Fourth Amendment and Waiver to Credit Agreement among Smart & Final Inc., Guarantors, Lenders, and BNP Paribas

Summary

This amendment updates the existing Credit Agreement between Smart & Final Inc., its guarantors, several lenders, and BNP Paribas as administrative agent. It modifies the calculation of interest margins, waives certain financial covenants for the second quarter of fiscal year 2003, and sets conditions for the amendment to take effect, including required consents and fees. The agreement confirms that all parties' obligations remain valid and enforceable, and includes waivers of certain lender liability claims. The amendment is effective upon satisfaction of specified conditions and receipt of necessary documentation.

EX-10.31 5 dex1031.txt FOURTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT 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, Harris 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. 2 (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 3 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. 4 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/ Richard N. Phegley -------------------------------------- Name: Richard N. Phegley Title: Senior Vice President & Chief Financial Officer AMERICAN FOODSERVICE DISTRIBUTORS By: /s/ Richard N. Phegley -------------------------------------- Name: Richard N. Phegley Title: Senior Vice President & Chief Financial Officer SMART & FINAL STORES CORPORATION By: /s/ Richard N. Phegley -------------------------------------- Name: Richard N. Phegley Title: Senior Vice President & Chief Financial Officer SMART & FINAL OREGON, INC. By: /s/ Richard N. Phegley -------------------------------------- Name: Richard N. Phegley Title: Senior Vice President & Chief Financial Officer PORT STOCKTON FOOD DISTRIBUTORS, INC. By: /s/ Richard N. Phegley -------------------------------------- Name: Richard N. Phegley Title: Senior Vice President - Finance HENRY LEE COMPANY By: /s/ Richard N. Phegley -------------------------------------- Name: Richard N. Phegley Title: Senior Vice President - Finance AMERIFOODS TRADING COMPANY By: /s/ Richard N. Phegley -------------------------------------- Name: Richard N. Phegley Title: Senior Vice President & Chief Financial Officer CASINO FROZEN FOODS, INC. By: /s/ Richard N. Phegley -------------------------------------- Name: Richard N. Phegley Title: Senior Vice President & Chief Financial Officer FOODSERVICESPECIALISTS.COM, INC. By: /s/ Richard N. Phegley -------------------------------------- Name: Richard N. Phegley Title: Senior Vice President & Chief Financial Officer OKUN PRODUCE INTERNATIONAL, INC. By: /s/ Richard N. Phegley -------------------------------------- Name: Richard N. Phegley Title: Senior Vice President & Chief Financial Officer HL HOLDING CORPORATION By: /s/ Richard N. Phegley -------------------------------------- Name: Richard N. Phegley Title: Senior Vice President & Chief Financial Officer BNP PARIBAS, as Administrative Agent and a Lender By: /s/ Clive Bettles -------------------------------------- Name: Clive Bettles Title: Managing Director By: /s/ Frederique Merhaut -------------------------------------- Name: Frederique Merhaut Title: Director HARRIS TRUST & SAVINGS BANK By: /s/ Julie Hossack -------------------------------------- Name: Julie Hossack Title: Vice President COOPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH By: /s/ Bradford F. Scott -------------------------------------- Name: Bradford F. Scott Title: Executive Director By: /s/ Andre Blom -------------------------------------- Name: Andre Blom Title: Credit Risk Management CREDIT INDUSTRIEL ET COMMERCIAL By: /s/ Eric Dulot -------------------------------------- Name: Eric Dulot Title: Vice President By: /s/ Eric Longuet -------------------------------------- Name: Eric Longuet Title: Vice President COBANK, ACB By: /s/ S. Richard Dill -------------------------------------- Name: S. Richard Dill Title: Vice President UNION BANK OF CALIFORNIA, N.A. By: /s/ Peter Thompson -------------------------------------- Name: Peter Thompson Title: Vice President U.S. BANK NATIONAL ASSOCIATION By: /s/ Janet Jordan -------------------------------------- Name: Janet Jordan Title: Vice President NATEXIS BANQUE-BFCE By: /s/ Anne Ulrich -------------------------------------- Name: Anne Ulrich Title: Vice President By: /s/ Pieter J. van Tulder -------------------------------------- Name: Pieter J. van Tulder Title: Vice President And Manager Multinational Group TRANSAMERICA BUSINESS CAPITAL CORPORATION By: /s/ Stephen Goetschius -------------------------------------- Name: Stephen Goetschius Title: Senior Vice President CITY NATIONAL BANK By: /s/ Abdi Rais -------------------------------------- Name: Abdi Rais Title: Senior Vice President RZB FINANCE LLC By: /s/ John A. Valiska -------------------------------------- Name: John A. Valiska Title: Group Vice President By: /s/ Frank J. Yautz -------------------------------------- Name: Frank J. Yautz Title: First Vice President BANK OF THE WEST By: /s/ Daniel Flores -------------------------------------- Name: Daniel Flores Title: Syndications Officer PREFERRED BANK By: /s/ Walt Duchanin -------------------------------------- Name: Walt Duchanin Title: Executive Vice President BANK LEUMI USA By: /s/ Jacques V. Delvoye -------------------------------------- Name: Jacques V. Delvoye Title: Vice President