written.
United Grocers, Inc.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Accepted as of May 9, 1997
Phoenix Home Life Mutual
Insurance Company
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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