EXHIBIT 10.125
LIMITED WAIVER
Dated as of February 9, 2000
This LIMITED WAIVER (this "Waiver") is among SMART & FINAL, INC., a
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Delaware corporation (the "Borrower"), the holders under the Trust Agreement
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referred to below (the "Holders"), the financial institutions and other entities
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party to the Revolving Credit Agreement and Synthetic Lease Credit Agreement
referred to below (the "Lenders"), and CREDIT LYONNAIS LOS ANGELES BRANCH, as
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administrative agent (the "Administrative Agent") for the Lenders and the
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Holders.
PRELIMINARY STATEMENTS:
1. Reference is made to (i) the Credit Agreement (as amended,
supplemented or otherwise modified from time to time, the "Revolving Credit
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Agreement") dated as of November 13, 1998 among the Borrower, the financial
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institutions named therein, and Credit Lyonnais Los Angeles Branch, as
Administrative Agent for the Lenders, (ii) the Participation Agreement (as
amended, supplemented or otherwise modified from time to time, the
"Participation Agreement") dated as of November 13, 1998 among the Borrower, the
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Guarantors party thereto, First Security Bank, National Association, as owner
trustee under the S&F Trust 1998-1, the various banks and other institutions
party thereto as Holders and as Lenders, and Credit Lyonnais Los Angeles Branch,
as Administrative Agent for the Lenders and the Holders, (iii) the Credit
Agreement (as defined in the Participation Agreement) (as amended, supplemented
or otherwise modified from time to time, the "Synthetic Lease Credit
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Agreement"), and (iv) the Trust Agreement (as defined in the Participation
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Agreement) (as amended, supplemented or otherwise modified from time to time,
the "Trust Agreement").
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2. The Borrower has requested that the Lenders and the Holders waive
certain provisions of the Revolving Credit Agreement and the Lenders have agreed
to grant such waiver, in each case as set forth herein.
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 agree as follows:
SECTION 1. Waiver. Effective as of the Waiver Effective Date (as
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defined in Section 2), the Lenders, the Holders and the Administrative Agent
hereby waive any Default or Event of Default arising from the Borrower's failure
to comply with the provisions of Sections 6.02(a)(v) and 6.02(b)(iii)(A) of the
Revolving Credit Agreement as a result of entering into the Capitalized Leases
described on Schedule I hereto (the "Specified Leases"); provided, however, that
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such waiver shall be effective only to the extent that (i) the aggregate
principal amount of all Capitalized Leases, other than the Specified Leases,
that are subject to Liens permitted by Section 6.02(a)(iv) of the Revolving
Credit Agreement does not exceed $7,500,000 at any time
outstanding and (ii) the aggregate principal amount of the Specified Leases does
not exceed $5,000,000 at any time outstanding.
SECTION 2. Conditions to Effectiveness. The amendments set forth
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herein shall become effective on the date (the "Waiver Effective Date") on which
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the Administrative Agent shall have executed this Waiver and shall have received
counterparts of this Waiver executed by the Borrower, the Required Lenders under
the Revolving Credit Agreement and the Majority Secured Parties (as defined in
the Participation Agreement) and a counterpart of the Consent attached hereto
executed by each Guarantor.
SECTION 3. Representations and Warranties. The Borrower represents
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and warrants as follows:
(a) Authority. The Borrower and each other Loan Party has the
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requisite corporate power and authority to execute and deliver this Waiver and
the Consent, as applicable, and to perform its obligations hereunder and under
the Loan Documents and the Operative Agreements (in each case as modified
hereby) to which it is a party. The execution, delivery and performance by the
Borrower of this Waiver and by each other Loan Party of the Consent, and the
performance by each Loan Party of each Loan Document and each Operative
Agreement (in each case as modified hereby) to which it is a party have been
duly approved by all necessary corporate action of such Loan Party and no other
corporate proceedings on the part of such Loan Party are necessary to consummate
such transactions.
(b) Enforceability. This Waiver has been duly executed and delivered
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by the Borrower. The Consent has been duly executed and delivered by each
Guarantor and each Grantor. This Waiver and each Loan Document and each
Operative Agreement (in each case as modified hereby) is the legal, valid and
binding obligation of each Loan Party party hereto and thereto, enforceable
against such Loan Party 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 each Loan Document and each Operative Agreement (other
than any such representations and warranties that, by their terms, are
specifically made as of a date other than the date hereof) are true and correct
on and as of the date hereof as though made on and as of the date hereof and
will be true and correct on and as of the Waiver Effective Date as though made
on and as of such date.
(d) No Default. After giving effect to this Waiver, no event has
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occurred and is continuing that constitutes a Default or Event of Default under
any Loan Document or any Operative Agreement.
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SECTION 4. General Release of Claims.
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(a) The Borrower represents and agrees that it has diligently and
thoroughly investigated the existence of any Claim (as defined below), and to
its knowledge and belief, no Claim exists and no facts exist that could give
rise to or support a Claim.
(b) As additional consideration for entering into this Waiver and for
the waivers set forth herein, the Borrower and each Guarantor and each of their
respective agents, employees, directors, officers, attorneys, affiliates,
subsidiaries, successors and assigns (individually a "Releasing Party," and
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collectively the "Releasing Parties") hereby releases and forever discharges
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each of the Lessor, the Administrative Agent, the Syndication Agent, the Agent
and each Lender (under each of the Revolving Credit Agreement and the Synthetic
Lease Credit Agreement) and each Holder under the Trust Agreement and all of
their respective agents, direct and indirect shareholders, employees, directors,
officers, attorneys, branches, affiliates, subsidiaries, successors and assigns
(individually, a "Released Party," and collectively, the "Released Parties") of
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and from all damage, loss, claims, demands, liabilities, obligations (except for
any such obligations hereafter arising pursuant to the terms of the Loan
Documents or the Operative Agreements, as amended to date), actions and causes
of action whatsoever (collectively "Claims") that the Releasing Parties or any
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of them may, as of the date hereof, have or claim to have against each or any of
the Released Parties, in each case whether presently known or unknown or with
respect to which the facts are known (or should have been known) that could give
rise to or support a Claim and of every nature and extent whatsoever on account
of or in any way relating to, arising out of or based upon the Loan Documents,
the Operative Agreements or this Waiver (including clause (a)) or the
negotiation or documentation hereof or the amendments under the Loan Documents
and Operative Agreements effected by this Waiver or the transactions
contemplated hereby, or any action or omission in connection with any of the
foregoing, including, without limitation, all such loss or damage of any kind
heretofore sustained, or that may arise as a consequence of the dealings between
the parties up to the date hereof in connection with or in any way related to
the Loan Documents, the Operative Agreements or this Waiver. Each Releasing
Party further covenants and agrees that it has not assigned heretofore, and will
not hereafter sue any Released Party upon, any Claim released or purported to be
released under this Section, and the Borrower will indemnify and hold harmless
said Released Parties against any loss or liability on account of any actions
brought by any Releasing Party or its assigns or prosecuted on behalf of any
Releasing Party and relating to any Claim released or purported to be released
under this Section. It is further understood and agreed that any and all rights
under the provisions of Section 1542 of the California Civil Code are expressly
waived by each of the Releasing Parties. Section 1542 provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
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SECTION 5. Reference to and Effect on the Loan Documents and the
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Credit Documents.
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(a) Upon and after the effectiveness of this Waiver, (i) each
reference in the Revolving Credit Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Revolving Credit Agreement,
and each reference in the other Loan Documents or any Operative Agreement to
"the Credit Agreement", "the Lessee Credit Agreement", "thereunder", "thereof"
or words of like import referring to the Revolving Credit Agreement, shall mean
and be a reference to the Revolving Credit Agreement as modified hereby, and
(ii) each reference in the Participation Agreement or the Synthetic Lease Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Participation Agreement or the Synthetic Lease Credit
Agreement, as the case may be, and each reference in the other Operative
Agreements or in the Loan Documents to "the Participation Agreement", "the
Credit Agreement", "the Synthetic Lease Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Participation Agreement or
the Synthetic Lease Credit Agreement Credit Agreement, shall mean and be a
reference to the Participation Agreement or the Synthetic Lease Credit
Agreement, as the case may be, in each case as modified hereby.
(b) Except as specifically modified above, the Revolving Credit
Agreement, the Participation Agreement, the Synthetic Lease Credit Agreement and
the other Loan Documents and Operative Agreements are and shall continue to be
in full force and effect and are hereby in all respects ratified and confirmed.
Without limiting the generality of the foregoing, the Collateral Documents (as
defined in the Revolving Credit Agreement) and the Security Documents (as
defined in the Participation Agreement) and all of the Collateral described
therein do and shall, to the extent set forth therein, continue to secure the
payment of all obligations and liabilities of the Borrower and/or the Lessor (as
defined in the Participation Agreement), as applicable, under the Revolving
Credit Agreement and the Participation Agreement and/or any of the other Loan
Documents or Operative Agreements, in each case as amended hereby.
(c) The execution, delivery and effectiveness of this Waiver shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Administrative Agent, the Lenders, the Holders, or the
Lessor under any of the Loan Documents or the Operative Agreements, nor
constitute a waiver of any provision of any of the Loan Documents or the
Operative Agreements.
(d) Each of the parties hereto specifically acknowledges and agrees
that (i) none of the parties to the Revolving Credit Agreement, the
Participation Agreement, any other Loan Documents or any other Operative
Agreement have agreed to any other or future waiver of or amendment to any of
the Loan Documents or Operative Agreements, (ii) neither the granting of the
waiver described herein nor the granting of any prior waivers and amendments
under the Loan Documents and/or the Operative Agreements creates any obligation
whatsoever on the part of any of the parties to any of the Loan Documents and/or
the Operative Agreements to grant any other or future waiver under any of the
Loan Documents or the Operative Agreements, and (iii) except as specifically set
forth herein, each of the parties to any of the Loan Documents
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and/or the Operative agreements have reserved all rights and remedies under the
Loan Documents and/or the Operative Agreements, as applicable.
SECTION 6. Costs, Expenses and Taxes. The Borrower agrees to pay on
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demand all reasonable costs and expenses of the Administrative Agent and the
Lenders in connection with the preparation, execution, delivery and
administration of this Waiver and the other instruments and documents, if any,
to be delivered hereunder, including, without limitation, the reasonable fees
and out of pocket expenses of counsel for the Administrative Agent and the
Lenders with respect thereto and with respect to advising each of such parties
as to its rights and responsibilities hereunder and thereunder. The Borrower
further agrees to pay on demand all costs and expenses, if any (including,
without limitation, reasonable counsel fees and expenses), in connection with
the enforcement (whether though negotiations, legal proceedings or otherwise) of
this Waiver and the other instruments and documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section.
SECTION 7. Consent of Lenders and Holders Under Operative Agreements.
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By their execution hereof, the Lenders and Holders under the Operative
Agreements, hereby consent and agree to the terms of this Waiver and to the
amendments and modifications set forth herein for purposes of Section 28.1 of
the Lease (as defined in the Participation Agreement).
SECTION 8. Counterparts. This Waiver 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 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 of a signature page to this Waiver by
telefacsimile shall be effective as delivery of a manually executed counterpart
of this Waiver.
SECTION 9. Governing Law. This Waiver shall be governed by, and
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construed in accordance with, the laws of the State of California.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
SMART & FINAL INC.,
as Borrower
By: /s/ Richard N. Phegley
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Richard N. Phegley
Vice President & Treasurer
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CREDIT LYONNAIS LOS ANGELES BRANCH,
as Administrative Agent
/s/ Dianne M. Scott
By: Dianne M. Scott
First Vice President and Branch Manager
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L/C Bank
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CREDIT LYONNAIS NEW YORK BRANCH
/s/ Robert J. Ivosevich
By: Robert J. Ivosevich
Senior Vice President
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Holders and Lenders:
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CREDIT LYONNAIS LOS ANGELES BRANCH, as a Lender
/s/ Dianne M. Scott
By: Dianne M. Scott
First Vice President and Branch Manager
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CREDIT LYONNAIS LEASING CORP., as a Holder
/s/ L. M. Wertheim
By: L. M. Wertheim
President
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BANK OF AMERICA, N.A., as a Lender and a Holder
/s/ James P. Johnson
By: James P. Johnson
Managing Director
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UNION BANK OF CALIFORNIA, N.A., as a Lender and
a Holder
/s/ Theresa L. Rocha
By: Theresa L. Rocha
Vice President
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WELLS FARGO BANK, N.A., as a Lender
By:___________________________________
Title:
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COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
N.A. "RABOBANK NEDERLAND", NEW YORK BRANCH, as
a Lender and a Holder
/s/ Edward Peyser
By: Edward Peyser
Vice President
/s/ Hans F. Breukhoven
By: Hans F. Breukhoven
Vice President
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NATEXIS BANQUE - BFCE, as a Lender and a Holder
/s/ Pieter J. van Tulder
By: Pieter J. van Tulder
Vice President and Manager
Multinational Group
/s/ Christine Dirringer
By: Christine Dirringer
Assistant Vice President
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HARRIS TRUST AND SAVINGS BANK, as a Lender and
a Holder
/s/ Julia B. Buthman
By: Julia B. Buthman
Managing Director
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CONSENT
Dated as of February 9, 2000
The undersigned, as Guarantors under the "Guaranty" and as Grantors under the
"Security Agreement" (as such terms are defined in and under the Revolving
Credit Agreement referred to in the foregoing Waiver) and as Guarantors under
the "Guaranty Agreement" (as defined in the Participation Agreement referred to
in the foregoing Waiver), each hereby consents and agrees to the foregoing
Waiver and hereby confirms and agrees that (i) the Guaranty, the Guaranty
Agreement and the Security Agreement and all other Loan Documents and Operative
Agreements are, and shall continue to be, in full force and effect and are
hereby ratified and confirmed in all respects except that, upon Waiver Effective
Date (as defined in the foregoing Waiver), each reference in the Guaranty, the
Guaranty Agreement, the Security Agreement and the other Loan Documents and
Operative Agreements to the "Credit Agreement", "Lessee Credit Agreement", "the
Participation Agreement," "the Synthetic Lease Credit Agreement", "thereunder",
"thereof" and words of like import referring to the Revolving Credit Agreement,
the Participation Agreement or the Synthetic Lease Credit Agreement, as the case
may be shall mean and be a reference to the Revolving Credit Agreement, the
Participation Agreement or the Synthetic Lease Credit Agreement, as the case may
be, as amended and modified by said Waiver, and (ii) the Security Agreement and
all of the Collateral described therein do, and shall continue to, secure the
payment of all of the Secured Obligations as defined in the Security Agreement.
AMERICAN FOODSERVICE DISTRIBUTORS
/s/ Richard N. Phegley
By: Richard N. Phegley
Vice President & Treasurer
SMART & FINAL STORES CORPORATION
/s/ Richard N. Phegley
By: Richard N. Phegley
Vice President & Treasurer
SMART & FINAL OREGON, INC.
/s/ Richard N. Phegley
By: Richard N. Phegley
Vice President & Treasurer
PORT STOCKTON FOOD DISTRIBUTORS, INC.
/s/ Richard N. Phegley
By: Richard N. Phegley
Vice President & Treasurer
HENRY LEE COMPANY
/s/ Richard N. Phegley
By: Richard N. Phegley
Vice President & Treasurer
AMERIFOODS TRADING COMPANY
/s/ Richard N. Phegley
By: Richard N. Phegley
Vice President & Treasurer
HL HOLDING CORPORATION
/s/ Richard N. Phegley
By: Richard N. Phegley
Vice President & Treasurer
Schedule I
To Limited Waiver
Dated as of February 9, 2000
Lessee: Smart & Final Stores Corporation
600 Citadel Drive
Commerce, California 90040
Lessor: Heller Financial Leasing, Inc.
500 West Monroe Street
Chicago, Illinois 60661
As assignee of and successor in interest to:
Newcourt Communications Finance Corporation,
formerly known as AT&T Credit Corporation,
and also doing business as NCR Credit Corporation
2 Gatehall Drive
Parsippany, New Jersey 07954
As separately scheduled within the Master Lease Agreement:
"Specified Leases" Principal Amount Lease Expiration
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#00010 $2,295,724.00 12/31/2004
#00020 783,017.00 12/31/2004
#00030 1,128,797.05 12/31/2002
#00040 128,784.22 12/31/2004
#00050 382,038.05 12/31/2004
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Total $4,718,360.32