THE CHEFS’ WAREHOUSE, INC. 8-K


Exhibit 10.1


  


 


AMENDMENT NO. 1


 


Dated as of July 23, 2014


 


to


 


AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of April 25, 2012


 


THIS AMENDMENT NO. 1
(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 “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 Required Lenders and the Administrative Agent agree to certain amendments to the Credit Agreement;


 


WHEREAS, the Borrowers,
the Lenders party hereto and the Administrative Agent 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 and the Administrative Agent hereby agree
to enter into this Amendment.


 


1.                 
Amendments to the Credit Agreement. Effective as of the date of satisfaction
of the conditions precedent set forth in Section 2 below, the parties hereto agree that the Credit Agreement is hereby amended
as follows:


 


(a)               
Section 1.01 of the Credit 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.


 


“Impacted
Interest Period” has the meaning assigned to such term in the definition of “LIBO Rate”.


 


“Interpolated
Rate” means, at any time, the rate per annum determined by the Administrative Agent (which determination shall be conclusive
and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBOR
Screen Rate for the longest period (for which the LIBOR Screen Rate is available) that is shorter than the Impacted Interest Period
and (b) the LIBOR Screen Rate for the shortest period (for which the LIBOR Screen Rate is available) that exceeds the Impacted
Interest Period, in each case, at such time.


 


“LIBOR
Screen Rate” has the meaning assigned to such term in the definition of “LIBO Rate”.


 


(b)              
The definition of “LIBO Rate” appearing in Section 1.01 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:


 


“LIBO
Rate” means, with respect to any Eurodollar Borrowing for any applicable Interest Period, the London interbank offered
rate administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate) for Dollars
for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 of the Reuters screen or, in the
event such rate does not appear on either of such Reuters pages, on any successor or substitute page on such screen that displays
such rate, or on the appropriate page of such other information service that publishes such rate as shall be selected by the Administrative
Agent from time to time in its reasonable discretion (in each case the “LIBOR Screen Rate”) at approximately
11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period; provided that, if
the LIBOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement; provided,
further, that if a LIBOR Screen Rate shall not be available at such time for such Interest Period (the “Impacted
Interest Period”), then the LIBO Rate for such Interest Period shall be the Interpolated Rate; provided, that,
if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. It is understood
and agreed that all of the terms and conditions of this definition of “LIBO Rate” shall be subject to Section 2.14.


 


(c)               
Section 6.01 of the Credit 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 replace such
reference with a reference to “$10,000,000”, (iii) re-designate clause (l) thereof as clause (m) thereof and (iv) insert
the following as a new clause (l) thereof:


 


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


 


(d)              
Section 6.02 of the Credit 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) thereof:


 




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


 


2.                 
Conditions of Effectiveness. The effectiveness of this Amendment is subject
to the conditions precedent that (i) the Administrative Agent shall have received counterparts of this Amendment duly executed
by the Borrowers, the Required Lenders and the Administrative Agent, (ii) the Administrative Agent shall have received counterparts
of the Consent and Reaffirmation attached as Exhibit A hereto duly executed by the Loan Guarantors, (iii) the Administrative
Agent shall have received an executed and effective amendment to the Prudential Note Agreement, which amendment shall be substantially
consistent with this Amendment and otherwise reasonably satisfactory to the Administrative Agent, and (iv) 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.


 


3.                 
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 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 Loan Parties set forth in the Credit Agreement, as amended hereby, are true
and correct in all material 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).


 


4.                 
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.


 


5.                 
Governing Law. This Amendment shall be construed in accordance with and governed
by the law of the State of New York.


 




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6.                 
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.


 


7.                 
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. 1 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. 1 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/ Woodrow Broaders, Jr.	 
	 	Name:	Woodrow Broaders, Jr. 
	 	Title:	Duly Authorized Officer 



 


 








Signature Page to Amendment No. 1 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. 1 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/ Joan Spiotto	 
	 	Name:	Joan Spiotto
	 	Title:	Vice President 



 





 





Signature Page to Amendment No. 1 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. 1 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. 1 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 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. 1 to Amended and Restated Credit Agreement is dated as of July 23, 2014 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:   July 23, 2014


 


[Signature Page Follows]


 




    	 



    	 



    

 


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 to Amendment No. 1 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 to Amendment No. 1 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 to Amendment No. 1 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 



 





 





Signature Page to Amendment No. 1 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