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Exhibit 10.4
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated
as of October 7, 1997 (this "Amendment"), amends the Second Amended and Restated
Credit Agreement, dated as of July 11, 1997 (the "Credit Agreement"), among
AMERISERVE FOOD DISTRIBUTION, INC., a Nebraska corporation (the "Company"), the
various financial institutions parties thereto (collectively, the "Lenders"),
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as letter of credit
issuing lender, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as
administrative agent (the "Administrative Agent") and XXXXXXXXX, XXXXXX &
XXXXXXXX SECURITIES CORPORATION, as documentation agent (together with the
Administrative Agent, the "Agents"). Terms defined in the Credit Agreement are,
unless otherwise defined herein or the context otherwise requires, used herein
as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement, which
provides for the Lenders to extend certain credit facilities to the Company from
time to time; and
WHEREAS, the Company proposes to issue certain senior unsecured notes and
to apply a portion of the proceeds thereof to repay the Term Loans; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in certain
respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Effective as of October 14, 1997, the Credit
Agreement shall be amended in accordance with Sections 1.1 through 1.5 below.
SECTION 1.1 Definitions. Section 1.1 of the Credit Agreement is hereby
amended by inserting in proper alphabetical order the following definitions:
"First Amendment Effective Date" means the date on or before October
31, 1997 on which the First Amendment hereto shall become effective.
"Senior Unsecured Notes means the up to $375,000,000 senior unsecured
notes dated on or about October 14, 1997 due 2007, in the form described in
the draft Offering Memorandum, a true and correct copy of which has been
delivered to the Administrative Agent."
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SECTION 1.2 Commitment Reduction. The last sentence of Section 2.7(c) of
the Credit Agreement is hereby amended to state in its entirety as follows:
"Once all of the Term Loans have been paid in full, any prepayment
pursuant to this Section 2.7 shall be applied to the Revolving Loans; and
the Revolving Loan Commitments shall be correspondingly reduced, except
that no reduction of the Revolving Loan Commitments shall result from the
issuance of the Senior Unsecured Notes."
SECTION 1.3 Indebtedness. Section 9.5 of the Credit Agreement is hereby
amended by adding the following at the end:
"(m) Senior Unsecured Notes in a principal amount not in excess of
$375,000,000."
SECTION 1.4 Contingent Obligations. Section 9.8 of the Credit Agreement is
hereby amended by adding the following immediately before the period at the end
of clause (f) thereof: "and the Senior Unsecured Notes."
SECTION 1.5 Negative Pledges, Restrictive Amendments, etc. Section 9.17 is
hereby amended by inserting the following immediately after the words "Closing
Date" in the first parenthetical contained therein: "or permitted by clause (m)
of Section 9.5 as in effect as of the First Amendment Effective Date."
SECTION 2 CONDITIONS PRECEDENT. This Amendment shall become effective when
each of the conditions precedent set forth in this Section 2 shall have been
satisfied, so long as such conditions shall be met before October 31, 1997, and
notice thereof shall have been given by the Administrative Agent to the Company
and the Lenders.
SECTION 2.1 Receipt of Documents. The Administrative Agent shall have
received all of the following documents duly executed, dated the date hereof or
such other date as shall be acceptable to the Administrative Agent, and in form
and substance satisfactory to the Administrative Agent:
(a) Amendment. This Amendment, duly executed by the Company, the
Agents and the Required Lenders.
(b) Consents. Copies, certified by the secretary or an assistant
secretary of the Company, of all documents evidencing any necessary
corporate action, consents and governmental approvals (if any) with respect
to this Amendment and the other documents described herein.
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(c) Secretary's Certificate. A certificate of the secretary or an
assistant secretary of the Company, as to (i) resolutions of the Board of
Directors of the Company then in full force and effect authorizing the
execution, delivery and performance of this Amendment and each other
document described herein, and (ii) the incumbency and signatures of those
officers of the Company authorized to act with respect to this Amendment
and each other document described herein.
(d) Guarantors Consents. The consents of the Guarantors in the form
attached hereto.
SECTION 2.2 Senior Unsecured Notes. The Company shall have issued the
Senior Unsecured Notes and repaid the Term Loans in full with the proceeds
thereof.
SECTION 2.3 Compliance with Warranties, No Default, etc. Both before and
after giving effect to the effectiveness of this Amendment, the following
statements by the Company shall be true and correct (and the Company, by its
execution of this Amendment, hereby represents and warrants to the Agents and
each Lender that such statements are true and correct as at such times):
(a) the representations and warranties set forth in Article VII of the
Credit Agreement shall be true and correct with the same effect as if then
made (unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such earlier
date); and
(b) no Default or Event of Default shall have then occurred and be
continuing, and neither the Company nor any Guarantor shall be in material
violation of any law or governmental regulation or court order or decree.
SECTION 2.4 Satisfactory Legal Form. All documents executed or submitted
pursuant hereto by or on behalf of the Company or any Guarantor shall be
satisfactory in form and substance to the Administrative Agent and its counsel;
and the Administrative Agent and its counsel shall have received all
information, approvals, opinions, documents or instruments as the Administrative
Agent or its counsel may reasonably request.
SECTION 3 REPRESENTATIONS AND WARRANTIES. To induce the Lenders and the
Agents to enter into this Amendment, the Company represents and warrants to each
Agent and each Lender as follows:
SECTION 3.1 Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Company of this Amendment and the execution and
delivery by each Guarantor of its consent executed or to be executed by it in
connection with this Amendment, are within the Company's and each such
Guarantor's corporate powers, have been duly authorized by all necessary
corporate action, and do not
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(a) contravene the Company's or any such Guarantor's Organization
Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the Company or
any such Guarantor; or
(c) result in, or require the creation or imposition of, any Lien on
any of the Company's or any Guarantor's properties.
SECTION 3.2 Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by the Company or any other Guarantor of this Amendment
or any consent to be executed by it in connection with this Amendment.
SECTION 3.3 Validity, etc. This Amendment constitutes the legal, valid and
binding obligation of the Company enforceable in accordance with its respective
terms; and each consent executed pursuant hereto by each other Guarantor will,
on the due execution and delivery thereof by such Guarantor, be the legal, valid
and binding obligation of such Guarantor enforceable in accordance with its
terms.
SECTION 4 MISCELLANEOUS.
SECTION 4.1 Continuing Effectiveness, etc. This Amendment shall be deemed
to be an amendment to the Credit Agreement, and the Credit Agreement, as amended
hereby, shall remain in full force and effect and is hereby ratified, approved
and confirmed in each and every respect. After the effectiveness of this
Amendment in accordance with its terms, all references to the Credit Agreement
in the Loan Documents or in any other document, instrument, agreement or writing
shall be deemed to refer to the Credit Agreement as amended hereby.
SECTION 4.2 Payment of Costs and Expenses. The Company agrees to pay on
demand all expenses of the Administrative Agent (including Attorney Costs) in
connection with the negotiation, preparation, execution and delivery of this
Amendment.
SECTION 4.3 Severability. Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
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SECTION 4.4 Headings. The various headings of this Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
SECTION 4.5 Execution in Counterparts. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
SECTION 4.6 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF ILLINOIS; PROVIDED THAT THE AGENTS, THE LENDERS AND THE COMPANY
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAWS.
SECTION 4.7 Successors and Assigns. This Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
AMERISERVE FOOD DISTRIBUTION, INC.
By: /s/
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Title: CFO
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By:
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Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Issuing Lender
By: /s/ Xxxxxxx X. Stafeh
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Title: Vice President
XXXXXXXXX LUFKIN & XXXXXXXX
SECURITIES CORPORATION,
as Documentation Agent
By: /s/ Xxxxxx Xxxxxxxx
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Title: Managing Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
By:
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Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
By: /s/ Xxxx X. Xxxxxxx
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Title: Vice President
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BANK ONE, WISCONSIN
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By:
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Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By:
-------------------------------
Title:
DEBT STRATEGIES FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Authorized Signatory
DLJ CAPITAL FUNDING, INC.
By:
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Title:
FLEET NATIONAL BANK
By: /s/
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Title: Senior Vice President
THE FUJI BANK, LIMITED
By: /s/
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Title: Joint General Manager
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED
By:
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Title:
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XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Authorized Signatory
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/
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Title: Chief Manager
NATEXIS BANQUE (BFCE)
By:
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Title:
NATIONAL WESTMINSTER BANK PLC
By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President
SOUTHERN PACIFIC THRIFT & LOAN
ASSOC.
By: /s/ Xxxxx Xxxxxxxx
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Title: Vice President
THE SUMITOMO BANK, LIMITED
By:
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Title:
TRANSAMERICA BUSINESS CREDIT CORP.
By: /s/
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Title: Vice President
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:
-------------------------------
Title:
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AGREEMENT AND CONSENT
The undersigned hereby agree and consent to the terms and provisions of the
foregoing First Amendment to Second Amended and Restated Credit Agreement, and
agree that the Loan Documents executed by the undersigned shall remain in full
force and effect notwithstanding the provisions of the foregoing First
Amendment.
Dated: October 14, 1997
NEBCO XXXXX HOLDING COMPANY
By: /s/
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Title: Chief Financial Officer
NORTHLAND TRANSPORTATION SERVICES,
INC.
By: /s/
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Title: Chief Financial Officer
AMERISERV FOOD COMPANY
By: /s/
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Title: Chief Financial Officer
DELTA TRANSPORTATION, LTD.
By: /s/
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Title: Chief Financial Officer
CHICAGO CONSOLIDATED CORPORATION
By: /s/
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Title: Chief Financial Officer
AMERISERVE TRANSPORTATION, INC.
By: /s/
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Title: Chief Financial Officer
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AMERISERVE FUNDING CORPORATION
By: /s/
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Title: President
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