THE CHEFS’ WAREHOUSE, INC. 8-K


Exhibit 10.2


 


 


AMENDMENT NO. 1 TO NOTE PURCHASE AND GUARANTEE
AGREEMENT


 


THIS AMENDMENT NO. 1
TO NOTE PURCHASE AND GUARANTEE AGREEMENT (this “Amendment”) is made as of July 23, 2014 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”). Capitalized terms used herein and not otherwise defined herein shall have the respective
meanings given to them in the Note Purchase Agreement.


 


WHEREAS, the Obligors
and the Noteholders are party to that certain Note Purchase and Guarantee Agreement dated as of April 17, 2013 (as amended, restated,
supplemented or otherwise modified from time to time, the “Note Purchase Agreement”);


 


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


 


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


 


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 Issuers 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 3 below, and effective as of such date, the parties hereto agree that the Note
Purchase Agreement is hereby amended as follows:


 


(a)               
Section 10.1 of the Note Purchase Agreement is hereby amended to (i) delete the word “and” appearing
at the end of clause (k) thereof, (ii) delete the reference to “$5,000,000” appearing in clause (l) thereof and insert
“$10,000,000” in lieu thereof, (iii) re-designate clause (l) thereof as clause (m) thereof and (iv) insert the following
as a new clause (l) immediately preceding clause (m) thereof:


 


“(l)the
CW LV Real Estate Indebtedness; and”


 


(b)              
Section 10.2 of the Note Purchase Agreement is hereby amended to (i) delete the word “and” appearing
at the end of clause (o) thereof, (ii) re-designate clause (p) thereof as clause (q)


 




    	 



    	 



    

 


thereof and (iii) insert the following
as a new clause (p) immediately preceding clause (q) thereof:


 


“(p)Liens
on the assets of CW LV Real Estate securing the CW LV Real Estate Indebtedness; and”


 


(c)               
Schedule B of the Note Purchase Agreement is hereby amended to insert the following definitions in the appropriate
alphabetical order:


 


“CW
LV Real Estate” means CW LV Real Estate LLC, a Delaware limited liability company.


 


“CW
LV Real Estate Indebtedness” means the Indebtedness incurred by CW LV Real Estate to obtain construction and permanent
mortgage financing for a new warehouse facility in Las Vegas, Nevada, in an aggregate principal amount not to exceed $15,000,000.


 


3.                 
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 Required Holders:


 


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


 


(b)              
each Noteholder shall have received a fully executed copy of an amendment to the Bank Credit Agreement, which amendment
shall be substantially consistent with this Amendment and in full force and effect (the “Bank Amendment”); and


 


(c)               
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.


 


4.                 
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 immediately before 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 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.


 


(c)               
No fee or other consideration has been paid or will be paid to the Bank Agent or any Bank Lender in connection with the
Bank Amendment.


 


5.                 
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.


 




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6.                 
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.


 


7.                 
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 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.


 


8.                 
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.


 




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9.                 
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.


 


10.             
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.


 





	 	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. 1 to Note Purchase and Guarantee Agreement]







 




    	 



    	 



    

 


 





	 	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. 1 to Note Purchase and Guarantee Agreement]







 




    	 



    	 



    

 


 





	 	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. 1 to Note Purchase and Guarantee Agreement]







 




    	 



    	 



    

 


 



	 	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 






 


 


[Chefs’ Warehouse - Signature Page
to Amendment No. 1 to Note Purchase and Guarantee Agreement]







 




    	 



    	 



    

 


 





	NOTEHOLDERS:	 
	 	 
	THE PRUDENTIAL INSURANCE COMPANY OF AMERICA	 
	 	 
	By:	/s/ Tannis Fussell	 	 
	Name:	Tannis Fussell	 
	Title:	Vice President	 
	 	 
	 	 
	PRUCO LIFE INSURANCE 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. 1
to Note Purchase and Guarantee Agreement]