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EXHIBIT 4.2
(FACE OF NEW SENIOR SUBORDINATED NOTE)
100% NEW SENIOR SUBORDINATED NOTES DUE 2007
No. $
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CUSIP NO. 03072JAA3
AMERISERVE FOOD DISTRIBUTION, INC.
promises to pay to or registered assigns, the principal sum
of Dollars on July 5, 2007.
Interest Payment Dates: July 15 and January 15
Record Dates: July 1 and January 15
AMERISERVE FOOD DISTRIBUTION, INC.
By:
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Name:
Title:
This is one of the New Senior Subordinated Notes referred to in the
within-mentioned Indenture:
Dated:
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STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
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(BACK OF NEW SENIOR SUBORDINATED NOTE)
10 1/8% NEW SENIOR SUBORDINATED NOTES DUE 2007
[Unless and until it is exchanged in whole or in part for New Senior
Subordinated Notes in definitive form, this New Senior Subordinated Note may not
be transferred except as a whole by the Depositary to a Nominee of the
Depositary or by an nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. Unless this
certificate is presented by an authorized representative of The Depository Trust
Company (55 Water Street, New York, New York) ("DTC"), to the issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as may be
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in as much as the registered owner
hereof, Cede & Co., has an interest herein.](1)
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. AmeriServe Food Distribution, Inc., a Nebraska corporation,
or its successor (the "Company"), promises to pay interest on the principal
amount of this New Senior Subordinated Note at the rate of 10 1/8% per annum and
shall pay the Liquidated Damages, if any, payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. The Company will pay interest
and Liquidated Damages, if any, in United States dollars (except as otherwise
provided herein) semi-annually in arrears on July 15 and January 15, commencing
on January 15, 1998, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the New
Senior Subordinated Notes shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default or Event of Default in
the payment of interest, and if this New Senior Subordinated Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date, except in the case of the original issuance of
New Senior Subordinated Notes, in which case interest shall accrue from the date
of authentication. The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
New Senior Subordinated Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to any
applicable grace period) at the same rate to the extent lawful. Interest shall
be computed on the basis of a 360-day year comprised of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the New Senior
Subordinated Notes (except defaulted interest) and Liquidated Damages, if any,
on the applicable Interest Payment Date to the Persons who are registered
Holders of New Senior Subordinated Notes at the close of business on the July 1
or January 1 next preceding the Interest Payment Date, even if such New Senior
Subordinated Notes are cancelled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture with
respect to defaulted interest. The New Senior Subordinated Notes shall be
payable as to principal, premium and Liquidated Damages, if any, and interest at
the office or agency of the Company maintained for such purpose within or
without the City and State of New York, or, at the option of the Company,
payment of interest and Liquidated Damages, if any, may be made by check mailed
to the Holders at their addresses set forth in the register of Holders; provided
that payment by wire transfer of immediately available funds shall be required
with respect to principal of, premium and Liquidated Damages, if any, and
interest on, all Global New Notes and all other New Senior Subordinated Notes
the Holders of which shall have provided written wire transfer instructions to
the Company and the Paying Agent. Such
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(1) This paragraph should be included only if the New Senior Subordinated Note
is issued in global form.
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payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and Trust
Company, the Trustee under the Indenture, shall act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the New Senior Subordinated Notes under
an Indenture dated as of July 11, 1997 ("Indenture") among the Company, the
Subsidiary Guarantors and the Trustee. The terms of the New Senior Subordinated
Notes include those stated in the Indenture and those made a part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code sec.sec. 77aaa-77bbbb) (the "TIA"). The New Senior Subordinated Notes are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of such terms. The New Senior Subordinated Notes are general
unsecured Obligations of the Company limited to $500,000,000 in aggregate
principal amount, plus amounts, if any, sufficient to pay premium or Liquidated
Damages, if any, and interest on outstanding New Senior Subordinated Notes as
set forth in Paragraph 2 hereof.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the New Senior Subordinated
Notes shall not be redeemable at the Company's option prior to July 15, 2002.
Thereafter, the New Senior Subordinated Notes shall be subject to redemption at
the option of the Company, in whole or in part, upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as percentages of
principal amount) set forth below together with accrued and unpaid interest and
any Liquidated Damages, if any, thereon to the applicable redemption date, if
redeemed during the twelve-month period beginning on July 15 of the years
indicated below:
YEAR PERCENTAGE
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2002...................................................................... 105.063%
2003...................................................................... 103.375%
2004...................................................................... 101.688%
2005 and thereafter....................................................... 100.000%
Notwithstanding the foregoing, at any time prior to July 15, 2000, the
Company may redeem up to 33% of the original aggregate principal amount of New
Senior Subordinated Notes at a redemption price of 110.125% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
to the redemption date, with the net proceeds of a Public Equity Offering;
provided that at least 67% of the original aggregate principal amount of New
Senior Subordinated Notes remains outstanding immediately after the occurrence
of such redemption; and provided, further, that such redemption shall occur
within 45 days of the date of the closing of such Public Equity Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be required
to make mandatory redemption or sinking fund payments with respect to the New
Senior Subordinated Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of New Senior
Subordinated Notes will have the right to require the Company to repurchase all
or any part (equal to $1,000 or an integral multiple thereof) of such Holder's
New Senior Subordinated Notes pursuant to the offer described below (the "Change
of Control Offer") at an offer price in cash equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest and Liquidated
Damages, if any, thereon, to the date of purchase. Within 30 days following any
Change of Control, the Company will mail a notice to each Holder describing the
transaction or transactions that constitute the Change of Control setting forth
the procedures governing the Change of Control Offer required by the Indenture.
(b) When the aggregate amount of Excess Proceeds exceeds $15.0 million, the
Company shall offer to all Holders of New Senior Subordinated Notes (an "Asset
Sale Offer") to purchase the maximum principal
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amount of Senior Subordinated Notes that may be purchased out of the Excess
Proceeds at an offer price in cash equal to 100% of principal amount thereof,
plus accrued and unpaid interest, and Liquidated Damages thereon, if any, to the
date of purchase in accordance with the procedures set forth in the Indenture.
To the extent that the aggregate amount of New Senior Subordinated Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company may use any remaining Excess Proceeds for any general corporate
purposes. If the aggregate principal amount of New Senior Subordinated Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the New Senior Subordinated Notes to be purchased on a pro
rata basis. Upon completion of such offer to purchase, the amount of Excess
Proceeds shall be reset at zero.
(c) Holders of the New Senior Subordinated Notes that are the subject of an
offer to purchase will receive a Change of Control Offer or Asset Sale Offer
from the Company prior to any related purchase date and may elect to have such
New Senior Subordinated Notes purchased by completing the form titled "Option of
Holder to Elect Purchase" appearing below.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
New Senior Subordinated Notes are to be redeemed at its registered address. New
Senior Subordinated Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the New Senior
Subordinated Notes held by a Holder are to be redeemed. On and after the
redemption date, interest and Liquidated Damages, if any, ceases to accrue on
the New Senior Subordinated Notes or portions thereof called for redemption.
9. SUBORDINATION. The New Notes are subordinated to New Senior Debt, which
is (i) all Indebtedness outstanding under the New Credit Facility, including any
Guarantees thereof and all Hedging Obligations with respect thereto, (ii) any
other Indebtedness permitted to be incurred by the Company under the terms of
this Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the New Notes and (iii) all Obligations with respect to the
foregoing. Notwithstanding anything to the contrary in the foregoing, Senior
Debt will not include (w) any liability for federal, state, local or other taxes
owed or owing by the Company, (x) any Indebtedness of the Company to any of its
Subsidiaries or other Affiliates, (y) any trade payables or (z) any Indebtedness
that is incurred in violation of this Indenture. To the extent provided in the
Indenture, Senior Debt must be paid before the New Notes may be paid. The
Company agrees and each Holder of New Notes by accepting a New Note consents and
agrees to the subordination provided in the Indenture and authorizes the Trustee
to give it effect.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The New Senior Subordinated Notes
are in registered form without coupons in initial denominations of $1,000 and
integral multiples of $1,000. The transfer of the New Senior Subordinated Notes
may be registered and the New Senior Subordinated Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any New Senior Subordinated Note or portion of a New Senior
Subordinated Note selected for redemption, except for the unredeemed portion of
any New Senior Subordinated Note being redeemed in part. Also, it need not
exchange or register the transfer of any New Senior Subordinated Notes for a
period of 15 days before a selection of New Senior Subordinated Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
11. PERSONS DEEMED OWNERS. The registered Holder of a New Senior
Subordinated Note may be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following paragraphs,
the Indenture, the New Senior Subordinated Notes and the New Note Guarantees may
be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the New Senior Subordinated Notes then
outstanding (including, without limitation, consents obtained in connection with
a purchase of or, tender offer or exchange offer for New Senior Subordinated
Notes), and any existing Default or Event of Default or compliance with any
provision of the Indenture, the New Senior Subordinated Notes or the New Note
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Guarantees may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding New Senior Subordinated Notes
(including consents obtained in connection with a tender offer or exchange offer
for New Senior Subordinated Notes).
Without the consent of any Holder of New Senior Subordinated Notes, the
Company and the Trustee may amend or supplement the Indenture, the New Note
Guarantees or the New Senior Subordinated Notes to cure any ambiguity, defect or
inconsistency, to provide for uncertificated New Senior Subordinated Notes in
addition to or in place of certificated New Senior Subordinated Notes, to
provide for the assumption of the Company's or a Subsidiary Guarantor's
obligations to Holders of New Senior Subordinated Notes in the case of a merger
or consolidation, to make any change that would provide any additional rights or
benefits to the Holders of New Senior Subordinated Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act or to allow any
Subsidiary to guarantee the New Senior Subordinated Notes. Any amendments with
respect to subordination provisions of the New Notes or the New Note Guarantees
would require the consent of the Holders of at least 75% in aggregate amount of
New Notes then outstanding if such amendment would adversely affect the rights
of the Holders of New Notes.
13. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest on or Liquidated Damages, if any, with
respect to the New Senior Subordinated Notes; (ii) default in payment when due
of the principal of or premium, if any, on the New Senior Subordinated Notes;
(iii) failure by the Company or any Restricted Subsidiary to comply with the
provisions described in Sections 4.10, 4.14 or 5.01 of the Indenture; (iv)
failure by the Company or any Restricted Subsidiary for 30 days after notice
from the Trustee or at least 25% in principal amount of the New Senior
Subordinated Notes to comply with the provisions described in Sections 4.07 and
4.09, of the Indenture; (v) failure by the Company or any Subsidiary for 60 days
after notice from the Trustee or the Holders of at least 25% in principal amount
of the New Senior Subordinated Notes then outstanding to comply with its other
agreements in the Indenture or the New Senior Subordinated Notes; (vi) default
under any mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of their its Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Subsidiaries) whether such Indebtedness
or guarantee now exists, or is created after the date of the Indenture, which
default (A) (i) is caused by a failure to pay when due at final stated maturity
(giving effect to any grace period related thereto) any principal of or premium,
if any, or interest on such Indebtedness (a "Payment Default") or (ii) results
in the acceleration of such Indebtedness prior to its express maturity and (B)
in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$15.0 million or more; (vii) failure by the Company or any of its Subsidiaries
to pay final judgments aggregating in excess of $5.0 million, which judgments
are not paid discharged or stayed within 60 days after their entry; and (viii)
certain events of bankruptcy or insolvency with respect to the Company, any of
its Significant Subsidiaries or any group of Subsidiaries that, taken together,
would constitute a Significant Subsidiary.
If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding New Senior
Subordinated Notes may declare all the New Senior Subordinated Notes to be due
and payable immediately provided, however, that if any Indebtedness or
Obligation is outstanding pursuant to the New Credit Facility, upon a
declaration of acceleration by the holders of the New Senior Subordinated Notes
or the Trustee, all principal and interest under the Indenture shall be due and
payable upon the earlier of (x) the day five Business Days after the provision
to the Company, the Credit Agent and the Trustee of such written notice of
acceleration or (y) the date of acceleration of any Indebtedness under the New
Credit Facility; and provided, further, that in the event of an acceleration
based upon an Event of Default set forth in clause (vi) above, such declaration
of acceleration shall be automatically annulled if the holders of Indebtedness
which is the subject of such failure to pay at maturity or acceleration have
rescinded their declaration of acceleration in respect of such Indebtedness or
such failure to pay at maturity shall have been cured or waived within 30 days
thereof and no other Event of Default has occurred
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during such 30-day period which has not been cured, paid or waived.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the Company or any
of its Significant Subsidiaries all outstanding New Senior Subordinated Notes
will become due and payable without further action or notice. Holders of the New
Senior Subordinated Notes may not enforce the Indenture or the New Senior
Subordinated Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
New Senior Subordinated Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the New Senior
Subordinated Notes notice of any continuing Default or Event of Default (except
a Default or Event of Default relating to the payment of principal or interest)
if it determines that withholding notice is in their interest.
14. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company, the Subsidiary Guarantors or their respective Affiliates, and
may otherwise deal with the Company, the Subsidiary Guarantors or their
respective Affiliates, as if it were not the Trustee.
15. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder, of the Company or any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or any
Subsidiary Guarantor under the New Senior Subordinated Notes, the Indenture or
the Note Guarantees or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of New Senior Subordinated Notes
by accepting a New Senior Subordinated Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the New Senior Subordinated Notes and any New Note Guarantee.
16. AUTHENTICATION. This New Senior Subordinated Note shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating
agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
addition to the rights provided to Holders of the New Senior Subordinated Notes
under the Indenture, Holders of Transferred Restricted Securities (as defined in
the Registration Rights Agreement) shall have all the rights set forth in the
Registration Rights Agreement, dated as of July 11, 1997, among the Company, the
Subsidiary Guarantors and the Initial Purchasers (the "Registration Rights
Agreement").
19. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the New Senior Subordinated Notes and the Trustee
may use CUSIP numbers in notices of redemption as a convenience to the Holders.
No representation is made as to the accuracy of such numbers either as printed
on the New Senior Subordinated Notes or as contained in any notice of redemption
and reliance may be placed only on the other identification numbers placed
thereon.
The Company shall furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
AmeriServe Food Distribution, Inc.
17975 West Sarah Lane, Suite 100
Brookfield, Wisconsin
Telecopy: (414) 792-0202
Chief Financial Officer
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ASSIGNMENT FORM
To assign this New Senior Subordinated Note, fill in the form below: (I) or (we)
assign and transfer this New Senior Subordinated Note to
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(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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to transfer this New Senior Subordinated Note on the books of the Company. The
agent may substitute another to act for him.
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Date:
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Your Signature:
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(Sign exactly as your name appears on
the face of this New Senior
Subordinated Note)
Signature Guarantee:
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this New Senior Subordinated Note purchased by
the Company pursuant to Section 4.10 or 4.14 of the Indenture, check the box
below:
[ ] Section 4.10 [ ] Section 4.14
If you want to elect to have only part of the New Senior Subordinated Note
purchased by the Company pursuant to Section 4.10 or Section 4.14 of the
Indenture, state the amount you elect to have purchased: $
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Date:
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Your Signature:
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(Sign exactly as your name appears on
the face of this New Senior
Subordinated Note)
Tax Identification No.:
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Signature Guarantee.
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SCHEDULE OF EXCHANGES OF NEW SENIOR SUBORDINATED NOTES*
THE FOLLOWING EXCHANGES OF A PART OF THIS GLOBAL NEW NOTE FOR OTHER NEW SENIOR
SUBORDINATED NOTES HAVE BEEN MADE:
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PRINCIPAL AMOUNT OF SIGNATURE OF AUTHORIZED
AMOUNT OF DECREASE IN AMOUNT OF INCREASE IN THIS GLOBAL NEW NOTE OFFICER OF TRUSTEE OR
DATE OF PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF FOLLOWING SUCH DECREASE NEW SENIOR SUBORDINATED
EXCHANGE THIS GLOBAL NEW NOTE THIS GLOBAL NEW NOTE (OR INCREASE) NOTE CUSTODIAN
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* To be included only if the New Senior Subordinated Note is issued in
global form.
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