Exhibit



THE CHEFS’ WAREHOUSE, INC. 10-K





Exhibit 10.48






WAIVER AND AMENDMENT NO. 7 TO NOTE PURCHASE AND GUARANTEE AGREEMENT


THIS WAIVER AND AMENDMENT NO. 7 TO NOTE PURCHASE AND GUARANTEE AGREEMENT (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 “Issuers”), each of the Guarantors whose names appear on the signature pages hereto (together with the Issuers, collectively, the “Obligors”), and each of the holders of the Notes whose names appear on the signature pages hereto (each a “Noteholder” and collectively, the “Noteholders”).


WHEREAS, the Obligors and the Noteholders are party to that certain Note Purchase and Guarantee Agreement dated as of April 17, 2013, as amended by that certain Amendment No. 1 to Note Purchase and Guarantee Agreement dated as of July 23, 2014, that certain Amendment No. 2 to Note Purchase and Guarantee Agreement dated as of November 4, 2014, that certain Amendment No. 3 to Note Purchase and Guarantee Agreement dated as of December 3, 2014, that certain Amendment No. 4 to Note Purchase and Guarantee Agreement dated as of January 9, 2015, that certain Supplemental Note Purchase and Guarantee Agreement and Amendment Agreement dated as of April 6, 2015 and that certain Amendment No. 6 to Note Purchase and Guarantee Agreement dated as of July 1, 2015 (as so amended and supplemented, and as may be further amended, restated, supplemented or otherwise modified from time  to  time,  the  “Note  Purchase  Agreement”),  pursuant  to  which  the  Issuers  issued  and  sold  (i)
$100,000,000 in aggregate principal amount of their Guaranteed Senior Secured Notes due April 17, 2023 (as amended, restated or otherwise modified from time to time pursuant to Section 18 of the Note Purchase Agreement and including any such notes issued in substitution therefor pursuant to Section 13 of the Note Purchase Agreement, the “Series A Notes”), and (ii) $25,000,000 in aggregate principal amount of their 5.80% Series B Guaranteed Senior Secured Notes due October 17, 2020 (as amended, restated or otherwise modified from time to time pursuant to Section 18 of the Note Purchase Agreement and including any such notes issued in substitution therefor pursuant to Section 13 of the Note Purchase Agreement, the “Series B Notes”; and together with the Series A Notes, collectively, the “Notes”);


WHEREAS, the Obligors have requested that the Required Holders agree to certain amendments and waivers to the Note Purchase Agreement;


WHEREAS,  the  Obligors  and  the  Noteholders  have  so  agreed  on  the  terms  and conditions set forth herein;




THE CHEFS’ WAREHOUSE, INC. 10-K







WHEREAS, the Noteholders constitute the Required Holders;


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 Obligors and the Noteholders hereby agree to enter into this Amendment.


1.         Definitions.   All capitalized terms used herein and not otherwise defined shall have the meanings provided for in the Note Purchase Agreement.


2.         Amendments to the Note Purchase Agreement.  Subject to the satisfaction of the conditions precedent set forth in Section 4 below, and effective as of the date such conditions are satisfied, the parties hereto agree that the Note Purchase Agreement is hereby amended as follows, with the effect from June 30, 2015:


(a)        Section  10.13(c)(i)  of  the  Note  Purchase  Agreement  is  hereby  amended  by adding the following sentence at the end thereof:


“Notwithstanding  the  foregoing,  for  purposes  of  determining  compliance  with  this Section 10.13(c)(i), up to $6,518,000 of Capital Expenditures incurred or made on or prior to September 25, 2015 by the Obligors 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 Obligors and their Subsidiaries during the 2015 Fiscal Year.”


(b)        Section 10.13(c)(ii) of the Note Purchase 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.


3.         Waivers.   For the avoidance of doubt, the Noteholders hereby waive (i) any non-compliance with Section 10.13(c) of the Note Purchase Agreement (as in effect prior to the effectiveness of this Amendment) due to the Obligors and their Subsidiaries making Capital Expenditures during the 2015 Fiscal Year in excess of $17,000,000, (ii) any non-compliance with Section  8.3 of the Note Purchase Agreement relating to the requirement to offer to prepay a portion  of  the  Notes  held  by  such  holder  equal  to  such  holder’s  Ratable  Portion  of  the  Relevant Designated Net Proceeds received in connection with the Specified Las Vegas Transaction, (iii) any incorrect representation or warranty made by the Obligors pursuant to Section 7.2(b) of the Note Purchase 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 7.1(g) of the Note Purchase Agreement as a result of any failure of 


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THE CHEFS’ WAREHOUSE, INC. 10-K





the Obligors 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  any Noteholder pursuant to the Note Purchase Agreement or any other Financing Document or (2) a course of dealing or a consent to any departure by the Issuers or any other Obligor from any other term or requirement of the Note Purchase Agreement or any other Financing Document.


4.         Conditions of Effectiveness.  The effectiveness of this Amendment is subject to the following conditions precedent, each to be in form and substance satisfactory to the Noteholders:


(a)        each  Noteholder  shall  have  received  counterparts  of  this  Amendment  duly executed by the Obligors and the Noteholders;


(b)        each Noteholder shall have received a fully executed copy of an amendment to the Bank Credit Agreement, which amendment shall be substantially in the form set forth on Exhibit A hereto and in full force and effect (the “Bank Amendment”);


(c)        The Chefs’ Warehouse, Inc. shall have paid to each Noteholder, in consideration of the agreements of such Noteholder contained herein, by wire transfer of immediately available funds, a fee, whether or not such holder has signed this Amendment, in an amount equal to 0.10% (10 basis points) of the aggregate outstanding principal amount of Notes held by such Noteholder; such fee shall be deemed earned when paid and shall be nonrefundable; and


(d)        the Noteholders shall have received payment and/or reimbursement of their fees and expenses (including, without limitation, all fees and expenses of counsel for the Noteholders to the extent invoiced in reasonable detail on or prior to the date hereof) in connection with this Amendment and the other Financing Documents.


5.         Representations and Warranties of the Obligors.  Each Obligor hereby represents and warrants as follows:


(a)        This  Amendment  and  the  Note  Purchase  Agreement  as  modified  hereby constitute legal, valid and binding obligations of such Obligor and are enforceable against such Obligor 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 and 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 Obligors set forth in the Note Purchase Agreement, as amended hereby, are true and correct in all material respects (except that any representation or warranty that is qualified as to materiality shall be true and 


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THE CHEFS’ WAREHOUSE, INC. 10-K





correct in all respects), it being understood and agreed that any representation or warranty which by its terms expressly relates to a specified date shall be required to be true and correct only as of such specified date.


6.         Confirmation and Ratification of Guaranteed Obligations.   By executing this Amendment, each of the Guarantors hereby (a) consents to this Amendment, (b) acknowledges that, notwithstanding the execution and delivery of the Amendment, the obligations of each of the Guarantors under the Guaranty continue in full force and effect and are not impaired or affected, and the Guaranty continues in full force and effect and shall apply to the Guaranteed Obligations as amended by this Amendment, and (c) affirms and ratifies the Guaranty, any other Financing Document executed by it and the Guaranteed Obligations in all respects.


7.         Reference to and Effect on the Note Purchase Agreement.


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


(b)        Each Financing 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 Noteholders, nor constitute a waiver of any provision of the Note Purchase Agreement, any other Financing Document or any other documents, instruments or agreements executed and/or delivered in connection therewith.
(d)    This Amendment constitutes a "Financing Document" under ( and as defined in the Note Purchase Agreement.
8.         Release of Claims.


(a)        Each of the Obligors, on behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges the Noteholders, 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 Noteholders 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 Obligors or any of their respective successors, assigns, or other legal 


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THE CHEFS’ WAREHOUSE, INC. 10-K





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 Agreement, in each case in connection with the Note Purchase Agreement or any of the other Financing Documents or transactions thereunder or related thereto.


(b)        Each of the Obligors 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 and enforced in accordance with, and the rights of the parties hereto shall be governed by, the law of the State of New York excluding choice of law principles that would permit the application of the laws of a different jurisdiction.


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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THE CHEFS’ WAREHOUSE, INC. 10-K





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


	
		
	ISSUERS:

	 
	 

	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
















[Chefs' Warehouse - Signature Page to Amendment No. 7 to Note Purchase and Guarantee Agreement - Chefs' Warehouse]






THE CHEFS’ WAREHOUSE, INC. 10-K





	
		
	GUARANTORS:

	 

	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






















[Chefs' Warehouse - Signature Page to Amendment No. 7 to Note Purchase and Guarantee Agreement - Chefs' Warehouse]






THE CHEFS’ WAREHOUSE, INC. 10-K







	
		
	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




















[Chefs' Warehouse - Signature Page to Amendment No. 7 to Note Purchase and Guarantee Agreement - Chefs' Warehouse]






THE CHEFS’ WAREHOUSE, INC. 10-K







	
		
	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














































[Chefs' Warehouse - Signature Page to Amendment No. 7 to Note Purchase and Guarantee Agreement - Chefs' Warehouse]






THE CHEFS’ WAREHOUSE, INC. 10-K







	
		
	NOTEHOLDERS:

	 
	 

	THE PRUDENTIAL INSURANCE COMPANY OF AMERICA

	 
	 

	By:
	/s/ Tannis Fussell

	Name:
	Tannis Fussell

	Title:
	Vice President






	
		
	PRUCO LIFE INSURNACE COMPANY

	 
	 

	By:
	/s/ Tannis Fussell

	Name:
	Tannis Fussell

	Title:
	Assistant Vice President






	
			
	PRUDENTIAL ARIZONA REINSURANCE CAPTIVE COMPANY

	 
	 
	 

	By:
	 
	Prudential Investment Management, Inc.
as investment manager

	 
	By:
	/s/ Tannis Fussell

	 
	Name:
	Tannis Fussell

	 
	Title:
	Vice President






	
			
	PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY

	 
	 
	 

	By:
	 
	Prudential Investment Management, Inc.,
as investment manager

	 
	By:
	/s/ Tannis Fussell

	 
	Name:
	Tannis Fussell

	 
	Title:
	Vice President




































[Chefs' Warehouse - Signature Page to Amendment No. 7 to Note Purchase and Guarantee Agreement - Chefs' Warheouse]






THE CHEFS’ WAREHOUSE, INC. 10-K





Exhibit A


Bank Amendment






















































































 Exhibit A-1