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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): December 28,
1997
NEBCO EVANS HOLDING COMPANY
(Exact Name of Registrant as Specified in Charter)
Delaware 06-1444203
(State or Other (Commission File (IRS Employer
Jurisdiction of Number) Identification No.)
Incorporation)
545 Steamboat Road
Greenwich, Connecticut 06830
(Address of Principal Executive Offices)
(203) 661-2500
(Registrant's telephone number, including area code)
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ITEM 5. OTHER EVENTS.
Pursuant to an Agreement and Plan of Merger by and among AmeriServe
Food Distribution, Inc. ("AmeriServe"), a wholly owned subsidiary of Nebco Evans
Holding Company, AmeriServe's wholly owned subsidiary AmeriServ Food Company
("Food"), and Food's wholly owned subsidiary The Harry H. Post Company ("Post"),
AmeriServe merged with and into Food, effective as of 12:01 AM, December 28,
1997 (the "AmeriServe Merger"); and Post merged with and into Food, effective as
of 12:02 AM, December 28, 1997 (the "Post Merger" and, with the AmeriServe
Merger, the "Mergers"), in each case with Food as the surviving corporation. In
the Mergers, Food (together with AmeriServe before the AmeriServe Merger, to
which it is the successor, the "Company") changed its name to AmeriServe Food
Distibution, Inc.
In the Mergers, all of the outstanding equity securities of Food and
Post were cancelled, and all of the outstanding equity securities of AmeriServe
were converted into substantially identical securities of the Company. The
Company remains a wholly owned subsidiary of Nebco Evans Holding Company. The
directors and officers of the Company after the Mergers are the individuals who
were directors and officers of AmeriServe before the Mergers. The Company
effected the Mergers to rationalize its corporate organization and to reduce
various compliance and regulatory costs arising from having subsidiaries
incorporated in various jurisdictions and to move its jurisdiction of
incorporation from Nebraska to Delaware.
In connection with the Mergers, the Company adopted an amended and
restated certificate of incorporation and amended and restated bylaws, copies of
each of which are filed herewith and are incorporated by reference herein.
Pursuant to the Mergers and in accordance with the terms of the
Indenture with respect to the Company's 10 1/8% New Senior Subordinated Notes
due 2007 (the "10 1/8% New Senior Subordinated Notes Indenture"), dated as July
11, 1997, by and among the Company, certain of its subsidiaries as guarantors
(the "Subsidiary Guarantors"), and State Street Bank and Trust Company, as
Trustee (the "Trustee"), the Company has executed a Supplemental Indenture (the
"Supplemental 10 1/8% New Senior Subordinated Notes Indenture"), dated as of
December 23, 1997, by and among AmeriServe, Food, and the Trustee. Also pursuant
to the Merger and in accordance with the terms of the Indenture with respect to
the Company's 8 7/8% New Senior Notes due 2006 (the "8 7/8% New Senior Notes
Indenture"), dated as October 15, 1997, by and among the Company, the Subsidiary
Guarantors, and the Trustee, the Company has executed a Supplemental Indenture
(the "Supplemental 8 7/8% New Senior Notes Indenture" and, together with the
Supplemental 10 1/8% New Senior Subordinated Notes Indenture, the "Supplemental
Indentures"), dated as of December 23, 1997, by and among AmeriServe, Food, and
the Trustee. Pursuant to the terms of the 10 1/8% New Senior Subordinated Notes
Indenture, the 8 7/8% New Senior Notes Indenture, the Supplemental 10 1/8% New
Senior Subordinated Notes Indenture and the Supplemental 8 7/8% New Senior Notes
Indenture, the obligations of the Company in respect of the 10 1/8% New Senior
Subordinated Notes and the 8 7/8% New Senior Notes will continue unaffected by
the Mergers, save that those obligations will no longer be guaranteed by the
subsidiaries of the Company which have been merged out of existence. Copies of
each of the
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<PAGE>
Supplemental 10 1/8% New Senior Subordinated Notes Indenture and the
Supplemental 8 7/8% New Senior Notes Indenture are filed as exhibits hereto and
incorporated by reference herein.
In addition to the Supplemental Indentures, the Company amended its
Second Amended and Restated Credit Agreement, dated as of July 11, 1997 (as
previously amended, the "Credit Agreement"), among the Company, Bank of America
National Trust and Savings Association, as Administrative Agent, Donaldson,
Lufkin & Jenrette 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")
pursuant to the Second Amendment to Second Amended and Restated Credit
Agreement, dated as of December 22, 1997 (the "Credit Agreement Amendment"),
among the Company and the Lenders. In the Credit Agreement Amendment, the
Lenders consented to the merger of Food and AmeriServe and further agreed to
certain other unrelated changes to the Credit Agreement. A copy of the Credit
Agreement Amendment is filed as an exhibit hereto and is hereby incorporated
herein by reference. Pursuant to the terms of the Credit Agreement and the
Credit Agreement Amendment, the rights and obligations of the Company with
respect to the Credit Agreement will continue unaffected by the Mergers, except
as specifically provided in the Credit Agreement Amendment.
In connection with the Mergers, the Company has also moved its
principal executive office from 17975 West Sarah Lane, Suite 100, Brookfield,
Wisconsin 53045 to 14841 Dallas Parkway, Dallas, Texas 75240-2100.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS AND
EXHIBITS.
(c) Exhibits.
3.1 Amended and Restated Certificate of Incorporation of AmeriServe Food
Distribution, Inc. (formerly AmeriServ Food Company, successor to
AmeriServe Food Distribution, Inc.).
3.2 Amended and Restated Bylaws of AmeriServe Food
Distribution, Inc. (formerly AmeriServ Food Company,
successor to AmeriServe Food Distribution, Inc.).
4.1 Supplemental 10 1/8% New Senior Subordinated Notes Indenture, dated
as of December 23, 1997, by and among AmeriServe Food Distribution,
Inc., AmeriServ Food Company, and State Street Bank and Trust
Company, as
Trustee.
4.2 Supplemental 8 7/8% New Senior Notes Indenture, dated as of December
23, 1997, by and among AmeriServe Food Distribution, Inc., AmeriServ
Food Company, and State Street Bank and Trust Company, as Trustee.
10.1 Second Amendment to Second Amended and Restated Credit Agreement,
dated as of December 22, 1997.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NEBCO EVANS HOLDING COMPANY
By: /s/ A. Petter Ostberg
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Name: A. Petter 0stberg
Title:
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<PAGE>
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
NUMBER
3.1 Amended and Restated Certificate of Incorporation of AmeriServe Food
Distribution, Inc. (formerly AmeriServ Food Company, successor to
AmeriServe Food Distribution, Inc.).
3.2 Amended and Restated Bylaws of AmeriServe Food
Distribution, Inc. (formerly AmeriServ Food Company,
successor to AmeriServe Food Distribution, Inc.).
4.1 Supplemental 10 1/8% New Senior Subordinated Notes Indenture, dated
as of December 23, 1997, by and among AmeriServe Food Distribution,
Inc., AmeriServ Food Company, and State Street Bank and Trust
Company, as
Trustee.
4.2 Supplemental 8 7/8% New Senior Notes Indenture, dated as of December
23, 1997, by and among AmeriServe Food Distribution, Inc., AmeriServ
Food Company, and State Street Bank and Trust Company, as Trustee.
10.1 Second Amendment to Second Amended and Restated Credit Agreement,
dated as of December 22, 1997.
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Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
of
AMERISERVE FOOD DISTRIBUTION, INC.
PREAMBLE
AmeriServe Food Distribution, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "DGCL"), was originally incorporated under the DGCL on August 21,
1989 under the name Cypress Food Company. This Amended and Restated Certificate
of Incorporation has been duly adopted in accordance with Sections 242 and 245
of the DGCL.
ARTICLE I
The name of the Corporation is:
AMERISERVE FOOD DISTRIBUTION, INC.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is The Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of the Corporation's registered agent
at such address is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation shall be to engage in any lawful act
or activity for which corporations may be organized and incorporated under the
DGCL.
ARTICLE IV
Section 1. Authorized Stock. The Corporation shall be authorized to
issue (a) 10,000 shares of common stock, $0.01 par value per share ("Common
Stock") and (b) 10,000 shares of preferred stock ("Preferred Stock"), $0.01 par
value per share.
Section 2. Preferred Stock. Shares of Preferred Stock may be issued
from time to time in one or more series. The Board (as defined below) is
authorized to fix the voting rights, if any, designations, powers, preferences
and the relative, participation, optional or other rights, if any, and the
qualifications, limitations or restrictions thereof, of any unissued series of
Preferred Stock; and to fix the number of shares constituting such series, and
to increase or decrease the number of shares of any such series (but not below
the number of shares thereof then outstanding).
<PAGE>
Section 3. Voting Rights. Except as otherwise provided herein, by law
or by the resolution or resolutions adopted by the Board designating the rights,
powers and preferences of any series of Preferred Stock, the Common Stock shall
have the exclusive right to vote for the election of directors and for all other
purposes. Each share of Common Stock shall have one vote, and the Common Stock
shall vote together as a single class.
ARTICLE V
Unless and except to the extent that the Bylaws of the Corporation
shall so require, the election of directors of the Corporation need not be by
written ballot.
ARTICLE VI
In furtherance and not in limitation of the powers conferred by law,
the Board of Directors of the Corporation (the "Board") is expressly authorized
and empowered to make, alter and repeal the Bylaws of the Corporation by a
majority vote at any regular or special meeting of the Board or by written
consent, subject to the power of the stockholders of the Corporation to alter or
repeal any Bylaws made by the Board.
ARTICLE VII
The Corporation reserves the right at any time and from time to time
to amend, alter, change or repeal any provision contained in this Amended and
Restated Certificate of Incorporation, and any other provisions authorized by
the laws of the State of Delaware at the time in force may be added or inserted,
in the manner now or hereafter prescribed by law; and all rights, preferences
and privileges of whatsoever nature conferred upon stockholders, directors or
any other persons whomsoever by and pursuant to this Amended and Restated
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the right reserved in this Article.
ARTICLE VIII
Section 1. Elimination of Certain Liability of Directors. A director
of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit.
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<PAGE>
Section 2. Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a limited
liability company, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the DGCL, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, amounts paid or to be paid in settlement, and
excise taxes or penalties arising under the Employee Retirement Income Security
Act of 1974) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that, except
as provided in paragraph (2) hereof, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board. The right to indemnification conferred in this Section
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the DGCL requires, the
payment of such expenses incurred by a director or officer in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Section or
otherwise. The Corporation may, by action of the Board, provide indemnification
to employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (1)
of this Section is not paid in full by the Corporation within thirty days after
a written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the DGCL for the Corporation to
indemnify the
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<PAGE>
claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the DGCL, nor an actual
determination by the Corporation (including its Board, independent legal
counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, By-law, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
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<PAGE>
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation has been executed by a duly authorized officer this 23d day of
December, 1997.
AMERISERVE FOOD DISTRIBUTION, INC.
By: /s/ Raymond E. Marshall
Name: Raymond E. Marshall
Title: President
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Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
of
AMERISERVE FOOD DISTRIBUTION, INC.
ARTICLE I
OFFICES
SECTION 1.REGISTERED OFFICE. The registered office of AmeriServe Food
Distribution, Inc. (the "Corporation") shall be established and maintained at
the office of The Corporation Trust Company at The Corporation Trust Center,
1209 Orange Street in the City of Wilmington, County of New Castle, State of
Delaware, and said Corporation Trust Company shall be the registered agent of
the Corporation in charge thereof.
SECTION 2.OTHER OFFICES. The Corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time select or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1.ANNUAL MEETINGS Annual meetings of stockholders for the
election of directors, and for such other business as may be stated in the
notice of the meeting, shall be held at such place, either within or without the
State of Delaware, and at such time and date as the Board of Directors, by
resolution, shall determine and as set forth in the notice of the meeting. At
each annual meeting, the stockholders entitled to vote shall elect a Board of
Directors and they may transact such other corporate business as shall be stated
in the notice of the meeting.
SECTION 2.SPECIAL MEETINGS. Special meetings of the stockholders for
any purpose or purposes may be called by the Chairman of the Board, the
President or the Secretary, or by resolution of the Board of Directors.
SECTION 3.VOTING. Each stockholder entitled to vote in accordance
with the terms of the Certificate of Incorporation of the Corporation and these
By-Laws may vote in person or by proxy, but no proxy shall be voted after three
years from its date unless such proxy provides for a longer period. All
elections for directors shall be decided by plurality vote; all other questions
shall be decided by majority vote except as otherwise provided by the
Certificate of Incorporation or the laws of the State of Delaware.
A complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, with the address of each, and the number of
shares held by each, shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a
<PAGE>
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is entitled to be present.
SECTION 4.QUORUM. Except as otherwise required by law, by the
Certificate of Incorporation of the Corporation or by these By-Laws, the
presence, in person or by proxy, of stockholders holding shares constituting a
majority of the voting power of the Corporation shall constitute a quorum at all
meetings of the stockholders. In case a quorum shall not be present at any
meeting, a majority in interest of the stockholders entitled to vote thereat,
present in person or by proxy, shall have the power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, until the
requisite amount of stock entitled to vote shall be present. At any such
adjourned meeting at which the requisite amount of stock entitled to vote shall
be represented, any business may be transacted that might have been transacted
at the meeting as originally noticed; but only those stockholders entitled to
vote at the meeting as originally noticed shall be entitled to vote at any
adjournment or adjournments thereof.
SECTION 5.NOTICE OF MEETINGS. Written notice, stating the place, date
and time of the meeting, and the general nature of the business to be
considered, shall be given to each stockholder entitled to vote thereat, at his
or her address as it appears on the records of the Corporation, not less than
ten nor more than sixty days before the date of the meeting. No business other
than that stated in the notice shall be transacted at any meeting without the
unanimous consent of all the stockholders entitled to vote thereat.
SECTION 6.ACTION WITHOUT MEETING. Unless otherwise provided by the
Certificate of Incorporation of the Corporation, any action required or
permitted to be taken at any annual or special meeting of stockholders may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
SECTION 1.NUMBER AND TERM. The business and affairs of the
Corporation shall be managed under the direction of a Board of Directors which
shall consist of not less than three persons and not more than fifteen persons.
The exact number of directors may be fixed from time to time by the Board of
Directors. Directors shall be elected at the annual meeting of stockholders and
each director shall be elected to serve until his or her successor shall be
elected and shall qualify. A director need not be a stockholder.
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SECTION 2.RESIGNATIONS. Any director may resign at any time. Such
resignation shall be made in writing, and shall take effect at the time
specified therein, and if no time be specified, at the time of its receipt by
the Chairman of the Board, the President or the Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
SECTION 3.VACANCIES. If the office of any director becomes vacant,
the remaining directors in the office, though less than a quorum, by a majority
vote, may appoint any qualified person to fill such vacancy, who shall hold
office for the unexpired term and until his or her successor shall be duly
chosen. If the office of any director becomes vacant and there are no remaining
directors, the stockholders, by the affirmative vote of the holders of shares
constituting a majority of the voting power of the Corporation, at a special
meeting called for such purpose, may appoint any qualified person to fill such
vacancy.
SECTION 4.REMOVAL. Except as hereinafter provided, any director or
directors may be removed either for or without cause at any time by the
affirmative vote of the holders of a majority of the voting power entitled to
vote for the election of directors, at an annual meeting or a special meeting
called for the purpose, and the vacancy thus created may be filled, at such
meeting, by the affirmative vote of holders of shares constituting a majority of
the voting power of the Corporation.
SECTION 5.COMMITTEES. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more directors of the
Corporation.
Any such committee, to the extent provided in the resolution of the
Board of Directors, or in these By-Laws, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it.
SECTION 6.MEETINGS. The newly elected directors may hold their first
meeting for the purpose of organization and the transaction of business, if a
quorum be present, immediately after the annual meeting of the stockholders; or
the time and place of such meeting may be fixed by consent of all the Directors.
Regular meetings of the Board of Directors may be held without notice
at such places and times as shall be determined from time to time by resolution
of the Board of Directors.
Special meetings of the Board of Directors may be called by the
Chairman of the Board or the President, or by the Secretary on the written
request of any director, on at least one day's notice to each director (except
that notice to any director may be waived in writing by such director) and shall
be held at such place or places as may be determined by the Board of Directors,
or as shall be stated in the call of the meeting.
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Unless otherwise restricted by the Certificate of Incorporation of
the Corporation or these By-Laws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in any meeting
of the Board of Directors or any committee thereof by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
SECTION 7.QUORUM. A majority of the Directors shall constitute a
quorum for the transaction of business. If at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time until a quorum is obtained, and no
further notice thereof need be given other than by announcement at the meeting
which shall be so adjourned. The vote of the majority of the Directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors unless the Certificate of Incorporation of the Corporation or these
By-Laws shall require the vote of a greater number.
SECTION 8.COMPENSATION. Directors shall not receive any stated salary
for their services as directors or as members of committees, but by resolution
of the Board of Directors a fixed fee and expenses of attendance may be allowed
for attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation therefor.
SECTION 9.ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if a written consent thereto is signed by all
members of the Board of Directors or of such committee, as the case may be, and
such written consent is filed with the minutes of proceedings of the Board of
Directors or such committee.
ARTICLE IV
OFFICERS
SECTION 1.OFFICERS. The officers of the Corporation shall be a
Chairman of the Board, a President, one or more Vice Presidents, a Treasurer and
a Secretary, all of whom shall be elected by the Board of Directors and shall
hold office until their successors are duly elected and qualified. In addition,
the Board of Directors may elect such Assistant Secretaries and Assistant
Treasurers as they may deem proper. The Board of Directors may appoint such
other officers and agents as it may deem advisable, who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall
be determined from time to time by the Board of Directors.
SECTION 2.CHAIRMAN OF THE BOARD. The Chairman of the Board shall be
the Chief Executive Officer of the Corporation. He or she shall preside at all
meetings of the Board of Directors and shall have and perform such other duties
as may be
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<PAGE>
assigned to him or her by the Board of Directors. The Chairman of the Board
shall have the power to execute bonds, mortgages and other contracts on
behalf of the Corporation, and to cause the seal of the Corporation to be
affixed to any instrument requiring it, and when so affixed the seal shall be
attested to by the signature of the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer.
SECTION 3.PRESIDENT. The President, if any, shall act in a general
executive capacity and shall assist the Chairman of the Board in the
administration and the operation of the Corporation's business and general
supervision of its policies and affairs. The President shall have the power to
execute bonds, mortgages and other contracts on behalf of the Corporation, and
to cause the seal to be affixed to any instrument requiring it, and when so
affixed the seal shall be attested to by the signature of the Secretary or the
Treasurer or an Assistant Secretary or an Assistant Treasurer.
SECTION 4.VICE PRESIDENTS. Each Vice President shall have such powers
and shall perform such duties as shall be assigned to him or her by the Board of
Directors.
SECTION 5.TREASURER. The Treasurer shall be the Chief Financial
Officer of the Corporation. He or she shall have the custody of the Corporate
funds and securities and shall keep full and accurate account of receipts and
disbursements in books belonging to the Corporation. He or she shall deposit all
moneys and other valuables in the name and to the credit of the Corporation in
such depositaries as may be designated by the Board of Directors. He or she
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, the Chairman of the Board, or the President, taking proper vouchers
for such disbursements. He or she shall render to the Chairman of the Board, the
President and Board of Directors at the regular meetings of the Board of
Directors, or whenever they may request it, an account of all his or her
transactions as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, he or she shall give the Corporation a bond
for the faithful discharge of his or her duties in such amount and with such
surety as the Board of Directors shall prescribe.
SECTION 6.SECRETARY. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and of the Board of Directors and all
other notices required by law or by these By-Laws, and in case of his or her
absence or refusal or neglect so to do, any such notice may be given by any
person thereunto directed by the Chairman of the Board or the President, or by
the Board of Directors, upon whose request the meeting is called as provided in
these By-Laws. He or she shall record all the proceedings of the meetings of the
Board of Directors, any committees thereof and the stockholders of the
Corporation in a book to be kept for that purpose, and shall perform such other
duties as may be assigned to him or her by the Board of Directors, the Chairman
of the Board or the President. He or she shall have the custody of the seal of
the Corporation and shall affix the same to all instruments requiring it, when
authorized by the Board of Directors, the Chairman of the Board or the
President, and attest to the same.
-5-
<PAGE>
SECTION 7.ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the Board of Directors.
ARTICLE V
MISCELLANEOUS
SECTION 1.CERTIFICATES OF STOCK. A certificate of stock shall be
issued to each stockholder certifying the number of shares owned by such
stockholder in the Corporation. Certificates of stock of the Corporation shall
be of such form and device as the Board of Directors may from time to time
determine.
SECTION 2.LOST CERTIFICATES. A new certificate of stock may be issued
in the place of any certificate theretofore issued by the Corporation, alleged
to have been lost or destroyed, and the Board of Directors may, in its
discretion, require the owner of the lost or destroyed certificate, or such
owner's legal representatives, to give the Corporation a bond, in such sum as
they may direct, not exceeding double the value of the stock, to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss of any such certificate, or the issuance of any such new
certificate.
SECTION 3.TRANSFER OF SHARES. The shares of stock of the Corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the old certificates shall be surrendered to the Corporation by the delivery
thereof to the person in charge of the stock and transfer books and ledgers, or
to such other person as the Board of Directors may designate, by whom they shall
be canceled, and new certificates shall thereupon be issued. A record shall be
made of each transfer and whenever a transfer shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer.
SECTION 4.STOCKHOLDERS RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors and which
record date: (1) in the case of determination of stockholders entitled to vote
at any meeting of stockholders or adjournment thereof, shall, unless otherwise
required by law, not be more than sixty nor less than ten days before the date
of such meeting; (2) in the case of determination of stockholders entitled to
express consent to corporate action in writing without a meeting, shall not be
more than ten days from the date upon which the resolution fixing the record
date is adopted by the Board of Directors; and (3) in the case of any other
action, shall not be
-6-
<PAGE>
more than sixty days prior to such other action. If no record date is fixed: (1)
the record date for determining stockholders entitled to notice of or to vote at
a meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; (2) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting when no prior action of
the Board of Directors is required by law, shall be the first day on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action; and (3) the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 5.DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation of the Corporation, the Board of Directors may, out of funds
legally available therefor at any regular or special meeting, declare dividends
upon stock of the Corporation as and when they deem appropriate. Before
declaring any dividend there may be set apart out of any funds of the
Corporation available for dividends, such sum or sums as the Board of Directors
from time to time in their discretion deem proper for working capital or as a
reserve fund to meet contingencies or for equalizing dividends or for such other
purposes as the Board of Directors shall deem conducive to the interests of the
Corporation.
SECTION 6.SEAL. The corporate seal of the Corporation shall be in
such form as shall be determined by resolution of the Board of Directors. Said
seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise imprinted upon the subject document or paper.
SECTION 7.FISCAL YEAR. The fiscal year of the Corporation shall be
the calendar year unless otherwise determined by resolution of the Board of
Directors.
SECTION 8.CHECKS. All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers, or agent or agents, of
the Corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
SECTION 9.NOTICE AND WAIVER OF NOTICE. Whenever any notice is
required to be given under these By-Laws, personal notice is not required unless
expressly so stated, and any notice so required shall be deemed to be sufficient
if given by depositing the same in the United States mail, postage prepaid,
addressed to the person entitled thereto at his or her address as it appears on
the records of the Corporation, and such notice shall be deemed to have been
given on the day of such mailing. Stockholders not entitled to vote
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<PAGE>
shall not be entitled to receive notice of any meetings except as otherwise
provided by law. Whenever any notice is required to be given under the
provisions of any law, or under the provisions of the Certificate of
Incorporation of the Corporation or of these By-Laws, a waiver thereof, in
writing and signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent to such
required notice. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, unless such attendance is for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
ARTICLE VI
AMENDMENTS
These By-Laws may be altered, amended or repealed at any annual
meeting of the stockholders (or at any special meeting thereof if notice of such
proposed alteration, amendment or repeal to be considered is contained in the
notice of such special meeting) by the affirmative vote of the holders of shares
constituting a majority of the voting power of the Corporation. Except as
otherwise provided in the Certificate of Incorporation of the Corporation, the
Board of Directors may by majority vote of those present at any meeting at which
a quorum is present alter, amend or repeal these By-Laws, or enact such other
By-Laws as in their judgment may be advisable for the regulation and conduct of
the affairs of the Corporation.
-8-
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 Harry H. 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.
<PAGE>
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.
-2-
<PAGE>
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.
-3-
<PAGE>
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/ Donald J. Rogers
Name: Donald J. Rogers
Title: Secretary
Dated: December 23, 1997 AMERISERVE FOOD DISTRIBUTION, INC.
By:/s/ Donald J. Rogers
Name: Donald J. Rogers
Title: Chief Financial Officer
Dated: December 23, 1997 STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ Michael M. Hopkins
Name: Michael M. Hopkins
Title: Vice President
-4-
Exhibit 4.2
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 Harry H. 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.
<PAGE>
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.
-2-
<PAGE>
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.
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.
-3-
<PAGE>
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/ Donald J. Rogers
Name: Donald J. Rogers
Title: Secretary
Dated: December 23, 1997 AMERISERVE FOOD DISTRIBUTION, INC.
By:/s/ Donald J. Rogers
Name: Donald J. Rogers
Title: Chief Financial Officer
Dated: December 23, 1997 STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ Michael M. Hopkins
Name: Michael M. Hopkins
Title: Vice President
-4-
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, Donaldson, Lufkin &
Jenrette 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
<PAGE>
by Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc. ("S&P") or the equivalent thereof by Moody's 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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<PAGE>
"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
-3-
<PAGE>
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.
-4-
<PAGE>
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:________________________
DONALDSON, LUFKIN & JENRETTE
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:________________________
-5-
<PAGE>
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:________________________
MERRILL LYNCH SENIOR FLOATING
RATE FUND INC.
By______________________________
Title:________________________
-6-
<PAGE>
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:________________________
VAN KAMPEN AMERICA CAPITAL
By______________________________
Title:________________________
-7-
<PAGE>
VAN KAMPEN CLO I, LIMITED
By______________________________
Title:________________________
-8-
<PAGE>
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:________________________
