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EXHIBIT 10.16
EXECUTION COPY
OMNIBUS AMENDMENT NO. 1
TO
SERIES 1998-4 SUPPLEMENT
AND
CERTIFICATE PURCHASE AGREEMENT
(AmeriServe Receivables Master Trust, Series 1998-4)
This AMENDMENT NO. 1 dated as of June 1, 1999 (this "Amendment"), is
among AmeriServe Funding Corporation, a Delaware corporation ("AFC"); AmeriServe
Food Distribution, Inc., a Delaware corporation ("AmeriServe"); Norwest Bank
Minnesota, National Association, a national banking association ("Norwest"), as
Trustee; Bank of America National Trust and Savings Association, a national
banking association ("Bank of America"), individually and as Agent; and Quincy
Capital Corporation, as the Series 1998-4 Certificateholder ("QCC").
W I T N E S S E T H
WHEREAS, AFC, as Transferor, AmeriServe, as the initial Servicer, and
Norwest, as Trustee are the parties to the Series 1998-4 Supplement to the
Pooling and Servicing Agreement dated as of December 18, 1998 (the
"Supplement").
WHEREAS, AFC, as Transferor, AmeriServe, Norwest, as Trustee and the
Series 1998-4 Certificateholder are the parties to the Certificate Purchase
Agreement dated as of December 18, 1998 (the "CPA").
WHEREAS, the current aggregate Stated Amount of Series 1998-4 is
$100,000,000 (the "Original Series 1998-4 Aggregate Stated Amount").
WHEREAS, the parties hereto desire, among other things, to amend the
Supplement and the CPA to increase the Original Series 1998-4 Aggregate Stated
Amount by fifty million Dollars ($50,000,000) for a period of one hundred twenty
(120) days.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which the parties hereto hereby acknowledge, the parties hereto
agree as follows:
SECTION 1. Definitions. As used herein, capitalized terms which are
defined in the preamble hereto shall have the meanings as so defined, and
capitalized terms used herein and not otherwise defined are used as defined in
(or by reference in) the Supplement.
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SECTION 2. Amendments to Supplement.
(a) The definition of Certificate Spread in Section 1.1(c) of the
Supplement is hereby amended in its entirety to read as follows:
"Certificate Spread" means (a) with respect to any Eurodollar
Tranche, eighty-seven and one-half basis points (0.875%) per annum, (b)
with respect to any CP Tranche, seventy-five basis points (0.75%) per
annum, (c) with respect to any ABR Tranche, zero basis points (0%) per
annum, and (d) notwithstanding the foregoing, at any time a Spread
Increase Event has occurred and is continuing, the Certificate Spread
with respect of any Eurodollar Tranche, any CP Tranche, and any ABR
Tranche shall be two hundred fifty basis points (2.50%) per annum.
(b) Section 1.1(c) of the Supplement is hereby amended by adding the
following definitions in the proper alphabetical order in such section:
"Increase Period" means the period from June 1, 1999, until the
first day that is one hundred twenty (120) days after such date, or, if
such day is not a Business Day, the first succeeding Business Day.
"Spread Increase Event" means on any day on or after the
thirtieth (30th) day following the end of the Increase Period, that the
Aggregate Invested Amount is greater than one hundred million Dollars
($100,000,000).
(d) Section 1.1(c) of the Supplement is hereby amended by adding the
following at the end of the definition of "Stated Amount":
"The aggregate Stated Amount of all Series 1998-4 Certificates shall be
$150,000,000 during the Increase Period and shall automatically be
reduced to $100,000,000 on the last day of the Increase Period."
SECTION 3. Increase of the Stated Amount under the CPA.
(a) Notwithstanding Schedule I to the CPA, from the Effective Date (as
defined below) until the last day of the Increase Period, the Stated Amount of
QCC's Series 1998-4 Certificate shall be deemed to be increased in an amount
equal to fifty million Dollars ($50,000,000).
(b) In connection with such deemed increase to the Stated Amount
pursuant to clause (a) above, the parties hereto agree that QCC's Series 1998-4
Certificate No. 1 is hereby deemed to be amended by temporarily increasing the
Maximum Principal Amount thereof by fifty million Dollars ($50,000,000) during
the
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Increase Period to reflect such temporary deemed increase to the related Stated
Amount.
SECTION 4. Procedures for Increasing Invested Amounts under the CPA.
Notwithstanding Section 2.2 of the CPA or any other provision in the CPA to the
contrary, the parties hereto agree that: (a) during the month of June 1999,
there shall be one special Increase to QCC's Series 1998-4 Certificate No. 1
with an Increase Amount of fifty million Dollars ($50,000,000) and (b) such
Increase shall be effective and binding on the parties hereto from the date, on
or after the Effective Date, such parties agree until the last day of the
Increase Period irrespective of the mechanics for an Increase set forth in the
CPA and whether or not such increase occurs on an Increase/Decrease Date.
SECTION 5. Absence of Early Amortization Events and Unmatured Early
Amortization Events. Each of AFC and AmeriServe (in its capacity as Servicer and
otherwise) hereby severally represents and warrants to the other parties hereto
that, on and as of the Effective Date (as defined below), no Early Amortization
Event or Unmatured Early Amortization Event has occurred and is continuing.
SECTION 6. Effective Date; Binding Effect; Ratification; Series 1998-4
Certificateholder Consent.
(a) This Amendment shall become effective as of the date (the "Effective
Date") when (i) the Series 1998-4 Certificateholder shall have received, in form
and substance satisfactory to it, (A) evidence that AmeriServe and AFC have
authorized this Amendment, (B) favorable opinions of counsel for AmeriServe and
AFC covering this Amendment as well as updating the opinions given in connection
with the issuance of Series 1998-4, and (C) evidence that the applicable rating
agencies have approved this Amendment, and (ii) the Agent shall have received
(A) counterparts hereof executed (including by facsimile) by the parties hereto
and (B) evidence of indefeasible payment in full of the "Securitization Fee" by
AmeriServe to Banc of America Securities LLC ("BAS") as defined in Section 4 of,
and in the manner set forth in, the letter from BAS and Bank of America to
AmeriServe dated May 21, 1999.
(b) This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
(c) On and after the execution and delivery hereof, (i) this Amendment
shall be a part of the Supplement and the CPA, as applicable, and (ii) each
reference in the Supplement and the CPA to "this Supplement" or "this Agreement"
or "hereof", "hereunder" or words of like import, and each reference in any
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document to the Supplement or the CPA shall mean and be a reference to such CPA
or Supplement, as applicable, as amended or modified hereby.
(d) Except as expressly amended or modified hereby, the Supplement and
the CPA shall remain in full force and effect and are hereby ratified and
confirmed by the parties hereto.
(e) The Series 1998-4 Certificateholder hereby consents to this
Amendment and all of the provisions hereof.
SECTION 7. Miscellaneous. (a) THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE.
(b) Headings used herein are for convenience of reference only and shall
not affect the meaning of this Amendment.
(c) This Amendment may be executed in any number of counterparts, and by
the parties hereto on separate counterparts (including by facsimile), each of
which shall be an original and all of which taken together shall constitute one
and the same agreement.
[Signatures Follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment by their
respective officers thereunto duly authorized as of the date first above
written.
AMERISERVE FUNDING CORPORATION,
as Transferor
By:
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Name:
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Title:
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AMERISERVE FOOD DISTRIBUTION, INC.,
individually and as initial Servicer
By:
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Name:
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Title:
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NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:
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Name:
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Title:
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QUINCY CAPITAL CORPORATION,
as Series 1998-4 Certificateholder
By:
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Name:
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Title:
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
individually and as Agent
By:
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Attorney-in-fact
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