THE CHEFS’ WAREHOUSE, INC. 10-K


 


Exhibit 10.38


 


  


EXECUTION COPY


AMENDMENT NO. 8


Dated as of December 18, 2015


to


AMENDED AND RESTATED CREDIT AGREEMENT


THIS AMENDMENT NO.
8 (this “Amendment”) is made as of December 18, 2015 by and among Dairyland USA Corporation, a New York corporation
(“Dairyland”), The Chefs’ Warehouse Mid-Atlantic, LLC, a Delaware limited liability company (“CW
Mid-Atlantic”), Bel Canto Foods, LLC, a New York limited liability company (“Bel Canto”), The Chefs’
Warehouse West Coast, LLC, a Delaware limited liability company (“CW West Coast”), and The Chefs’ Warehouse
of Florida, LLC, a Delaware limited liability company (“CW Florida” and, together with Dairyland, CW Mid-Atlantic,
Bel Canto and CW West Coast, the “Borrowers”), the financial institutions listed on the signature pages hereof
and JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”) and as
Collateral Agent (in such capacity, the “Collateral Agent”), under that certain Amended and Restated Credit
Agreement dated as of April 25, 2012, as amended and restated as of April 17, 2013, by and among the Borrowers, the other Loan
Parties party thereto, the Lenders, the Administrative Agent and the Collateral Agent (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”). Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings given to them in the Credit Agreement.


WHEREAS, the Borrowers
have requested that the requisite Lenders, the Administrative Agent and the Issuing Bank agree to amend Section 6.13(c)
of the Credit Agreement and provide a limited waiver, as more fully described herein; and


WHEREAS, the Borrowers,
the Lenders party hereto, the Administrative Agent and the Issuing Bank have so agreed on the terms and conditions set forth herein;


NOW, THEREFORE, in
consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrowers, the Lenders party hereto, the Administrative Agent
and the Issuing Bank hereby agree to enter into this Amendment.


1.                 
Amendments to the Credit Agreement. Upon the satisfaction of the conditions
precedent set forth in Section 2 below, the parties hereto agree that the Credit Agreement shall be amended as follows,
with effect from (and including) June 30, 2015:


(a)               
Section 6.13(c)(i) of the Credit Agreement is hereby amended by adding the following sentence at the end thereof:


Notwithstanding
the foregoing, for purposes of determining compliance with this Section 6.13(c)(i), up to $6,518,000 of Capital Expenditures
incurred or made on or prior to September 25, 2015 by the Loan Parties and their Subsidiaries in connection with the Specified
Las Vegas Transaction shall be deemed to be excluded when calculating the aggregate amount of Capital Expenditures incurred or
made by the Loan Parties and their Subsidiaries during the 2015 Fiscal Year. 


(b)              
Section 6.13(c)(ii) of the Credit Agreement is hereby amended to add the phrase “occurring after the 2016 Fiscal
Year” immediately following the phrase “in respect of any Fiscal Year” in the first sentence thereof.






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2.                 
Conditions of Effectiveness. The effectiveness of this Amendment is subject
to the conditions precedent that:


(a)               
the Administrative Agent shall have received counterparts of this Amendment duly executed by the Borrowers, the Required
Lenders, the Administrative Agent and the Issuing Bank;


(b)              
the Administrative Agent shall have received counterparts of the Consent and Reaffirmation attached as Exhibit A
hereto duly executed by the Loan Guarantors;


(c)               
the Administrative Agent shall have received an executed and effective amendment to the Prudential Note Agreement, which
amendment shall be substantially in the form set forth on Exhibit B hereto;


(d)              
the Borrower Representative shall have made a Borrowing Request to the Administrative Agent for a Revolving Borrowing in
an amount equal to $14,645,000 for purposes of repaying the Term Loans in an equivalent amount substantially concurrently with
the effectiveness of this Amendment;


(e)               
the Administrative Agent shall have received from the Borrowers, on behalf of each Lender signatory hereto that delivers
its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent, an amendment
fee in an amount equal to 0.10% of the sum of (i) such Lender’s Revolving Commitment immediately prior to the effectiveness
of this Amendment plus (ii) the aggregate principal amount of such Lender’s Term Loans outstanding immediately prior
to the effectiveness of this Amendment; and


(f)               
the Administrative Agent shall have received payment and/or reimbursement of the Administrative Agent’s and its affiliates’
fees and expenses (including, to the extent invoiced in an invoice dated on or prior to the date hereof, reasonable documented
out-of-pocket fees and expenses of counsel for the Administrative Agent) in connection with this Amendment and the other Loan Documents.


3.                 
Waiver. For the avoidance of doubt, the Administrative Agent and the Lenders
party hereto hereby waive (i) any non-compliance with Section 6.13(c) of the Credit Agreement (as in effect prior to the
effectiveness of this Amendment) due to the Loan Parties and their Subsidiaries making Capital Expenditures during the 2015 Fiscal
Year in excess of $17,000,000, (ii) any non-compliance with Section 2.11(c) and/or 2.11(e) of the Credit Agreement
relating to the prepayment of Obligations in an aggregate amount equal to the Ratable Share of 100% of the Net Proceeds received
in connection with the Specified Las Vegas Transaction, (iii) any incorrect representation or warranty made by the Loan Parties
pursuant to Section 3.07 and/or 4.02 of the Credit Agreement (solely to the extent incorrect as a result of the
events described in clauses (i), (ii) and/or (iv) of this paragraph) and (iv) any non-compliance with Section
5.02(a) of the Credit Agreement as a result of any failure of the Loan Parties to provide timely notice of the foregoing.
This specific waiver shall not be construed to constitute (1) a waiver of any other event, circumstance or condition or of any
other right or remedy available to the Administrative Agent or any Lender pursuant to the Credit Agreement or any other Loan Document
or (2) a course of dealing or a consent to any departure by the Borrowers or any other Loan Party from any other term or requirement
of the Credit Agreement or any other Loan Document. 


4.                 
Repayment of Term Loans. The Borrowers shall repay the Term Loans (to be applied
to installments of the Term Loans in the inverse order of maturity) in an aggregate amount of not less than $14,645,000, which
the Loan Parties hereby represent and warrant reflects the Ratable Share of 100% of the Net Proceeds received in connection with
the Specified Las Vegas Transaction, substantially concurrently with the effectiveness of this Amendment.






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5.                 
Authorization of Agents. Each Lender party hereto hereby consents to and authorizes
each of the Agents to execute and deliver an amendment to the Intercreditor Agreement, substantially in the form set forth on Exhibit
C hereto.


6.                 
Representations and Warranties of the Borrowers. Each Borrower hereby represents
and warrants as follows:


(a)               
This Amendment and the Credit Agreement as amended hereby constitute legal, valid and binding obligations of such Borrower
and are enforceable against such Borrower in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.


(b)              
As of the date hereof, after giving effect to the terms of this Amendment, (i) no Default has occurred and is continuing
and (ii) the representations and warranties of the Loan Parties set forth in the Credit Agreement, as amended hereby, are true
and correct in all material respects (provided that any such representations or warranties qualified by materiality or Material
Adverse Effect are true and correct in all respects), it being understood and agreed that any representation or warranty which
by its terms is made as of a specified date shall be required to be true and correct only as of such specified date.


7.                 
Reference to and Effect on the Credit Agreement.


(a)               
Upon the effectiveness hereof, each reference to the Credit Agreement in the Credit Agreement or any other Loan Document
shall mean and be a reference to the Credit Agreement as amended hereby.


(b)              
Each Loan Document and all other documents, instruments and agreements executed and/or delivered in connection therewith
shall remain in full force and effect and are hereby ratified and confirmed.


(c)               
Except with respect to the subject matter hereof, the execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of the Administrative Agent or the Lenders, nor constitute a waiver of any provision
of the Credit Agreement, the Loan Documents or any other documents, instruments and agreements executed and/or delivered in connection
therewith.


(d)              
This Amendment is a “Loan Document” under (and as defined in) the Credit Agreement.


8.                 
Release of Claims. 


(a)               
Each of the Loan Parties, on behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably releases, remises and forever discharges the Administrative Agent, the Collateral Agent and each
of the Lenders, their respective successors and assigns, and their respective present and former shareholders, affiliates, subsidiaries,
divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (the Administrative Agent,
the Collateral Agent, the Lenders and all such other Persons being hereinafter referred to collectively as the “Releasees”
and individually as a “Releasee”), of and from all demands, actions, causes of action, suits, covenants, contracts,
controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims,
defenses, rights of setoff, demands and liabilities whatsoever (individually, a “Claim” and collectively, “Claims”)
of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which any of the Loan Parties
or any of their respective successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to
have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which
arises at any time on or prior to the day and date of this Amendment, in each case in connection with the Credit Agreement or any
of the other Loan Documents or transactions thereunder or related thereto.






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(b)              
Each of the Loan Parties understands, acknowledges and agrees that the release set forth above may be pleaded as a full
and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted,
prosecuted or attempted in breach of the provisions of such release.


9.                 
Governing Law. This Amendment shall be construed in accordance with and governed
by the law of the State of New York.


10.             
Headings. Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any other purpose.


11.             
Counterparts. This Amendment may be executed by one or more of the parties hereto
on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same
instrument. Signatures delivered by facsimile or PDF shall have the same force and effect as manual signatures delivered in person.


[Signature Pages Follow]


 


 



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IN WITNESS WHEREOF,
this Amendment has been duly executed as of the day and year first above written.








	 	DAIRYLAND USA CORPORATION
	 	 
	 	By: 	/s/ John D. Austin
	 	Name:
	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	THE CHEFS’ WAREHOUSE MID-ATLANTIC, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	BEL CANTO FOODS, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	THE CHEFS’ WAREHOUSE WEST COAST, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	THE CHEFS’ WAREHOUSE OF FLORIDA, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 



 


 





Signature Page to Amendment No. 8 to


Amended and Restated Credit Agreement dated
as of April 25, 2012, as amended and restated as of April 17, 2013


The Chefs’ Warehouse, Inc. et al








    	 		 



    	 



    




 


	 	JPMORGAN CHASE BANK, N.A.,

                                                                  individually as a Lender, as the Swingline Lender, as
the Issuing Bank, as Administrative Agent and as Collateral Agent

	 	 	 
	 	By:	/s/ Diane Bredehoft
	 	Name:	Diane Bredehoft
	 	Title:	Authorized Officer
	 	 	 



 





 


Signature Page to Amendment No. 8 to


Amended and Restated Credit Agreement dated
as of April 25, 2012, as amended and restated as of April 17, 2013


The Chefs’ Warehouse, Inc. et al


 


 



    	 		 



    	 



    




 


	 	GE CAPITAL BANK, formerly known as

 GE CAPITAL FINANCIAL
INC.,

                                                                  as a Lender

	 	 	 
	 	By:	/s/ Heather-Leigh Glade
	 	Name:	Heather-Leigh Glade
	 	Title:	Duly Authorized Signatory
	 	 	 



 





 


Signature Page to Amendment No. 8 to


Amended and Restated Credit Agreement dated
as of April 25, 2012, as amended and restated as of April 17, 2013


The Chefs’ Warehouse, Inc. et al


 


 



    	 		 



    	 



    




 


	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,

                                                                  as a Lender

	 	 	 
	 	By:	/s/ Thomas Pizzo
	 	Name:	Thomas Pizzo
	 	Title:	Senior Vice President
	 	 	 












 


 


Signature Page to Amendment No. 8 to


Amended and Restated Credit Agreement dated
as of April 25, 2012, as amended and restated as of April 17, 2013


The Chefs’ Warehouse, Inc. et al


 


 



    	 		 



    	 



    




 


	 	BMO HARRIS FINANCING, INC.,

                                                                  as a Lender

	 	 	 
	 	By:	/s/ Paul Harris
	 	Name:	Paul Harris
	 	Title:	MD
	 	 	 



 








 


Signature Page to Amendment No. 8 to


Amended and Restated Credit Agreement dated
as of April 25, 2012, as amended and restated as of April 17, 2013


The Chefs’ Warehouse, Inc. et al





    	 		 



    	 



    

 


	 	BRANCH BANKING AND TRUST COMPANY,

                                                                  as a Lender

	 	 	 
	 	By:	/s/ Kenneth M. Blackwell
	 	Name:	Kenneth M. Blackwell
	 	Title:	Senior Vice President
	 	 	 









 


 


Signature Page to Amendment No. 8 to


Amended and Restated Credit Agreement dated
as of April 25, 2012, as amended and restated as of April 17, 2013


The Chefs’ Warehouse, Inc. et al





    	 		 



    	 



    

 


EXHIBIT A


 


Consent and Reaffirmation


 


Each of the undersigned
hereby acknowledges receipt of a copy of the foregoing Amendment No. 8 to Amended and Restated Credit Agreement with respect to
that certain Amended and Restated Credit Agreement dated as of April 25, 2012, as amended and restated as of April 17, 2013 (as
the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”),
by and among Dairyland USA Corporation, a New York corporation (“Dairyland”), The Chefs’ Warehouse Mid-Atlantic,
LLC, a Delaware limited liability company (“CW Mid-Atlantic”), Bel Canto Foods, LLC, a New York limited liability
company (“Bel Canto”), The Chefs’ Warehouse West Coast, LLC, a Delaware limited liability company (“CW
West Coast”), and The Chefs’ Warehouse of Florida, LLC, a Delaware limited liability company (“CW Florida”
and, together with Dairyland, CW Mid-Atlantic, Bel Canto and CW West Coast, the “Borrowers”), the other Loan
Parties party thereto, the Lenders and JPMorgan Chase Bank, N.A., as Administrative Agent (the “Administrative Agent”),
which Amendment No. 8 to Amended and Restated Credit Agreement is dated as of December 18, 2015 and is by and among the Borrowers,
the financial institutions listed on the signature pages thereof and the Administrative Agent (the “Amendment”).
Capitalized terms used in this Consent and Reaffirmation and not defined herein shall have the meanings given to them in the Credit
Agreement.


 


Without in any way
establishing a course of dealing by the Administrative Agent, the Collateral Agent or any Lender, each of the undersigned consents
to the Amendment and reaffirms the terms and conditions of the Loan Guaranty and any other Loan Document executed by it and acknowledges
and agrees that the Loan Guaranty and each and every such Loan Document executed by the undersigned in connection with the Credit
Agreement remains in full force and effect and is hereby reaffirmed, ratified and confirmed. All references to the Credit Agreement
contained in the above-referenced documents shall be a reference to the Credit Agreement as so modified by the Amendment and
as the same may from time to time hereafter be amended, modified or restated.


 


Dated December 18, 2015


[Signature Pages Follow]


 


 




    	 		 



    	 



    

 


IN WITNESS WHEREOF, this Consent and Reaffirmation
has been duly executed as of the day and year above written.


	 	DAIRYLAND USA CORPORATION

	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	THE CHEFS’ WAREHOUSE MID-ATLANTIC, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	BEL CANTO FOODS, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	THE CHEFS’ WAREHOUSE WEST COAST, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	THE CHEFS’ WAREHOUSE OF FLORIDA, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 



 


 


Signature Page  Consent and
Reaffirmation to Amendment No. 8 to


Amended and Restated Credit Agreement dated
as of April 25, 2012, as amended and restated as of April 17, 2013


The Chefs’ Warehouse, Inc. et al








    	 		 



    	 



    

 


	 	THE CHEFS’ WAREHOUSE, INC.

	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	CHEFS’ WAREHOUSE PARENT, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	MICHAEL’S FINER MEATS, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	MICHAEL’S FINER MEATS HOLDINGS, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	THE CHEFS’ WAREHOUSE MIDWEST, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	THE CHEFS’ WAREHOUSE PASTRY DIVISION, INC.
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 



 


 


Signature Page Consent and
Reaffirmation to Amendment No. 8 to


Amended and Restated Credit Agreement dated
as of April 25, 2012, as amended and restated as of April 17, 2013


The Chefs’ Warehouse, Inc. et al





    	 		 



    	 



    

 


	 	QZ ACQUISITION (USA), INC.

	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	QZINA SPECIALTY FOODS NORTH AMERICA (USA), INC.
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	QZINA SPECIALTY FOODS, INC., a Florida corporation
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	QZINA SPECIALTY FOODS, INC., a Washington corporation
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	QZINA SPECIALTY FOODS (AMBASSADOR), INC.
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	CW LV REAL ESTATE LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 



 





 


Signature Page Consent and
Reaffirmation to Amendment No. 8 to


Amended and Restated Credit Agreement dated
as of April 25, 2012, as amended and restated as of April 17, 2013


The Chefs’ Warehouse, Inc. et al





    	 		 



    	 



    

 


	 	ALLEN BROTHERS 1893, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	THE GREAT STEAKHOUSE STEAKS, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	DEL MONTE CAPITOL MEAT COMPANY HOLDINGS, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 
	 	 	 
	 	DEL MONTE CAPITOL MEAT COMPANY, LLC
	 	 	 
	 	By:	/s/ John D. Austin
	 	Name:	John D. Austin
	 	Title:	CFO
	 	 	 



 


 


Signature Page Consent and
Reaffirmation to Amendment No. 8 to


Amended and Restated Credit Agreement dated
as of April 25, 2012, as amended and restated as of April 17, 2013


The Chefs’ Warehouse, Inc. et al 




    	 		 



    	 



    

 


EXHIBIT B


Form of Amendment to Prudential Note
Agreement


 


[Attached]


 


 


 




    	 		 



    	 



    

 


EXHIBIT C


Form of Amendment to Intercreditor
Agreement


 


[Attached]