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EXHIBIT 4.3
NEW NOTE GUARANTEE
Subject to Section 11.06 of the Indenture, each Subsidiary Guarantor
hereby, jointly and severally, unconditionally guarantees to each Holder of a
New Senior Subordinated 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 New Senior Subordinated Notes and the
Obligations of the Company under the New Senior Subordinated Notes or under the
Indenture, that: (a) the principal of, premium, if any, interest and Liquidated
Damages, if any, on the New Senior Subordinated 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 New Senior Subordinated Notes and
all other payment Obligations of the Company to the Holders or the Trustee under
the Indenture or under the New Senior Subordinated 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 New Senior Subordinated
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
Subsidiary Guarantors will be jointly and severally obligated to pay the same
immediately.
The obligations of the Subsidiary Guarantor to the Holders and to the
Trustee pursuant to this New Note Guarantee and the Indenture are expressly set
forth in Article 11 of the Indenture, and reference is hereby made to such
Indenture for the precise terms of this New Note Guarantee. The terms of Article
11 of the Indenture are incorporated herein by reference. This New Note
Guarantee is subject to release as and to the extent provided in Section 11.04
of the Indenture.
This is a continuing Guarantee and shall remain in full force and effect
and shall be binding upon each Subsidiary Guarantor and its respective
successors and assigns to the extent set forth in the Indenture until full and
final payment of all of the Company's Obligations under the New Senior
Subordinated 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 New Note Guarantee of payment and not a guarantee of
collection.
This New Note Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the New Senior
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Subordinated Note upon which this New 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, each Subsidiary Guarantor's liability shall be limited
to the lesser of (i) the aggregate amount of the Obligations of the Company
under the New Senior Subordinated Notes and the Indenture and (ii) the amount,
if any, which would not have (A) rendered such Subsidiary 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 such Subsidiary Guarantor with
unreasonably small capital at the time its New Note Guarantee of the New Senior
Subordinated Notes was entered into; provided that, it will be a presumption in
any lawsuit or other proceeding in which a Subsidiary Guarantor is a party that
the amount guaranteed pursuant to the New Note Guarantee is the amount set forth
in clause (i) above unless any creditor, or representative of creditors of such
Subsidiary Guarantor, or debtor in possession or trustee in bankruptcy of such
Subsidiary Guarantor, otherwise proves in such a lawsuit that the aggregate
liability of the Subsidiary Guarantor is limited to the amount set forth in
clause (ii) above. The Indenture provides that, in making any determination as
to the solvency or sufficiency of capital of a Subsidiary Guarantor in
accordance with the previous sentence, the right of such Subsidiary Guarantors
to contribution from other Subsidiary Guarantors and any other rights such
Subsidiary Guarantors may have, contractual or otherwise, shall be taken into
account.
Capitalized terms used herein have the same meanings given in the Indenture
unless otherwise indicated.
Dated as of ___________, 1997 AMERISERV FOOD COMPANY, INC.
By:______________________________
Name:
Title:
Dated as of ___________, 1997 CHICAGO CONSOLIDATED CORPORATION
By:______________________________
Name:
Title:
Dated as of ___________, 1997 NORTHLAND TRANSPORTATION INC.
By:______________________________
Name:
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Title:
Dated as of ___________, 1997 XXXXX X. POST COMPANY
By:______________________________
Name:
Title:
Dated as of ___________, 1997 DELTA TRANSPORTATION INC.
By:______________________________
Name:
Title:
Dated as of ___________, 1997 AMERISERVE TRANSPORTATION, INC.
By:______________________________
Name:
Title:
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