Exh. 10.30
WAIVER AND AMENDMENT AGREEMENT NO. 4
This Waiver and Amendment Agreement No. 4, dated and effective as of July
11, 2003 (this "Agreement"), is among the Persons that have executed this
Agreement (the "Parties"). Capitalized terms used, but not defined, in this
Agreement are used as defined in the Lease Agreement, dated as of November 30,
2001, between Xxxxx Fargo Bank Northwest, National Association, as Owner Trustee
under S&F Trust 1998-1, as lessor, and Smart & Final Inc., as lessee, as amended
by Waiver and Amendment Agreement No. 1, dated as of June 4, 2002, by Waiver and
Amendment Agreement No. 2, dated as of February 14, 2003, and by Amendment
Agreement No. 3, dated as of June 1, 2003 (the "Lease").
WHEREAS, Lessee has requested a one-time waiver of Lessee's compliance with
certain Lease covenants, and certain Secured Parties have agreed to waive those
covenants, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration received, the Parties
agree as follows.
1. Waiver. The Majority Secured Parties waive Lessee's compliance with
Section 28.5(a), (b), (c), (d) and (f) for the second fiscal quarter of Lessee's
fiscal year 2003.
2. Conditions Precedent. The effectiveness of this Agreement is subject to
the satisfaction of each of the following conditions precedent.
(a) The Agent shall have received all of the following, in form and
substance satisfactory to the Agent:
(i) Amendment Documents. This Agreement and any other instrument,
document or certificate required by the Agent to be executed or delivered by
Lessee or any other Person in connection with this Agreement, duly executed by
them (the "Amendment Documents");
(ii) Consent of Majority Secured Parties. The Majority Secured
Parties' written consent to this Agreement;
(iii) Amendment to Lessee Credit Agreement. Evidence that the
parallel financial covenants contained in the Lessee Credit Agreement have been
waived in the same manner as set forth in this Agreement; and
(iv) Additional Information. Such additional documents,
instruments and information as the Agent may reasonably request to effect the
transactions contemplated hereby.
(b) Each Lender who executes this Agreement by 5:00 p.m. (EDT) on July
11, 2003 shall have received an amendment fee of 0.20% of its Commitment.
(c) The representations and warranties contained in this Agreement 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) All corporate proceedings taken in connection with the
transactions contemplated by this Agreement 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 Default or Event of Default shall have occurred and be
continuing after giving effect to this Agreement.
3. Representations and Warranties. Lessee hereby 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
Agreement and all other Amendment Documents executed or delivered in connection
herewith have been authorized by all requisite corporate action on the part of
Lessee and will not violate Lessee'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 Default or Event of Default has occurred
and is continuing, and (d) the Lease (as amended by this Agreement) and all
other Operative Agreements are and remain legal, valid, binding and enforceable
obligations in accordance with their terms.
4. Survival of Representations and Warranties. All representations and
warranties made in this Agreement or any other Operative Agreement shall survive
the execution and delivery of this Agreement 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.
5. Costs and Expenses. The Borrower 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 Agreement.
6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO
CONFLICT-OF-LAWS PRINCIPLES.
7. Execution. This Agreement 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 Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
8. Limited Effect. This Agreement relates only to the specific matters it
covers, shall not be considered to be a waiver of any rights any Secured Party
may have under the
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Operative Agreements (other than as expressed in Section 1), 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.
9. Ratification By Guarantors. Each Guarantor consents to this Agreement
and acknowledges that its guaranty shall remain in full force and effect without
any modification.
10. 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 10 shall survive the
execution and delivery of this Agreement and the expiration or termination of
the Lease.
[Remainder of the Page is Intentionally Left Blank]
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This Agreement may be executed by the parties hereto on separate
counterparts.
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:
------------------------------
[Waiver and Consent Agreement]
A-2 LENDER AND B LENDER:
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/ Xxxxx Xxxx
------------------------------ --------------------------------
Name: Xxxxxxxx X. Xxxxx Name: Xxxxx Xxxx
Title: Executive Director Title: Managing Director
Credit Risk Management
A-2 LENDER:
Natexis Banques Populaires
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxx Xxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: Vice President
A-2 LENDER:
BNP Paribas
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxxxxx Xxxxxxx
------------------------------ --------------------------------
Name: Xxxxx Xxxxxxx Name: Xxxxxxxxxx Xxxxxxx
Title: Managing Director Title: Director
[Waiver and Consent Agreement]
B LENDER:
Transamerica Equipment Financial Services Corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
[Waiver and Consent Agreement]
HOLDER:
Casino USA, Inc.
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: President
[Waiver and Consent Agreement]
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
[Waiver and Consent Agreement]
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
[Waiver and Consent Agreement]
