Exhibit 10.1
SECOND AMENDMENT TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of December 22, 1997 (this "Amendment"), amends the Credit Agreement,
dated as of July 11, 1997 (as heretofore amended the "Credit Agreement"), among
AmeriServe Food Distribution, Inc. (the "Company"), Bank of America National
Trust and Savings Association, as Administrative Agent, Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, as Documentation Agent, Bank of America
National Trust and Savings Association, as Letter of Credit Issuing Lender and
certain financial institutions parties thereto (the "Lenders"). 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 1 AMENDMENTS. Effective as of December 22, 1997, the Credit
Agreement shall be amended in accordance with Sections 1.1 through 1.5 below.
SECTION 1.1 Definitions. The definition of "Adjusted Funded Debt" in
Section 1.1 of the Credit Agreement is hereby amended by the deletion of the
date "December 31, 1997" and the substitution of the date AJune 30, 1998".
SECTION 1.2 Cash Equivalent Investments. The definition of "Cash Equivalent
Investment" in Section 1.1 of the Credit Agreement is hereby amended to state in
its entirety as follows:
"Cash Equivalent Investments shall mean (i) securities issued or
directly and fully guaranteed or insured by the United States of America or
any agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than one year from the date of acquisition,
(ii) marketable direct obligations issued by any State of the United States
of America or any local government or other political subdivision thereof
rated (at the time of acquisition of such security) at least BBB
by Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. ("S&P") or the equivalent thereof by Xxxxx'x Investors
Services, Inc. ("Moody's") having maturities of not more than one year from
the date of acquisition, (iii) U.S. dollar denominated time deposits,
certificates of deposit and bankers' acceptances of (x) any Lender, (y) any
domestic commercial bank of recognized standing having capital and surplus
in excess of $250,000,000 or (z) any bank whose short-term commercial paper
rating (at the time of acquisition of such security) by S&P of at least A-2
or the equivalent thereof (any such bank, an "Approved Bank"), in each case
with maturities of not more than six months from the date of acquisition,
(iv) commercial paper and variable or fixed rate notes issued by any Lender
or Approved Bank or by the parent company of any Lender or Approved Bank
and commercial paper and variable rate notes issued by, or guaranteed by,
any industrial or financial company with a short-term commercial paper
rating (at the time of acquisition of such security) of at least A-2 or the
equivalent thereof by S&P or at least P-2 or the equivalent thereof by
Moody's, or guaranteed by any industrial company with a long-term unsecured
debt rating (at the time of acquisition of such security) of at least BBB
or the equivalent thereof by S&P or at least Baa2 or the equivalent thereof
by Moody's and in each case maturing with one year after the date of
acquisition and (v) repurchase agreements with any Lender or any primary
dealer maturing within one year from the date of acquisition that are fully
collateralized by investment instruments that would otherwise be Cash
Equivalent Investments; provided that the terms of such repurchase
agreements comply with the guidelines set forth in the Federal Financial
Institutions Examination Council Supervisory Policy -Repurchase Agreements
of Depository Institutions With Securities Dealers and Others, as adopted
by the Comptroller of the Currency on October 31, 1985 and (vi) loan
participations in aggregate of no more than $10,000,000 having maturities
of not more than 30 days from the date of the acquisition."
SECTION 1.3 Loan and Investments. Section 9.4(d) of the Credit Agreement is
hereby amended by the deletion of the number "$5,000,000" and the substitution
therefor of the number "$10,000,000."
SECTION 1.4 Transactions with Affiliates. Section 9.6(e) of the Credit
Agreement is hereby amended by the deletion of the phrase "in connection with
acquisitions."
SECTION 1.5 Restricted Payments. Clause(i) of the proviso to Section 9.11
of the Credit Agreement is hereby amended by the deletion of the number
"$4,000,000" and the substitution therefor of the number "$5,000,000."
SECTION 2 Consent. The Lenders hereby consent to the merger of the Company
with and into AmeriServ Food Company so long as the surviving company shall be
named
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"AmeriServe Food Distribution, Inc.". The Company agrees to give the
Administrative Agent prompt notice of any such merger.
SECTION 3 CONDITIONS PRECEDENT. This Amendment shall become effective when
duly executed by the Company and the Required Lenders and consents of each
Guarantor in the form attached hereto shall have been executed and delivered.
SECTION 4 REPRESENTATIONS AND WARRANTIES. To induce the Lenders and the
Agent to enter into this Amendment, the Borrower hereby reaffirms, as of the
date hereof, its representations and warranties contained in Article VII of the
Credit Agreement, and the Company additionally represents and warrants to the
Agents and each Lender as follows:
SECTION 4.1 Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Company of this Amendment are within the
Company's corporate powers, have been duly authorized by all necessary corporate
action, and do not
(a) contravene the Company's Organization Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the Company; or
(c) result in, or require the creation or imposition of, any Lien on
any of the Company's properties.
SECTION 4.2 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 Borrower of this Amendment.
SECTION 4.3 Validity, etc. This Amendment constitutes the legal, valid and
binding obligation of the Company enforceable in accordance with its terms.
SECTION 5 MISCELLANEOUS.
SECTION 5.1 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
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writing shall be deemed to refer to the Credit Agreement as amended hereby.
SECTION 5.2 Payment of Costs and Expenses. The Borrower agrees to pay on
demand all expenses of the Agent (including the fees and out-of-pocket expenses
of counsel to the Agent, including the allocated costs of internal counsel) in
connection with the negotiation, preparation, execution and delivery of this
Amendment.
SECTION 5.3 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 5.4 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 5.5 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 5.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
SECTION 5.7 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______________________________
Title:________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By______________________________
Title:________________________
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION,
as Documentation Agent
By______________________________
Title:________________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By______________________________
Title:________________________
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By______________________________
Title:________________________
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BANK ONE, MILWAUKEE N.A.
By______________________________
Title:________________________
THE DAI-ICHI KANGYO BANK, LIMITED
By______________________________
Title:________________________
DLJ CAPITAL FUNDING, INC.
By______________________________
Title:________________________
FLEET NATIONAL BANK
By______________________________
Title:________________________
THE FUJI BANK, LIMITED
By______________________________
Title:________________________
THE LONG-TERM CREDIT BANK
OF JAPAN LIMITED
By______________________________
Title:________________________
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND INC.
By______________________________
Title:________________________
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THE MITSUBISHI TRUST
AND BANKING CORPORATION
By______________________________
Title:________________________
NATEXIS BANQUE - BFCE
By______________________________
Title:________________________
SOUTHERN PACIFIC THRIFT & LOAN ASSN
By______________________________
Title:________________________
THE SUMITOMO BANK, LIMITED
By______________________________
Title:________________________
TRANSAMERICA BUSINESS
CREDIT CORPORATION
By______________________________
Title:________________________
XXX XXXXXX AMERICA CAPITAL
By______________________________
Title:________________________
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XXX XXXXXX CLO I, LIMITED
By______________________________
Title:________________________
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AGREEMENT AND CONSENT
The undersigned hereby agree and consent to the terms and provisions of the
foregoing Second 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 Second
Amendment to Second Amended and Restated Credit Agreement.
Dated: December 22, 1997
NORTHLAND TRANSPORATION SERVICES,
INC.
By______________________________
Title:________________________
AMERISERV FOOD COMPANY
By______________________________
Title:________________________
DELTA TRANSPORTATION, LTD.
By______________________________
Title:________________________
CHICAGO CONSOLIDATED CORPORATION
By______________________________
Title:________________________
AMERISERVE TRANSPORTATION, INC.
By______________________________
Title:________________________
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AMERISERVE FUNDING CORPORATION
By______________________________
Title:________________________
