EXHIBIT 10.105
EXHIBIT 10.105
SECOND WAIVER
(CREDIT AGREEMENT)
This SECOND WAIVER (CREDIT AGREEMENT) (the "Waiver"), dated as of
October 1, 1998, is among SMART & FINAL INC., a Delaware corporation (the
"Borrower"), the lenders party to the Credit Agreement referred to below (the
"Lenders"), CREDIT LYONNAIS LOS ANGELES BRANCH, a branch duly licensed under the
laws of the State of California ("CL Los Angeles") of a banking corporation
organized and existing under the laws of the Republic of France, as agent (the
"Agent") for the Lenders.
PRELIMINARY STATEMENTS
WHEREAS, the Borrower, the Lenders and the Agent have entered into a
Credit Agreement dated as of November 20, 1995 (as amended by that certain
Amendment No. 1, dated as of May 10, 1996, and by that certain Amendment No. 2,
dated as of March 2, 1998, collectively, the "Credit Agreement"; the terms
defined therein being used herein as therein defined unless otherwise defined
herein);
WHEREAS, the Borrower had previously requested, and the Lenders had
previously agreed, that any Default or Event of Default be waived, through
September 30, 1998, that may have occurred by reason of the Borrower's failure
to comply with certain covenants of the Credit Agreement that were expressly
identified in that certain First Waiver, dated as of July 22, 1998; and
WHEREAS, the Borrower has further requested that any Default or Event
of Default be waived, through November 15, 1998, that may have occurred by
reason of the Borrower's failure to comply with certain covenants of the Credit
Agreement expressly identified below;
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
SECTION 1. Waiver under Credit Agreement. Effective as of October
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1, 1998 (the "Effective Date") and subject to the satisfaction of the conditions
precedent set forth in Section 3 hereof, the Lenders hereby waive, during the
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period beginning on the Effective Date and ending on and including November 15,
1998 (the "Waiver Period"), any Default or Event of Default which would arise by
reason of the Borrower's failure to comply with Section 6.13 (Minimum Tangible
Net Worth) and Section 6.14 (Cash Flow Ratio) of the Credit Agreement. At the
end of the Waiver Period, if the Borrower is not in compliance with any of such
Sections pursuant to the terms thereof, a Default or Event or Default shall be
deemed to exist unless, and except to the extent that, such Default or Event of
Default is further waived or the same shall cease to exist by reason of an
amendment to the applicable provisions of the Credit Agreement.
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SECTION 2. Applicable Margin; Commitment Fee.
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(a) As of June 20, 1998 and until the end of the Waiver Period,
Sections 2.05(a), (b) and (c) of the Credit Agreement are hereby deleted in
their entirety and replaced with the following:
"Section 2.05. Interest Rates and Payment.
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(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the sum of (i) Base
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Rate and (ii) from June 20, 1998 and until the end of the Waiver
Period, one-half of one percent (.50%).
(b) Each LIBOR Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the sum of (i) Adjusted
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LIBOR and (ii) (a) prior to June 20, 1998, one-half of one percent
(.50%), and (b) from June 20, 1998 and until the end of the Waiver
Period, one and one-quarter of one percent (1.25%).
(c) Each Eurorate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the sum of (i)
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Adjusted Eurorate and (ii) (a) prior to June 20, 1998, one-half of one
percent (.50%), and (b) from June 20, 1998 and until the end of the
Waiver Period, one and one-quarter of one percent (1.25%)."
(b) In addition, as of June 20, 1998 and until the end of the Waiver
Period hereunder, the reference to "two-tenths of one percent (0.2%)" in Section
2.06 (Fees) is hereby deleted and replaced with "(0.35%)."
SECTION 3. Conditions of Effectiveness. This Waiver shall become
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effective when the Agent shall have received counterparts of this Waiver
executed by the Borrower and the Majority Lenders or, as to such Lenders, advice
satisfactory to the Agent that such Lenders have executed this Waiver.
SECTION 4. Reference to and Effect on the Loan Documents. (a) Upon
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the effectiveness of this Waiver, on and after the date hereof each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other
documents entered into in connection with the Credit Agreement (as amended, the
"Loan Documents") to "the Credit Agreement," "thereunder," "thereof" or words of
like import referring to the Credit Agreement, shall mean and be a reference to
the Credit Agreement as modified hereby.
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(a) Except as specifically provided above, the Credit Agreement and
all other Loan Documents are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed.
(b) 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 any Lender or the Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
(c) The Agent, each Lender party hereto and the Borrower specifically
acknowledges and agrees that (i) none of the Borrower, the Agent or any Lender
has agreed to any other or future waiver of or amendment to the Loan Documents,
(ii) neither the granting of the waiver described herein nor the granting of any
prior waivers and amendments under the Loan Documents creates any obligation
whatsoever on the part of the Borrower, the Agent or any Lender to grant any
other or future waiver or amendment under the Loan Documents, and (iii) except
as specifically set forth herein, each of the Borrower, the Agent and the
Lenders have reserved all rights and remedies under the Loan Documents.
SECTION 5. General Release of Claims. (a) The Borrower represents
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and agrees that it has both 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 the waivers as set forth herein,
the Borrower (by its execution hereof) and each of its agents, employees,
directors, officers, attorneys, affiliates, subsidiaries, successors and assigns
(individually a "Releasing Party," and collectively the "Releasing Parties")
each hereby releases and forever discharges the Agent and each Lender 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
and from all damage, loss, claims, demands, liabilities, obligations (except for
any such obligations hereafter arising pursuant to the terms of the Loan
Documents, as amended to date), actions and causes of action whatsoever
(collectively "Claims") that the Releasing Parties and each of them may, as of
the date hereof, have or claim to have against each of the Released Parties, in
each case whether presently known 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 or this Waiver (including clause
(a) above) or the negotiation or documentation hereof or the waivers under the
Loan Documents 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 or
this Waiver. Each Releasing Party further covenants and agrees that it has not
assigned heretofore, and will not hereafter xxx any Released Party upon, any
Claim released or purported to be released under this Section, and the Borrower
will indemnify and hold harmless
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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."
SECTION 6. Representations and Warranties. The Borrower represents
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and warrants to the Agent and each Lender that:
(a) The representations and warranties in the Credit Agreement and
each of the other Loan Documents remain true and correct in all material
respects immediately prior to and upon giving effect to this Waiver, as if the
same were made on the date of the effectiveness of the amendments set forth
herein (except for those relating to an earlier date which were true and correct
in all material respects as of such date).
(b) The execution, delivery and performance of this Waiver by the
Borrower has been duly authorized by all necessary organizational action.
(c) All conditions set forth in Section 3 of this Waiver have been
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satisfied.
(d) Upon giving effect to this Waiver, there is no and will not be
any, Default or Event of Default.
SECTION 7. Costs, Expenses and Taxes. The Borrower agrees to pay
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on demand all costs and expenses of the Agent 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 Agent with respect thereto and with respect to advising the Agent 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 8. Execution in Counterparts. This Waiver hereto may be
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executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which taken together shall constitute but one and
the same agreement. Delivery of an executed
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counterpart of a signature page to this Waiver hereto by telefacsimile
shall be effective as delivery of a manually executed counterpart of
this Waiver.
SECTION 9. Governing Law. This Waiver hereto shall be governed by,
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and construed in accordance with, the laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Waiver
(Credit Agreement) to be executed by their respective officers thereunto duly
authorized, as the date first above written.
SMART & FINAL INC., as the Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
CREDIT LYONNAIS LOS ANGELES BRANCH,
as the Agent
By: /s/ Pascal Poupelle
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Name: Pascal Poupelle
Title: Executive President
LENDERS:
CREDIT LYONNAIS LOS ANGELES BRANCH
By: /s/ Pascal Poupelle
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Name: Pascal Poupelle
Title: Executive President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ Pascal Poupelle
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Name: Pascal Poupelle
Title: Executive President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxx X. XxXxxxxx
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Name: Xxxx X. XxXxxxxx
Title: Vice President
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XXXXX FARGO BANK N.A.
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
FIRST HAWAIIAN BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Manager
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