EXHIBIT 10.30
SECOND AMENDMENT TO TRANSFER AND ADMINISTRATION AGREEMENT
This SECOND AMENDMENT TO TRANSFER AND ADMINISTRATION AGREEMENT (this
"Amendment"), dated as of May 19, 1997 is among ENTERPRISE FUNDING CORPORATION,
a Delaware corporation (the "Company"), JPFD FUNDING COMPANY, a Delaware
corporation (the "Transferor"), JP Foodservice Distributors, Inc., a Delaware
corporation (the "Collection Agent"), THE FINANCIAL INSTITUTIONS FROM TIME TO
TIME PARTIES THERETO (collectively, the "Bank Investors" and each a "Bank
Investor"), and NATIONSBANK, N.A. as agent for the Company and the Bank
Investors (in such capacity, the "Agent") and as a Bank Investor.
PRELIMINARY STATEMENTS:
1. The Company, the Transferor, the Collection Agent, the Bank Investors,
and the Agent have entered into a Transfer and Administration
Agreement dated as of May 30, 1996, as amended on July 1, 1996, (as so
amended, the "Transfer and Administration Agreement"; capitalized
terms used and not otherwise defined herein have the meanings assigned
to such terms in the Transfer and Administration Agreement).
2. The Transferor has requested certain amendments to the Transfer and
Administration Agreement.
3. The Company is, on the terms and conditions stated below, willing to
grant such requests of the Transferor.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments to Transfer and Administration Agreement. Effective as
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of the date hereof and subject to the satisfaction of the conditions precedent
set forth in Section 2 hereof, the Transfer and Administration Agreement is
hereby amended as follows:
(a) In Section 1.1 the definition of "Commitment Termination Date" shall be
amended such that the reference to the date appearing in such definition
shall be amended to read "November 24, 1997.";
(b) The third and fourth lines of Section 6.2(c) shall be amended by inserting
after the words "a firm of independent public accountants", the words ",
the Business Credit Field Exam Group of NationsBank, N.A. or such other
Person as may be approved by the Agent".
(c) Section 7.1(r)(iii) shall be deleted in its entirety and replaced with the
following:
On any Determination Date occurring during any period specified in the
following table, the Total Debt and Investment Ratio shall exceed 3.75
to 1.0; or;
(d) In Annex 1 to the Transfer and Administration Agreement, the definition of
"Net Worth Minimum" shall be deleted in its entirety and replaced with the
following:
"Net Worth Minimum" shall mean as of any date, the sum of (i)
$78,000,000 plus, on the last date of each fiscal quarter occurring
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after the date of this Amendment, (ii) the greater of (x) zero and (y)
50% of the net income of Distributors and its Restricted Subsidiaries
for such preceding fiscal year, determined on a consolidated basis in
accordance with GAAP after eliminating all intercompany items and
deducting portions of income properly attributable to outside minority
interests, if any, in Restricted Subsidiaries and after adding, to the
extent deducted in determining such net income, the amount of any
provision for the amortization of Effective Date intangibles.
Section 2. Conditions to Effectiveness. This Amendment shall become effective
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when the Company has executed this Amendment and has received counterparts of
this Amendment executed by the Transferor, the Collection Agent, the Bank
Investors, and the Agent.
Section 3. Representations and Warranties.
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(a) Authority. The Transferor, the Collection Agent, the Bank
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Investors, and the Agent each has the requisite corporate power and authority to
execute and deliver this Amendment and to perform its obligations hereunder and
under the Transfer and Administration Agreement (as modified hereby) to which it
is a party. The execution, delivery and performance by the Transferor, the
Collection Agent, the Bank Investors, and the Agent of this Amendment and the
performance of the Transfer and Administration Agreement as modified hereby)
have been duly approved by all necessary corporate action and not other
corporate proceedings are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and
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delivered by the Transferor, the Collection Agent, the Bank Investors, and the
Agent. This Amendment (as modified hereby) is the legal, valid and binding
obligation of the Transferor, the Collection Agent, the Bank Investors, and the
Agent, enforceable against the Transferor, the Collection Agent, the Bank
Investors, and the Agent in accordance with its terms, and is in full force and
effect.
(c) Representations and Warranties. The representations and
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warranties contained in the Transfer and Administration Agreement (other than
any such representations or warranties that, by their terms, are specifically
made as of a date other than the date hereof) are correct on and as of the date
hereof as though made on and as of the date hereof.
(d) No Termination Event. No event has occurred and is continuing that
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constitutes a Termination Event.
Section 4. Reference to and Effect on the Transfer and Administration
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Agreement.
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(a) Except as specifically amended and modified above, the Transfer
and Administration Agreement is and shall continue to be in full force and
effect and is hereby in all respects ratified and confirmed.
(b) The execution, delivery and effectiveness of this Amendment shall
not operate as waiver of any right, power or remedy of the Company under the
Transfer and Administration Agreement, nor constitute a waiver of any provision
of the Transfer and Administration Agreement.
Section 5. Execution in Counterparts. This amendment may be executed in any
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number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart or a signature page to this Amendment by
telefacsimile shall be effective as delivery of a manually executed counterpart
of this Amendment.
Section 6. Successors and Assigns.
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This Amendment shall bind, and the benefits hereof shall inure to the parties
hereof and their respective successors and permitted assigns; provided, however,
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the Transferor may not assign any of its rights or delegate any of its duties
under this Amendment without the prior written consent of the Company.
Section 7. Governing Law.
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THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK. EACH OF THE TRANSFEROR, THE COLLECTION AGENT, AND THE
GUARANTOR HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE
COURT SITTING IN THE CITY OF NEW YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 8. Severability.
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Any provisions of this Amendment which are prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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.
ENTERPRISE FUNDING CORPORATION,
as Company, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Name: XXXXXXX X. XXXXXX
Title: VICE PRESIDENT
JPFD FUNDING COMPANY
as Transferor, a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President, Finance
JP FOODSERVICE DISTRIBUTORS, INC.
as Collection Agent, a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President & CEO
NATIONSBANK, N.A.
as Agent and Bank Investor
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Investment Banking Officer
THE FIRST NATIONAL BANK OF CHICAGO
as Bank Investor
By: /s/ J. Xxxxxxx Xxxxxx
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Name: J. Xxxxxxx Xxxxxx
Title:
UNITED STATES NATIONAL BANK OF OREGON
as Bank Investor
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Vice President
