Exh. 10.37
EXECUTION VERSION
FIRST SUPPLEMENT TO CONSENT, WAIVER,
COLLATERAL RELEASE AND
AMENDMENT AGREEMENT NO. 5A
This First Supplement to Consent, Waiver, Collateral Release and Amendment
Agreement No. 5A, dated as of September 5, 2003 (this "Supplement"), is among
the Persons that have executed this Supplement (the "Parties"), and supplements
that certain Consent, Waiver, Collateral Release and Amendment Agreement No. 5A,
dated as of September 3, 2003 (the "Agreement") among the Parties. Capitalized
terms used, but not defined, in this Supplement are used as defined in the
Agreement.
RECITALS
A. In connection with the Lessee's sale of the Sale Assets to GFS and
certain of its subsidiaries, Section 11.2(d) of the Lease requires the Lessee to
deposit with the Owner Trustee the greater of (i) the net cash proceeds from the
sale of the Florida Properties, which would equal approximately $13 million, or
(ii) the portion of the Termination Value attributable to the Florida
Properties, plus the Prepayment Fee attributable to the Florida Properties,
which would equal approximately $16-17 million.
B. The Lessee has requested that the Lenders and the Holder grant a waiver
allowing the Lessee to deposit the gross sale proceeds, which equal $14,340,000,
in lieu of the amount described in clause (ii) of Recital A, and the Majority
Secured Parties desire to grant such a waiver, subject to the terms and
conditions of this Supplement.
NOW, THEREFORE, for good and valuable consideration received, the Parties
agree as follows.
1. Waivers. The Majority Secured Parties waive, in connection with the sale
of the Florida Properties only, the requirement in Section 11.2(d) of the Lease
that the Lessee deposit with the Owner Trustee the greater of (i) the net cash
proceeds from the transfer of the Florida Properties or (ii) the portion of the
Termination Value attributable to the Property, plus the Prepayment Fee
attributable to the Florida Properties and allow the Lessee instead to deposit
with the Owner Trustee $14,340,000, which is the gross purchase price Lessee
will receive from the sale of the Florida Properties;
2. Lessee's Agreements and Acknowledgments. Lessee acknowledges and agrees
to all matters approved or waived by the Majority Secured Parties in Section 1
of this Supplement and further acknowledges that the foregoing consents and
waivers do not constitute a waiver of the Prepayment Fee that may be due if the
Florida Properties are not replaced within the time period specified in the
Agreement and that the amount to be deposited with the Trustee under this
Supplement does not include any fees payable to the Secured Parties under the
Agreement or this Supplement.
3. Conditions Precedent. The effectiveness of this Supplement is subject to
the satisfaction of each of the following conditions precedent.
(a) Certain Documents. The Agent shall have received all of the
following, in form and substance satisfactory to the Agent:
(i) Consent of Required Secured Parties. The Majority Secured
Parties shall have executed and delivered this Supplement; and
(ii) Additional Information. Such additional documents,
instruments and information as the Agent may reasonably request to effect the
transactions contemplated hereby.
(b) Fees. In consideration of the waiver granted under this
Supplement, (i) each A-2 Lender and each B Lender who executes and delivers this
Agreement by 5:00 p.m. (EDT) on September [8], 2003 shall have received an
amendment fee of 0.05% of its Commitment, and (ii) the Holder shall have
received an amendment fee of 0.05% of its Holder Commitment if it executes and
delivers this Agreement by the same time.
(c) Representations and Warranties. The representations and warranties
contained in this Supplement and in the Lease shall be true and correct as of,
and as if made on, the date hereof (except for those that by their terms
specifically refer to an earlier date, in which case such representations and
warranties shall be true and correct as of the earlier date).
(d) Corporate Proceedings Satisfactory. All corporate proceedings
taken in connection with the transactions contemplated by this Supplement and
all other agreements, documents and instruments executed or delivered pursuant
to it, and all legal matters incident thereto, shall be satisfactory to the
Agent.
(e) No Lease Default or Lease Event of Default. No Lease Default or
Lease Event of Default shall have occurred and be continuing after giving effect
to this Supplement.
4. Representations and Warranties. Each Credit Party represents and
warrants to the Agent and the Secured Parties that, as of the date of and after
giving effect to this Agreement, (a) the execution, delivery and performance of
this Supplement and all other documents executed or delivered in connection
herewith have been authorized by all requisite corporate action on the part of
each Credit Party and will not violate any Credit Party's certificate of
incorporation or bylaws, (b) all representations and warranties set forth in the
Lease and in any other Operative Agreement are true and correct as if made again
on and as of such date (except those, if any, that by their terms specifically
relate only to an earlier date, in which case such representations and
warranties are true and correct as of the earlier date), (c) no Lease Default or
Lease Event of Default has occurred and is continuing, and (d) the Lease (as
amended by the Agreement and this Supplement) and all other Operative Agreements
are and remain legal, valid, binding and enforceable obligations in accordance
with their terms.
5. Survival of Representations and Warranties. All representations and
warranties made by any Credit Party in this Supplement or any other Operative
Agreement shall survive the execution and delivery of this Supplement and the
other Operative Agreements, and no investigation by the Agent or the Secured
Parties, or any closing, shall affect the representations and warranties or the
right of the Agent and the Secured Parties to rely upon them.
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6. Costs and Expenses. The Lessee shall pay on demand all reasonable costs
and expenses of the Agent (including the reasonable fees, costs and expenses of
counsel to the Agent) incurred in connection with the preparation, execution and
delivery of this Supplement.
7. Governing Law. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO
CONFLICT-OF-LAWS PRINCIPLES.
8. Execution. This Supplement may be executed in any number of counterparts
and by different Parties on separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument. A Party's delivery of an executed
counterpart of this Supplement by telecopier shall be effective as delivery of a
manually executed counterpart of this Supplement.
9. Limited Effect. This Supplement relates only to the specific matters it
covers, shall not be considered to be a waiver of any other rights any Secured
Party may have under the Operative Agreements, and shall not be considered to
create a course of dealing or to otherwise obligate any Secured Party to grant
similar waivers or execute any amendments under the same or similar
circumstances in the future.
10. Ratification By Guarantors. Each Guarantor consents to this Supplement,
and each Guarantor (other than Xxxxx Xxx Company) acknowledges that its guaranty
remains in full force and effect without any modification.
11. Certain Waivers. Each Credit Party agrees that none of the Financing
Parties shall be liable under a claim of, and waives any claim against any
Financing Party based upon, lender liability (including, but not limited to,
liability for breach of the implied covenant of good faith and fair dealing,
fraud, negligence, conversion, misrepresentation, duress, control and
interference, infliction of emotional distress, defamation and breach of
fiduciary duty) as a result of any discussions or actions taken or not taken by
any Financing Party on or before the date hereof, the discussions conducted
pursuant hereto, or any course of action taken by any Financing Party in
response thereto or arising therefrom. This Section 14 shall survive the
execution and delivery of this Agreement and the expiration or termination of
the Lease.
[Signature Pages Follow]
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LESSOR:
Xxxxx Fargo Bank Northwest, National Association,
as Owner Trustee under S&F Trust 1998-1
By: /s/ Xxx X. Xxxxx
----------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
LESSEE:
Smart & Final Inc.
By: /s/ Xxxxxxx X. Xxxxxxx By:
---------------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxxxx Name:
Title: Senior Vice President & ---------------------------------
Chief Financial Officer Title:
--------------------------------
[First Supplement to Consent, Waiver, Collateral Release and Amendment
Agreement No. 5A]
A-2 LENDER, B LENDER AND AGENT:
Fleet Capital Corporation
By: /s/ Xxxxx XxXxxxx
----------------------------------
Name: Xxxxx XxXxxxx
Title: Vice President
A-2 LENDER:
GMAC Commercial Finance, LLC,
successor by merger to GMAC Business Credit, LLC
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
A-2 LENDER:
Cooperative Centrale Raiffeisen-Boerenleenbank B.A.
"Rabobank Nederland," New York Branch
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------------------- -----------------------------------
Name: Xxxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: Executive Director Title: Managing Director
A-2 LENDER:
Natexis Banques Populaires
By: /s/ Xxxxxx X. van Tulder By: /s/ Nicolas Regent
---------------------------------- -----------------------------------
Name: Xxxxxx X. van Tulder Name: Nicolas Regent
Title: Vice President And Manager Title: Vice President Multinational
Multinational Group
A-2 LENDER:
BNP Paribas
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------- -----------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxx
Title: Managing Director Title: Managing Director
[First Supplement to Consent, Waiver, Collateral Release and Amendment
Agreement No. 5A]
B LENDER:
Transamerica Equipment Financial Services Corporation
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
[First Supplement to Consent, Waiver, Collateral Release and Amendment
Agreement No. 5A]
HOLDER:
Casino USA, Inc.
By: /s/ Etienne Snollaerts
----------------------------------
Name: Etienne Snollaerts
Title: Director
[First Supplement to Consent, Waiver, Collateral Release and Amendment
Agreement No. 5A]
GUARANTOR:
American Foodservice Distributors
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
GUARANTOR:
Smart & Final Stores Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
GUARANTOR:
Smart & Final Oregon, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
GUARANTOR:
Port Stockton Food Distributors, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President - Finance
GUARANTOR:
Xxxxx Xxx Company
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President - Finance
[First Supplement to Consent, Waiver, Collateral Release and Amendment
Agreement No. 5A]
GUARANTOR:
Amerifoods Trading Company
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
GUARANTOR:
Casino Frozen Foods, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
GUARANTOR:
XxxxXxxxxxxXxxxxxxxxxx.Xxx, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
GUARANTOR:
Xxxx Produce International, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
GUARANTOR:
HL Holding Corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
[First Supplement to Consent, Waiver, Collateral Release and Amendment
Agreement No. 5A]
