Exhibit 4.1
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
December 23, 1997, between AmeriServe Food Distribution, Inc., a Nebraska
corporation (the "Nebraska Company"), AmeriServ Food Company, a Delaware
corporation (the "Delaware Company"), and State Street Bank and Trust Company,
as trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Nebraska Company has heretofore executed and delivered
to the Trustee an indenture (the "Indenture"), dated as of July 11, 1997,
providing for the issuance of an aggregate principal amount of $500,000,000 of
10-1/8% Senior Subordinated Notes due 2007 (the "Senior Subordinated Notes");
WHEREAS, Section 5.01 of the Indenture permits the Nebraska Company
to merge with another corporation provided certain conditions are satisfied;
WHEREAS, the Nebraska Company and its Wholly Owned Restricted
Subsidiaries, the Delaware Company and the Xxxxx X. Post Company, a Colorado
corporation (the "Colorado Company"), have entered into an Agreement and Plan of
Merger dated December 23, 1997 (the "Merger Agreement"), pursuant to which each
of the Nebraska Company and the Colorado Company will merge with and into the
Delaware Company (the "Merger") and the Delaware Company, as the surviving
company in the Merger, will be renamed "AmeriServe Food Distribution, Inc.";
WHEREAS, Section 9.01 of the Indenture authorizes the Trustee and the
Nebraska Company to enter into a supplemental indenture without the consent of
any Holders of the Senior Subordinated Notes to, among other things, provide for
the assumption of the Nebraska Company's obligation to the Holders of the Senior
Subordinated Notes in the case of a merger permitted by Article 5 of the
Indenture;
WHEREAS, the Delaware Company, as the surviving company of the
Merger, desires to assume all obligations of the Nebraska Company under the
Senior Subordinated Notes and the Indenture and the Nebraska Company and the
Delaware Company desire to execute this Supplemental Indenture as permitted by
Section 9.01 of the Indenture;
WHEREAS, the Nebraska Company has furnished the Trustee with a
resolution of its Board of Directors authorizing the execution of this
Supplemental Indenture;
WHEREAS, all things necessary to authorize the assumption by the
Delaware Company of the Nebraska Company's obligations under the Indenture and
to make this Supplemental Indenture a valid supplement of the Indenture have
been satisfied; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver the Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties mutually covenant and agree for the equal and ratable benefit of the
Holders of the Senior Subordinated Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein
without definition have the meanings assigned to them in the
Indenture.
2. ASSUMPTION OF OBLIGATIONS. The Delaware Company, as the surviving
corporation of the Merger, hereby acknowledges and assumes the Nebraska
Company's obligation for the due and punctual payment of the principal of,
premium and Liquidated Damages, if any, and interest on the Senior Subordinated
Notes and the performance and observance of every covenant of the Indenture to
be performed or observed by the Nebraska Company. The assumed obligations of the
Delaware Company are subordinated to the payment in full of the Delaware
Company's Senior Debt as provided in Article 10 of the Indenture.
3. SUBSTITUTION OF DELAWARE COMPANY. On the effective date hereof, by
virtue of the execution and delivery of this Supplemental Indenture, the
Delaware Company (as the surviving corporation of the Merger) shall succeed to
the rights and obligations of and be substituted for the Nebraska Company for
all purposes under the Senior Subordinated Notes and the Indenture.
4. OBLIGATIONS CONTINUING. This Supplemental Indenture supplements
and forms a part of the Indenture. As supplemented hereby, the Indenture and the
Senior Subordinated Notes issued thereunder are ratified and confirmed and, as
so supplemented, continue in full force and effect.
5. NEW YORK LAW TO GOVERN. The internal laws of the State of New
York, as applied to contracts made and performed within the State of New York,
without regard to the principles of conflicts of laws, shall govern and be used
to construe this Supplemental Indenture.
6. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together constitute the same agreement.
7 EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee is not responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the correctness of the recitals of fact
contained herein, all of which recitals are made solely by the Delaware Company
and the Nebraska Company.
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9. EFFECTIVENESS. The Supplemental Indenture shall become a legally
effective and binding instrument upon the later of (i) the execution and
delivery hereof by all parties hereto and (ii) the Effective Time (as defined in
the Merger Agreement ). The Delaware Company shall deliver written notice to the
Trustee promptly following the occurrence of the Effective Time.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: December 23, 1997 AMERISERV FOOD COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Secretary
Dated: December 23, 1997 AMERISERVE FOOD DISTRIBUTION, INC.
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Dated: December 23, 0000 XXXXX XXXXXX BANK AND TRUST COMPANY,
as Trustee
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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