Exh. 10.35
EXECUTION VERSION
CONSENT, WAIVER, COLLATERAL RELEASE AND
AMENDMENT AGREEMENT NO. 5A
This Consent, Waiver, Collateral Release and Amendment Agreement No. 5A,
dated as of September 3, 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, by
Amendment Agreement No. 3, dated as of June 1, 2003, and by Waiver and Amendment
Agreement No. 4, dated as of July 11, 2003 (the "Lease").
RECITALS
A. The Lessee has informed the Agent that it intends to sell its Florida
broadline foodservice operations and nine Smart & Final stores located in
Florida (the "Florida Stores") to GFS Holding Inc., a Michigan corporation
("GFS"), and certain of GFS's subsidiaries for a total purchase price of
approximately $28 million in cash and the assumption of approximately $30
million of lease liabilities with respect to eight of the nine Florida Stores.
The transaction will be structured as a sale of the stock of Xxxxx Xxx Company
and a sale or sublease, as applicable, of the Florida Stores and the assets
comprising the Orlando, Florida foodservice unit, and will also include the sale
of the two Properties located in Florida (the "Florida Properties") for
approximately $14,340,000 (the transactions described in this Recital,
collectively, the "Sale Transaction"). The assets to be sold in the Sale
Transaction (the "Sale Assets") are set forth on Annex A (attached to and
incorporated into this Agreement).
B. The Lessee has further informed the Agent that the stock of Xxxx Produce
International, Inc., Xxxxx Xxx Export Corporation and HL Holding Corporation,
each a Subsidiary of Xxxxx Xxx Company, will be transferred to American
Foodservice Distributors before the Sale Transaction is consummated.
C. The Lessee has also informed the Agent that on August 16, 2003, it
closed the other five of its 14 stores located in Florida and two additional
non-operating properties located in Florida (collectively, the "Closed Florida
Stores"), all of which are identified on Annex B (attached to and incorporated
into this Agreement). The Lessee intends to find replacement tenants to assume
the leases with respect to the Closed Florida Stores or otherwise dispose of the
Closed Florida Stores on an indeterminate date.
D. Lessee has informed the Agent that it intends to replace the Florida
Properties Lease with one or more unidentified Replacement Properties on a later
date in accordance with Section 11.2 of the Lease. Lessee's right to invoke a
substitution is subject to the consent of the Majority Secured Parties and
several other conditions and requirements, including a limit on the value of the
Properties being replaced of $5 million aggregate over the Term, a time limit of
60 days after the date the Properties being replaced are sold for Lessee to
close the purchase of
Replacement Properties, delivery of notice 90 days in advance accompanied by an
Officer's Certificate stating appropriate reasons for the transfer and for the
Replacement Closing Date to occur after the date the Properties being replaced
are sold.
E. Lessee has also informed the Agent that it has not identified any
proposed Replacement Properties and that it needs 180 days to replace the
Florida Properties. Section 11.2 requires that the Majority Secured Parties must
consent to the substitution of any Replacement Property, sets forth numerous
conditions precedent and requirements for any Replacement Property, and provides
that if the Replacement Closing Date does not occur by the date specified by
Lessee (which must be within the applicable time limit), Lessor may either (i)
apply the funds from the sale of the Properties that were to have been replaced,
plus any applicable Termination Value and Prepayment Fees, to pay down the Loan
and the Holder Advance or (ii) hold the funds as security for Lessee's
obligations under the Lease.
F. Section 28.3(d) of the Lease prohibits sales of assets by the Credit
Parties except under certain circumstances. Under Section 28.3(d)(iii), the
Credit Parties may sell assets if the purchase price for the assets being sold
is paid solely in cash (the "Cash Requirement") and the aggregate purchase price
paid to all Credit Parties for all assets sold by the Credit Parties during the
same Fiscal Year does not exceed $7.5 million and $15 million during the Term
(the "Proceeds Limitation"). The Sale Transaction would violate Section 28.3(d)
and the disposition of the Closed Florida Stores may violate Section 28.3(d).
G. The Lessee has requested that the applicable Financing Parties, and,
subject to the terms and conditions of this Agreement, the applicable Financing
Parties desire to, (i) consent to the Sale Transaction, including the sale of
the Florida Properties, and the release of Xxxxx Xxx Company from all of its
obligations under the Operative Agreements, (ii) consent to the stock transfers
described in Recital B, (iii) consent to the disposition of the Closed Florida
Stores, (iv) extend the 60-day limit for acquiring Replacement Properties to
replace the Florida Properties to 180 days, (v) waive, with respect to the sale
of the Florida Properties, (A) the 90-day advance notice requirement, (B)
receipt of an Officer's Certificate setting forth the important business
considerations requiring the sale of the Florida Properties and the reasons why
the Replacement Properties will not be purchased at the same time, and (C) the
$5 million limit set forth in Section 11.2, (vi) waive the Cash Requirement and
the Proceeds Limitation of Section 28.3(d) in connection with the Sale
Transaction and the disposition of the Closed Florida Stores, and (vii) release
the Liens granted to the Agent under the Security Documents with respect to the
Sale Assets (including the Mortgages on the Florida Properties).
NOW, THEREFORE, for good and valuable consideration received, the Parties
agree as follows.
1. Section References. Unless otherwise expressly stated, all section
references in this Agreement refer to sections of the Lease.
2. Consents. The Lenders and the Holder consent to:
(a) the Sale Transaction, including the sale of the Florida Properties
for the purpose of substituting for them Replacement Properties at a later date
not more than 180 days following the closing date of the Sale Transaction;
(b) the release of Xxxxx Xxx Company from its obligations under the
Operative Agreements;
(c) the transfer of the stock of Xxxx Produce International, Inc.,
Xxxxx Xxx Export Corporation and HL Holding Corporation, each a Subsidiary of
Xxxxx Xxx Company, to American Foodservice Distributors;
(d) the disposition of the Closed Florida Stores; and
(e) the release of all Liens on the Sale Assets in accordance with
Section 5 of this Agreement.
3. Waivers. The A-2 Lenders, the B Lenders and the Holder waive:
(a) the 60-day limit under Section 11.2(a) for the Replacement Closing
Date to occur and extend the limit by another 120 days, so Lessee now has until
the 180th day after the date on which sale of the Florida Properties occurs to
close its purchase of Replacement Properties under Section 11.2;
(b) the 90-day advance notice requirement and the $5 million limit set
forth in Section 11.2(a), in each case only as to the sale and replacement of
the Florida Properties;
(c) with respect to the sale of the Florida Properties, receipt of an
Officer's Certificate setting forth the important business considerations
requiring the sale of the Florida Properties and the reasons why the Replacement
Properties will not be purchased at the same time; and
(d) the Cash Requirement and the Proceeds Limitation of Section
28.3(d) in connection with the Sale Transaction and the disposition of the
Closed Florida Stores.
4. Lessee's Agreements and Acknowledgments. Lessee acknowledges and agrees
to all matters approved or waived by the Lenders and the Holder, as applicable,
in Sections 2 and 3 of this Agreement and further acknowledges that the
foregoing consents and waivers do not address any consent rights, conditions or
requirements related to any property that Lessee may propose to substitute for
the Florida Properties.
5. Release of Collateral. On the date that the later of the following two
events occurs: (i) consummation of the Sale Transaction and (ii) satisfaction of
the conditions precedent set forth in Section 6 of this Agreement (the "Release
Date"), Agent shall release its Liens on the Sale Assets. On the Release Date,
the Agent shall, at the expense of the Lessee, promptly return to the Lessee any
instruments, certificates and other documents only to the extent that they
evidence a Lien on the Sale Assets and not on any other assets. In addition,
effective on the
Release Date, the Agent authorizes the Lessee and its agents or representatives
to file such documents or instruments, including terminations of the UCC
Financing Statements filed against Xxxxx Xxx Company, as the Lessee considers
necessary to evidence, effect or confirm the release and termination of all
Liens created under the Security Documents only with respect to the Sale Assets.
6. Conditions Precedent. The effectiveness of this Agreement 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) Amendment Documents. This Agreement, duly executed by Lessee
and each Guarantor 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 (collectively, the
"Amendment Documents");
(ii) Copies of Sale Documents. True and correct copies of the
stock and asset purchase agreements and any other agreements, documents or
instruments executed in connection with the Sale Transaction;
(iii) Consent of Required Secured Parties. Each Lender and the
Holder shall have executed and delivered this Agreement with respect to the
release of Xxxxx Xxx Company described in Section 2(b) of this Agreement, and
the Majority Secured Parties shall have executed and delivered this Agreement
for all other purposes;
(iv) Amendment to Lessee Credit Agreement. Evidence to the
Agent's satisfaction that the Sale Transaction has been approved by, and that
appropriate waivers and releases have been obtained from, the lenders and the
administrative agent under the Lessee Credit Agreement; and
(v) Additional Information. Such additional documents,
instruments and information as the Agent may reasonably request to effect the
transactions contemplated hereby.
(b) Sale Proceeds. The proceeds from the sale of the Florida
Properties and any other amounts required by Section 11.2(d) to be held as
collateral for the obligations of the Lessee under the Lease and used to
purchase Replacement Properties shall have been deposited with the Owner
Trustee.
(c) Fees. In consideration of the waiver granted under Section 3(a) of
this Agreement, (i) each A-2 Lender and each B Lender who executes and delivers
this Agreement by 5:00 p.m. (EDT) on September 3, 2003 shall have received an
amendment fee of 0.10% of its Commitment, and (ii) the Holder shall have
received an amendment fee of 0.10% of its Holder Commitment if it executes and
delivers this Agreement by the same time.
(d) Representations and Warranties. 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).
(e) Corporate Proceedings Satisfactory. 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.
(f) 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 Agreement.
7. 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 Agreement and all other Amendment 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 this Agreement) and all other Operative Agreements
are and remain legal, valid, binding and enforceable obligations in accordance
with their terms.
8. Survival of Representations and Warranties. All representations and
warranties made by any Credit Party 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.
9. 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 Agreement.
10. 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.
11. 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.
12. Limited Effect. This Agreement 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.
13. Ratification By Guarantors. Each Guarantor consents to this Agreement,
and each Guarantor (other than Xxxxx Xxx Company) acknowledges that its guaranty
remains in full force and effect without any modification.
14. 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]
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:
--------------------------------
[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/ Xxx Xxxxx By: /s/ Xxxxxxxx Xxxxxx
----------------------------------- -----------------------------------
Name: Xxx Xxxxx Name: Xxxxxxxx Xxxxxx
Title: Managing Director Title: Executive Director
A-2 LENDER:
Natexis Banques Populaires
By: /s/ Nicolas Regent By: /s/ Xxxxxx X. van Tulder
----------------------------------- -----------------------------------
Name: Nicolas Regent Name: Xxxxxx X. van Tulder
Title: Vice President Multinational Title: Vice President And Manager
Multinational Group
A-2 LENDER:
BNP Paribas
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------- -----------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxxxx Xxxxxxxx
Title: Managing Director Title: Director
[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
[Consent, Waiver, Collateral Release and Amendment Agreement No. 5A]
HOLDER:
Casino USA, Inc.
By: /s/ Etienne Snollaerts
-----------------------------------
Name: Etienne Snollaerts
Title: Director
[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
[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
[Consent, Waiver, Collateral Release and Amendment Agreement No. 5A]
ANNEX A
SALE ASSETS
1. Residual collateral interest in two Properties: (i) a freezer facility
located at 0000 X.X. 000xx Xxxxxxx, Xxxxx, XX (which includes the 1.38 acre
parking lot located at X.X. 000xx Xxxxxx and 3rd Avenue); and (ii) a store
property located at 0000 Xxxxx Xxxxxxx Xxxxxxx, Xx. Xxxxxxxxxx, XX.
2. Common stock of Xxxxx Xxx Company and all of its assets and liabilities,
including accounts receivable, inventory, fixtures and equipment, and
operating leases. There is no owned real estate. The principal leased real
estate is located at: (i) 0000 X.X. 000xx Xxxxxx, Xxxxx, XX, Lots 158
through 176; (ii) 0000 X.X. 000xx Xxxxxx, Xxxxx, XX, Lots 177 through 179;
and (iii) 00000 X.X. 00xx Xxxxxx, Xxxxx, XX.
3. Assets and liabilities of the Orlando, Florida foodservice business
including accounts receivable, inventory, fixtures and equipment,
tradenames, and operating leases. There is no owned real estate. The
principal leased real estate is located at 0000 Xxxxxxx Xxxxxx, Xxxxxxx,
XX.
4. Assets and liabilities of nine operating Smart & Final stores in Florida
including accounts receivable, inventory, fixtures and equipment, and
operating leases. There is no owned real estate. The principal leased real
estate is located at: (i) 0000 X.X. 0xx Xxxxxx, Xxxxx, XX; (ii) 000 Xxxxx
Xxxxx Xxxx 0, Xxxxxxxxx, XX; (iii) 0000 Xxxxx Xxxxx Xxxx 0, Xxxxxxxxxx
Xxxxx, XX; (iv) 0000 X.X. 0xx Xxxxxx, Xxxxx, XX; (v) 0000 Xxxx-xx-Xxx
Xxxxxxxxx, Xxxxxxxxxx, XX; (vi) 0000 Xxxxxx Xxxxxx, Xx. Xxxxxxxxxx, XX;
(vii) 0000 Xxxx Xxxxxxx Xxxxxx, Xxxxx, XX; (viii) 0000 Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx, XX; and (ix) 0000 Xxxxx Xxxxxxx Xxxxxxx, Xx.
Xxxxxxxxxx, XX (which is also a Property identified in item no. 1 above).
ANNEX B
CLOSED FLORIDA STORES
1. Assets and liabilities of seven non-operating Smart & Final store
properties in Florida including any residual accounts receivable,
inventory, fixtures and equipment, and operating leases. There is no owned
real estate. The leased real estate is located at: (i) 00000 XX 00xx
Xxxxxx, Xxxxx Xxxx, XX; (ii) 000 Xxxx 00xx Xxxxxx, Xxxxxxx, XX; (iii) 0000
Xxxx Xxxxxxxxxx Xxxx., Xxxxxxxxxx, XX; (iv) 0000 Xxxx Xxxx, Xxxxx, XX; (v)
00000 Xxxxxxx Xxxxx, Xxxxx, XX; (vi) 00000 Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxxx;
and (vii) 0000 00xx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, XX.
