Exh 10.31
FOURTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT
This Fourth Amendment and Waiver to Credit Agreement (this
"Amendment") is entered into as of July 11, 2003, by and among SMART & FINAL
INC., a Delaware corporation (the "Borrower"), the Guarantors listed on the
signature pages hereof, the financial institutions and other entities party
hereto (the "Lenders") and BNP PARIBAS, as Administrative Agent for the Lenders
(the "Administrative Agent").
RECITALS
A. The Borrower, the Lenders, the Administrative Agent, Xxxxxx Trust &
Savings Bank, as syndication agent, and Cooperative Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York Branch, as
documentation agent, are parties to that certain Credit Agreement dated as of
November 30, 2001 (as amended to date, the "Credit Agreement"). Capitalized
terms used herein without definition have the meanings ascribed to such terms in
the Credit Agreement.
B. The Borrower, the Lenders and the Administrative Agent have agreed
to waive certain covenants and amend the Credit Agreement as provided
hereinbelow.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
Section 1. Section References. Unless otherwise expressly stated
herein, all Section references herein shall refer to Sections of the Credit
Agreement.
Section 2. Amendment to Section 1.01. The definition of "Applicable
Margin" set forth in Section 1.01 is hereby amended by deleting the proviso
thereto and replacing it with the following:
"provided, however, that, notwithstanding the foregoing, (i) on the Closing
Date and until the six month anniversary thereof, the Applicable Margin
shall be 2.5% for Eurodollar Rate Advances and 1.5% for Base Rate Advances,
(ii) for purposes of determining the Applicable Margin at any time
following the six month anniversary of the Closing Date, the Adjusted
Leverage Ratio shall be deemed to be greater than or equal to 4.25 to 1.0
at all times when a Default has occurred and is continuing based on the
Borrower's failure to deliver any financial statement, compliance
certificate or Borrowing Base Certificate as and when required pursuant to
Sections 6.03(a), 6.03(c) or 6.03(d), as applicable, and (iii) during the
period commencing on July 11, 2003 until the later of (A) November 4, 2003
and (B) the date that the Borrower delivers the financial statements
required under Section 6.03(c) with respect to the third fiscal quarter of
Fiscal Year 2003, the Applicable Margin shall equal 2.90% per annum with
respect to Eurodollar Rate Advances and 1.90% per annum with respect to
Base Rate Advances. For purposes of this Agreement, any change in the
Applicable Margin based on a
change in the Adjusted Leverage Ratio shall be effective three Business
Days after the date of receipt by the Administrative Agent of the financial
statements, compliance certificate and Borrowing Base Certificate required
by Sections 6.03(a), 6.03(c) and 6.03(d), as applicable, reflecting such
change."
Section 3. Waiver. The Lenders hereby waive compliance by the Borrower
with Section 6.04(a), (b), (c), (d) and (f) for the second fiscal quarter of
Fiscal Year 2003.
Section 4. Conditions Precedent. The effectiveness of this Amendment
is subject to the satisfaction of each of the following conditions precedent:
(a) The Administrative Agent shall have received all of the
following, in form and substance satisfactory to the Administrative Agent:
(i) Amendment Documents. This Amendment and any other
instrument, document or certificate required by the Administrative Agent to
be executed or delivered by the Borrower or any other Person in connection
with this Amendment, duly executed by such Persons (the "Amendment
Documents");
(ii) Consent of Required Lenders. The written consent of the
Required Lenders to this Amendment;
(iii) Amendment to Synthetic Lease Documents. Evidence that
(A) the financial covenants contained in the Synthetic Lease Documents have
been waived in the same manner as set forth in this Amendment and (B) any
conforming changes to the Synthetic Lease Documents reasonably requested by
the Administrative Agent have been made;
(iv) Additional Information. Such additional documents,
instruments and information as the Administrative Agent may reasonably
request to effect the transactions contemplated hereby.
(b) Each of the Lenders consenting to this Amendment on or prior
to 5:00 p.m. (EST) on July 11, 2003 shall have received an amendment fee of
0.08% of its Commitment.
(c) The representations and warranties contained herein and in
the Credit Agreement shall be true and correct as of the date hereof as if made
on the date hereof (except for those which by their terms specifically refer to
an earlier date, in which case such representations and warranties shall be true
and correct as of such earlier date).
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all other agreements, documents
and instruments executed and/or delivered pursuant hereto, and all legal matters
incident thereto, shall be satisfactory to the Administrative Agent.
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(e) No Default or Event of Default shall have occurred and be
continuing, after giving effect to this Amendment.
Section 5. Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that, as of
the date of and after giving effect to this Amendment, (a) the execution,
delivery and performance of this Amendment and any and all other Amendment
Documents executed and/or delivered in connection herewith have been authorized
by all requisite corporate action on the part of the Borrower and will not
violate the Borrower's certificate of incorporation or bylaws, (b) all
representations and warranties set forth in the Credit Agreement and in any
other Loan Document are true and correct as if made again on and as of such date
(except those, if any, which by their terms specifically relate only to an
earlier date, in which case such representations and warranties are true and
correct as of such earlier date), (c) no Default or Event of Default has
occurred and is continuing, and (d) the Credit Agreement (as amended by this
Amendment), and all other Loan Documents are and remain legal, valid, binding
and enforceable obligations in accordance with the terms thereof.
Section 6. Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other Loan Document
shall survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by the Administrative Agent or the Lenders, or
any closing, shall affect the representations and warranties or the right of the
Administrative Agent and the Lenders to rely upon them.
Section 7. Certain Waivers. The Borrower and each Guarantor hereby
agrees that neither the Administrative Agent nor any Lender shall be liable
under a claim of, and hereby waives any claim against the Administrative Agent
and the Lenders 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 and defamation and breach of
fiduciary duties) as a result of any discussions or actions taken or not taken
by the Administrative Agent or the Lenders on or before the date hereof or the
discussions conducted pursuant hereto, or any course of action taken by the
Administrative Agent or any Lender in response thereto or arising therefrom.
This Section 7 shall survive the execution and delivery of this Amendment and
the other Loan Documents and the termination of the Credit Agreement.
Section 8. Reference to Agreement. Each of the Loan Documents,
including the Credit Agreement, and any and all other agreements, documents or
instruments now or hereafter executed and/or delivered pursuant to the terms
hereof or pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference in such Loan Documents to the Credit
Agreement, whether direct or indirect, shall mean a reference to the Credit
Agreement as amended hereby.
Section 9. Costs and Expenses. The Borrower shall pay on demand all
reasonable costs and expenses of the Administrative Agent (including the
reasonable
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fees, costs and expenses of counsel to the Administrative Agent) incurred in
connection with the preparation, execution and delivery of this Amendment.
Section 10. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA.
Section 11. Execution. This Amendment may be executed in any number of
counterparts and by different parties hereto in 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 agreement. Delivery of an executed
counterpart of a signature page to this Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of this Amendment.
Section 12. Limited Effect. This Amendment relates only to the
specific matters covered herein, shall not be considered to be a waiver of any
rights any Lender may have under the Credit Agreement (other than as expressly
set forth herein), and shall not be considered to create a course of dealing or
to otherwise obligate any Lender to execute similar amendments or grant any
waivers under the same or similar circumstances in the future.
Section 13. Ratification By Guarantors. Each of the Guarantors hereby
agrees to this Amendment and acknowledges that such Guarantor's Guaranty shall
remain in full force and effect without modification thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
SMART & FINAL INC.,
as Borrower
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
AMERICAN FOODSERVICE DISTRIBUTORS
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
SMART & FINAL STORES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
SMART & FINAL OREGON, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
PORT STOCKTON FOOD DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President - Finance
XXXXX XXX COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President - Finance
AMERIFOODS TRADING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
CASINO FROZEN FOODS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
XXXXXXXXXXXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
XXXX PRODUCE INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
HL HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President &
Chief Financial Officer
BNP PARIBAS,
as Administrative Agent and a Lender
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxxxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxxxxx Xxxxxxx
Title: Director
XXXXXX TRUST & SAVINGS BANK
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
COOPERATIVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Executive Director
By: /s/ Xxxxx Xxxx
--------------------------------------
Name: Xxxxx Xxxx
Title: Credit Risk Management
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
COBANK, ACB
By: /s/ S. Xxxxxxx Xxxx
--------------------------------------
Name: S. Xxxxxxx Xxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
NATEXIS BANQUE-BFCE
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. van Tulder
--------------------------------------
Name: Xxxxxx X. van Tulder
Title: Vice President And Manager
Multinational Group
TRANSAMERICA BUSINESS CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Senior Vice President
CITY NATIONAL BANK
By: /s/ Xxxx Xxxx
--------------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President
RZB FINANCE LLC
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Group Vice President
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: First Vice President
BANK OF THE WEST
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Syndications Officer
PREFERRED BANK
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
BANK LEUMI USA
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
