Exhibit 4.3
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF
SEPTEMBER 27, 1996 AND THE LAST DATE ON WHICH THE COMPANY OR ANY "AFFILIATE"
OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
(E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E), OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY
IS COMPLETED AND DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE
TRANSFEREE TO THE TRUSTEE.
THE HOLDER OF THIS NOTE IS ENTITLED TO THE BENEFITS OF THE REGISTRATION
RIGHTS AGREEMENT REFERRED TO BELOW AND, BY ITS ACCEPTANCE HEREOF, AGREES TO
BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS
AGREEMENT.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY (AS
DEFINED IN THE INDENTURE) OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE
FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND,
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS 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 NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY (AS DEFINED
BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED FINGERHUT $
NO. COMPANIES, INC. CUSIP
7.375% SENIOR NOTES DUE NO.
FINGERHUT COMPANIES, INC., a Minnesota corporation (hereinafter called
the "Company", which term includes any successor corporation under the
Indenture referred to below), for value received, hereby promises to pay to
______________, or registered assigns, the principal sum of
________________________ on September 15, 1999 (the "Maturity Date"), and to
pay interest thereon from September 27, 1996 or from the most recent date to
which interest has been paid or duly provided for, semiannually on March 15
and September 15 in each year (each, an "Interest Payment Date"), commencing
March 15, 1997, and at Maturity, at the rate of 7.375% per annum, until the
principal hereof is paid or duly made available for payment. Interest on
this Note shall be calculated
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on the basis of a 360-day year consisting of twelve 30-day months. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the "Regular Record Date" for such interest, which shall
be the March 1 or September 1 (whether or not a Business Day) next preceding
such Interest Payment Date; provided, however, that interest payable on the
Maturity Date of this Note shall be payable to the Person to whom principal
shall be payable. Any such interest which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease
to be payable to the registered Holder hereof on the relevant Regular Record
Date by virtue of having been such Holder, and may be paid to the Person in
whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the
Holder of this Note not less than 10 days prior to such Special Record Date.
In the event that any Interest Payment Date or the Maturity Date is not a
Business Day, the interest and, with respect to the Maturity Date, principal
otherwise payable on such date will be paid on the next succeeding Business
Day with the same force and effect as if made on such Interest Payment Date
or Maturity Date.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement dated as of September 27, 1996 among the Company and the
Initial Purchasers named therein (as the same may be amended from time to
time, the "Registration Rights Agreement").
(i) If (A) neither the Exchange Offer Registration Statement (as such
term is defined in the Registration Rights Agreement) nor the Shelf
Registration Statement (as such term is defined in the Registration Rights
Agreement) is filed with the Securities and Exchange Commission (the
"Commission") on or prior to the 45th day after the Issue Date (as such term
is defined in the Registration Rights Agreement) or (B) notwithstanding that
the Company has consummated or will consummate an Exchange Offer, the Company
is required to file a Shelf Registration Statement and such Shelf
Registration Statement is not filed on or prior to the date required by the
Registration Rights Agreement, then commencing on the day after either such
required filing date, then, as liquidated damages, additional interest
("Additional Interest") shall accrue on the principal amount of the Notes at
a rate of .50% per annum; or
(ii) If (A) neither the Exchange Offer Registration Statement nor a Shelf
Registration Statement is declared effective by the Commission on or prior to
the 75th day after the applicable filing date or (B) notwithstanding that the
Company has consummated or will consummate an Exchange Offer, the Company is
required to file a Shelf Registration Statement and such Shelf Registration
Statement is not declared effective by the Commission on or prior to the 75th
day after the date such Shelf Registration Statement was required to be
filed, then, commencing on the 76th day after the applicable required filing
date, Additional Interest shall accrue on the principal amount of the Notes
at a rate of .50% per annum; or
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(iii) If (A) the Company has not exchanged Exchange Notes (as such term
is defined in the Registration Rights Agreement) for all Notes validly tendered
in accordance with the terms of the Exchange Offer on or prior to the 150th day
after the date on which the Exchange Offer Registration Statement was declared
effective or (B) if applicable, the Shelf Registration Statement has been
declared effective and such Shelf Registration Statement ceases to be effective
at any time prior to the third anniversary of its effective date (other than
after such time as all Notes have been disposed of thereunder), then Additional
Interest shall accrue on the principal amount of the Notes at a rate of .50% per
annum commencing on (x) the 151st day after such effective date, in the case of
(A) above, or (y) the day such Shelf Registration Statement ceases to be
effective in the case of (B) above.
PROVIDED, HOWEVER, that the Additional Interest rate on the Notes may not
exceed in the aggregate .50% per annum; PROVIDED, FURTHER, HOWEVER, that (1)
upon the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in case of clause (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (ii) above), or (3) upon the
exchange of Exchange Notes for all Notes tendered (in the case of clause
(iii) (A) above), or upon the effectiveness of the Shelf Registration
Statement which had ceased to remain effective (in the case of clause (iii)
(B) above), Additional Interest on the Notes as a result of such clause (or
the relevant subclause thereof), as the case may be, shall cease to accrue.
Any amounts of Additional Interest due pursuant to clause (i), (ii) or
(iii) above will be payable in cash on each Interest Payment Date to the
Holders of record on the Regular Record Date.
Payment of the principal of and the interest on this Note will be made at
the office or agency of the Company maintained for that purpose in The City
of New York, 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;
provided, however, that, at the option of the Company, interest may be paid
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register. Payment of the principal of and
interest on this Note due on the Maturity Date will be made in immediately
available funds upon presentation of this Note.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect
as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee under the Indenture by the manual signature of one
of its authorized signatories, this Note shall not be entitled to any
benefits under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
FINGERHUT COMPANIES, INC.
By _________________________
Name: Xxxxx X. Xxxxxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
[SEAL]
Attest ______________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President and
Treasurer
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THIS IS ONE OF THE SECURITIES OF THE
SERIES DESIGNATED HEREIN AND ISSUED
PURSUANT TO THE WITHIN-MENTIONED
INDENTURE.
FIRST BANK NATIONAL ASSOCIATION,
as Trustee
By ____________________________
Authorized Signatory
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[REVERSE SIDE OF NOTE]
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes") issued and to be issued in one or more series
under an Indenture dated as of September 15, 1996 (herein called, together
with all indentures supplemental thereto, the "Indenture") between the
Company and First Bank National Association, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Company, the Trustee and the Holders of the
Notes, and the terms upon which the Notes are, and are to be, authenticated
and delivered. This Note is one of the series designated on the face hereof,
limited in aggregate principal amount to $125,000,000.
The Notes are not subject to redemption prior to maturity.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note
or (ii) certain restrictive covenants with respect to this Note, in each case
upon compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal
amount of the Securities at the time Outstanding of each series affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities of any
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Notes issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note, at the time, place and rate, and in the coin or
currency, herein and in the Indenture prescribed.
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As provided in the Indenture and subject to certain limitations set forth
therein and in this Note, the transfer of this Note is registrable in the
registry books of the Company, upon surrender of this Note for registration
of transfer at the office or agency of the Company maintained for the purpose
in any place where the principal of (and premium, if any) and interest on
this Note are payable, duly endorsed, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by the Holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes of this series are issuable only in fully registered form
without coupons in denominations of $250,000 and any amount in excess thereof
which is an integral multiple of $1,000. As provided in the Indenture and
subject to certain limitations therein set forth, Notes of this series are
exchangeable for a like aggregate principal amount of Notes of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith, other
than in certain cases provided in the Indenture.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note shall be governed by and construed in accordance with the laws
of the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
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_________________________________
ABBREVIATIONS
The following abbreviations, when used in this instrument, shall be
construed as though they were written out in full according to applicable
laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT--_______________Custodian_______________
(Cust) (Minor)
under Uniform Gift to Minors Act
_______________________
(State)
Additional abbreviations may be used though not in the above list.
_________________________________
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________
(Name and address of assignee, including zip code, must
be printed or typewritten)
______________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting
and appointing
_____________________________________________________________________ Attorney
to transfer said Note on the books of the within Company, with full
power of substitution in the premises
Dated _______________ _____________________________________________________
_____________________________________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the within Note in every particular, without alteration or
enlargement or any change whatever and must be guaranteed by a commercial
bank or trust company having its principal office or a correspondent in the
City of NEW YORK OR by a member of the New York Stock Exchange (Exchange).
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CERTIFICATE OF TRANSFER
In connection with any transfer of this Note occurring prior to the
date that is three years after the later of September 27, 1996 and the last
date on which this Note (or any Predecessor Security) was owned by the
Company or any affiliate of the Company, the undersigned confirms that this
Note is being transferred:
CHECK ONE BOX BELOW
__ (a) As long as this note is __ (c) to an institutional "accredited
eligible for resale pursuant investor" (as defined in Rule
to Rule 144 under the Securities 501(a)(1), (2), (3) or (7) under
Act of 1933, as amended, to a the Securities Act of 1933, as
person the undersigned reasonably amended) that has furnished to the
believes is a "qualified Trustee a signed letter containing
institutional buyer" (a "QIB") certain representations and
as defined in such Rule 144A agreements (the form of which
that purchases for its own letter can be obtained from the
account or for the account of Trustee); or
a QIB to whom notice is given
that the transfer is being made
in reliance on such Rule 144A;
__ (b) pursuant to offers and sales to __ (d) to the Company.
non-U.S. persons that occur
outside of the United States
within the meaning of Regulation S
under the Securities Act of 1933,
as amended;
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee under the Indenture by the manual signature of
one of its authorized signatories, this Note shall not be entitled to any
benefits under the Indenture or be valid or obligatory for any purpose.
Dated:
______________________________
SIGNATURE
Signature Guaranteed:
______________________________
SIGNATURE
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TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is acquiring this
Note for its own account or an account with respect to which it exercises
sole investment discretion and that it or any such account , as the case may
be, is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act of 1933, as amended, and is aware that the sale to
it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an executive officer
_____________________________
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