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FIRST AMENDMENT TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of July 24, 1998 (this "Amendment"), amends the Third Amended and
Restated Credit Agreement, dated as of May 21, 1998 (the "Credit Agreement"),
among AMERISERVE FOOD DISTRIBUTION, INC., a Delaware 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 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 I AMENDMENTS. Effective as of July 24, 1998, Section 2.15 of
the Credit Agreement shall be amended to state in its entirety as follows:
"2.15 Increase in Commitments. The Company may, from time to
time on any Business Day on or before August 31, 1998, with the
written consent of the Administrative Agent, increase the Commitments
by delivering a written request at least three Business Days prior to
the desired effective date of such increase (the "Commitment Increase")
identifying additional Lender(s) (or additional Commitments for
existing Lenders) and the amount of its commitment (or additional
amount of its Commitment); provided, however, that any increase of the
Commitments shall not cause the aggregate Commitments to exceed
$225,000,000. The effective date of the Commitment Increase shall be
agreed upon by the Company and the Administrative Agent. Upon the
effectiveness thereof, the Lenders' Percentages shall be adjusted. If
any Lender shall incur any cost or expense with respect to the
Commitment Increase, including any loss
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or expense arising from the liquidation or reemployment of funds
obtained by it to maintain any Offshore Rate Loans or from fees to
terminate the deposits from which such funds were obtained, the
Company will upon notice from such Lender reimburse such Lender
therefor."
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 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.
(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 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
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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 2.3 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
(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
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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.
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.
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.
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AMERISERVE FOOD DISTRIBUTION, INC.
By:
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Title:
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By:
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Title:
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Issuing Lender and Lender
By:
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Title:
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XXXXXXXXX XXXXXX & XXXXXXXX
SECURITIES CORPORATION,
as Documentation Agent
By:
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Title:
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LASALLE NATIONAL BANK
By:
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Title:
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THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH
By:
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Title:
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SOUTHERN PACIFIC BANK
By:
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Title:
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TRANSAMERICA BUSINESS CREDIT
By:
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Title:
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CHRISTIANIA BANK OG KREDITKASSE
By:
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Title:
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FLEET CAPITAL CORPORATION
By:
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Title:
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