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EXHIBIT 10.18
EXECUTION COPY
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AMERISERVE FINANCE TRUST
AMERISERVE CAPITAL CORPORATION
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$205,000,000
12% SENIOR SECURED NOTES DUE 2006
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INDENTURE
DATED AS OF OCTOBER 1, 1999
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UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
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TABLE OF CONTENTS
Page
EXHIBITS..........................................................................................................i
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................1
Section 1.01 Definitions............................................................................1
Section 1.02 Other Definitions.....................................................................10
Section 1.03 Incorporation by Reference of Trust Indenture Act.....................................10
Section 1.04 Rules of Construction.................................................................11
ARTICLE 2. THE NOTES.............................................................................................11
Section 2.01 Form and Dating.......................................................................11
Section 2.02 Execution and Authentication..........................................................12
Section 2.03 Registrar and Paying Agent............................................................13
Section 2.04 Paying Agent to Hold Money in Trust...................................................13
Section 2.05 Holder Lists..........................................................................14
Section 2.06 Transfer and Exchange.................................................................14
Section 2.07 Replacement Notes.....................................................................21
Section 2.08 Outstanding Notes.....................................................................22
Section 2.09 Treasury Notes........................................................................22
Section 2.10 Temporary Notes.......................................................................22
Section 2.11 Cancellation..........................................................................23
Section 2.12 Defaulted Interest....................................................................23
Section 2.13 Record Date...........................................................................23
Section 2.14 Computation of Interest...............................................................23
Section 2.15 CUSIP Number..........................................................................23
ARTICLE 3. REDEMPTION AND PREPAYMENT.............................................................................24
Section 3.01 Notices to Trustee....................................................................24
Section 3.02 Selection of Notes to be Redeemed or Purchased........................................24
Section 3.03 Notice of Redemption..................................................................24
Section 3.04 Effect of Notice of Redemption........................................................25
Section 3.05 Deposit of Redemption or Purchase Price...............................................25
Section 3.06 Notes Redeemed in Part................................................................26
Section 3.07 Optional Redemption...................................................................26
Section 3.08 Mandatory Redemption..................................................................26
Section 3.09 Repurchase Offers.....................................................................26
ARTICLE 4. COVENANTS.............................................................................................28
Section 4.01 Payment of Notes......................................................................28
Section 4.02 Maintenance of Office or Agency.......................................................28
Section 4.03 Corporate Existence...................................................................29
Section 4.04 Compliance Certificate................................................................29
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Section 4.05 Taxes.................................................................................30
Section 4.06 Stay, Extension and Usury Laws........................................................30
Section 4.07 Impairment of Liens...................................................................30
Section 4.08 Limitation on Activities of the Issuers...............................................30
Section 4.09 Liens.................................................................................31
Section 4.10 Reports...............................................................................31
Section 4.11 Change of Control.....................................................................31
Section 4.12 Asset Sales...........................................................................32
Section 4.13 Payment for Consents..................................................................33
ARTICLE 5. SUCCESSORS............................................................................................33
Section 5.01 Merger, Consolidation of Sale of Assets...............................................33
ARTICLE 6. DEFAULTS AND REMEDIES.................................................................................33
Section 6.01 Events of Default.....................................................................33
Section 6.02 Acceleration..........................................................................34
Section 6.03 Other Remedies........................................................................35
Section 6.04 Waiver of Past Defaults...............................................................35
Section 6.05 Control by Majority...................................................................35
Section 6.06 Limitation on Suits...................................................................36
Section 6.07 Rights of Holders of Notes to Receive Payment.........................................36
Section 6.08 Collection Suit by Trustee............................................................36
Section 6.09 Trustee May File Proofs of Claim......................................................36
Section 6.10 Priorities............................................................................37
Section 6.11 Undertaking for Costs.................................................................37
ARTICLE 7. TRUSTEE...............................................................................................38
Section 7.01 Duties of Trustee.....................................................................38
Section 7.02 Rights of Trustee.....................................................................39
Section 7.03 Individual Rights of Trustee..........................................................39
Section 7.04 Trustee's Disclaimer..................................................................39
Section 7.05 Notice of Defaults....................................................................40
Section 7.06 Reports by Trustee to Holders of the Notes............................................40
Section 7.07 Compensation and Indemnity............................................................40
Section 7.08 Replacement of Trustee................................................................41
Section 7.09 Successor Trustee by Merger, etc......................................................42
Section 7.10 Eligibility; Disqualification.........................................................42
Section 7.11 Preferential Collection of Claims Against The Issuers.................................42
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE..............................................................43
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance..............................43
Section 8.02 Legal Defeasance and Discharge........................................................43
Section 8.03 Covenant Defeasance...................................................................44
Section 8.04 Conditions to Legal or Covenant Defeasance............................................44
Section 8.05 Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions..............................................................45
Section 8.06 Repayment to The Issuers..............................................................46
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Section 8.07 Reinstatement.........................................................................46
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER......................................................................47
Section 9.01 Without Consent of Holders of the Notes...............................................47
Section 9.02 With Consent of Holders of Notes......................................................47
Section 9.03 Compliance with Trust Indenture Act...................................................48
Section 9.04 Revocation and Effect of Consents.....................................................49
Section 9.05 Notation on or Exchange of Notes......................................................49
Section 9.06 Trustee to Sign Amendments, etc.......................................................49
Section 9.07 Amendment, Supplement and Waiver - Amended Credit Agreement...........................49
ARTICLE 10. GUARANTEE OF NOTES...................................................................................50
Section 10.01 Note Guarantee........................................................................50
Section 10.02 Execution and Delivery of Note Guarantee..............................................51
Section 10.03 Guarantor May Consolidate, etc., on Certain Terms.....................................52
Section 10.04 Limitation on Guarantor Liability.....................................................52
Section 10.05 "Trustee" to Include Paying Agent.....................................................52
ARTICLE 11. COLLATERAL AND SECURITY..............................................................................53
Section 11.01 Note Security Documents...............................................................53
Section 11.02 Recording and Opinions................................................................53
Section 11.03 Release of Collateral.................................................................54
Section 11.04 Certificates of the Issuers...........................................................54
Section 11.05 Certificates of the Trustee...........................................................55
Section 11.06 Authorization of Actions to Be Taken by the Trustee Under the Note Security
Documents.............................................................................55
Section 11.07 Authorization of Receipt of Funds by the Trustee Under the Note Security
Documents.............................................................................55
Section 11.08 Termination of Security Interest......................................................55
ARTICLE 12. MISCELLANEOUS........................................................................................55
Section 12.01 Trust Indenture Act Controls..........................................................55
Section 12.02 Notices...............................................................................56
Section 12.03 Communication by Holders of Notes with Other Holders of Notes.........................57
Section 12.04 Certificate and Opinion as to Conditions Precedent....................................57
Section 12.05 Statements Required in Certificate or Opinion.........................................57
Section 12.06 Rules by Trustee and Agents...........................................................58
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders..............58
Section 12.08 Governing Law.........................................................................58
Section 12.09 No Adverse Interpretation of Other Agreements.........................................58
Section 12.10 Successors............................................................................58
Section 12.11 Severability..........................................................................58
Section 12.12 Counterpart Originals.................................................................58
Section 12.13 Table of Contents, Headings, etc......................................................58
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EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFEROR
Exhibit C FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Exhibit D FORM OF NOTE GUARANTEE
Exhibit E FORM OF SUPPLEMENTAL INDENTURE
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
310 (a)(1)........................................................................................ 7.10
(a)(2)........................................................................................ 7.10
(a)(3)........................................................................................ N.A.
(a)(4)........................................................................................ N.A.
(a)(5)........................................................................................ 7.10
(b)........................................................................................... 7.10
(c)........................................................................................... N.A.
311 (a)........................................................................................... 7.11
(b)........................................................................................... 7.11
(c)........................................................................................... N.A.
312 (a)........................................................................................... 2.05
(b)........................................................................................... 12.03
(c)........................................................................................... 12.03
313 (a)........................................................................................... 7.06
(b)(1)........................................................................................ 7.06
(b)(2)........................................................................................ 7.06; 7.07
(c)........................................................................................... 7.06;12.02
(d)........................................................................................... 7.06
314 (a)........................................................................................... 4.03;11.05
(b)........................................................................................... 11.02
(c)(1)........................................................................................ N.A.
(c)(2)........................................................................................ N.A.
(c)(3)........................................................................................ N.A.
(d)........................................................................................... 11.04;11.03
(e)........................................................................................... 12.05
(f)........................................................................................... N.A.
315 (a)........................................................................................... N.A.
(b)........................................................................................... N.A.
(c)........................................................................................... N.A.
(d)........................................................................................... N.A.
(e)........................................................................................... 6.11
316 (a)(last sentence)............................................................................ N.A.
(a)(1)(A)..................................................................................... N.A.
(a)(1)(B)..................................................................................... N.A.
(a)(2)........................................................................................ N.A.
(b)........................................................................................... N.A.
(c)........................................................................................... 2.13
317 (a)(1)........................................................................................ N.A.
(a)(2)........................................................................................ N.A.
(b)........................................................................................... N.A.
318 (a)........................................................................................... N.A.
(b)........................................................................................... N.A.
(c)........................................................................................... 12.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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Indenture, dated as of October 1, 1999, among AmeriServe Finance Trust,
a limited purpose Delaware business trust ("Finco"), AmeriServe Capital
Corporation, a Delaware corporation and acting as an agent of Finco, pursuant to
an Agency Agreement dated as of September 24, 1999 ("Capital" and together with
Finco, the "Issuers"), Nebco Evans Distributors, Inc., a Delaware corporation
(the "Guarantor"), and United States Trust Company of New York, as trustee (the
"Trustee").
The Issuers, the Guarantor and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the holders of
the Issuers' 12% Senior Secured Notes due 2006 (the "Senior Secured Notes") and
the new 12% Senior Secured Notes due 2006 (the "New Senior Secured Notes" and,
together with the Senior Secured Notes and the Additional Notes, the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 DEFINITIONS.
"Accreted Value" means, as of any date of determination prior to the
Full Accretion Date, the sum of (a) the initial offering price of each Note and
(b) the portion of the excess of the principal amount of each Note over such
initial offering price that have been accreted thereon through such date, such
amount to be so accreted on a daily basis such that, when calculated together
with the fixed interest component of the Note, results in an aggregate yield to
maturity of 12.5% on the Notes, compounded semi-annually on each March 15 and
September 15 from the date of issuance of the Notes through the date of
determination.
"Additional Notes" means up to $45.0 million in aggregate principal
amount of Notes (other than the Initial Notes) issued under this Indenture in
accordance with Sections 2.02 and 4.08 hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
"AmeriServe" means AmeriServe Food Distribution, Inc., a Delaware
Corporation.
"Amended Credit Agreement" means the fourth amended and restated credit
agreement, dated as of September 30, 1999, between AmeriServe, Bank of America,
N.A., as Administrative Agent, Bank of America, N.A., as Letter of Credit
Issuing Lender, and the other financial institutions and other lenders party
thereto, providing for revolving credit borrowings and issuance of letters of
credit, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as
amended, modified, renewed, refunded, replaced or refinanced from time to time.
"Applicable Procedures" means, with respect to any transfer or exchange
of beneficial interests in a Global Note, the rules and procedures of the
Depositary that apply to such transfer and exchange.
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"Asset Sale" means (i) the sale, lease, conveyance or other disposition
of any assets or rights (including, without limitation, by way of a sale and
leaseback) (provided that the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Issuers and its Restricted
Subsidiaries taken as a whole will be governed by Section 4.11 and/or Article 5
hereof and not by the provisions of Section 4.12 hereof).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Board of Directors" means the board of directors of Capital or any
authorized committee of such board of directors or the Administrator of Finco.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited), and (iv) any other interest (including an interest in a trust) or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalents" means: (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than six months from the date of acquisition, (iii) certificates of deposit
and eurodollar time deposits with maturities of six months or less from the date
of acquisition, bankers' acceptances with maturities not exceeding six months
and overnight bank deposits, in each case with any lender party to the Credit
Facility or with any domestic commercial bank having capital and surplus in
excess of $500 million and a Thompson Bank Watch Rating of "B" or better, (iv)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications specified in clause
(iii) above, (v) commercial paper having the highest rating obtainable from
Moody's Investors Service, Inc. or Standard & Poor's Corporation and in each
case maturing within six months after the date of acquisition, and (vi)
securities quoted by the Nasdaq National Market or listed on a United States,
Canadian or Western European national securities exchange.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of AmeriServe and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section 13(d)(3) of the Exchange
Act) other than the Principals or their Related Parties (as defined below), (ii)
the adoption of a plan relating to the liquidation or dissolution of AmeriServe
or the Issuers, (iii) the consummation of any transaction (including, without
limitation, any merger or consolidation) the result of which is that any
"person" (as defined above), other than the Principals and their Related
Parties, becomes the "beneficial owner" (as such term is defined in Rule 13d-3
and Rule 13d-5 under the Exchange Act, except that a person shall be deemed to
have "beneficial ownership" of all securities that such person has the right to
acquire, whether such right is
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currently exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 50% of the Voting Stock of
AmeriServe (measured by voting power rather than number of shares), (iv) the
first day on which a majority of the members of the Board of Directors of
AmeriServe are not Continuing Directors, or (v) AmeriServe consolidates with, or
merges with or into, any Person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to any Person, or
any Person consolidates with, or merges with or into, AmeriServe in any such
event pursuant to a transaction in which any of the outstanding Voting Stock of
AmeriServe is converted into or exchanged for cash, securities or other
property, other than any such transaction where the Voting Stock of AmeriServe
outstanding immediately prior to such transaction is converted into or exchanged
for Voting Stock (other than Disqualified Stock) of the surviving or transferee
Person constituting a majority of the outstanding shares of such Voting Stock of
such surviving or transferee Person (immediately after giving effect to such
issuance).
"Collateral" shall have the meaning given to it in the Amended Credit
Agreement.
"Collateral Agent" shall mean United States Trust Company of New York,
as Collateral Agent, until a successor replaces it in accordance with the
applicable provisions of this Indenture, and thereafter means the successor.
"Commission" means the Securities and Exchange Commission.
"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Subsidiaries or the value of such person's interests
in a trust as of such date, plus (ii) the respective amounts reported on such
Person's balance sheet as of such date with respect to any series of preferred
stock (other than Disqualified Stock) that by its terms is not entitled to the
payment of dividends unless such dividends may be declared and paid only out of
net earnings in respect of the year of such declaration and payment, but only to
the extent of any cash received by such Person upon issuance of such preferred
stock, less (x) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such business)
subsequent to the date of this Indenture in the book value of any asset owned by
such Person or a consolidated Subsidiary of such Person, (y) all investments as
of such date in unconsolidated Subsidiaries and in Persons that are not
Subsidiaries (except, in each case, Permitted Investments), and (z) all
unamortized debt discount and expense and unamortized deferred charges as of
such date, all of the foregoing determined in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of AmeriServe who (i) was a member of such
Board of Directors on the date of this Indenture or (ii) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to the Issuers.
"Credit Facility" means the third amended and restated credit
agreement, dated as of May 21, 1998, between AmeriServe and Bank of America,
providing for revolving credit borrowings and issuance of letters of credit,
including any related notes, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and in each case as amended,
modified, renewed, refunded, replaced or refinanced from time to time.
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"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Notes" means Notes that are in the form of EXHIBIT A
attached hereto (but without including the text referred to in footnotes 1 and 3
thereto).
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, until a successor shall have been
appointed and become such pursuant to Section 2.06 of this Indenture, and,
thereafter, "Depositary" shall mean or include such successor.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is 91 days after the date on which the Notes mature; provided, however,
that any Capital Stock that would not qualify as Disqualified Stock but for
change of control provisions shall not constitute Disqualified Stock if the
provisions are not more favorable to the holders of such Capital Stock than the
provisions described under Section 4.11 hereof.
"DLJ" means Donaldson, Lufkin & Jenrette Securities Corporation.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Euroclear" means Morgan Guaranty Trust Company of New York, the
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the offer by the Issuers to Holders to exchange
Senior Secured Notes for New Senior Secured Notes.
"Full Accretion Date" means September 15, 2006.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of this Indenture.
"Global Notes" means the Rule 144A Global Notes and the Regulation S
Permanent Global Notes.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligations the full faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without
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limitation, letters of credit and reimbursement agreements in respect thereof),
of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates or currency rates.
"Holberg" means Holberg Industries, Inc., a Delaware corporation.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or bankers' acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, as well as all indebtedness of
others secured by a Lien on any asset of such Person (whether or not such
indebtedness is assumed by such Person) and, to the extent not otherwise
included, the Guarantee by such Person of any indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date shall be: (1) the
accreted value thereof, in the case of any Indebtedness that does not require
current payments of interest, and (2) the principal amount thereof, together
with any interest thereon that is more than 30 days past due, in the case of any
other Indebtedness.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means a Person who holds an interest through a
Participant.
"Initial Notes" means $205.0 million in aggregate principal amount of
Notes originally issued under this Indenture on the date hereof.
"Initial Purchasers" means DLJ, Banc of America Securities LLC and
Salomon Smith Barney Inc.
"Institutional Accredited Investor" means an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Issuers or any Restricted Subsidiary of the Issuers sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
of the Issuers such that, after giving effect to any such sale or disposition,
such Person is no longer a Restricted Subsidiary of the Issuers, the Issuers
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the
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Equity Interests of such Restricted Subsidiary not sold or disposed of in an
amount determined as provided in the final paragraph of the covenant described
above under Section 4.07 hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the principal Corporate
Trust Office of the Trustee is located or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment shall be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" means all liquidated damages then owing pursuant
to Section 5 of the Registration Rights Agreement.
"NEHC" means Nebco Evans Holding Corporation, a Delaware corporation,
the parent of the Issuers.
"Net Proceeds" means the aggregate cash proceeds received by the
Issuers or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP.
"New Senior Secured Notes" means the Issuers' 12% Senior Secured Notes
due 2006, which will be issued in exchange for the Issuers' Senior Secured
Notes.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Issuers nor any of their Restricted Subsidiaries (a) provide credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise), or (c) constitute the lender; (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than
the Notes being offered hereby) of the Issuers or any of their Restricted
Subsidiaries to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity; and
(iii) as to which the lenders have been notified in writing that they will not
have any recourse to the stock or assets of the Issuers or any of its Restricted
Subsidiaries.
"Note Collateral" shall include, in each case as pledged and assigned
to the Trustee or the Issuers, as applicable, pursuant to the Note Security
Documents, (i) the Term Loan, (ii) all cash held by the Trustee pursuant to this
Indenture or the Note Security Documents, and (iii) all proceeds of the
foregoing.
"Note Custodian" means the Trustee, when serving as custodian for the
Depositary with respect to the Notes in global form, or any successor entity
thereto.
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"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes and the Additional Notes, if any are issued, shall
be treated as a single class for all purposes under this Indenture.
"Note Security Documents" means each security agreement between the
Trustee and each of the Issuers and each stock pledge, deed of trust and
mortgage executed by the Issuers creating Liens that secure the Notes, each
collateral assignment of any other document creating a Lien that, after giving
effect to such collateral assignment, secured the Notes, and any other document
creating a Lien that secures the Notes.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, the Administrator, any Assistant
Treasurer, the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of each
Issuer by two Officers of such Issuer, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of such Issuer, that meets the requirements of
Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
12.05 hereof. The counsel may be an employee of or counsel to the Issuers, any
Subsidiary of the Issuers or the Trustee.
"Participant" means, with respect to DTC, Euroclear or Cedel, a Person
who has an account with DTC, Euroclear or Cedel, respectively (and, with respect
to DTC, shall include Euroclear and Cedel).
"Permitted Business" means any of the businesses and any other
businesses related to the businesses engaged in by the Issuers and their
respective Restricted Subsidiaries on the date of this Indenture.
"Permitted Investments" means (a) any Investment in the Issuers or in a
Wholly-Owned Restricted Subsidiary of the Issuers that is engaged in a Permitted
Business; (b) any Investment in Cash Equivalents; (c) any Investment by the
Issuers or any Restricted Subsidiary of the Issuers in a Person, if as a result
of such Investment (i) such Person becomes a Wholly-Owned Restricted Subsidiary
of the Issuers that is engaged in a Permitted Business or (ii) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Issuers or a
Wholly-Owned Restricted Subsidiary of the Issuers that is engaged in a Permitted
Business; (d) any Restricted Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.10 hereof; (e) any acquisition of assets solely in
exchange for the issuance of the Equity Interests (other than Disqualified
Stock) of the Issuers; (f) loans and advances made after the date of this
Indenture to Holberg not to exceed $10.0 million at any time outstanding; (g)
loans and advances made after the date of this Indenture to NEHC not to exceed
$10.0 million at any time outstanding; and (h) other Investments made after the
date of this Indenture in any Person having an aggregate fair market value
(measured on the date each such Investment was made and without giving effect to
subsequent changes in value), when taken together with all other Investments
made pursuant to this clause (h) that are at the time outstanding, not to exceed
$10.0 million.
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"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
"Principals" means Holberg., John V. Holten, Orkla, ASA, Nebco Evans
Distributors, Inc., NEHC, DLJ Merchant Banking Partners, L.P., DLJ International
Partners, C.V., DLJ Offshore Partners, C.V., DLJ Merchant Banking Funding, Inc.,
DLJ Merchant Banking Partners II, L.P., DLJ Merchant Banking Partners II-A,
L.P., DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJ
Diversified Partners-A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium
Partners-A, L.P., DLJMB Funding II, Inc., DLJ First ESC L.P., DLJ EAB Partners,
L.P. and UK Investment Plan 1997 Partners.
"Private Placement Legend" means the legend initially set forth on the
Senior Secured Notes in the form set forth in Section 2.06(g) hereof.
"Public Equity Offering" means a public offering of Equity Interests
(other than Disqualified Stock) of (i) AmeriServe; or (ii) NEHC to the extent
the net proceeds thereof are contributed to AmeriServe as a capital
contribution, that, in each case, results in the net proceeds to AmeriServe of
at least $25.0 million.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A
under the Securities Act.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the date hereof, by and among the Issuers, the Guarantor
and the Initial Purchasers, and, with respect to any Additional Notes, one or
more registration rights agreements between the Guarantor, the Issuers and the
other parties thereto, as such agreement(s) may be amended, modified or
supplemented from time to time, relating to rights given by the Guarantor and
the Issuers to the purchasers of Additional Notes to register such Additional
Notes under the Securities Act.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Permanent Global Notes" means the permanent global notes
that are deposited with and registered in the name of the Depositary or its
nominee, representing a series of Notes sold in reliance on Regulation S.
"Related Party" with respect to any Principal means (i) any controlling
stockholder, 80% (or more) owned Subsidiary, or spouse or immediate family
member (in the case of an individual) of such Principal or (ii) any trust,
corporation, partnership or other entity, the beneficiaries, stockholder,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Person referred to
in the immediately preceding clause (i).
"Responsible Officer" when used with respect to the Trustee, means any
officer within the Corporate Trust Administration of the Trustee (or any
successor group of the Trustee) or any other officer of the trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Beneficial Interest" means any beneficial interest of a
Participant or Indirect Participant in the Rule 144A Global Note or the
Regulation S Global Note.
"Restricted Global Notes" means the Rule 144A Global Notes and the
Regulation S Global Notes, all of which shall bear the Private Placement Legend.
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"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 144A Global Notes" means the permanent global notes that contain
the paragraph referred to in footnote 1 and the additional schedule referred to
in footnote 3 to the form of the Note attached hereto as EXHIBIT A, and that is
deposited with and registered in the name of the Depositary or its nominee,
representing a series of Notes sold in reliance on Rule 144A.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Secured Notes" means the Issuers' 12% Senior Secured Notes due
2006.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date hereof.
"Subsidiary" means, with respect to any Person: (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Term Loan" means the loans made pursuant to Section 2.1(b) of the
Amended Credit Agreement.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb), as amended, as in effect on the date hereof.
"Transfer Restricted Securities" means Notes or beneficial interests
therein that bear or are required to bear the Private Placement Legend.
"Trustee" means United States Trust Company of New York until a
successor replaces it in accordance with the applicable provisions of this
Indenture, and thereafter means the successor.
"Unrestricted Global Notes" means one or more Global Notes that do not
and are not required to bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a) has no Indebtedness
other than Non-Recourse Debt; (b) is not party to any agreement, contract,
arrangement or understanding with the Issuers or any Restricted Subsidiary of
the Issuers unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Issuers or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Issuers; (c) is a Person with respect to which neither the
Issuers nor any of its Restricted Subsidiaries
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has any direct or indirect obligation (x) to subscribe for additional Equity
Interests or (y) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results; (d) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Issuers or any of its Restricted Subsidiaries; and (e)
has at least one director on its board of directors that is not a director or
executive officer of the Issuers or any of its Restricted Subsidiaries and has
at least one executive officer that is not a director or executive officer of
the Issuers or any of its Restricted Subsidiaries.
Any such designation by the Board of Directors shall be evidenced to
the Trustee by filing with the Trustee a certified copy of the Board Resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Issuers as of such date. The Board of Directors of the Issuers may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Issuers of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall be permitted only if (i) such
Indebtedness is permitted under Section 4.08 hereof and (ii) no Default or Event
of Default would be in existence following such designation.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
SECTION 1.02 OTHER DEFINITIONS.
Defined in
Term Section
"Asset Sale Offer"............................................................................ 4.12
"Change of Control Offer"..................................................................... 4.11
"Change of Control Payment"................................................................... 4.11
"Change of Control Payment Date".............................................................. 4.11
"Covenant Defeasance"......................................................................... 8.03
"Custodian"................................................................................... 6.01
"DTC"......................................................................................... 2.03
"Event of Default"............................................................................ 6.01
"Excess Proceeds"............................................................................. 4.12
"Legal Defeasance"............................................................................ 8.02
"Offer Amount"................................................................................ 3.09
"Offer Period"................................................................................ 3.09
"Paying Agent"................................................................................ 2.03
"Payment Default"............................................................................. 6.01
"Purchase Date"............................................................................... 3.09
"Registrar"................................................................................... 2.03
"Repurchase Offer"............................................................................ 3.09
SECTION 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
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"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes means the Issuers, the Guarantor and
any successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by the Commission rule
under the TIA have the meanings so assigned to them therein.
SECTION 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
(2) an accounting term not otherwise defined herein has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement or
successor sections or rules adopted by the Commission from
time to time.
ARTICLE 2.
THE NOTES
SECTION 2.01 FORM AND DATING.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of EXHIBIT A attached hereto. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes
initially shall be issued in denominations of $1,000 and integral multiples
thereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Issuers, the
Guarantor and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provisions of any Note conflicts with the express provisions
of this Indenture, the provisions of this Indenture shall govern and be
controlling.
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Global Notes. Notes issued in global form shall be substantially in the
form of Exhibit A attached hereto.
Each Global Note shall represent such of the outstanding Notes as shall
be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.
Euroclear and Cedel Procedures Applicable. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Global Notes that are held by
Participants through Euroclear or Cedel Bank.
Except as set forth in Section 2.06 hereof, the Global Notes may be
transferred, in whole and not in part, only to another nominee of the Depositary
or to a successor of the Depositary or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to
Rule 144A Global Notes and Regulation S Permanent Global Notes deposited with or
on behalf of the Depositary.
The Issuers shall execute and the Trustee shall, in accordance with
this Section 2.01(b), authenticate and deliver the Global Notes that (i) shall
be registered in the name of the Depositary or the nominee of the Depositary and
(ii) shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instructions or held by the Trustee as custodian for the
Depositary.
Participants shall have no rights either under this Indenture with
respect to any Global Note held on their behalf by the Depositary or by the Note
Custodian as custodian for the Depositary or under such Global Note, and the
Depositary may be treated by the Issuers, the Trustee and any agent of the
Issuers or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Issuers, the Trustee or any agent of the Issuers or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depositary or impair, as between the Depositary and its Participants, the
operation of customary practices of such Depositary governing the exercise of
the rights of an owner of a beneficial interest in any Global Note.
(c) Definitive Notes. Notes issued in certificated form shall be
substantially in the form of EXHIBIT A attached hereto (but without including
the text referred to in footnotes 1 and 3 thereto).
SECTION 2.02 EXECUTION AND AUTHENTICATION.
An Officer shall sign the Notes for each of the Issuers by manual or
facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture. The
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form of Trustee's certificate of authentication to be borne by the Notes shall
be substantially as set forth in EXHIBIT A hereto.
The Trustee shall, upon a written order of the Issuers signed by an
Officer of each of the Issuer directing the Trustee to authenticate the Notes,
authenticate Notes for original issue up to the aggregate principal amount
stated in paragraph 4 of the Notes. The Trustee shall, upon written order of the
Issuers signed by an Officer, authenticate New Senior Secured Notes for original
issuance in exchange for a like principal amount of Senior Secured Notes
exchanged in the Exchange Offer or otherwise exchanged for New Senior Secured
Notes pursuant to the terms of the Registration Rights Agreement. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.07 hereof.
The Trustee may (at the Issuers' expense) appoint an authenticating
agent acceptable to the Issuers' to authenticate Notes. An authenticating agent
may authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Issuers or an Affiliate of the Issuers.
SECTION 2.03 REGISTRAR AND PAYING AGENT.
The Issuers shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and (ii) an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Issuers may appoint one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Issuers may change any Paying
Agent or Registrar without notice to any Holder. The Issuers shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Issuers fail to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Issuers may act as
Paying Agent or Registrar.
The Issuers initially appoint The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar and
Paying Agent and to act as Note Custodian with respect to the Global Notes. The
Issuers initially appoint the Trustee to act as the Registrar and Paying Agent
with respect to the Definitive Notes.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST.
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
shall notify the Trustee of any default by the Issuers in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Issuers at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Issuers) shall have no
further liability for the money. If the Issuers act as Paying Agent, they shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon the occurrence of events specified in
Section 6.01(vii) through (viii) hereof, the Trustee shall serve as Paying Agent
for the Notes.
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SECTION 2.05 HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Issuers and/or the Guarantor shall furnish to the
Trustee at least seven (7) Business Days before each interest payment date and
at such other times as the Trustee may request in writing, a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Issuers and the Guarantor shall
otherwise comply with TIA Section 312(a).
SECTION 2.06 TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. The transfer and exchange of
Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture and the procedures of the
Depositary therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Beneficial
interests in a Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(g) of this Section 2.06. Transfers of beneficial interests in the Global Notes
to Persons required to take delivery thereof in the form of an interest in
another Global Note shall be permitted as follows:
(i) Rule 144A Global Note to Regulation S Global Note. If, at any
time, an owner of a beneficial interest in a Rule 144A Global
Note deposited with the Depositary (or the Trustee as
custodian for the Depositary) wishes to transfer its
beneficial interest in such Rule 144A Global Note to a Person
who is required or permitted to take delivery thereof in the
form of an interest in a Regulation S Global Note, such owner
shall, subject to the Applicable Procedures, exchange or cause
the exchange of such interest for an equivalent beneficial
interest in a Regulation S Global Note as provided in this
Section 2.06(a)(i). Upon receipt by the Trustee of (1)
instructions given in accordance with the Applicable
Procedures from a Participant directing the Trustee to credit
or cause to be credited a beneficial interest in the
Regulation S Global Note in an amount equal to the beneficial
interest in the Rule 144A Global Note to be exchanged, (2) a
written order given in accordance with the Applicable
Procedures containing information regarding the Participant
account of the Depositary and the Euroclear or Cedel account
to be credited with such increase, and (3) a certificate in
the form of EXHIBIT B-1 hereto given by the owner of such
beneficial interest stating that the transfer of such interest
has been made in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in
accordance with Rule 903 or Rule 904 of Regulation S, then the
Trustee, as Registrar, shall instruct the Depositary to reduce
or cause to be reduced the aggregate principal amount at
maturity of the applicable Rule 144A Global Note and to
increase or cause to be increased the aggregate principal
amount at maturity of the applicable Regulation S Global Note
by the principal amount at maturity of the beneficial interest
in the Rule 144A Global Note to be exchanged or transferred,
to credit or cause to be credited to the account of the Person
specified in such instructions, a beneficial interest in the
Regulation S Global Note equal to the reduction in the
aggregate principal amount at maturity of the Rule 144A Global
Note, and to debit, or cause to be debited, from the account
of the Person making such exchange or transfer the beneficial
interest in the Rule 144A Global Note that is being exchanged
or transferred.
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(ii) Regulation S Global Note to Rule 144A Global Note. If, at any
time, after the expiration of the 40-day restricted period, an
owner of a beneficial interest in a Regulation S Global Note
deposited with the Depositary or with the Trustee as custodian
for the Depositary wishes to transfer its beneficial interest
in such Regulation S Global Note to a Person who is required
or permitted to take delivery thereof in the form of an
interest in a Rule 144A Global Note, such owner shall, subject
to the Applicable Procedures, exchange or cause the exchange
of such interest for an equivalent beneficial interest in a
Rule 144A Global Note as provided in this Section 2.06(a)(ii).
Upon receipt by the Trustee of (1) instructions from Euroclear
or Cedel, if applicable, and the Depositary, directing the
Trustee, as Registrar, to credit or cause to be credited a
beneficial interest in the Rule 144A Global Note equal to the
beneficial interest in the Regulation S Global Note to be
exchanged, such instructions to contain information regarding
the Participant account with the Depositary to be credited
with such increase, (2) a written order given in accordance
with the Applicable Procedures containing information
regarding the participant account of the Depositary and (3) a
certificate in the form of EXHIBIT B-2 attached hereto given
by the owner of such beneficial interest stating (A) if the
transfer is pursuant to Rule 144A, that the Person
transferring such interest in a Regulation S Global Note
reasonably believes that the Person acquiring such interest in
a Rule 144A Global Note is a QIB and is obtaining such
beneficial interest in a transaction meeting the requirements
of Rule 144A and any applicable blue sky or securities laws of
any state of the United States, (B) that the transfer complies
with the requirements of Rule 144 under the Securities Act,
(C) if the transfer is to an Institutional Accredited Investor
that such transfer is in compliance with the Securities Act
and a certificate in the form of EXHIBIT C attached hereto
and, if such transfer is in respect of an aggregate principal
amount of less than $100,000, an Opinion of Counsel acceptable
to the Issuers that such transfer is in compliance with the
Securities Act or (D) if the transfer is pursuant to any other
exemption from the registration requirements of the Securities
Act, that the transfer of such interest has been made in
compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the
requirements of the exemption claimed, such statement to be
supported by an Opinion of Counsel from the transferee or the
transferor in form reasonably acceptable to the Issuers and to
the Registrar and in each case, in accordance with any
applicable securities laws of any state of the United States
or any other applicable jurisdiction, then the Trustee, as
Registrar, shall instruct the Depositary to reduce or cause to
be reduced the aggregate principal amount at maturity of such
Regulation S Global Note and to increase or cause to be
increased the aggregate principal amount at maturity of the
applicable Rule 144A Global Note by the principal amount at
maturity of the beneficial interest in the Regulation S Global
Note to be exchanged or transferred, and the Trustee, as
Registrar, shall instruct the Depositary, concurrently with
such reduction, to credit or cause to be credited to the
account of the Person specified in such instructions a
beneficial interest in the applicable Rule 144A Global Note
equal to the reduction in the aggregate principal amount at
maturity of such Regulation S Global Note and to debit or
cause to be debited from the account of the Person making such
transfer the beneficial interest in the Regulation S Global
Note that is being exchanged or transferred.
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(b) Transfer and Exchange of Definitive Notes. When Definitive Notes
are presented by a Holder to the Registrar with a request to register the
transfer of the Definitive Notes or to exchange such Definitive Notes for an
equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested only
if the Definitive Notes are presented or surrendered for registration of
transfer or exchange, are endorsed and contain a signature guarantee or
accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by such Holder or by his attorney and contains a
signature guarantee, duly authorized in writing and the Registrar received the
following documentation (all of which may be submitted by facsimile):
(i) in the case of Definitive Notes that are Transfer Restricted
Securities, such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Transfer Restricted Security is being delivered
to the Registrar by a Holder for registration in the
name of such Holder, without transfer, or such Transfer
Restricted Security is being transferred to the Issuers
or any of its Subsidiaries, a certification to that
effect from such Holder (in substantially the form of
EXHIBIT B-3 hereto); or
(B) if such Transfer Restricted Security is being
transferred to a QIB in accordance with Rule 144A under
the Securities Act or pursuant to an exemption from
registration in accordance with Rule 144 under the
Securities Act or pursuant to an effective registration
statement under the Securities Act, a certification to
that effect from such Holder (in substantially the form
of EXHIBIT B-3 hereto); or
(C) if such Transfer Restricted Security is being
transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 904 under the
Securities Act, a certification to that effect from such
Holder (in substantially the form of EXHIBIT B-3
hereto);
(D) if such Transfer Restricted Security is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration
requirements of the Securities Act other than those
listed in subparagraphs (B) and (C) above, a
certification to that effect from such Holder (in
substantially the form of EXHIBIT B-3 hereto), a
certification substantially in the form of EXHIBIT C
hereto, and, if such transfer is in respect of an
aggregate principal amount of Notes of less than
$100,000, an Opinion of Counsel acceptable to the
Issuers that such transfer is in compliance with the
Securities Act; or
(E) if such Transfer Restricted Security is being
transferred in reliance on any other exemption from the
registration requirements of the Securities Act, a
certification to that effect from such Holder (in
substantially the form of EXHIBIT B-3 hereto) and an
Opinion of Counsel from such Holder or the transferee
reasonably acceptable to the Issuers and to the
Registrar to the effect that such transfer is in
compliance with the Securities Act.
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(c) Transfer of a Beneficial Interest in a Rule 144A Global Note or
Regulation S Permanent Global Note for a Definitive Note.
(i) Any Person having a beneficial interest in a Rule 144A Global
Note or Regulation S Permanent Global Note may upon request,
subject to the Applicable Procedures, exchange such beneficial
interest for a Definitive Note. Upon receipt by the Trustee of
written instructions or such other form of instructions as is
customary for the Depositary (or Euroclear or Cedel, if
applicable), from the Depositary or its nominee on behalf of
any Person having a beneficial interest in a Rule 144A Global
Note or Regulation S Permanent Global Note , and, in the case
of a Transfer Restricted Security, the following additional
information and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the
beneficial owner, a certification to that effect from
such Person (in substantially the form of EXHIBIT B-4
hereto);
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities
Act or pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act or
pursuant to an effective registration statement under
the Securities Act, a certification to that effect from
the transferor (in substantially the form of EXHIBIT B-4
hereto);
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, pursuant to a private
placement exemption from the registration requirements
of the Securities Act (and based on an opinion of
counsel if the Issuers so request), a certification to
that effect from such Holder (in substantially the form
of EXHIBIT B-4 hereto) and a certificate from the
applicable transferee (in substantially the form of
EXHIBIT C hereto); or
(D) if such beneficial interest is being transferred in
reliance on any other exemption from the registration
requirements of the Securities Act, a certification to
that effect from the transferor (in substantially the
form of EXHIBIT B-4 hereto) and an Opinion of Counsel
from the transferee or the transferor reasonably
acceptable to the Issuers and to the Registrar to the
effect that such transfer is in compliance with the
Securities Act, in which case the Trustee or the Note
Custodian, at the direction of the Trustee, shall, in
accordance with the standing instructions and procedures
existing between the Depositary and the Note Custodian,
cause the aggregate principal amount of Rule 144A Global
Notes or Regulation S Permanent Global Notes, as
applicable, to be reduced accordingly and, following
such reduction, the Issuers shall execute and, the
Trustee shall authenticate and deliver to the transferee
a Definitive Note in the appropriate principal amount.
(ii) Definitive Notes issued in exchange for a beneficial interest
in a Rule 144A Global Note or Regulation S Permanent Global
Note, as applicable, pursuant to this Section 2.06(c) shall be
registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or
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Indirect Participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Definitive Notes to
the Persons in whose names such Notes are so registered.
Following any such issuance of Definitive Notes, the Trustee,
as Registrar, shall instruct the Depositary to reduce or cause
to be reduced the aggregate principal amount at maturity of
the applicable Global Note to reflect the transfer.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a 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.
(e) Transfer and Exchange of a Definitive Note for a Beneficial
Interest in a Global Note. A definitive Note may not be transferred or exchanged
for a beneficial interest in a Global Note.
(f) Authentication of Definitive Notes in Absence of Depositary. If at
any time:
(i) the Depositary for the Notes notifies the Issuers that the
Depositary is unwilling or unable to continue as Depositary
for the Global Notes and a successor Depositary for the Global
Notes is not appointed by the Issuers within 90 days after
delivery of such notice; or
(ii) the Issuers, at their sole discretion, notify the Trustee in
writing that they elect to cause the issuance of Definitive
Notes under this Indenture,
then the Issuers shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (iii), (iv)
and (v), each Note certificate evidencing Global Notes and
Definitive Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend (the "Private
Placement Legend") in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH
IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER:
(A) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A "QIB") OR (B) IT HAS ACQUIRED THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT.
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(B) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(C) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATIONS S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS
A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING."
(ii) Each Note shall bear a legend (the "Original Issue Discount
Legend") in substantially the following form:
"FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS
BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000
PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE PRICE IS $_____,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $_____, THE ISSUE
DATE IS OCTOBER 1, 1999 AND THE YIELD TO MATURITY IS ___% PER
ANNUM."
(iii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the
Securities Act:
(A) in the case of any Transfer Restricted Security that is
a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted
Security for a Definitive Note that does not bear the
legend set forth in (i) above and rescind any
restriction on the transfer of such
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Transfer Restricted Security upon receipt of a
certification from the transferring holder
substantially in the form of EXHIBIT B-4 hereto; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set
forth in (i) above, but shall continue to be subject to
the provisions of Section 2.06(a) and (b) hereof;
provided, however, that with respect to any request for
an exchange of a Transfer Restricted Security that is
represented by a Global Note for a Definitive Note that
does not bear the legend set forth in (i) above, which
request is made in reliance upon Rule 144, the Holder
thereof shall certify in writing to the Registrar that
such request is being made pursuant to Rule 144 (such
certification to be substantially in the form of
EXHIBIT B-4 hereto).
(iv) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a
Global Note) in reliance on any exemption from the
registration requirements of the Securities Act (other than
exemptions pursuant to Rule 144A or Rule 144 under the
Securities Act) in which the Holder or the transferee
provides an Opinion of Counsel to the Issuers and the
Registrar in form and substance reasonably acceptable to the
Issuers and the Registrar (which Opinion of Counsel shall
also state that the transfer restrictions contained in the
legend are no longer applicable):
(A) In the case of any Transfer Restricted Security that is
a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted
Security for a Definitive Note that does not bear the
legend set forth in (i) above and rescind any
restriction on the transfer of such Transfer Restricted
Security; and
(B) in the case of any Transfer Restricted Security
represented by a Global Note, such Transfer Restricted
Security shall not be required to bear the legend set
forth in (i) above, but shall continue to be subject to
the provisions of Section 2.06(a) and (b) hereof.
(v) Notwithstanding the foregoing, upon the consummation of the
Exchange Offer in accordance with the Registration Rights
Agreement, the Issuers shall issue and, upon receipt of an
authentication order in accordance with Section 2.02 hereof,
the Trustee shall authenticate (i) one or more Unrestricted
Global Notes in aggregate principal amount equal to the
principal amount of the Restricted Beneficial Interests
tendered for acceptance by persons that are not (x)
broker-dealers, (y) Persons participating in the distribution
of the Notes or (z) Persons who are affiliates (as defined in
Rule 144) of the Issuers and accepted for exchange in the
Exchange Offer and (ii) Definitive Notes that do not bear the
Private Placement Legend in an aggregate principal amount
equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee
shall cause the aggregate principal amount of the applicable
Restricted Global Notes to be reduced accordingly and the
Issuers shall execute and the Trustee shall authenticate and
deliver to the Persons designated by the Holders of
Definitive Notes so accepted Definitive Notes in the
appropriate principal amount.
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(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in Global Notes have been exchanged for Definitive Notes,
redeemed, repurchased or cancelled, all Global Notes shall be returned to or
retained and cancelled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for Definitive Notes, redeemed, repurchased or cancelled, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note, by the Trustee
or the Note Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate
Global Notes and Definitive Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Issuers may
require payment of a sum sufficient to cover any stamp or
transfer tax or similar governmental charge payable in
connection therewith (other than any such stamp or transfer
taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.06, 4.10, 4.14 and 9.05
hereto).
(iii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the
Issuers, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes or
Definitive Notes surrendered upon such registration of
transfer or exchange.
(iv) The Registrar shall not be required:(A) to issue, to register
the transfer of or to exchange Notes during a period
beginning at the opening of fifteen (15) Business Days before
the day of any selection of Notes for redemption under
Section 3.02 hereof and ending at the close of business on
the day of selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in
part, except the unredeemed portion of any Note being
redeemed in part, or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding
interest payment date.
(v) Prior to due presentment for the registration of a transfer
of any Note, the Trustee, any Agent and the Issuers may deem
and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for
all other purposes, and neither the Trustee, any Agent nor
the Issuers shall be affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02
hereof.
SECTION 2.07 REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee, or the Issuers and
the Trustee receives evidence to their satisfaction of the destruction, loss or
theft of any Note, the Issuers shall issue and the Trustee, upon the written
order of the Issuers signed by an Officer of each Issuer, shall authenticate a
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replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Issuers, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Issuers to protect the
Issuers, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Issuers and the Trustee may
charge for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuers and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.08 OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a
Note does not cease to be outstanding because the Issuers or the Guarantor or an
Affiliate of the Issuers or the Guarantor holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuers or an Affiliate thereof)
holds, on a redemption date or maturity date, money sufficient to pay Notes
payable on that date, then on and after that date such Notes shall be deemed to
be no longer outstanding and shall cease to accrue interest.
SECTION 2.09 TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuers or the Guarantor, or by any Affiliate of the Issuers or the Guarantor
shall be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes shown on the Trustee's register as
being so owned shall be so disregarded. Notwithstanding the foregoing, Notes
that are to be acquired by the Issuers or the Guarantor or an Affiliate of the
Issuers or the Guarantor pursuant to an exchange offer, tender offer or other
agreement shall not be deemed to be owned by such entity until legal title to
such Notes passes to such entity.
SECTION 2.10 TEMPORARY NOTES.
Until Definitive Notes are ready for delivery, the Issuers may prepare
and the Trustee shall authenticate temporary Notes upon a written order of the
Issuers signed by an Officer of each Issuer. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the
Issuers consider appropriate for temporary Notes. Without unreasonable delay,
the Issuers shall prepare and the Trustee shall upon receipt of a written order
of each Issuer signed by an Officer authenticate Definitive Notes in exchange
for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
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SECTION 2.11 CANCELLATION.
The Issuers at any time may deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder or which the Issuers may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee. All Notes surrendered for registration of
transfer, exchange or payment, if surrendered to any Person other than the
Trustee, shall be delivered to the Trustee. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation. Subject to Section 2.07 hereof, the Issuers may not
issue new Notes to replace Notes that it has redeemed or paid or that have been
delivered to the Trustee for cancellation. All cancelled Notes held by the
Trustee shall be destroyed and certification of their destruction delivered to
the Issuers, unless by a written order, signed by an Officer of each of the
Issuers, the Issuers shall direct that cancelled Notes be returned to it.
SECTION 2.12 DEFAULTED INTEREST.
If the Issuers or the Guarantor defaults in a payment of interest on
the Notes, it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, which date shall be at the
earliest practicable date but in all events at least five (5) Business Days
prior to the payment date, in each case at the rate provided in the Notes and in
Section 4.01 hereof. The Issuers shall fix or cause to be fixed each such
special record date and payment date, and shall promptly thereafter, notify the
Trustee of any such date. At least fifteen (15) days before the special record
date, the Issuers (or the Trustee, in the name and at the expense of the
Issuers) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
SECTION 2.13 RECORD DATE.
The record date for purposes of determining the identity of Holders of
the Notes entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA Section 316(c).
SECTION 2.14 COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
SECTION 2.15 CUSIP NUMBER.
The Issuers in issuing the Notes may use a "CUSIP" number, and if it
does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes and that reliance may be placed
only on the other identification numbers printed on the Notes. The Issuers shall
promptly notify the Trustee of any change in the CUSIP number.
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ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01 NOTICES TO TRUSTEE.
If the Issuers elect to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, they shall furnish to the Trustee,
at least 45 days but not more than 60 days before a redemption date (unless a
shorter period is acceptable to the Trustee) an Officers' Certificate setting
forth (i) the Section of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
If the Issuers are required to make an offer to purchase Notes pursuant
to Section 4.11 or 4.12 hereof, they shall furnish to the Trustee, at least 45
days before the scheduled purchase date, an Officers' Certificate setting forth
(i) the section of this Indenture pursuant to which the offer to purchase shall
occur, (ii) the terms of the offer, (iii) the principal amount of Notes to be
purchased, (iv) the purchase price, (v) the purchase date and (vi) and further
setting forth a statement to the effect that (a) the Issuers or AmeriServe or
one its Subsidiaries has affected an Asset Sale and there are Excess Proceeds
aggregating more than $15.0 million or (b) a Change of Control has occurred, as
applicable.
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED OR PURCHASED.
If less than all of the Notes are to be redeemed at any time, selection
of Notes for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed, or, if the Notes are not so listed, on a pro rata basis, by
lot or by such method as the Trustee shall deem fair and appropriate; provided
that no Notes of $1,000 or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more than 60 days before
the redemption date to each Holder of Notes to be redeemed at its registered
address. Notices of redemption may not be conditional. If any Note is to be
redeemed in part only, the notice of redemption that relates to such Note shall
state the portion of the principal amount thereof to be redeemed. A new Note in
principal amount equal to the unredeemed portion thereof will be issued in the
name of the Holder thereof upon cancellation of the original Note. Notes called
for redemption become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue on Notes or portions of them called
for redemption.
SECTION 3.03 NOTICE OF REDEMPTION.
At least 30 days but not more than 60 days before a redemption date,
the Issuers shall mail or cause to be mailed by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed.
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price for the Notes and accrued interest, and
Liquidated Damages, if any;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Notes to be redeemed and that, after
the redemption date, upon surrender of such Note, a new Note
or Notes in principal amount equal to the unredeemed portion
shall be issued upon surrender of the original Note;
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(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(6) that, unless the Issuers default in making such redemption
payment, interest and Liquidated Damages, if any, on Notes
called for redemption ceases to accrue on and after the
redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice
or printed on the Notes.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense; provided, however,
that the Issuers shall have delivered to the Trustee, at least 45 days prior to
the redemption date (or such shorter period as shall be acceptable to the
Trustee), an Officers' Certificate requesting that the Trustee give such notice
and setting forth the information to be stated in the notice as provided in the
preceding paragraph. The notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note shall not affect the validity of the
proceeding for the redemption of any other Note.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price plus accrued and unpaid interest and
Liquidated Damages, if any, to such date. A notice of redemption may not be
conditional.
SECTION 3.05 DEPOSIT OF REDEMPTION OR PURCHASE PRICE.
On or before 10:00 a.m. (New York City time) on each redemption date or
the date on which Notes must be accepted for purchase pursuant to Section 4.12
or 4.11, the Issuers shall deposit with the Trustee or with the Paying Agent
money sufficient to pay the redemption price of and accrued and unpaid interest
and Liquidated Damages, if any, on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent shall promptly return to the Issuers upon
their written request any money deposited with the Trustee or the Paying Agent
by the Issuers in excess of the amounts necessary to pay the redemption price of
(including any applicable premium), accrued interest and Liquidated Damages, if
any, on all Notes to be redeemed or purchased.
If Notes called for redemption or tendered in an Asset Sale Offer or
Change of Control Offer are paid or if the Issuers have deposited with the
Trustee or Paying Agent money sufficient to pay the redemption or purchase price
of, unpaid and accrued interest and Liquidated Damages, if any, on all Notes to
be redeemed or purchased, on and after the redemption or purchase date interest
and Liquidated Damages, if any, shall cease to accrue on the Notes or the
portions of Notes called for redemption or tendered and not withdrawn in an
Asset Sale Offer or Change of Control Offer (regardless of whether certificates
for such securities are actually surrendered). If a Note is redeemed or
purchased on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest and Liquidated
Damages, if any, shall be paid to the Person in whose name such Note was
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registered at the close of business on such record date. If any Note called for
redemption shall not be so paid upon surrender for redemption because of the
failure of the Issuers to comply with the preceding paragraph, interest shall be
paid on the unpaid principal and Liquidated Damages, if any, from the redemption
or purchase date until such principal and Liquidated Dames, if any, is paid, and
to the extent lawful on any interest not paid on such unpaid principal, in each
case, at the rate provided in the Notes and in Section 4.01 hereof.
SECTION 3.06 NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Issuers shall
issue and, upon the Issuers' written request, the Trustee shall authenticate for
the Holder at the expense of the Issuers a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
SECTION 3.07 OPTIONAL REDEMPTION.
(a) Except as set forth in the next paragraph, the Notes will not be
redeemable at the Issuers' option prior to September 15, 2003. Thereafter, the
Notes will be subject to redemption at any time at the option of the Issuers, in
whole or in part, upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of the Accreted Value) set forth
below plus accrued and unpaid interest and Liquidated Damages thereon, if any,
to the applicable redemption date, if redeemed during the twelve-month period
beginning on September 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003.......................................................... 106.00%
2004.......................................................... 103.00%
2005 and thereafter........................................... 100.000%
(b) Notwithstanding the foregoing, at any time prior to September 15,
2001, the Issuers may redeem up to 33% of the original aggregate principal
amount of Notes at a redemption price of 112.0% of the Accreted Value thereof,
plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the
redemption date, with the net cash proceeds of a Public Equity Offering that are
used to prepay the Term Loan; provided that at least 67% of the original
aggregate principal amount of 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.
SECTION 3.08 MANDATORY REDEMPTION.
Except as set forth under Sections 4.11 and 4.12 hereof, the Issuers
shall not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
SECTION 3.09 REPURCHASE OFFERS.
In the event that the Issuers shall be required to commence an offer to
all Holders to repurchase Notes (a "Repurchase Offer") pursuant to Section 4.12
hereof, (an "Asset Sale Offer") or pursuant to Section 4.11 hereof, (a "Change
of Control Offer,") the Issuers shall follow the procedures specified below.
A Repurchase Offer shall commence no earlier than 30 days and no later
than 60 days after a Change of Control (unless the Issuers are not required to
make such offer pursuant to Section 4.11 hereof) or an Excess Proceeds Offer
Triggering Event (as defined below), as the case may be, and remain open for a
period of twenty (20) Business Days following its commencement and no longer,
except to the
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extent that a longer period is required by applicable law (the "Offer Period").
No later than five (5) Business Days after the termination of the Offer Period
(the "Purchase Date"), the Issuers shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.12 hereof, in the case of an
Excess Proceeds Offer, or 4.11 hereof, in the case of a Change of Control Offer
(the "Offer Amount") or, if less than the Offer Amount has been tendered, all
Notes tendered in response to the Repurchase Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Liquidated Damages, if any, shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest or Liquidated Damages, if any, shall be payable to Holders who tender
Notes pursuant to the Repurchase Offer.
Upon the commencement of a Repurchase Offer, the Issuers shall send, by
first class mail, a notice to the Trustee and each of the Holders, with a copy
to the Trustee. The notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to such Repurchase
Offer. The Repurchase Offer shall be made to all Holders. The notice, which
shall govern the terms of the Repurchase Offer, shall describe the transaction
or transactions that constitute the Change of Control or Excess Proceeds Offer
Triggering Event, as the case may be and shall state:
(a) that the Repurchase Offer is being made pursuant to this
Section 3.09 and Section 4.12 or 4.11 hereof, as the case may
be, and the length of time the Repurchase Offer shall remain
open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Issuers default in making such payment, any
Note accepted for payment pursuant to the Repurchase Offer
shall cease to accrue interest and Liquidated Damages, if any,
after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to a
Repurchase Offer shall be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note, duly completed, or transfer by book-entry
transfer, to the Issuers, the Depositary, or the Paying Agent
at the address specified in the notice not later than the
close of business on the last day of the Offer Period;
(f) that Holders shall be entitled to withdraw their election if
the Issuers, the Depositary or the Paying Agent, as the case
may be, receives, not later than the expiration of the Offer
Period, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of
the Note the Holder delivered for purchase and a statement
that such Holder is withdrawing his election to have such Note
purchased;
(g) that, if the aggregate principal amount of Notes surrendered
by Holders exceeds the Offer Amount, the Issuers shall select
the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Issuers so
that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased); and
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(h) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
On or before 10:00 a.m. (New York City time) on each Purchase Date, the
Issuers shall irrevocably deposit with the Trustee or Paying Agent in
immediately available funds the aggregate purchase price with respect to a
principal amount of Notes equal to the Offer Amount, together with accrued and
unpaid interest and Liquidated Damages, if any, thereon, to be held for payment
in accordance with the terms of this Section 3.09. On the Purchase Date, the
Issuers shall, to the extent lawful, (i) accept for payment, on a pro rata basis
to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Repurchase Offer, or if less than the Offer Amount has been
tendered, all Notes tendered, (ii) deliver or cause the Paying Agent or
depository, as the case may be, to deliver to the Trustee Notes so accepted and
(iii) deliver to the Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Issuers in accordance with the
terms of this Section 3.09. The Issuers, the Depositary or the Paying Agent, as
the case may be, shall promptly (but in any case not later than three (3)
Business Days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Issuers for purchase, plus any accrued and unpaid interest and
Liquidated Damages, if any, thereon, and the Issuers shall promptly issue a new
Note, and the Trustee, shall authenticate and mail or deliver such new Note, to
such Holder, equal in principal amount to any unpurchased portion of such
Holder's Notes surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Issuers to the Holder thereof. The Issuers shall publicly
announce in a newspaper of general circulation or in a press release provided to
a nationally recognized financial wire service the results of the Repurchase
Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01, 3.02, 3.05 and 3.06 hereof.
ARTICLE 4.
COVENANTS
SECTION 4.01 PAYMENT OF NOTES.
The Issuers shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. The Issuers shall pay all Liquidated Damages, if any, in the same manner
on the dates and in the amounts set forth in the Registration Rights Agreement.
Principal, premium and Liquidated Damages, if any, and interest, shall be
considered paid for all purposes hereunder on the date the Paying Agent, if
other than the Issuers, holds, as of 10:00 a.m. (New York City time) money
deposited by the Issuers in immediately available funds and designated for and
sufficient to pay all such principal, premium and Liquidated Damages, if any,
and interest, then due.
The Issuers 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 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.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY.
The Issuers shall maintain in the Borough of Manhattan, the City of New
York an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee or Registrar) where Notes
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may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Issuers in respect of the Notes and this
Indenture may be served. The Issuers shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Issuers shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Issuers may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Issuers shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Issuers hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Issuers in accordance with Section 2.03
hereof.
SECTION 4.03 CORPORATE EXISTENCE.
The Issuers shall do or cause to be done all things necessary to
preserve and keep in full force and effect their corporate, partnership, trust
or other existence and the corporate, partnership, trust or other existence of
each of their Subsidiaries in accordance with the respective organizational
documents (as the same may be amended from time to time) of the Issuers and the
rights (charter and statutory), licenses and franchises of the Issuers and their
Subsidiaries.
SECTION 4.04 COMPLIANCE CERTIFICATE.
The Issuers shall deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Issuers and their Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether each has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that, to the best of his or her knowledge, each entity
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Issuers are
taking or propose to take with respect thereto) and that, to the best of his or
her knowledge, no event has occurred and remains in existence by reason of which
payments on account of the principal of, premium or Liquidated Damages, if any,
or interest on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Issuers are taking or proposes to
take with respect thereto.
So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, in connection with the
year-end financial statements delivered pursuant to Section 4.03 hereof, the
Issuers shall use their best efforts to deliver a written statement of the
Issuers' independent public accountants (who shall be a firm of established
national reputation) that in making the examination necessary for certification
of such financial statements, nothing has come to their attention that would
lead them to believe that the Issuers have violated any provisions of Article
Four hereof or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation. In the event that such written statement of the
Issuers' independent
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public accountants cannot be obtained, the Issuers shall deliver an Officers'
Certificate certifying that it has used its best efforts to obtain such
statements and was unable to do so.
The Issuers shall, so long as any of the Notes are outstanding, deliver
to the Trustee, forthwith upon any Officer becoming aware of any Default or
Event of Default, an Officers' Certificate specifying such Default or Event of
Default and what action the Issuers are taking or propose to take with respect
thereto.
SECTION 4.05 TAXES.
The Issuers shall pay, and shall cause each of their Subsidiaries to
pay, prior to delinquency all material taxes, assessments and governmental
levies, except such as are contested in good faith and by appropriate
proceedings and with respect to which appropriate reserves have been taken in
accordance with GAAP.
SECTION 4.06 STAY, EXTENSION AND USURY LAWS.
The Issuers and the Guarantor covenant (to the extent that they may
lawfully do so) that they shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and each of the
Issuers and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that
they shall not, by resort to any such law, hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.07 IMPAIRMENT OF LIENS.
The Issuers shall not take or knowingly or negligently omit to take,
any action which action or omission might or would have the result of materially
impairing the Liens granted by the Issuers with respect to the Note Collateral
for the benefit of the Trustee and the Holders of the Notes. Except as permitted
by this Indenture and the Note Security Documents, the Issuers shall not grant
to any Person other than the Trustee, for the benefit of the Trustee and the
Holders of the Notes, any interest whatsoever in any of the Note Collateral.
SECTION 4.08 LIMITATION ON ACTIVITIES OF THE ISSUERS.
The Issuers will not engage in any business activity or undertake any
activity, except any activity (i) relating to the offering, sale or issuance of
the Notes or the lending of the proceeds of such sale of Notes to AmeriServe
pursuant to the Amended Credit Agreement, or (ii) undertaken with the purpose
of, and directly related to, exercising its rights under, and fulfilling the
obligations of the Issuers under the Notes, this Indenture, the Amended Credit
Agreement and the Note Security Documents. Finco shall for so long as the Notes
are outstanding be a limited purpose entity with organizational documents that
limit its business activities and ability to commence a voluntary case or
proceeding under any applicable bankruptcy or insolvency laws. The Issuers shall
not (i) incur any Indebtedness other than the Notes or (ii) enter into any
derivative product transactions.
Notwithstanding the foregoing, if AmeriServe may incur additional
indebtedness pursuant to the terms of the Amended Credit Agreement, Finco may
issue and sell Additional Notes in an aggregate principal amount not greater
than the lesser of (x) the amount of additional indebtedness AmeriServe may
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incur pursuant to the terms of the Amended Credit Agreement and (y) $45.0
million, and loan the proceeds of such sale to AmeriServe as additional
indebtedness under the Term Loan.
SECTION 4.09 LIENS
The Issuers shall not create, incur, assume or otherwise cause or
suffer to exist or become effective any Lien upon any of their property or
assets (including the Note Collateral), now owned or hereafter acquired.
SECTION 4.10 REPORTS
Whether or not required by the Commission, so long as any Notes are
outstanding, the Issuers will furnish to the Holders within the time periods
specified in the Commission's rules and regulations: (1) all quarterly and
annual financial information that would be required to be contained in a filing
with the Commission on Forms 10-Q and 10-K if the Issuers or AmeriServe were
required to file such Forms, including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and, with respect to the
annual information only, a report thereon by the Issuers' and AmeriServe's
certified independent accountants; and (2) all current reports that would be
required to be filed with the Commission on Form 8-K if the Issuers or
AmeriServe were required to file such reports.
In addition, whether or not required by the Commission, the Issuers
will file a copy of all such information and reports with the Commission for
public availability (unless the Commission will not accept such a filing) and
make such information available to securities analysts and prospective investors
upon request. In addition, the Issuers shall, for so long as any Notes remain
outstanding, furnish to the Holders and to securities analysts and prospective
investors, upon their request, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act.
SECTION 4.11 CHANGE OF CONTROL
(a) Upon the occurrence of a Change of Control, the Issuers shall make
an offer (a "Change of Control Offer") to each Holder to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of each Holder's Notes at
a purchase price equal to 101% of the Accreted Value thereof plus accrued and
unpaid interest and Liquidated Damages thereon, if any, to the date of purchase
(the "Change of Control Payment"). Within 30 days following any Change of
Control, the Issuers shall mail a notice to each Holder stating: (1) that the
Change of Control Offer is being made pursuant to this Section 4.11 and that all
Notes tendered will be accepted for payment; (2) the purchase price and the
purchase date, which shall be no earlier than 30 days and no later than 60 days
from the date such notice is mailed (the "Change of Control Payment Date"); (3)
that any Note not tendered will continue to accrue interest; (4) that, unless
the Issuers default in the payment of the Change of Control Payment, all Notes
accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Payment Date; (5) that Holders
electing to have any Notes purchased pursuant to a Change of Control Offer will
be required to surrender the Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date; (6) that Holders will
be entitled to withdraw their election if the Paying Agent receives, not later
than the close of business on the second Business Day preceding the Change of
Control Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes delivered
for purchase, and a statement that such Holder is withdrawing his election to
have the Notes purchased; and (7) that Holders whose Notes are being purchased
only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof. The Issuers
shall
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comply with the requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with the repurchase of Notes in
connection with a Change of Control.
(b) On the Change of Control Payment Date, the Issuers will, to the
extent lawful:
(i) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(ii) deposit with the Paying Agent an amount equal to the Change
of Control Payment in respect of all Notes or portions
thereof so tendered; and
(iii) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being
purchased by us.
(c) The Paying Agent will promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each such new Note will be in a
principal amount of $1,000 or an integral multiple thereof. The Issuers shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date. The Change of Control
provisions described above are applicable whether or not any other provisions of
this Indenture are applicable.
(d) The Issuers shall not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements
applicable to a Change of Control Offer made by the Issuers and purchases all
Notes validly tendered and not withdrawn under such Change of Control Offer.
SECTION 4.12 ASSET SALES
The Issuers shall not consummate an Asset Sale.
Upon the occurrence of an Asset Sale by AmeriServe or any of its
Restricted Subsidiaries the Net Proceeds of which are applied to repay the Term
Loan, such Net Proceeds paid to either Issuer shall be deemed to constitute
"Excess Proceeds."
The Issuers shall make an offer to all Holders of Notes (an "Asset Sale
Offer") to purchase the maximum principal amount of Notes that may be purchased
out of the Excess Proceeds at an offer price in cash in an amount equal to 100%
of the Accreted Value thereof plus accrued and unpaid interest and Liquidated
Damages thereon, if any, to the date of purchase. To the extent that the
aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than
the Excess Proceeds, the Issuers shall invest any remaining Excess Proceeds in
Government Securities. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the 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.
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SECTION 4.13 PAYMENT FOR CONSENTS.
Neither the Issuers nor any of their Affiliates shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions hereof or
the Notes unless such consideration is offered to be paid or is paid to all
Holders of the Notes that consent, waive or agree to amend in the time frame set
forth in the solicitation documents relating to such consent, waiver or
agreement.
ARTICLE 5.
SUCCESSORS
SECTION 5.01 MERGER, CONSOLIDATION OF SALE OF ASSETS.
The Issuers shall not consolidate or merge with or into or sell,
assign, transfer, convey or otherwise dispose of all or substantially all of
their properties or assets in one or more related transactions, to another
corporation, Person or entity.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
Each of the following constitutes an "Event of Default":
(i) default for 30 days in the payment when due of interest on,
or Liquidated Damages with respect to, the Notes;
(ii) default in payment when due of principal of or premium, if
any, on the Notes;
(iii) failure by either Issuer to comply with the provisions
described under Sections 4.07, 4.08, 4.11, 4.12 or Article 5
hereof;
(iv) failure by either Issuer for 60 days after notice from the
Trustee or at least 25% in principal amount of the Notes then
outstanding to comply with any of its other agreement in this
Indenture or the Notes;
(v) default under the Term Loan;
(vi) failure by either Issuer to pay final judgments aggregating
in excess of $5.0 million, which judgments are not paid,
discharged or stayed for a period of 60 days;
(vii) either Issuer or any of their Significant Subsidiaries or any
group of Subsidiaries that, taken as a whole, would
constitute a Significant Subsidiary, pursuant to or within
the meaning of Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it
in an involuntary case,
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(c) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors, or
(e) generally is not paying its debts as they become due;
(viii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief against either Issuer or any of their
Significant Subsidiaries or any group of Subsidiaries
that, taken as a whole, would constitute a Significant
Subsidiary in an involuntary case;
(b) appoints a Custodian of either Issuer or any of their
Significant Subsidiaries or any group of Subsidiaries
that, taken as a whole, would constitute a Significant
Subsidiary or for all or substantially all of the
property of either Issuer or any of their Significant
Subsidiaries or any group of Subsidiaries that, taken
as a whole, would constitute a Significant Subsidiary;
or
(c) orders the liquidation of either Issuer or any of their
Significant Subsidiaries or any group of Subsidiaries
that, taken as a whole, would constitute a Significant
Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(ix) the Liens under the Note Security Documents shall, at any
time, cease to be in full force and effect for any reason
(other than by operation of the provisions of this Indenture
and the Note Security Documents) other than satisfaction in
full of all Obligations under this Indenture and discharge of
this Indenture, or any Lien created hereunder shall be
declared invalid or unenforceable or either Issuer shall
assert, in any pleading in any court of competent
jurisdiction, that any such Lien is unenforceable.
The term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
SECTION 6.02 ACCELERATION.
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 Notes may
declare all the Accreted Value of all Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of Default as described
in (vii) and (viii) of Section 6.01 hereof, the Accreted Value of all
outstanding Notes shall become due and payable without further action or notice.
Holders of the Notes may not enforce this Indenture or the Notes except as
provided in this Indenture.
In the case of any Event of Default occurring by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Issuers with
the intention of avoiding payment of the premium that the Issuers would have had
to pay if the Issuers then had elected to redeem the Notes pursuant to the
optional redemption provisions of Section 3.07(a) hereof, an equivalent premium
shall also become and be immediately due and payable to the extent permitted by
law upon the acceleration of the Notes. If an
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Event of Default occurs prior to September 15, 2003 by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Issuers with
the intention of avoiding the prohibition on redemption of the Notes prior to
September 15, 2003, then the amount payable in respect of such Notes for
purposes of this paragraph for each of the twelve-month periods beginning on
September 15 of the years indicated below shall be set forth below, expressed as
percentages of the Accreted Value that would otherwise be due but for the
provisions of this sentence, plus accrued and unpaid interest and Liquidated
Damages, if any, to the date of payment:
YEAR PERCENTAGE
---- ----------
2000.............................................................. 112.00%
2001.............................................................. 110.00%
2002.............................................................. 108.00%
SECTION 6.03 OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal, premium, if any,
interest and Liquidated Damages, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
The Issuers are required to deliver to the Trustee annually a statement
regarding compliance with this Indenture, and the Issuers are required upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
SECTION 6.04 WAIVER OF PAST DEFAULTS.
The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under this Indenture (including any acceleration (other than an automatic
acceleration resulting from an Event of Default under clause (vii) or (viii) of
Section 6.01 hereof) except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes (other than as a result
of an acceleration), which shall require the consent of all of the Holders of
the Notes then outstanding.
SECTION 6.05 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust power
conferred on it. However, (i) the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve
the Trustee in personal liability, and (ii) the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction. In case an Event of Default shall occur (which shall not be cured),
the Trustee will be required, in the exercise of its power, to use the degree of
care of a prudent person in the conduct of its own affairs. Notwithstanding any
provision to the contrary in this Indenture, the Trustee is under no obligation
to exercise any of its rights or powers under this Indenture at the request of
any Holder of Notes, unless such
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Holder shall offer to the Trustee security and indemnity satisfactory to it
against any loss, liability or expense.
SECTION 6.06 LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture,
the Note Guarantee or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default or the Trustee receives such
notice from the Issuers;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to
pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to
the Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested,
the provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give
the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, interest, and
Liquidated Damages, if any, on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(i) or (ii) hereof
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Issuers for the whole
amount of principal of, premium and Liquidated Damages, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Notes allowed in any judicial proceedings relative to the Issuers
(or any other obligor upon the Notes), its creditors or its property, to
participate as a member, voting or otherwise, of any official committee of
creditors appointed in such manner and shall be entitled and empowered to
collect, receive
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and distribute any money or other securities or property payable or deliverable
upon the conversion or exchange of the Notes or on any such claims and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 6.10 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, interest, and Liquidated Damages, if any,
ratably, without preference or priority of any kind, according to the amounts
due and payable on the Notes for principal, premium, if any, interest, and
Liquidated Damages, if any, respectively;
Third: without duplication, to the Holders for any other
Obligations owing to the Holders under this Indenture and the Notes; and
Fourth: to the Issuers or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
SECTION 6.11 UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of
a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
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ARTICLE 7.
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing of
which a Responsible Officer of the Trustee has knowledge, the
Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and
skill in its exercise, as a prudent person would exercise or
use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture or the TIA and
the Trustee need perform only those duties that are
specifically set forth in this Indenture or the TIA and
no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee;
and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to
determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is
subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The
Trustee shall be under no obligation to exercise any of its
rights and powers under this Indenture at the request of any
Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing
with the Issuers. Money held in trust by the Trustee need not
be segregated from other funds except to the extent required
by law. The Trustee may be the Collateral Agent.
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SECTION 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on the truth of the
statements and correctness of the opinions contained in, and
shall be protected from acting or refraining from acting
upon, any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or
both. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel. Prior to taking, suffering
or admitting any action, the Trustee may consult with counsel
of the Trustee's own choosing and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of
any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized
or within the rights or powers conferred upon it by this
Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Issuers or the
Guarantor shall be sufficient if signed by an Officer of the
Issuers or the Guarantor, as applicable.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders unless such
Holders shall have offered to the Trustee reasonable security
or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities that might be incurred by it in
compliance with such request or direction.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner of Notes and may otherwise deal with the Issuers, the Guarantor or any
Affiliate of the Issuers or the Guarantor with the same rights it would have if
it were not Trustee. However, in the event that the Trustee acquires any
conflicting interest it must eliminate such conflict within 90 days, apply to
the Commission for permission to continue as Trustee or resign. Any Agent may do
the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof. The Trustee shall not be responsible for the validity,
effectiveness or sufficiency of the Note Collateral or the Note Security
Documents.
SECTION 7.04 TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture, the Note Guarantee or the Notes,
it shall not be accountable for the Issuers' use of the proceeds from the Notes
or any money paid to the Issuers or upon the Issuers' direction under any
provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or
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recital herein or any statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture other than its
certificate of authentication.
SECTION 7.05 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders
of Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment on any
Note pursuant to Section 6.01(i) or (ii) hereof, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of the
Notes.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA ss. 313(a) (but if no event described in
TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b). The Trustee shall also transmit by mail all reports as required by TIA
ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Issuers and filed with the Commission and each
stock exchange on which the Issuers have informed the Trustee in writing the
Notes are listed in accordance with TIA ss. 313(d). The Issuers shall promptly
notify the Trustee when the Notes are listed on any stock exchange and of any
delisting thereof.
SECTION 7.07 COMPENSATION AND INDEMNITY.
The Issuers and the Guarantor, jointly and severally, shall pay to the
Trustee from time to time reasonable compensation for its acceptance of this
Indenture and services hereunder. To the extent permitted by law, the Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Issuers and the Guarantor, jointly and severally, shall
reimburse the Trustee promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to the compensation for
its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Issuers and the Guarantor, jointly and severally, shall indemnify
the Trustee against any and all losses, liabilities or expenses incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing this
Indenture against the Issuers and the Guarantor (including this Section 7.07)
and defending itself against any claim (whether asserted by the Issuers, the
Guarantor or any Holder or any other person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder except to the
extent any such loss, liability or expense may be attributable to its negligence
or bad faith. The Trustee shall notify the Issuers and the Guarantor promptly of
any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Issuers and the Guarantor shall not relieve the Issuers and the Guarantor of
their obligations hereunder. The Issuers and the Guarantor shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Issuers and the Guarantor shall pay the reasonable fees
and expenses of such counsel. The Issuers and the Guarantor need not pay for any
settlement made without its consent, which consent shall not be unreasonably
withheld, conditioned or delayed.
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The obligations of the Issuers and the Guarantor under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
To secure the Issuers' and the Guarantor's payment obligations in this
Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal, interest and Liquidated Damages, if any, on particular Notes. Such
Lien shall survive the satisfaction and discharge of this Indenture and the
resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(vii) or (viii) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
SECTION 7.08 REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Issuers. The Holders of a majority
in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Issuers in writing. The Issuers may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under
any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers, or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a Holder of a Note for at least six months, fails to comply with Section
7.10 hereof, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and the duties of the
Trustee under this
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Indenture. The successor Trustee shall mail a notice of its succession to the
Holders of the Notes. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided that all sums owing to
the Trustee hereunder have been paid and subject to the Lien provided for in
Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Issuers' obligations under Section 7.07 hereof shall continue
for the benefit of the retiring Trustee. The replacement of the Trustee pursuant
to this Section 7.08 shall operate as a replacement of the Collateral Agent as
well. The Issuers shall take such actions as are necessary or desirable, in the
opinion of counsel to the successor Collateral Agent to maintain the perfection
of the Liens created by the Note Security Documents, all at the expense of the
Issuers.
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee or any Agent consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee or any Agent, as applicable.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities. The Trustee and its direct parent shall at all times have a
combined capital surplus of at least $50.0 million as set forth in its most
recent annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUERS.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
SECTION 7.12 CO-COLLATERAL AGENT.
At any time or times, for the purpose of meeting the legal requirements
of any jurisdiction in which any of the Note Collateral may at the time be
located, the Issuers and the Collateral Agent shall have power to appoint, and,
upon the written request of the Collateral Agent or of the Holders of at least
25% in principal amount of the Notes outstanding the Issues shall for such
purpose join the Collateral Agent in the execution, delivery and performance of
all instruments and agreements necessary or proper to appoint, one or more
Persons approved by the Collateral Agent either to act as co-collateral agent,
jointly with the Collateral Agent, of all or any part of the Note Collateral, or
to act as separate collateral agent of any such property, in either case with
such powers as may be provided in the instrument of appointment, and to vest in
such Person or Persons in the capacity aforesaid, any property, title, right or
power deemed necessary or desirable, subject to the other provisions of this
Section. If the Issuers do not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case an Event of Default has occurred
and is continuing, the Collateral Agent alone shall have power to make such
appointment.
Should any written instrument from the Issuers be required by any
co-collateral agent or separate collateral agent so appointed for more fully
confirming to such co-collateral agent or separate collateral
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agent such property, title, right or power, any and all such instruments shall,
on request, be executed, acknowledged and delivered by the Issuers.
Every co-collateral agent or separate collateral agent shall, to the
extent permitted by law, but to such extent only, be appointed subject to the
following terms, namely:
A. The rights, powers, duties and obligations hereby conferred or
imposed upon the Collateral Agent in respect of any property covered by such
appointment shall be conferred or imposed upon and exercised or performed by the
Collateral Agent or by the Collateral Agent and such co-collateral agent or
separate collateral agent jointly, as shall be provided in the instrument
appointing such co-collateral agent or separate collateral agent, except to the
extent that under any law of any jurisdiction in which any particular act is to
be performed, the Collateral Agent shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and obligations
shall be exercised and performed by such co-collateral agent or separate
collateral agent.
B. The Collateral Agent at any time, by an instrument in writing
executed by it, with the concurrence of the Issuers evidenced by an Officers'
Certificate, may accept the resignation of or remove any co-collateral agent or
separate collateral agent appointed under this Section, and, in case an Event of
Default has occurred and is continuing, the Collateral Agent shall have power to
accept the resignation of, or remove, any such co-collateral agent or separate
collateral agent without the concurrence of the Issuers. Upon the written
request of the Collateral Agent, the Issuers shall join with the Collateral
Agent in the execution, delivery and performance of all instruments and
agreements necessary or proper to effectuate such resignation or removal. A
successor to any co-collateral agent or separate collateral agent so resigned or
removed may be appointed in the manner provided in this Section.
C. No co-collateral agent or separate collateral agent hereunder shall
be personally liable by reason of any act or omission of the Collateral Agent,
or any other such collateral agent hereunder.
D. Any act of Holders of Notes delivered to the Collateral Agent shall
be deemed to have been delivered to each such co-collateral agent and separate
collateral agent.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Issuers and the Guarantor may, at the option of their respective
Boards of Directors or other governing body evidenced by a resolution set forth
in an Officers' Certificate, at any time, elect to have either Section 8.02 or
8.03 hereof be applied to all outstanding Notes and Note Guarantee upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE.
Upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Issuers and the Guarantor shall, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have been discharged from their respective obligations with respect to all
outstanding Notes and Note Guarantee on the date the conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Issuers and the Guarantor shall be deemed to have paid
and discharged the entire Indebtedness represented by the outstanding Notes and
Note Guarantee, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section
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8.05 hereof and the other Sections of this Indenture referred to in (a)
and (b) below, and to have satisfied all their respective other obligations
under such Notes and Note Guarantee and this Indenture (and the Trustee, on
demand of and at the expense of the Issuers, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive payments in respect of the principal of, premium,
if any, and interest and Liquidated Damages, if any, on such Notes when such
payments are due from the trust referred to in Section 8.04(a); (b) the Issuers'
obligations with respect to such Notes under Sections 2.02, 2.03, 2.04, 2.05,
2.06, 2.07, 2.10 and 4.02 hereof; (c) the rights, powers, trusts, duties and
immunities of the Trustee including without limitation thereunder Section 7.07,
8.05 and 8.07 hereof and the Issuers' obligations in connection therewith and
(d) the provisions of this Article 8. Subject to compliance with this Article 8,
the Issuers may exercise their option under this Section 8.02 notwithstanding
the prior exercise of its option under Section 8.03 hereof.
SECTION 8.03 COVENANT DEFEASANCE.
Upon the Issuers' exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Issuers and the Guarantor shall, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be released
from their respective obligations under the covenants contained in Sections
3.09, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 5.01 and 10.01
hereof with respect to the outstanding Notes and Note Guarantee on and after the
date the conditions set forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes and Note Guarantee shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes and Note Guarantee shall not be
deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Note Guarantee,
the Issuers may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 6.01 hereof, but,
except as specified above, the remainder of this Indenture and such Notes and
Note Guarantee shall be unaffected thereby. In addition, upon the Issuers'
exercise under Section 8.01 hereof of the option applicable to this Section
8.03, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, Sections 6.01(iii) through 6.01(v) hereof shall not constitute Events of
Default.
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes and Note Guarantee:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuers must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in
U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as shall be sufficient,
in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium and
Liquidated Damages, if any, and interest on the outstanding
Notes on the stated maturity or on the applicable redemption
date, as the case may be, and the Issuers must specify
whether the Notes are being defeased to maturity or to a
particular redemption date;
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(b) in the case of an election under Section 8.02 hereof, the
Issuers shall have delivered to the Trustee an opinion of
counsel in the United States reasonably acceptable to the
Trustee confirming that (A) the Issuers have received from,
or there has been published by, the Internal Revenue Service
a ruling or (B) since the date hereof, there has been a
change in the applicable federal income tax law, in either
case to the effect that, and based thereon such opinion of
counsel shall confirm that, the Holders of the outstanding
Notes shall not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and
shall be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Issuers shall have delivered to the Trustee an opinion of
counsel in the United States reasonably acceptable to the
Trustee confirming that the Holders of the outstanding Notes
shall not recognize income, gain or loss for federal income
tax purposes as a result of such Covenant Defeasance and
shall be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default
or Event of Default resulting from the borrowing of funds to
be applied to such deposit) or insofar as Events of Default
set forth in Section 6.01 (vii) and (viii) are concerned, at
any time in the period ending on the 91st day after the date
of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under
any material agreement or instrument (other than this
Indenture) to which the Issuers are a party or by which the
Issuers are bound;
(f) the Issuers shall have delivered to the Trustee an opinion of
counsel to the effect that after the 91st day following the
deposit, the trust funds shall not be subject to the effect
of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally;
(g) the Issuers shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the
Issuers with the intent of preferring the Holders of Notes
over the other creditors of the Issuers with the intent of
defeating, hindering, delaying or defrauding creditors of the
Issuers or others; and
(h) the Issuers shall have delivered to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that all
conditions precedent provided for relating to the Legal
Defeasance or the Covenant Defeasance have been complied
with.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Issuers acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become
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due thereon in respect of principal, premium, if any, interest and Liquidated
Damages, if any, but such money need not be segregated from other funds except
to the extent required by law.
The Issuers shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuers from time to time upon the written request
of the Issuers and be relieved of all liability with respect to any money or
non-callable Government Securities held by it as provided in Section 8.04 hereof
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.06 REPAYMENT TO THE ISSUERS.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuers, in trust for the payment of the principal of, premium, if any,
interest or Liquidated Damages, if any, on any Note and remaining unclaimed for
one year after such principal, and premium, if any, or interest or Liquidated
Damages, if any, has become due and payable shall be paid to the Issuers on
their written request or (if then held by the Issuers) shall be discharged from
such trust; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuers as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Issuers cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
shall be repaid to the Issuers.
SECTION 8.07 REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Issuers and the Guarantor under this
Indenture, the Notes and the Note Guarantee shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Issuers makes any payment of principal of, premium, if
any, interest or Liquidated Damages, if any, on any Note following the
reinstatement of its obligations, the Issuers shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
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ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF THE NOTES.
Notwithstanding Section 9.02 of this Indenture, without the consent of
any Holder of Notes the Issuers and the Trustee may amend or supplement this
Indenture, the Notes or the Note Guarantee:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(d) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of
the Notes;
(e) to provide for the issuance of Additional Notes in accordance
with the limitations set forth in this Indenture as of the
date hereof;
(f) to provide for the assumption of the Guarantor's obligations
to the Holders of the Notes pursuant Article 10 hereof, as
applicable; or
(g) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under
the TIA.
Upon the written request of the Issuers accompanied by resolutions of
the Board of Directors or other governing body of the Issuers authorizing the
execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 9.06 hereof, the Trustee shall
join with the Issuers and the Guarantor in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, this Indenture, the
Notes or the Note Guarantee may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer, for Notes), and, any existing
default or compliance with any provision of this Indenture, the Notes or the
Note Guarantee may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including consents obtained in
connection with or a tender offer or exchange offer for the Notes).
Upon the request of the Issuers accompanied by resolutions of the Board
of Directors or other governing body of the Issuers authorizing the execution of
any such amended or supplemental indenture, and upon the filing with the Trustee
of evidence satisfactory to the Trustee of the consent of the Holders of Notes
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.06 hereof, the Trustee shall join with the Issuers and the Guarantor
in the execution of such amended or
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supplemental indenture unless such amended or supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may, but shall not be obligated to, enter into such
amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof. After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Issuers shall mail to the Holders of each Note affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Issuers to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver.
Subject to Sections 6.02, 6.04 and 6.07, hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may amend
or waive compliance in a particular instance by the Issuers or the Guarantor
with any provision of this Indenture, the Notes or the Note Guarantee. However,
without the consent of each Holder affected, an amendment, or waiver may not
(with respect to any Note held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Note or alter the provisions with respect to the redemption
of the Notes (other than provisions relating to Sections
3.09, 4.11 and 4.12 hereof);
(c) reduce the rate of or change the time for payment of interest
on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes
(except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount
of the Notes and a waiver of the payment default that
resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in Section 6.04 or 6.07 hereof;
(g) waive a redemption or repurchase payment with respect to any
Note (other than a payment required by Section 4.11 or 4.12
hereof);
(h) make any change in the amendment and waiver provisions of
this Article 9; or
(i) release Note Collateral from the Lien of the Indenture or the
Note Security Documents (except in accordance with the
provisions hereof).
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture, the Note Guarantee or
the Notes shall be set forth in an amended or supplemental indenture that
complies with the TIA as then in effect.
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SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder of a Note may revoke the
consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. When an
amendment, supplement or waiver becomes effective in accordance with its terms,
it thereafter binds every Holder.
The Issuers may, but shall not be obligated to, fix a record date for
determining which Holders of the Notes must consent to such amendment,
supplement or waiver. If the Issuers fix a record date, the record date shall be
fixed at (i) the later of 30 days prior to the first solicitation of such
consent or the date of the most recent list of Holders of Notes furnished for
the Trustee prior to such solicitation pursuant to Section 2.05 hereof or (ii)
such other date as the Issuers shall designate.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuers in
exchange for all Notes may issue and the Trustee shall authenticate new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article 9 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Issuers
and the Guarantor may not sign an amendment or supplemental indenture until
their respective Boards of Directors or other governing body approves it. In
signing or refusing to sign any amended or supplemental indenture the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, in addition to the documents required by Section
10.04 hereof, an Officers' Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture, that it is not inconsistent herewith, and that it
will be valid and binding upon the Issuers and the Guarantor in accordance with
its terms.
SECTION 9.07 AMENDMENT, SUPPLEMENT AND WAIVER - AMENDED CREDIT AGREEMENT
Except as provided in the next two succeeding paragraphs, the Issuers
agree that they will amend or supplement the Amended Credit Agreement in a
manner that effects the Term Loan only with the consent of the holders of at
least a majority in principal amount of the Notes then outstanding, and any
existing default or compliance with any provision of the Amended Credit
Agreement may be waived by the Issuers only with the consent of the Holders of a
majority in principal amount of the then outstanding Notes.
Without the consent of each Holder of Notes, the Issuers may not amend
or waive only portions of the Amended Credit Agreement the effect of which will:
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(1) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver by the Issuers of the Amended Credit
Agreement;
(2) reduce the principal of or change the maturity of, or alter the
provisions with respect to the redemption of the Term Loan portion of
Amended Credit Agreement;
(3) reduce the rate of or change the time for payment of interest on the
Term Loan portion of the Amended Credit Agreement;
(4) waive a Term Loan Default (as defined in the Amended Credit Agreement)
or Term Loan Event of Default (as defined in the Amended Credit
Agreement) in the payment of principal of or premium, if any, or
interest on the Term Loan portion of the Amended Credit Agreement;
(5) make the Term Loan payable in money other than that stated in the Term
Loan portion of the Amended Credit Agreement;
(6) make any change in the provisions of the Amended Credit Agreement
relating to waivers of past Term Loan Defaults or the rights of the
Issuers to receive payments of principal of or premium, if any, or
interest on the Term Loan;
(7) waive a redemption payment with respect to the Term Loan portion of the
Amended Credit Agreement;
(8) release any portion of the Lien in the Collateral (except in accordance
with the provisions of the agreement creating such Lien); or
(9) make any change in the foregoing amendment and waiver provisions.
Notwithstanding the foregoing, without the consent of any Holder of
Notes, the Issuers may amend or supplement the Term Loan portion of the Amended
Credit Agreement to cure any ambiguity, defect or inconsistency in the Term Loan
portion of the Amended Credit Agreement or to make any change that would provide
any additional rights or benefits to the Issuers or that does not adversely
affect the legal rights under the Term Loan portion of the Amended Credit
Agreement of the Issuers or to provide for the insurance of additional
indebtedness in accordance with the limitations set forth in Amended Credit
Agreement as of the date hereof.
ARTICLE 10.
GUARANTEE OF NOTES
SECTION 10.01 NOTE GUARANTEE.
The Guarantor hereby, unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes and the Obligations of the Issuers hereunder and
thereunder, that: (a) the principal of, premium, if any, interest and Liquidated
Damages, if any, on the Notes will be promptly paid in full when due, subject to
any applicable grace period, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal, premium, if any, (to the
extent permitted by law) interest on any interest, if any, and Liquidated
Damages, if any, on the Notes, and all other payment Obligations of the Issuers
to the Holders or the Trustee hereunder or thereunder will be promptly paid in
full and performed, all in accordance with the terms hereof and thereof; and (b)
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in case of any extension of time of payment or renewal of any Notes or any of
such other Obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any amount so guaranteed
for whatever reason the Guarantor will be obligated to pay the same immediately.
An Event of Default under this Indenture or the Notes shall constitute an event
of default under the Note Guarantee, and shall entitle the Holders to accelerate
the Obligations of the Guarantor hereunder in the same manner and to the same
extent as the Obligations of the Issuers. The Guarantor hereby agrees that its
Obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Issuer, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
The Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuers, any
right to require a proceeding first against the Issuers, protest, notice and all
demands whatsoever and covenants that this Note Guarantee will not be discharged
except by complete performance of the Obligations contained in the Notes and
this Indenture. If any Holder or the Trustee is required by any court or
otherwise to return to the Issuers, the Guarantor, or any Note Custodian,
Trustee, liquidator or other similar official acting in relation to either the
Issuer or the Guarantor, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. The Guarantor agrees that it shall not be
entitled to, and hereby waives, any right of subrogation in relation to the
Holders in respect of any Obligations guaranteed hereby. The Guarantor further
agrees that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the Obligations guaranteed
hereby may be accelerated as provided in Article 6 for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the Obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such Obligations as provided in
Article 6 hereof, such Obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantor for the purpose of this Note
Guarantee.
SECTION 10.02 EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To evidence its Note Guarantee set forth in Section 10.01, the
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form of EXHIBIT D shall be endorsed by an Officer of the Guarantor on each
Note authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of the Guarantor, by manual or facsimile signature, by an
Officer of the Guarantor.
The Guarantor hereby agrees that its Note Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Indenture or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set forth
in this Indenture on behalf of the Guarantor.
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SECTION 10.03 GUARANTOR MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Except as set forth in Articles 4 and 5 hereof, nothing contained
in this Indenture shall prohibit a merger between the Guarantor and the Issuers.
(b) Subject to Section 10.04 hereof, the Guarantor may not consolidate
with or merge with or into (whether or not the Guarantor is the surviving
Person), another corporation, Person or entity whether or not affiliated with
the Guarantor unless, subject to the provisions of the following paragraph, (i)
the Person formed by or surviving any such consolidation or merger (if other
than the Guarantor) assumes all the obligations of the Guarantor pursuant to a
supplemental indenture in form and substance reasonably satisfactory to the
Trustee, under the Notes and this Indenture; (ii) immediately after giving
effect to such transaction, no Default or Event of Default exists; and (iii) the
Guarantor, or any Person formed by or surviving any such consolidation or
merger, would have Consolidated Net Worth (immediately after giving effect to
such transaction), equal to or greater than the Consolidated Net Worth of the
Guarantor immediately preceding the transaction.
(c) In the case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and substantially in the form of EXHIBIT E
hereto, of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
the Note Guarantee to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Issuers and delivered to the
Trustee. The Note Guarantee so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Note Guarantee theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Note Guarantee had been issued at the date of the execution hereof.
SECTION 10.04 LIMITATION ON GUARANTOR LIABILITY.
For purposes hereof, the Guarantor's liability shall be limited to the
lesser of (i) the aggregate amount of the Obligations of the Issuers under the
Notes and this Indenture and (ii) the amount, if any, which would not have (A)
rendered the Guarantor "insolvent" (as such term is defined in the United States
Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or
(B) left the Guarantor with unreasonably small capital at the time its Note
Guarantee of the Notes was entered into; provided that, it will be a presumption
in any lawsuit or other proceeding in which the Guarantor is a party that the
amount guaranteed pursuant to the Note Guarantee is the amount set forth in
clause (i) above unless any creditor, or representative of creditors of the
Guarantor, or debtor in possession or trustee in bankruptcy of the Guarantor,
otherwise proves in such a lawsuit that the aggregate liability of the Guarantor
is the amount set forth in clause (ii) above
SECTION 10.05 "TRUSTEE" TO INCLUDE PAYING AGENT.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Issuers and be then acting hereunder, the term "Trustee"
as used in this Article 10 shall in each case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully and for all intents and purposes as if such Paying
Agent were named in this Article 10 in place of the Trustee.
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ARTICLE 11. COLLATERAL AND SECURITY
SECTION 11.01 NOTE SECURITY DOCUMENTS.
The due and punctual payment of the principal of and interest and
Liquidated Damages, if any, on the Notes when and as the same shall be due and
payable, whether on an interest payment date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of
and interest and Liquidated Damages (to the extent permitted by law), if any, on
the Notes and performance of all other obligations of the Issuers to the Holders
of Notes or the Trustee under this Indenture and the Notes, according to the
terms hereunder or thereunder, shall be secured as provided in the Note Security
Documents which the Issuers have entered into simultaneously with the execution
of this Indenture. Each Holder of Notes, by its acceptance thereof, consents and
agrees to the terms of the Note Security Documents (including, without
limitation, the provisions providing for foreclosure and release of Note
Collateral) as the same may be in effect or may be amended from time to time in
accordance with its terms, appoints the Trustee to act as the "Collateral Agent"
thereunder and authorizes and directs the Trustee, as the Collateral Agent to
enter into the Note Security Documents and to perform its obligations and
exercise its rights thereunder in accordance therewith. The Issuers shall
provide for a true and complete copy of Amended Credit Agreement to be provided
to Trustee and Collateral Agent and shall do or cause to be done all such acts
and things as may be necessary or proper, or as may be required by the
provisions of the Note Security Documents, to assure and confirm to the Trustee
and the Collateral Agent the security interest in the Note Collateral
contemplated hereby, by the Note Security Documents or any part thereof, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Notes secured hereby, according to the
intent and purposes herein expressed. The Issuers shall take, or shall cause
their Subsidiaries to take, upon request of the Trustee, any and all actions
reasonably required to cause the Note Security Agreement to create and maintain,
as security for the Obligations of the Issuers hereunder, a valid and
enforceable perfected first priority Lien in and on all the Note Collateral, in
favor of the Collateral Agent for the benefit of the Holders of Notes, superior
to and prior to the rights of all third Persons and subject to no other Liens
than Permitted Liens.
SECTION 11.02 RECORDING AND OPINIONS.
(a) The Issuers shall furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel either (i)
stating that in the opinion of such counsel all action has been taken with
respect to the recording, registering and filing of this Indenture, financing
statements or other instruments necessary to make effective the Lien intended to
be created by the Note Security Documents, and reciting with respect to the
security interests in the Note Collateral, the details of such action, or (ii)
stating that, in the opinion of such counsel, no such action is necessary to
make such Lien effective.
(b) The Issuers shall furnish to the Collateral Agent and the Trustee
on March 15 in each year beginning with March 15, 2000, an Opinion of Counsel,
dated as of such date, either (i) (A) stating that, in the opinion of such
counsel, action has been taken with respect to the recording, registering,
filing, re-recording, re-registering and re-filing of all supplemental
indentures, financing statements, continuation statements or other instruments
of further assurance as is necessary to maintain the Lien of the Note Security
Documents and reciting with respect to the security interests in the Note
Collateral the details of such action or referring to prior Opinions of Counsel
in which such details are given, (B) stating that, based on relevant laws as in
effect on the date of such Opinion of Counsel, all financing statements and
continuation statements have been executed and filed that are necessary as of
such date and during the succeeding 12 months fully to preserve and protect, to
the extent such protection and preservation are possible by filing, the rights
of the Holders of Notes and the Collateral Agent and the Trustee hereunder
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and under the Note Security Documents with respect to the security interests in
the Note Collateral, or (ii) stating that, in the opinion of such counsel, no
such action is necessary to maintain such Lien and assignment.
(c) The Issuers shall otherwise comply with the provisions of TIA
Section 314(b).
SECTION 11.03 RELEASE OF COLLATERAL.
(a) Subject to subsections (b), (c) and (d) of this Section 11.03, Note
Collateral may be released from the Lien and security interest created by the
Note Security Documents at any time or from time to time in accordance with the
provisions of the Note Security Documents and as provided hereby. In addition,
upon the request of the Issuers pursuant to an Officers' Certificate certifying
that all conditions precedent hereunder and under the Note Security Documents
have been met and (at the sole cost and expense of the Issuers) the Collateral
Agent shall release Note Collateral. Upon receipt of such Officers' Certificate
the Collateral Agent shall execute, deliver or acknowledge any necessary or
proper instruments of termination, satisfaction or release to evidence the
release of any Note Collateral permitted to be released pursuant to this
Indenture or the Note Security Documents.
(b) No Note Collateral shall be released from the Lien and security
interest created by the Note Security Documents pursuant to the provisions of
the Note Security Documents unless there shall have been delivered to the
Collateral Agent the certificate required by this Section 11.03.
(c) At any time when a Default or Event of Default shall have occurred
and be continuing and the maturity of the Notes shall have been accelerated
(whether by declaration or otherwise) and the Trustee shall have delivered a
notice of acceleration to the Collateral Agent, no release of Note Collateral
pursuant to the provisions of the Note Security Documents shall be effective as
against the Holders of Notes.
(d) The release of any Note Collateral from the terms of this Indenture
and the Note Security Documents shall not be deemed to impair the security under
this Indenture in contravention of the provisions hereof if and to the extent
the Note Collateral is released pursuant to the terms of the Note Security
Documents. To the extent applicable, the Issuers shall cause TIA Section 313(b),
relating to reports, and TIA Section 314(d), relating to the release of property
or securities from the Lien and security interest of the Note Security Documents
and relating to the substitution therefor of any property or securities to be
subjected to the Lien and security interest of the Note Security Documents, to
be complied with. Any certificate or opinion required by TIA Section 314(d) may
be made by an Officer of each of the Issuers except in cases where TIA Section
314(d) requires that such certificate or opinion be made by an independent
Person, which Person shall be an independent engineer, appraiser or other expert
selected or approved by the Trustee and the Collateral Agent in the exercise of
reasonable care.
SECTION 11.04 CERTIFICATES OF THE ISSUERS.
The Issuers shall furnish to the Trustee and the Collateral Agent,
prior to each proposed release of Note Collateral pursuant to the Note Security
Documents, (i) all documents required by TIA Section 314(d) and (ii) an Opinion
of Counsel, which may be rendered by internal counsel to the Issuers, to the
effect that such accompanying documents constitute all documents required by TIA
Section 314(d). The Trustee may, to the extent permitted by Sections 7.01 and
7.02 hereof, accept as conclusive evidence of compliance with the foregoing
provisions the appropriate statements contained in such documents and such
Opinion of Counsel.
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SECTION 11.05 CERTIFICATES OF THE TRUSTEE.
In the event that the Issuers wish to release Note Collateral in
accordance with the Note Security Documents and have delivered the certificates
and documents required by the Note Security Documents and Sections 11.03 and
11.04 hereof, the Trustee shall determine whether it has received all
documentation required by TIA Section 314(d) in connection with such release
and, based on such determination and the Opinion of Counsel delivered pursuant
to Section 11.02, shall deliver a certificate to the Collateral Agent setting
forth such determination.
SECTION 11.06 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE NOTE
SECURITY DOCUMENTS.
Subject to the provisions of Section 7.01 and 7.02 hereof, the Trustee
may, in its sole discretion and without the consent of the Holders of Notes,
direct, on behalf of the Holders of Notes, the Collateral Agent to, take all
actions it deems necessary or appropriate in order to (a) enforce any of the
terms of the Note Security Documents and (b) collect and receive any and all
amounts payable in respect of the Obligations of the Issuers hereunder. The
Trustee shall have power to institute and maintain such suits and proceedings as
it may deem expedient to prevent any impairment of the Note Collateral by any
acts that may be unlawful or in violation of the Note Security Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Holders of Notes in
the Note Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest hereunder or be prejudicial to
the interests of the Holders of Notes or of the Trustee).
SECTION 11.07 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE NOTE
SECURITY DOCUMENTS.
The Trustee is authorized to receive any funds for the benefit of the
Holders of Notes distributed under the Note Security Documents, and to make
further distributions of such funds to the Holders of Notes according to the
provisions of this Indenture.
SECTION 11.08 TERMINATION OF SECURITY INTEREST.
Upon the payment in full of all Obligations of the Issuers under this
Indenture and the Notes, or upon Legal Defeasance, the Trustee shall, at the
request of the Issuers, deliver a certificate to the Collateral Agent stating
that such Obligations have been paid in full, and instruct the Collateral Agent
to release the Liens pursuant to this Indenture and the Note Security Documents.
ARTICLE 12.
MISCELLANEOUS
SECTION 12.01 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
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SECTION 12.02 NOTICES.
Any notice or communication by the Issuers, the Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Issuers or the Guarantor:
AmeriServe Finance Trust
AmeriServe Capital Corporation
c/o AmeriServe Food Distribution, Inc.,
15305 Dallas Parkway
Addison, Texas 75001
Attention: President
With a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019-6188
Telecopier No.: (212) 403-2000
Attention: Adam O. Emmerich
If to the Trustee/Collateral Agent:
United States Trust Company of New York
114 West 47th Street, 25th Floor
New York, NY 10036-1532
Telecopier No.: (212) 852-1626/1627
Attention: Corporate Business Unit
except that with respect to presentation of Notes for payment or
registration of transfer or exchange:
United States Trust Company of New York
770 Broadway, 13th Floor
New York, New York 10003
Attention: Corporate Trust Services
The Issuers, the Guarantor or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier promising next Business Day delivery, except that notices and
communications to the Trustee or the Collateral Agent shall be deemed duly given
and effective only upon receipt.
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Any notice or communication to a Holder shall be mailed by first class
mail or by overnight air courier promising next Business Day delivery to its
address shown on the register kept by the Registrar. Any notice or communication
shall also be so mailed to any Person described in TIA Section 313(c), to the
extent required by the TIA. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuers mail a notice or communication to Holders, it shall mail
a copy to the Trustee and each Agent at the same time.
SECTION 12.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuers, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 12.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuers or the Guarantor to the
Trustee to take any action under this Indenture (other than the initial issuance
of the Senior Secured Notes), the Issuers or the Guarantor shall furnish to the
Trustee upon request:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied;
and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
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SECTION 12.06 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of the
Issuers or the Guarantor, as such, shall have any liability for any obligations
of the Issuers or the Guarantor under the Notes, this Indenture, the Note
Guarantee or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
SECTION 12.08 GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEE.
SECTION 12.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Issuers or their Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.10 SUCCESSORS.
All agreements of the Issuers and the Guarantor in this Indenture, the
Notes and the Note Guarantee shall bind their respective successors and assigns.
All agreements of the Trustee in this Indenture shall bind its successors and
assigns.
SECTION 12.11 SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.12 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 12.13 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of October 1, 1999 AMERISERVE FINANCE TRUST
By:
-----------------------------------
Name:
Title:
AMERISERVE CAPITAL CORPORATION
By:
-----------------------------------
Name:
Title:
NEBCO EVANS DISTRIBUTORS, INC.
By:
-----------------------------------
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:
------------------------------------
Name:
Title
66
EXHIBIT A
Face of 12% Senior Secured Notes due 2006
No. ___ $205,000,000
CUSIP NO. 03073MAA5
[AMERISERVE FINANCE TRUST]
[AMERISERVE CAPITAL CORPORATION, as agent of AmeriServe Finance Trust]
promises to pay to _________________ or registered assigns, the principal sum of
_________________ on September 15, 2006.
Interest Payment Dates: September 15 and March 15
Record Dates: September 1 and March 1
AMERISERVE FINANCE TRUST
By:
-----------------------------------
Name:
Title:
AMERISERVE CAPITAL CORPORATION,
as agent of AmeriServe Finance Trust
By:
-----------------------------------
Name:
Title:
This is one of the
Senior Secured Notes referred to in the
within-mentioned Indenture:
Dated: OCTOBER 1, 1999
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By:
-----------------------------------------
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(Back of Senior Secured Note)
12% Senior Secured Note due 2006
Unless and until it is exchanged in whole or in part for Senior Secured
Notes in definitive form, this Senior Secured Note may not be transferred except
as a whole by the Depositary to a nominee of the Depositary or by a 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 Issuers (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.
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(a) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB") OR (B)
IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT.
(b) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION; AND
(c) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR
AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATIONS S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
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FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL
ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE
PRICE IS $977.06, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $22.94, THE ISSUE
DATE IS OCTOBER 1, 1999 AND THE YIELD TO MATURITY IS 12.5% PER ANNUM.
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Each of AmeriServe Finance Trust, a limited purpose
Delaware Business Trust ("Finco") and AmeriServe Capital Trust, a
Delaware corporation and an agent of Finco ("Capital" and
together with Finco, the "Issuers"), and either Issuers'
successor, promises to pay interest on the principal amount of
this Senior Secured Note at the rate of 12% per annum and shall
pay the Liquidated Damages, if any, payable pursuant to Section 5
of the Registration Rights Agreement referred to below. The
Issuers will pay interest and Liquidated Damages, if any, in
United States dollars (except as otherwise provided herein)
semi-annually in arrears on September 15 and March 15, commencing
on March 15, 2000, or if any such day is not a Business Day, on
the next succeeding Business Day (each an "Interest Payment
Date"). Interest on the Senior Secured 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 Senior Secured 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 Senior Secured
Notes, in which case interest shall accrue from the date of
authentication. The Issuers 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 Senior Secured
Notes to the extent lawful; The Issuers 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 Issuers shall pay interest on the Senior
Secured Notes (except defaulted interest) and Liquidated Damages,
if any, on the applicable Interest Payment Date to the Persons
who are registered Holders of Senior Secured Notes at the close
of business on the September 1 or March 1 next preceding the
Interest Payment Date, even if such Senior Secured 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 Senior Secured Notes
shall be payable as to principal, premium and Liquidated Damages,
if any, and interest at the office or agency of the Issuers
maintained for such purpose within or without the City and State
of New York, or, at the option of The Issuers, 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 Notes and all other Senior Secured Notes
the Holders of which shall have provided written wire transfer
instructions to the Issuers and the Paying Agent. Such 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.
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69
3. PAYING AGENT AND REGISTRAR. Initially, United States Trust
Company of New York, the Trustee under the Indenture, shall act
as Paying Agent and Registrar. The Issuers may change any Paying
Agent or Registrar without notice to any Holder. The Issuers or
any of their Subsidiaries may act in any such capacity.
4. INDENTURE. The Issuers issued the Senior Secured Notes under an
Indenture dated as of October 1, 1999 ("Indenture") among the
Issuers, the Guarantor and the Trustee. The terms of the Senior
Secured 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. Codess.ss.77aaa-77bbbb) (the
"TIA"). The Senior Secured Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a
statement of such terms. The Senior Secured Notes are secured
Obligations of the Issuers limited to $205,000,000 in aggregate
principal amount, plus amounts, if any, sufficient to pay premium
or Liquidated Damages, if any, and interest on outstanding Senior
Secured Notes as set forth in Paragraph 2 hereof. The Indenture
pursuant to which the Senior Secured Note is issued provides that
up to $45.0 million of Additional Notes may be issued thereunder.
5. OPTIONAL REDEMPTION.
Except as set forth in the next paragraph, the Senior Secured
Notes shall not be redeemable at the Issuers' option prior to
September 15, 2003. Thereafter, the Senior Secured Notes shall be
subject to redemption at the option of the Issuers, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at
the redemption prices (expressed as percentages of Accreted
Value) 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 April 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2003..................................................... 106.000%
2004..................................................... 103.000%
2005 and thereafter...................................... 100.000%
Notwithstanding the foregoing, at any time prior to September
15, 2001 the Issuers may redeem up to 33% of the original
aggregate principal amount of Senior Secured Notes at a
redemption price of 112.0% 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 Senior Secured 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 Issuers shall
not be required to make mandatory redemption or sinking fund
payments with respect to the Senior Secured Notes.
A-1-4
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7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, each Holder of
Senior Secured Notes will have the right to require the Issuers
to repurchase all or any part (equal to $1,000 or an integral
multiple thereof) of such Holder's Senior Secured Notes pursuant
to the offer described below (the "Change of Control Offer") at
an offer price in cash equal to 101% of the Accreted Value
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 Issuers shall 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 Issuers shall offer to all Holders of Senior Secured
Notes (an "Asset Sale Offer") to purchase the maximum principal
amount of Senior Secured Notes that may be purchased out of the
Excess Proceeds at an offer price in cash equal to 100% of
Accreted Value 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 Senior Secured Notes
(including any Additional Notes) tendered pursuant to an Asset
Sale Offer is less than the Excess Proceeds, the Issuers may use
any remaining Excess Proceeds for any general corporate purposes.
If the aggregate principal amount of Senior Secured Notes
surrendered by Holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Senior Secured 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 Senior Secured Notes that are the subject of
an Offer to Purchase will receive a Change of Control Offer or
Asset Sale Offer from the Issuers prior to any related purchase
date and may elect to have such Senior Secured 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 Senior Secured Notes are to be redeemed
at its registered address. Senior Secured Notes in denominations
larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Senior Secured 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
Senior Secured Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Senior Secured Notes are
in registered form without coupons in initial denominations of
$1,000 and integral multiples of $1,000. The transfer of the
Senior Secured Notes may be registered and the Senior Secured
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 Issuers may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The
Issuers need not exchange or register the transfer of any Senior
Secured Note or portion of a Senior Secured Note selected for
redemption, except for the unredeemed portion of any Senior
Secured Note being redeemed in part. Also, it need not exchange
or register the transfer of any Senior Secured Notes for a period
of 15 days before a selection of Senior Secured Notes to be
redeemed or during the period between a record date and the
corresponding Interest Payment Date.
A-1-5
71
10. PERSONS DEEMED OWNERS. The registered Holder of a Senior Secured
Note may be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to the following
paragraphs, the Indenture, the Senior Secured Notes and the Note
Guarantee may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Senior
Secured Notes and Additional Notes then outstanding (including,
without limitation, consents obtained in connection with a
purchase of or, tender offer or exchange offer for Senior Secured
Notes), and any existing Default or Event of Default or
compliance with any provision of the Indenture, the Senior
Secured Notes or the Note Guarantee may be waived with the
consent of the Holders of a majority in principal amount of the
then outstanding Senior Secured Notes and Additional Notes
(including consents obtained in connection with a tender offer or
exchange offer for Senior Secured Notes).
Without the consent of any Holder of Senior Secured Notes, the
Issuers and the Trustee may amend or supplement the Indenture,
the Note Guarantees or the Senior Secured Notes to cure any
ambiguity, defect or inconsistency, to provide for uncertificated
Senior Secured Notes in addition to or in place of certificated
Senior Secured Notes, to make any change that would provide any
additional rights or benefits to the Holders of Senior Secured
Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, to provide for the issuance of
Additional Notes in accordance with the limitations set forth in
the Indenture, or to comply with the requirements of the
Commission in order to effect or maintain the qualification of
the Indenture under the Trust Indenture Act.
12. 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 Senior Secured Notes or the
Term Loan; (ii) default in payment when due of the principal of
or premium, if any, on the Senior Secured Notes or the Term Loan;
(iii) failure by the Issuers to comply with the provisions
described in Sections 4.07, 4.08, 4.11, 4.12 or 5.01 of the
Indenture; (iv) failure by either Issuer for 60 days after notice
from the Trustee or the Holders of at least 25% in principal
amount of the Senior Secured Notes then outstanding to comply
with its other agreements in the Indenture or the Senior Secured
Notes; (v) default under the Term Loan portion of the Amended
Credit Agreement (vi) failure by the Issuers 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 (vii) certain events of bankruptcy or Issuers.
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 Senior Secured Notes may declare all the Senior
Secured Notes to be due and payable immediately. Notwithstanding
the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, with respect to the
Issuers all outstanding Senior Secured Notes will become due and
payable without further action or notice. Holders of the Senior
Secured Notes may not enforce the Indenture or the Senior Secured
Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the
then outstanding Senior Secured Notes may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from
Holders of the Senior Secured Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default
relating
A-1-6
72
to the payment of principal or interest) if it determines that
withholding notice is in their interest.
13. TRUSTEE DEALINGS WITH ISSUERS. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and
perform services for the Issuers, the Guarantor or their
respective Affiliates, and may otherwise deal with the Issuers,
the Guarantor or their respective Affiliates, as if it were not
the Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder, of the Issuers or Guarantor, as
such, shall have any liability for any obligations of the Issuers
or Guarantor under the Senior Secured Notes, the Indenture or the
Note Guarantee or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of
Senior Secured Notes by accepting a Senior Secured Note waives
and releases all such liability. The waiver and release are part
of the consideration for the issuance of the Senior Secured Notes
and the Note Guarantee.
15. AUTHENTICATION. This Senior Secured Note shall not be valid until
authenticated by the manual signature of the Trustee or an
authenticating agent.
16. 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).
17. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES.
In addition to the rights provided to Holders of the Senior
Secured 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 the date hereof, among
the Issuers, the Guarantor and the Initial Purchasers or, in the
case of Additional Notes, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have the rights set forth in
one or more registration rights agreements, if any, between the
Issuers and the other parties thereto, relating to rights given
by the Issuers to the purchasers of Additional Notes
(collectively, the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the
Issuers have caused CUSIP numbers to be printed on the Senior
Secured 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
Senior Secured Notes or as contained in any notice of redemption
and reliance may be placed only on the other identification
numbers placed thereon.
The Issuers 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:
A-1-7
73
AmeriServe Finance Trust
AmeriServe Capital Corporation
c/o AmeriServe Food Distribution, Inc.
15305 Dallas Parkway
Addison, Texas 75001
Telecopy: (972) 364-2022
Chief Financial Officer
A-1-8
74
ASSIGNMENT FORM
To assign this Senior Secured Note, fill in the form below: (I) or (we)
assign and transfer this Senior Secured Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
to transfer this Senior Secured Note on the books of the Issuers. The agent may
substitute another to act for him.
Date: __________
Your Signature:
-----------------------------------
(Sign exactly as your name appears on the face of
this Senior Secured Note)
Signature Guarantee:
A-1-9
75
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Senior Secured Note purchased by the
Issuers pursuant to Section 4.11 or 4.12 of the Indenture, check the box below:
[ ] Section 4.11 [ ] Section 4.12
If you want to elect to have only part of the Senior Secured Note
purchased by the Issuers pursuant to Section 4.11 or Section 4.12 of the
Indenture, state the amount you elect to have purchased: $___________
Date: __________
Your Signature:
-----------------------------------
(Sign exactly as your name appears on the face of
this Senior Secured Note)
Tax Identification No.:
---------------------------
Signature Guarantee:
A-1-10
76
SCHEDULE OF EXCHANGES OF SENIOR SECURED NOTES(1)
The following exchanges of a part of this Global Note for other Senior
Secured Notes have been made:
Principal Amount of Signature of
this Global Note authorized officer
Amount of decrease Amount of increase in following such of Trustee or Senior
in Principal Amount Principal Amount of decrease (or Secured Note
Date of Exchange of this Global Note this Global Note increase) Custodian
- ------------------------- ------------------- --------------------- ------------------- --------------------
- ----------------
(1) This should be included only if the Secured Senior Note is issued in global
form.
A-1-11
77
EXHIBIT B-1
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Pursuant to Section 2.06(a)(1) of the Indenture)
United States Trust Company of New York
770 Broadway, 13th Floor
New York, New York 10003
Attention: Corporate Trust Services
Re: 12% Senior Secured Notes due 2006 of AmeriServe Finance Trust and AmeriServe
Capital Corporation
Reference is hereby made to the Indenture, dated as of October 1, 1999
(the "Indenture"), among AmeriServe Finance Trust, a limited purpose Delaware
Corporation ("Finco"), AmeriServe Capital Corporation, a Delaware corporation
acting as an agent of Finco pursuant to the Agency Agreement dated as of
September 24, 1999 ("Capital" and together with Finco, the "Issuers"), Nebco
Evans Distributors, Inc. (the "Guarantor"), and United States Trust Company of
New York, as trustee (the "Trustee"). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
This letter relates to $ __________ principal amount of Senior Secured
Notes which are evidenced by one or more Rule 144A Global Notes and held with
the Depositary in the name of ______________________ (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the Senior
Secured Notes to a Person who will take delivery thereof in the form of an equal
principal amount of Senior Secured Notes evidenced by one or more Regulation S
Global Notes, which amount, immediately after such transfer, is to be held with
the Depositary through Euroclear or Cedel or both.
In connection with such request and in respect of such Senior Secured
Notes, the Transferor hereby certifies that such transfer has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with Rule 903 or Rule 904 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor hereby further certifies that:
(1) The offer of the Senior Secured Notes was not made to a
person in the United States;
(2) either:
(a) at the time the buy order was originated, the
transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed and believes that the transferee
was outside the United States; or
(b) the transaction was executed in, on or through the
facilities of a designated offshore securities market
and neither the Transferor nor any person acting on its
B-1-1
78
behalf knows that the transaction was prearranged with
a buyer in the United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 904(b) of
Regulation S;
(4) the transaction is not part of a plan or scheme to
evade the registration provisions of the Securities
Act; and
(5) upon completion of the transaction, the beneficial
interest being transferred as described above is to be
held with the Depositary through Euroclear or Cedel or
both.
Upon giving effect to this request to exchange a beneficial interest in
a Rule 144A Global Note for a beneficial interest in a Regulation S Global Note,
the resulting beneficial interest shall be subject to the restrictions on
transfer applicable to Regulation S Global Notes pursuant to the Indenture and
the Securities Act and, if such transfer occurs prior to the end of the 40-day
restricted period associated with the initial offering of Senior Secured Notes,
the additional restrictions applicable to transfers of interest in the
Regulation S Temporary Global Note.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers, the Guarantor and Donaldson, Lufkin &
Jenrette Securities Corporation, Banc of America Securities LLC, and Salomon
Smith Barney Inc., the initial purchasers of such Senior Secured Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
---------------------------------------
Name:
Title:
Dated:
cc: AmeriServe Finance Trust
AmeriServe Capital Corporation
AmeriServe Food Distribution, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Banc of America Securities LLC
Salomon Smith Barney Inc.
B-1-2
79
EXHIBIT B-2
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Pursuant to Section 2.06(a)(ii) of the Indenture)
United States Trust Company of New York
770 Broadway, 13th Floor
New York, New York 10003
Attention: Corporate Trust Services
Re: 12% Senior Secured Notes due 2006 of AmeriServe Finance Trust and
AmeriServe Capital Corporation
Reference is hereby made to the Indenture, dated as of October 1, 1999
(the "Indenture"), among AmeriServe Finance Trust, a limited purpose Delaware
Trust ("Finco"), AmeriServe Capital Corporation, a Delaware corporation acting
as an agent of Finco pursuant to the Agency Agreement dated as of September 24,
1999 ("Capital" and together with Finco, the "Issuers"), Nebco Evans
Distributors, Inc. (the "Guarantor"), and United States Trust Company of New
York, as trustee (the "Trustee"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to $_____________ principal amount of Senior
Secured Notes which are evidenced by one or more Regulation S Global Notes and
held with the Depositary through Euroclear or Cedel in the name of
__________________________________ (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Senior Secured Notes to
a Person who will take delivery thereof in the form of an equal principal amount
of Senior Secured Notes evidenced by one or more Rule 144A Global Notes, to be
held with the Depositary.
In connection with such request and in respect of such Senior Secured
Notes, the Transferor hereby certifies that:
[CHECK ONE]
[ ] such transfer is being effected pursuant to and in accordance with Rule
144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further
certifies that the Senior Secured Notes are being transferred to a
Person that the Transferor reasonably believes is purchasing the Senior
Secured Notes for its own account, or for one or more accounts with
respect to which such Person exercises sole investment discretion, and
such Person and each such account is a "qualified institutional buyer"
within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A;
or
[ ] such transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;
or
B-2-1
80
[ ] such transfer is being effected pursuant to an exemption under the
Securities Act other than Rule 144A, Rule 144 or Rule 904 and the
Transferor further certifies that the Transfer complies with the
transfer restrictions applicable to beneficial interests in Global
Notes and Definitive Senior Secured Notes bearing the Private Placement
Legend and the requirements of the exemption claimed, which
certification is supported by (x) if such transfer is in respect of a
principal amount of Senior Secured Notes at the time of Transfer of
$100,000 or more, a certificate executed by the Transferee in the form
of EXHIBIT C to the Indenture, or (y) if such Transfer is in respect of
a principal amount of Senior Secured Notes at the time of transfer of
less than $100,000, (1) a certificate executed in the form of EXHIBIT C
to the Indenture and (2) an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that (1) such Transfer
is in compliance with the Securities Act and (2) such Transfer complies
with any applicable blue sky securities laws of any state of the United
States;
or
[ ] such transfer is being effected pursuant to an effective registration
statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Secured Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported
by an Opinion of Counsel, provided by the transferor or the transferee
(a copy of which the Transferor has attached to this certification) in
form reasonably acceptable to the Issuers and to the Registrar, to the
effect that such transfer is in compliance with the Securities Act;
and such Senior Secured Notes are being transferred in compliance with any
applicable blue sky securities laws of any state of the United States.
Upon giving effect to this request to exchange a beneficial interest in
Regulation S Global Notes for a beneficial interest in 144A Global Senior
Secured Notes, the resulting beneficial interest shall be subject to the
restrictions on transfer applicable to Rule 144A Global Notes pursuant to the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers, the Guarantor and Donaldson, Lufkin &
Jenrette Securities Corporation, Banc of America Securities LLC, and Salomon
Smith Barney Inc., the initial purchasers of such Senior Secured Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
---------------------------------------
Name:
Title:
B-2-2
81
Dated:
cc: AmeriServe Finance Trust
AmeriServe Capital Corporation
AmeriServe Food Distribution, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Banc of America Securities LLC
Salomon Smith Barney Inc.
B-2-3
82
EXHIBIT B-3
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
OF DEFINITIVE SENIOR SECURED NOTES
(Pursuant to Section 2.06(b) of the Indenture)
United States Trust Company of New York
770 Broadway, 13th Floor
New York, New York 10003
Attention: Corporate Trust Services
Re: 12% Senior Secured Notes due 2006 of AmeriServe Finance Trust and
AmeriServe Capital Corporation
Reference is hereby made to the Indenture, dated as of October 1, 1999
(the "Indenture"), among AmeriServe Finance Trust, a limited purpose Delaware
Trust ("Finco"), AmeriServe Capital Corporation, a Delaware corporation acting
as an agent of Finco pursuant to the Agency Agreement dated as of September 24,
1999 ("Capital" and together with Finco, the "Issuers"), Nebco Evans
Distributors, Inc. (the "Guarantor"), and United States Trust Company of New
York, as trustee (the "Trustee"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This relates to $____________ principal amount of Senior Secured Notes
which are evidenced by one or more Definitive Senior Secured Notes in the name
of ____________ (the "Transferor"). The Transferor has requested an exchange or
transfer of such Definitive Senior Secured Note(s) in the form of an equal
principal amount of Senior Secured Notes evidenced by one or more Definitive
Senior Secured Notes, to be delivered to the Transferor or, in the case of a
transfer of such Senior Secured Notes, to such Person as the Transferor
instructs the Trustee.
In connection with such request and in respect of the Senior Secured
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Secured Notes"), the Holder of such Surrendered Senior Secured Notes hereby
certifies that:
[CHECK ONE]
[ ] the Surrendered Senior Secured Notes are being acquired for the
Transferor's own account, without transfer;
or
[ ] the Surrendered Senior Secured Notes are being transferred to the
Issuers;
or
[ ] the Surrendered Senior Secured Notes are being transferred pursuant to
and in accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Senior Secured
Notes are being transferred to a Person that the Transferor reasonably
believes is purchasing the Surrendered Senior Secured Notes for its own
account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such
B-3-1
83
account is a "qualified institutional buyer" within the meaning of Rule
144A, in each case in a transaction meeting the requirements of Rule
144A;
or
[ ] the Surrendered Senior Secured Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
[ ] the Surrendered Senior Secured Notes are being transferred pursuant to
an exemption under the Securities Act other than Rule 144A, Rule 144 or
Rule 904 and the Transferor further certifies that the Transfer
complies with the transfer restrictions applicable to beneficial
interests in Global Notes and Definitive Senior Secured Notes bearing
the Private Placement Legend and the requirements of the exemption
claimed, which certification is supported by (x) if such transfer is in
respect of a principal amount of Senior Secured Notes at the time of
Transfer of $100,000 or more, a certificate executed by the Transferee
in the form of EXHIBIT C to the Indenture, or (y) if such Transfer is
in respect of a principal amount of Senior Secured Notes at the time of
transfer of less than $100,000, (1) a certificate executed in the form
of EXHIBIT C to the Indenture and (2) an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that (1) such Transfer
is in compliance with the Securities Act and (2) such Transfer complies
with any applicable blue sky securities laws of any state of the United
States;
or
[ ] the Surrendered Senior Secured Notes are being transferred pursuant to
an effective registration statement under the Securities Act;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Secured Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported
by an Opinion of Counsel, provided by the transferor or the transferee
(a copy of which the Transferor has attached to this certification) in
form reasonably acceptable to the Issuers and to the Registrar, to the
effect that such transfer is in compliance with the Securities Act;
and the Surrendered Senior Secured Notes are being transferred in compliance
with any applicable blue sky securities laws of any state of the United States.
B-3-2
84
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers, the Guarantor and Donaldson, Lufkin &
Jenrette Securities Corporation, Banc of America Securities LLC, and Salomon
Smith Barney Inc., the initial purchasers of such Senior Secured Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
---------------------------------------
Name:
Title:
Dated:
cc: AmeriServe Finance Trust
AmeriServe Capital Corporation
AmeriServe Food Distribution, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Banc of America Securities LLC
Salomon Smith Barney Inc.
B-3-3
85
EXHIBIT B-4
FORM OF CERTIFICATE FOR EXCHANGE OR REGISTRATION OF TRANSFER
FROM RULE 144A GLOBAL NOTE
TO DEFINITIVE SENIOR SECURED NOTE
(Pursuant to Section 2.06(c) of the Indenture)
United States Trust Company of New York
770 Broadway, 13th Floor
New York, New York 10003
Attention: Corporate Trust Services
Re: 12% Senior Secured Notes due 2006 of AmeriServe Finance Trust and
AmeriServe Capital Corporation
Reference is hereby made to the Indenture, dated as of October 1, 1999
(the "Indenture"), among AmeriServe Finance Trust, a limited purpose Delaware
Trust ("Finco"), AmeriServe Capital Corporation, a Delaware corporation acting
as an agent of Finco pursuant to the Agency Agreement dated as of September 24,
1999 ("Capital" and together with Finco, the "Issuers"), Nebco Evans
Distributors, Inc. (the "Guarantor"), and United States Trust Company of New
York, as trustee (the "Trustee"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to $____________ principal amount of Senior Secured
Notes which are evidenced by a beneficial interest in one or more Rule 144A
Global Notes in the name of ________________ (the "Transferor"). The Transferor
has requested an exchange or transfer of such beneficial interest in the form of
an equal principal amount of Senior Secured Notes evidenced by one or more
Definitive Senior Secured Notes, to be delivered to the Transferor or, in the
case of a transfer of such Senior Secured Notes, to such Person as the
Transferor instructs the Trustee.
In connection with such request and in respect of the Senior Secured
Notes surrendered to the Trustee herewith for exchange (the "Surrendered Senior
Secured Notes"), the Holder of such Surrendered Senior Secured Notes hereby
certifies that:
[CHECK ONE]
[ ] the Surrendered Senior Secured Notes are being transferred to the
beneficial owner of such Senior Secured Notes;
or
[ ] the Surrendered Senior Secured Notes are being transferred pursuant to
and in accordance with Rule 144A under the United States Securities Act
of 1933, as amended (the "Securities Act"), and, accordingly, the
Transferor hereby further certifies that the Surrendered Senior Secured
Notes are being transferred to a Person that the Transferor reasonably
believes is purchasing the Surrendered Senior Secured Notes for its own
account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such
account is a "qualified institutional buyer" within the meaning of Rule
144A, in each case in a transaction meeting they requirements of Rule
144A;
B-4-1
86
or
[ ] the Surrendered Senior Secured Notes are being transferred in a
transaction permitted by Rule 144 under the Securities Act;
or
[ ] the Surrendered Senior Secured Notes are being transferred pursuant to
an effective registration statement under the Securities Act;
or
[ ] the Surrendered Senior Secured Notes are being transferred pursuant to
an exemption under the Securities Act other than Rule 144A, Rule 144 or
Rule 904 and the Transferor further certifies that the Transfer
complies with the transfer restrictions applicable to beneficial
interests in Global Notes and Definitive Senior Secured Notes bearing
the Private Placement Legend and the requirements of the exemption
claimed, which certification is supported by (x) if such transfer is in
respect of a principal amount of Senior Secured Notes at the time of
Transfer of $100,000 or more, a certificate executed by the Transferee
in the form of EXHIBIT C to the Indenture, or (y) if such Transfer is
in respect of a principal amount of Senior Secured Notes at the time of
transfer of less than $100,000, (1) a certificate executed in the form
of EXHIBIT C to the Indenture and (2) an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that (1) such Transfer
is in compliance with the Securities Act and (2) such Transfer complies
with any applicable blue sky securities laws of any state of the United
States;
or
[ ] such transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A or
Rule 144, and the Transferor hereby further certifies that the Senior
Secured Notes are being transferred in compliance with the transfer
restrictions applicable to the Global Notes and in accordance with the
requirements of the exemption claimed, which certification is supported
by an Opinion of Counsel, provided by the transferor or the transferee
(a copy of which the Transferor has attached to this certification) in
form reasonably acceptable to the Issuers and to the Registrar, to the
effect that such transfer is in compliance with the Securities Act;
and the Surrendered Senior Secured Notes are being transferred in compliance
with any applicable blue sky securities laws of any state of the United States.
B-4-2
87
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers, the Guarantor and Donaldson, Lufkin &
Jenrette Securities Corporation, Banc of America Securities LLC, and Salomon
Smith Barney Inc., the initial purchaser of such Senior Secured Notes being
transferred. Terms used in this certificate and not otherwise defined in the
Indenture have the meanings set forth in Regulation S under the Securities Act.
[Insert Name of Transferor]
By:
---------------------------------------
Name:
Title:
Dated:
cc: AmeriServe Finance Trust
AmeriServe Capital Corporation
AmeriServe Food Distribution, Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Banc of America Securities LLC
Salomon Smith Barney Inc.
B-4-3
88
EXHIBIT C
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
United States Trust Company of New York
770 Broadway, 13th Floor
New York, New York 10003
Attention: Corporate Trust Services
Re: 12% Senior Secured Notes due 2006 of AmeriServe Finance Trust and
AmeriServe Capital Corporation
Reference is hereby made to the Indenture, dated as of October 1, 1999
(the "Indenture"), among AmeriServe Finance Trust, a limited purpose Delaware
Trust ("Finco"), AmeriServe Capital Corporation, a Delaware corporation acting
as an agent of Finco pursuant to the Agency Agreement dated as of September 24,
1999 ("Capital" and together with Finco, the "Issuers"), Nebco Evans
Distributors, Inc. (the "Guarantor"), and United States Trust Company of New
York, as trustee (the "Trustee"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $______________ aggregate
principal amount of:
(a) [ ] Beneficial interests, or
(b) [ ] Definitive Senior Secured Notes,
we confirm that:
1. We understand that any subsequent transfer of the Senior Secured
Notes of any interest therein is subject to certain restrictions
and conditions set forth in the Indenture and the undersigned
agrees to be bound by, and not to resell, pledge or otherwise
transfer the Senior Secured Notes or any interest therein except
in compliance with, such restrictions and conditions and the
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Senior Secured Notes
have not been registered under the Securities Act, and that the
Senior Secured Notes and any interest therein may not be offered
or sold except as permitted in the following sentence. We agree,
on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell the Senior
Secured Notes or any interest therein, (A) we will do so only
(1)(a) to a person who the Seller reasonably believes is a
qualified institutional buyer (as defined in Rule 144A under the
Securities Act) in a transaction meeting the requirements of
144A, (b) in a transaction meeting the requirements of Rule 144
under the Securities Act, (c) outside the United States to a
foreign person in a transaction meeting the requirements of Rule
904 of the Securities Act, or (d) in accordance with another
exemption from the registration requirements of the Securities
Act (and based upon an opinion of counsel), (2) to the Issuers or
(3) pursuant to an effective registration statement and, in each
case, in accordance with any applicable securities laws of any
State of the United States or any other applicable jurisdiction
and
C-1
89
(B) we will, and each subsequent holder will be required to,
notify any purchaser from it of the security evidenced hereby of
the resale restrictions set forth in (A) above."
3. We understand that, on any proposed resale of the Senior Secured
Notes or beneficial interests, we will be required to furnish to
you and the Issuers such certifications, legal opinions and other
information as you and the Issuers may reasonably require to
confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Senior Secured Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and
risks of our investment in the Senior Secured Notes, and we and
any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Senior Secured Notes or beneficial interests
therein purchased by us for our own account or for one or more
accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment
discretion.
6. We are not acquiring the Senior Secured Notes with a view to any
distribution thereof that would violate the Securities Act or the
securities laws of any State of the United States.
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
--------------------------------------------
[Insert Name of Accredited Investor]
By:
-----------------------------------------
Name:
Title:
Dated: ,
---------------- ------
C-2
90
EXHIBIT D
NOTE GUARANTEE
Subject to Article of the Indenture, the Guarantor hereby
unconditionally guarantees to each Holder of a Senior Secured Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of the Indenture, the Senior
Secured Notes and the Obligations of the Issuers under the Senior Secured Notes
or under the Indenture, that: (a) the principal of, premium, if any, interest
and Liquidated Damages, if any, on the Senior Secured Notes will be promptly
paid in full when due, subject to any applicable grace period, whether at
maturity, by acceleration, redemption or otherwise, and interest on overdue
principal, premium, if any, (to the extent permitted by law) interest on any
interest, if any, and Liquidated Damages, if any, on the Senior Secured Notes
and all other payment Obligations of the Issuers to the Holders or the Trustee
under the Indenture or under the Senior Secured Notes will be promptly paid in
full and performed, all in accordance with the terms thereof; and (b) in case of
any extension of time of payment or renewal of any Senior Secured Notes or any
of such other payment Obligations, the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
subject to any applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise. Failing payment when so due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantor will be obligated to pay the same immediately.
The obligations of the Guarantor to the Holders and to the Trustee
pursuant to this Note Guarantee and the Indenture are expressly set forth in
Article 10 of the Indenture, and reference is hereby made to such Indenture for
the precise terms of this Note Guarantee. The terms of Article 10 of the
Indenture are incorporated herein by reference.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon the Guarantor and its respective successors and
assigns to the extent set forth in the Indenture until full and final payment of
all of the Issuers' Obligations under the Senior Secured Notes and the Indenture
and shall inure to the benefit of the successors and assigns of the Trustee and
the Holders and, in the event of any transfer or assignment of rights by any
Holder or the Trustee, the rights and privileges herein conferred upon that
party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof. This is a Note
Guarantee of payment and not a guarantee of collection.
This Note Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Senior Secured Note upon which
this Note Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
For purposes hereof, the Guarantor's liability shall be limited to the
lesser of (i) the aggregate amount of the Obligations of the Issuers under the
Senior Secured Notes and the Indenture and (ii) the amount, if any, which would
not have (A) rendered such the Guarantor "insolvent" (as such term is defined in
the Bankruptcy Law and in the Debtor and Creditor Law of the State of New York)
or (B) left the Guarantor with unreasonably small capital at the time its Note
Guarantee of the Senior Secured Notes was entered into; provided that, it will
be a presumption in any lawsuit or other proceeding in which the Guarantor is a
party that the amount guaranteed pursuant to the Note Guarantee is the amount
set forth in clause (i) above unless any creditor, or representative of
creditors of the Guarantor, or debtor in possession or trustee in bankruptcy of
the Guarantor, otherwise proves in such a lawsuit that the aggregate liability
of the Guarantor is limited to the amount set forth in clause (ii) above.
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Capitalized terms used herein have the same meanings given in the
Indenture unless otherwise indicated.
Dated as of [_________], 1999 NEBCO EVANS DISTRIBUTORS, INC.
By:
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Name:
Title:
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EXHIBIT E
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
___________, between [ ] (the "New Guarantor"), and [ ], as trustee
under the indenture referred to below (the "Trustee"). Capitalized terms used
herein and not defined herein shall have the meaning ascribed to them in the
Indenture (as defined below).
W I T N E S S E T H
WHEREAS, the Issuers have heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of October 1, 1999, providing
for the issuance of an aggregate principal amount of up to $230,000,000 of 12%
Senior Secured Notes due 2006 (the "Senior Notes");
WHEREAS, Section 10.03 of the Indenture provides that under certain
circumstances a supplemental indenture must be executed pursuant to which such
all of the Issuers' Obligations under the Senior Notes will be guaranteed
pursuant to a Note Guarantee on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Senior Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO NOTE GUARANTEE. The New Guarantor hereby agrees to
guarantee the Issuers' Obligations under the Senior Notes and the Indenture on
the terms and subject to the conditions set forth in Article 10 of the Indenture
and to be bound by all other applicable provisions of the Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, shareholder or agent of the Guarantor, as such,
shall have any liability for any obligations of the Issuers under the Senior
Notes, any Note Guarantee, the Indenture or this Supplemental Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder by accepting a Senior Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Senior Notes.
4. NEW YORK LAW TO GOVERN. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
5. 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 represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
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7. THE TRUSTEE. The Trustee shall not be 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 New Guarantor.
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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: [NAME OF NEW GUARANTOR]
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By:
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Name:
Title:
Dated: AS TRUSTEE
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By:
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Name:
Title:
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