EXHIBIT 4.40
AMENDMENT TO NOTE PURCHASE AGREEMENT AND
CONSENT
THIS AMENDMENT TO NOTE
PURCHASE AGREEMENT AND CONSENT (this
“Amendment”) is made and dated as of the 19th
day of December, 2006, by and among the undersigned current holders
of certain Notes issued under the Amended and Restated Note
Purchase Agreement referred to in Recital A below, JOHN HANCOCK
LIFE INSURANCE COMPANY as collateral agent for the Noteholders (in
such capacity, the “Collateral Agent”), and
UNIFIED WESTERN GROCERS, INC., a California corporation (the
“Company”).
RECITALS
A. Pursuant
to that certain Amended and Restated Note Purchase Agreement dated
as of January 3, 2006, by and among the Company, the
Collateral Agent and the Purchasers named therein (as amended
hereby and as further amended, extended and replaced from time to
time, the “Note Purchase Agreement,” and
with capitalized terms used herein and not otherwise defined used
with the meanings given such terms in the Note Purchase Agreement),
the Company issued the Notes and the Purchasers purchased the same
on the terms and conditions set forth therein.
B. The
Company desires to make a one-time Distribution in respect of Class
E shares of the Company, which Distribution would not be permitted
under section 8.6(f) of the Note Purchase Agreement, and has
requested that the Collateral Agent and Noteholders consent to such
Distribution. In addition, the Company desires to amend the
definition of “Consolidated Tangible Net Worth” in the
Note Purchase Agreement. The Collateral Agent and the Noteholders
have agreed to such waiver and amendment, subject to terms and
conditions set forth herein.
NOW, THEREFORE, in
consideration of the foregoing Recitals and for other good and
valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as
follows:
AGREEMENT
1.
Consent. The
Collateral Agent and the Noteholders hereby consent to the
Company’s payment of cash distributions in respect of Class E
shares of the Company (the “Permitted
Distribution”), provided that (a) the aggregate
amount of the Permitted Distribution shall not exceed
$1,000,000.00, and (b) both before and as a result of the
Permitted Distribution, no Default or Event of Default shall exist
under the Note Purchase Agreement,. The Company acknowledges and
agrees that such consent is given on a one-time basis and that
nothing contained herein shall in any manner or to any extent
constitute an agreement by the Collateral Agent or the Noteholders
to consent to any other Distribution.
2.
Amendment of Note Purchase
Agreement. The definition of
“Consolidated Tangible Net Worth” in the Glossary to
the Note Purchase Agreement is amended by adding the following
subsection (i):
(i) plus
any consolidated accumulated other comprehensive loss or minus any
consolidated accumulated other comprehensive earnings (in each case
to the extent that such loss or earnings result from the
application of FASB Statement No. 158 and as determined for
the Company and its consolidated Subsidiaries in accordance with
generally accepted accounting principles).
3.
Amendment Effective Date.
Upon delivery of a copy of this Amendment
duly executed by the Company, the Subsidiary Guarantors, the
Collateral Agent and the Required Noteholders, this Amendment shall
be effective as of the day and year first above written (the
“Amendment Effective Date” ).
4.
Reaffirmation of Debt Documents.
The Company hereby affirms and agrees that:
(a) its execution and delivery of, and the performance of its
obligations under, this Amendment shall not in any way amend,
impair, invalidate or otherwise affect any of its obligations or
the rights of the Collateral Agent or the Noteholders under the
Note Purchase Agreement and the other Debt Documents, except as
expressly set forth herein, (b) to the extent not expressly
amended hereby, the Note Purchase Agreement and the other Debt
Documents remain in full force and effect, and (c) the
Security Documents continue to constitute a first priority
perfected Lien up
