EXHIBIT 10.7.2
AMENDMENT, CONSENT AND ASSUMPTION AGREEMENT
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THIS AMENDMENT, CONSENT AND ASSUMPTION, dated as of December 18, 1997,
(this "Agreement"), by and among XXXXXX-XXXXXX, INC., a Delaware corporation
("RSI"), XXXXXX ACQUISITION CORP., a Delaware corporation ("Xxxxxx"), and THE
FIRST NATIONAL BANK OF CHICAGO (the "Bank").
RECITALS
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A. RSI and the Bank have entered into a Reimbursement Agreement, dated as
of November 1, 1996 (as amended or modified and in effect, the "Reimbursement
Agreement"), pursuant to which the Bank has issued its irrevocable direct pay
letter of credit to secure payment of amounts payable on certain Bonds issued by
La Mirada Industrial Development Authority;
B. RSI, Xxxxxx, and JP Foodservice, Inc., a Delaware corporation
("JPFI"), have entered into an Agreement and Plan of Merger, dated as of June
30, 1997 (as amended by Amendment No. 1, dated as of September 3, 1997, and
Amendment No. 2, dated as of November 5, 1997, the "Merger Agreement"), pursuant
to Section 1.1 of which RSI will merge with and into Xxxxxx (the "Merger"); and
C. RSI has requested that the Bank consent to the Merger and the Bank has
agreed to provide such consent so long as Xxxxxx assumes the Obligations of RSI
under and in connection with the Reimbursement Agreement and the Related
Documents, and RSI and the Bank further desire to amend the Reimbursement
Agreement in certain respects as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
1. Defined Terms. All capitalized terms used herein, including in the
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Recitals, shall have the meanings ascribed to them in the Reimbursement
Agreement, as hereby amended, unless otherwise defined herein.
2. Consents. Subject to Section 3 hereof and effective as of the Amendment
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Effective Date (as defined below), the Bank hereby consents to the Merger
pursuant to Section 1.1 of the Merger Agreement and waives any Default or Event
of Default under Sections 5.2(a), 5.2(e), 5.2(f) and 5.2(g) of the Reimbursement
Agreement that may occur, or may have occurred, as a result of the execution of
the Merger Agreement, and the performance of the obligations of RSI thereunder,
and of the Merger.
3. Assumption. Effective as of the Effective Time (as defined in the Merger
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Agreement), Xxxxxx hereby assumes direct and primary liability for the
performance and payment of all of the Obligations and Xxxxxx agrees to be bound
by the terms and provisions of the Reimbursement Agreement, as hereby amended,
and the Related Documents as fully as if it had originally been a party thereto.
From and after the Effective Time, all references to the "Company" in the
Reimbursement Agreement shall be deemed to be references to Xxxxxx.
4. Release. Effective as of the Amendment Effective Date, the Bank hereby
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agrees to release and discharge its lien on and security interests in the
collateral described in the Deed of Trust, the Security Agreement, and the
Financing Statement. The Bank further agrees that it will execute and deliver
such additional documents, in form and substance satisfactory to the Bank, as
are reasonably required to effect such release and discharge with respect to the
Deed of Trust, the Security Agreement and the Financing Statement.
5. Amendments to the Reimbursement Agreement. Effective as of the Amendment
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Effective Date, the Reimbursement Agreement is amended as follows:
(a) For the period from the Amendment Effective Date through and
including March 31, 1998 only, the Reimbursement Agreement is amended as
follows:
(i) The phrase "one quarter of one percent (.25%)" appearing in
the second line of Section 2.3(a) of the Reimbursement Agreement is deleted and
replaced with the phrase "five hundredths of one percent (0.05%)"; and
(ii) The phrase "one and three-quarters of one percent (1.75%)"
appearing in the second and third lines of Section 2.3(b) of the Reimbursement
Agreement is deleted and replaced with the phrase "six hundred twenty-five
thousandths of one percent (0.625%)".
(b) From and after the Amendment Effective Date, the definition
"Applicable Margin" appearing in Section 1.1 of the Reimbursement Agreement is
deleted and replaced with the following definition: "Applicable Margin" means
(i) for the period from December 18, 1997 through and including March 31, 1998,
0.625% per annum, and (ii) thereafter, 2.50% per annum.
(c) From and after the Amendment Effective Date, the definition "Bank
Security Documents" appearing in Section 1.1 of the Reimbursement Agreement is
amended by deleting the references therein to the definitions "the Deed of
Trust", "the Security Agreement", and "the Financing Statement".
6. Representations and Warranties of RSI. In order to induce the Bank to
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enter into this Agreement, RSI represents and warrants to the Bank that:
(a) (i) The execution, delivery and performance of this Agreement by
RSI have been duly authorized by all necessary corporate action and does not and
will not require any consent or approval of its stockholders, violate any
provision of any law, rule, regulation, order, writ,
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judgment, injunction, decree, termination or award presently in effect having
applicability to it or of its certificate of incorporation or bylaws, or result
in a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to which RSI is a party or
by which it or its properties may be bound or affected; (ii) no authorization,
consent, approval, license, exemption of or filing a registration with any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, is or will be necessary to the valid
execution, delivery or performance by RSI of this Agreement; and (iii) this
Agreement is a legal, valid and binding obligation of RSI enforceable against
RSI in accordance with its terms.
(b) After giving effect to the consents and amendments contained
herein, the representations and warranties contained in Article 4 of the
Reimbursement Agreement are true and correct on and as of the Amendment
Effective Date with the same force and effect as if made on and as of the
Amendment Effective Date, except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct on and as of such
earlier date.
(c) After giving effect to the consents and amendments contained
herein, the representations and warranties contained in Section 3.1 of the
Merger Agreement are true and correct on and as of the Amendment Effective Date
with the same force and effect as if made on and as of the Amendment Effective
Date, except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall have been true and correct on and as of such earlier date.
(d) No Default or Event of Default has occurred and is continuing or
will exist under the Reimbursement Agreement as of the Amendment Effective Date.
(e) A true and correct copy of the Merger Agreement, together with all
amendments and modifications thereto, has been delivered to the Bank, the Merger
Agreement is in full force and effect, and no steps have been taken to terminate
the Merger Agreement pursuant to Section 7.1 thereof.
7. Representations and Warranties of Xxxxxx. In order to induce the Bank to
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enter into this Agreement, Xxxxxx represents and warrants to the Bank that:
(a) (i) The execution and delivery of this Agreement and the
performance of this Agreement, the Reimbursement Agreement and the Related
Documents by Xxxxxx have been duly authorized by all necessary corporate action
and does not and will not require any consent or approval of its stockholders,
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, termination or award presently in effect having
applicability to it or of its certificate of incorporation or bylaws, or result
in a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to which Xxxxxx is a party
or by which it or its properties may be bound or affected; (ii) except as
provided in the Merger Agreement, no authorization, consent, approval, license,
exemption of
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or filing a registration with any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, is or will be
necessary to the valid execution, delivery or performance by Xxxxxx of this
Agreement, the Reimbursement Agreement and the Related Documents; and (iii) this
Agreement is, and upon its assumption of the Obligations of RSI under the
Reimbursement Agreement and the Related Documents pursuant hereto, the
Reimbursement Agreement and Related Documents will be, a legal, valid and
binding obligation of Xxxxxx enforceable against Xxxxxx in accordance with its
terms.
(b) After giving effect to the consents and amendments contained
herein, the representations and warranties contained in Section 3.2 of the
Merger Agreement are true and correct on and as of the Amendment Effective Date
with the same force and effect as if made on and as of the Amendment Effective
Date, except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty
shall have been true and correct on and as of such earlier date.
(c) The Merger Agreement is in full force and effect and no steps have
been taken to terminate the Merger Agreement pursuant to Section 7.1 thereof.
8. Conditions Precedent. This Agreement shall become effective as of the
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date first above written (the "Amendment Effective Date") upon receipt by the
Bank of (i) counterparts of this Agreement duly executed by RSI, Xxxxxx and the
Bank and (ii) a written opinion of Xxxxxx'x counsel, addressed to the Bank and
in form and substance satisfactory to the Bank.
9. Ratification. Except as expressly contemplated hereby, the Reimbursement
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Agreement and all Related Documents are hereby ratified and confirmed in all
respects and shall remain in full force and effect, and RSI acknowledges that it
has no defense, offset or counterclaim thereunder.
10. Reference to Reimbursement Agreement. From and after the Amendment
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Effective Date, each reference in the Reimbursement Agreement to "this
Agreement", "hereof", or "hereunder" or words of like import, and all references
to the Reimbursement Agreement in any and all agreements, instruments,
documents, notes, certificates and other writings of every kind and nature shall
be deemed to mean the Reimbursement Agreement as amended by this Agreement.
11. Execution in Counterparts. This Agreement may be executed in any number
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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.
12. Severability. In case any one or more of the provisions contained in this
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Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
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13. Governing Law. This Agreement and the Reimbursement Agreement, as amended
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hereby, shall be construed in accordance with and governed by the internal laws
of the State of California, without regard to conflicts of laws principles.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
XXXXXX-XXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Its: Executive Vice President
and Chief Financial Officer
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XXXXXX ACQUISITION CORP.
By: /s/ Xxxxx X. Xxxxxxxx
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Its: Senior Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxx X. Xxxxxxx
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Its: Vice President
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RECEIPT ACKNOWLEDGED BY:
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee under the Loan Agreement
By: /s/ Xxxxxx Xxxxxxx
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Its: Assistant Treasurer
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