Exhibit 10.2
December 30, 2004
United Natural Foods, Inc.
as Agent and Representative
of the Borrowers
000 Xxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Chief Financial Officer
RE: First Amendment to Amended and Restated Loan and Security Agreement
Dear Xxxx:
Reference is made to the Amended and Restated Loan and Security Agreement
dated as of April 30, 2004 ("Loan Agreement") among United Natural Foods, Inc.
("UNF"), Mountain People's Warehouse Incorporated ("MPW"), Nutrasource, Inc.
("Nutrasource"), Rainbow Natural Foods, Inc. ("Rainbow"), Stow Xxxxx, Inc.
("SMI"), United Natural Foods Pennsylvania, Inc. ("UNFPA"), United Northeast LLC
("UNLLC") and United Natural Trading Co. ("UNT" and together with UNF, MPW,
Nutrasource, Rainbow, SMI, UNFPA and UNLLC, collectively, 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
Capital Corporation (the "Arranger"). Capitalized terms not defined herein shall
have the meanings ascribed thereto in the Loan Agreement.
Background. Borrowers have requested the consent of the Lenders to a
change to the Applicable Libor Margin and to certain other modifications to Loan
Agreement and to the acquisition of Select Nutritions and the Lenders have
agreed to consent thereto, subject to the terms and conditions set forth herein.
Accordingly, the parties hereto hereby agree as follows:
1. Amendments.
a. Section 2.4 of the Loan Agreement is deleted in its entirety and
replaced with the following:
"2.4 Unused Line Fee. Borrowers shall pay to Agent for the Pro Rata
account of each Lender a fee equal to one eighth of one percent (.125%) of
the average daily amount by which the Total Credit Facility exceeds the
sum of the outstanding principal balance of the Revolving Credit Loans
plus the LC Amount. The unused line fee shall be payable monthly in
arrears on the first day of each calendar month."
b. Section 3.1.1 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"3.1.1 Loan Requests. Subject to Section 3.1.6, a request for a
Revolving Credit Loan shall be made, or shall be deemed to be made, in the
following manner: (i) Borrowers may give Agent notice of their intention
to borrow, in which notice Borrowers shall specify the amount of the
proposed borrowing and the proposed borrowing date, no later than 1:00
p.m. (Eastern Time) on the Business Day of the proposed borrowing date
(any request received after 1:00 p.m. (Eastern Time) shall be deemed to be
made on the next Business Day thereafter) and Agent will promptly advise
Lenders of such notice, provided, however, that no such request may be
made at a time when there exists a Default or an Event of Default; and
(ii) the becoming due of any amount required to be paid under this
Agreement, whether as interest or for any other Obligation, shall be
deemed irrevocably to be a request for a Revolving Credit Loan on the due
date in the amount required to pay such interest or other Obligation. As
an accommodation to Borrowers, Agent may permit telephonic or electronic
requests for loans and electronic transmittal of instructions,
authorizations, agreements or reports to Agent by Borrowers. Unless
Borrowers specifically direct Agent in writing not to accept or act upon
telephonic or electronic communications from Borrowers, neither Agent nor
any Lender shall have any liability to Borrowers for any loss or damage
suffered by Borrowers as a result of Agent's or any Lender's honoring of
any requests, execution of any instructions, authorizations or agreements
or reliance on any reports communicated to it telephonically or
electronically and purporting to have been sent to Agent or Lenders by
Borrowers unless it is determined by a final and nonappealable judgment or
court order binding on the Agent and such Lender that such loss or damage
was solely the result of the gross negligence or willful misconduct of
Agent or such Lender. Neither Agent nor any Lender shall have any duty to
verify the origin of any such communication or the authority of the person
sending it."
c. Section 3.1.2 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"3.1.2 Fundings by Lenders. Subject to its receipt of notice from
Agent of a borrowing notice as provided in Sections 3.1.1 or 3.1.6 (except
in the case of a deemed request by Borrowers for a Revolving Credit Loan
as provided in Sections 3.1.1(ii) or 3.1.3(ii) hereof, in which event no
borrowing notice need be submitted), each Lender shall timely honor its
Commitment by funding its Pro Rata share of each borrowing of Revolving
Credit Loans that is properly requested by a Borrower and that such
Borrower is entitled to receive under this Agreement. Agent shall notify
Lenders of each borrowing notice by 3:00 p.m. (Eastern Time) on the
Business Day of the proposed funding date (in the case of Base Rate
Advances) or by 12:00 p.m. (noon) (Eastern Time) at least two (2) Business
Days before the proposed funding date (in the case of LIBOR Advances).
Each Lender shall deposit with Agent an amount equal to its Pro Rata share
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of the Revolving Credit Loan requested by such Borrower at Agent's
designated account in immediately available funds not later than 5:00 p.m.
(Eastern Time) on the date of the funding of such Revolving Credit Loan,
unless, with respect to a Base Rate Advance, Agent's notice to Lenders is
received after 3:00 p.m. (Eastern Time) on the proposed funding date, in
which event Lenders shall deposit with Agent their respective Pro Rata
shares of the requested Loan on or before 11:00 a.m. (Eastern Time) on the
Business Day following the date of the funding of such Revolving Credit
Loan. Subject to its receipt of such amounts from Lenders, Agent shall,
provided it has not received notice from a Lender that one or more of the
applicable conditions set forth in Section 10 is not satisfied, make the
proceeds of the Revolving Credit Loans received by it available to
Borrowers by disbursing such proceeds as provided in Section 3.1.4 hereof.
Unless Agent shall have been notified in writing by a Lender prior to the
proposed time of funding that such Lender does not intend to deposit with
Agent an amount equal such Lender's Pro Rata share of the requested
Revolving Credit Loan, Agent may assume that such Lender has deposited or
promptly will deposit its share with Agent and Agent may in its discretion
disburse a corresponding amount to such Borrower on the applicable funding
date. If a Lender's Pro Rata share of such Revolving Credit Loan is not in
fact deposited with Agent, then, if Agent has disbursed to such Borrower
an amount corresponding to such share, then such Lender agrees to pay, and
in addition Borrowers jointly and severally agree to repay, to Agent
forthwith on demand such corresponding amount, together with interest
thereon, for each day from the date such amount is disbursed by Agent to
or for the benefit of Borrowers until the date such amount is paid or
repaid to Agent, (a) in the case of Borrowers, at the interest rate
applicable to such Loan and (b) in the case of such Lender, at the Federal
Funds Rate (as published by the Federal Reserve Bank of New York). If such
Lender repays to Agent such corresponding amount, such amount so repaid
shall constitute a Revolving Credit Loan, and if both such Lender and
Borrowers shall have repaid such corresponding amount, Agent shall
promptly return to Borrowers such corresponding amount. Notwithstanding
the foregoing, if a funding date of a Revolving Credit Loan is a legal
holiday under the laws of the state where a Lender has its principal
lending office or a day on which banking institutions located in such
state are closed, such Lender shall fund its Pro Rata share of the
requested Revolving Credit Loan on the next Business Day thereafter."
d. Section 3.1.6 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"3.1.6 LIBOR Advances. Notwithstanding the provisions of subsection
3.1.1, in the event Borrowers desire to obtain a LIBOR Advance, Borrowers
shall give Agent prior, written, irrevocable notice no later than 11:00
A.M. Eastern Time on the second (2nd) Business Day prior to the requested
borrowing date specifying (i) Borrowers' election to obtain a LIBOR
Advance, (ii) the date of the proposed borrowing (which shall be a
Business Day) and (iii) the requested Interest Period and amount to be
borrowed, which amount shall be in a minimum principal amount of $500,000
and may increase in integral multiples of $500,000. In no event shall
Borrowers be permitted to have outstanding at any one time LIBOR Advances
with more than twelve (12) different Interest Periods."
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e. Section 3.1.7 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"3.1.7 Conversion of Base Rate Advances. Provided that no Default or
Event of Default has occurred which is then continuing, Borrowers may, on
any Business Day, convert any Base Rate Advance into a LIBOR Advance. If
Borrowers desire to convert a Base Rate Advance, Borrowers shall give
Agent not less than two (2) Business Days' prior written notice (prior to
11:00 A.M. Eastern Time on such Business Day), specifying the date of such
conversion, the requested Interest Period and the amount to be converted.
Each conversion into a LIBOR Advance shall be in a minimum principal
amount of $500,000 and may increase in integral multiples of $500,000 in
excess thereof. After giving effect to any conversion of Base Rate
Advances to LIBOR Advances, Borrowers shall not be permitted to have
outstanding at any one time LIBOR Advances with more than twelve (12)
different Interest Periods."
f. Section 9.1.3(i) of the Loan Agreement is deleted in its entirety
and replaced with the following:
"(i) not later than ninety (90) days after the close of each fiscal
year of Borrowers, the Form 10-K of UNF as of the end of such fiscal year,
as filed with the Securities and Exchange Commission, which shall contain
the unqualified, audited financial statements of Borrowers and their
Subsidiaries as of the end of such year, on a Consolidated basis,
certified by a firm of independent certified public accountants of
recognized standing selected by Borrowers but acceptable to Lenders
(except for a qualification for a change in accounting principles with
which the accountant concurs) together with consolidating financial
statements prepared by management of Borrowers in accordance with GAAP;"
g. Section 9.1.3(ii) of the Loan Agreement is deleted in its
entirety and replaced with the following:
"(ii) not later than forty-five (45) days after the end of each
fiscal quarter of Borrowers, including the last fiscal quarter of
Borrowers' fiscal year, the Form 10-Q of UNF as of the end of such fiscal
quarter and the fiscal year to date, as filed with the Securities and
Exchange Commission, which shall contain unaudited, interim financial
statements of Borrowers and their Subsidiaries as of the end of such
fiscal quarter and of the portion of Borrowers' fiscal year then elapsed,
on a Consolidated and consolidating basis, certified by the principal
financial officer of Borrowers as prepared in accordance with GAAP and
fairly presenting the Consolidated financial position and results of
operations of Borrowers and their Subsidiaries for such quarter and period
subject only to changes from audit and year-end adjustments and except
that such statements need not contain notes;"
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h. Section 9.1.6 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"9.16 Projections. No later than the first day of each fiscal year
of Borrowers, deliver to Agent and Lenders Projections of Borrowers for
the forthcoming three (3) years, year by year, and for the forthcoming
fiscal year, fiscal quarter by fiscal quarter."
i. Effective on December 1, 2004, the definition of "Applicable Base
Rate Margin; Applicable LIBOR Margin" in Appendix A to the Loan Agreement is
deleted in its entirety and replaced with the following:
"Applicable Base Rate Margin; Applicable LIBOR Margin - determined
by reference to the average Availability of the Borrowers during the
preceding calendar month as follows:
Applicable LIBOR Applicable Base Rate
Average Availability Margin Margin
-------------------- ------ ------
Greater than or equal to $25
million .90% 0.00%
Less than $25 million 1.00% 0.00%
2. Select Nutrition Acquisition. The Agent and Lenders consent to the
acquisition by Borrowers of Select Nutrition Distributors, Inc. for an aggregate
purchase price $7 million in cash and $6 million in assumption of liabilities;
provided, that, within thirty (30) days from the date of this First Amendment
(a) Borrowers shall furnish to Agent copies of all purchase documents relating
to this acquisition, which shall be in form and substance reasonably
satisfactory to Agent, and such other information concerning Select Nutritions
and/or the transaction as Agent may reasonably request, (b) the entity acquired
or Subsidiary formed to make such acquisition, if any, shall enter into a
joinder agreement or guaranty (as determined by Agent) and grant to Agent, for
the benefit of Agent and Lenders, a first priority (subject to Permitted Liens)
security interest in its assets constituting Collateral, all in form and
substance reasonably satisfactory to Agent, and (c) Borrowers shall have
otherwise complied with the provisions of Section 9.2.1 of the Loan Agreement
with respect to such acquisition as reasonably required by the Agent.
3. Sovereign Bank Take-Out. It is anticipated that on or before January
31, 2005, Sovereign Bank ("Sovereign Bank"), a Lender, shall assign its rights
and obligations with respect to the Loans to one or more of the other Lenders.
Not withstanding the amendment to the definition of "Applicable Base Rate
Margin; Applicable LIBOR Margin" described above, Borrowers shall pay interest
at the rates provided by the Loan Agreement prior to such amendment, on account
of any Obligations owing to Sovereign through and until such time as the
assignment is completed, if such assignment is completed.
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4. 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 First Amendment. This First Amendment has
been duly executed and delivered by or on behalf of the Borrowers pursuant to
authority legally adequate therefor, and this First 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 which do not otherwise
constitute a Default or an Event of Default, 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 First Amendment
as though fully set forth herein.
5. Conditions Precedent. This First Amendment and the Lenders' 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 First
Amendment;
b. All requisite corporate action and proceedings of the Borrowers
in connection with this First Amendment and all documentation and certificates
required by Agent and/or its counsel in connection therewith shall be
satisfactory in form and substance to Agent;
c. No Default or Event of Default shall exist; and
d. All the Lenders shall have executed this First Amendment.
6. Miscellaneous.
a. Counterparts. This First 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 First Amendment by signing any such
counterpart.
b. Force and Effect. The Loan Agreement and each other Loan
Document, as amended or modified by this First Amendment, are hereby ratified,
confirmed and approved and shall continue in full force or effect.
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c. Loan Document. This First Amendment and all other documents
executed in connection herewith are "Loan Documents" as such term is defined in
the Loan Agreement. This First Amendment shall be governed by the laws of the
State of Connecticut. This First 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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Signature Page to First Amendment to Amended and Restated Loan and
Security Agreement
IN WITNESS WHEREOF, the parties have executed this First Amendment as of
the date first above written.
BORROWERS: UNITED NATURAL FOODS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
MOUNTAIN PEOPLE'S WAREHOUSE
INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
NUTRASOURCE, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
RAINBOW NATURAL FOODS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
STOW XXXXX, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
UNITED NATURAL FOODS
PENNSYLVANIA, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
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UNITED NORTHEAST LLC
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
UNITED NATURAL TRADING CO.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
GUARANTORS: NATURAL RETAIL GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
ALBERT'S ORGANICS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
AGENT: FLEET CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxx X. Xxxxxx
------------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
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LENDERS:
FLEET CAPITAL CORPORATION,
as a Lender
By: /s/ Xxx X. Xxxxxx
--------------------------
Name: Xxx X. Xxxxxx
Title: Senior Vice President
CITIZENS BANK OF MASSACHUSETTS,
as a Lender
By: /s/ Xxxx X. Xxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION,
a Lender
By: /s/ Xxxx Xxxxx
-----------------------
Name: Xxxx Xxxxx
Title: Associate Vice President
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FIRST PIONEER FARM CREDIT, ACA, a
Lender
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXX BANK, a Lender
By: /s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
SOVEREIGN BANK, a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
ISRAEL DISCOUNT BANK
OF NEW YORK, a Lender
By: /s/ Xxxx Xxxxxx
--------------------------
Name: Xxxx Xxxxxx
Title: First Vice President
By: /s/ Xxxxx Xxxx
--------------------------
Name: Xxxxx Xxxx
Title: Vice President
ROYAL BANK OF CANADA,
a Lender
By: /s/ Xxxx Xxxxx
--------------------------
Name: Xxxx Xxxxx
Title: Authorized Signatory
XXXXXX TRUST AND SAVINGS BANK,
a Lender
By: /s/ Xxxxxxx Xxxxx
--------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
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