FACE OF NOTE]
Exhibit
4.3
[FACE OF NOTE]
THIS SECURITY AND THE SHARES OF CLASS A
COMMON STOCK (“CLASS A COMMON
STOCK”) OF EXCEL MARITIME CARRIERS LTD. (THE
“COMPANY”) ISSUABLE UPON CONVERSION OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES
ACT”), OR ANY OTHER SECURITIES
LAWS. NONE OF THIS SECURITY, THE SHARES OF CLASS A COMMON
STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION
HEREIN OR THEREIN 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, SUCH
REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS
ACCEPTANCE HEREOF, AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
“RESALE
RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE ORIGINAL
ISSUE DATE HEREOF ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER,”AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT, THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (C) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE COMPANY AND THE
WITHIN MENTIONED TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
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CUSIP:300668 AA8
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No.: 1
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1.875% Convertible Senior Note due
2027
Excel Maritime Carriers Ltd., promises
to pay to CEDE & CO. or its registered assigns, the principal sum of ONE
HUNDRED AND FIFTY-MILLION DOLLARS or such lesser amount as is indicated in
the records of the Trustee
and the Depositary, on October 15, 2027 and to pay interest thereon from October
10, 2007, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on April 15 and October
15 of each year, commencing April 15, 2008,
at the rate of 1.875% per annum, until the principal hereof is paid or made
available for payment. The interest so payable on any Interest Payment Date
will, as provided in the Indenture, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at 5:00 p.m. (New York City time) on the Record
Date with respect to such Interest Payment Date, which shall be April 1
or October 1, as the case may be, next preceding the related Interest Payment
Date.
Interest on the Notes will be calculated
on the basis of a 360-day year consisting of twelve 30-day months. If
a payment date is not a Business Day, payment will be made on the next
succeeding Business Day with the same force and effect as if made on the date the payment was
due, and no additional interest will accrue in respect of such payment by virtue
of the payment being made on such later date.
Reference is made to the further
provisions of this Note set forth on the attached “Additional Terms of the Notes,” which further provisions shall for all
purposes have the same effect as though fully set forth at this
place.
This Note shall not be valid or become
obligatory for any purpose until the certificate of authentication hereon shall
have been manually signed
by the Trustee under the Indenture.
IN WITNESS WHEREOF, Excel Maritime
Carriers Ltd. has caused this instrument to be duly
executed.
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By:
________________________________
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Name:
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Title:
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Dated: October 10,
2007
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TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
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DEUTSCHE BANK TRUST
COMPANY AMERICAS
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By DEUTSCHE BANK NATIONAL TRUST
COMPANY, not in our individual capacity but solely as
Trustee
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By:
___________________________________
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Name:
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Title:
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Additional
Terms of the Notes
1.875% Convertible Senior Note due
2027
Excel Maritime Carriers, Ltd. a
corporation organized under the laws of the The Republic of Liberia (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the “Company”), issued this Note under an Indenture,
dated as of October 10, 2007 (as it may be amended or supplemented from time to
time in accordance with the terms thereof, the “Indenture”), between the Company and Deutsche Bank
Trust Company Americas, as
Trustee, to which reference is hereby made for a statement of the respective
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders and of the terms upon which the Notes are, and are to
be, authorized and delivered. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the date
of the Indenture (the “TIA”). Terms defined in the
Indenture and not defined
herein have the meanings ascribed thereto in the Indenture. The Notes
are subject to all such terms, and Holders are referred to the Indenture and the
TIA for a statement of those terms. This Note is one of the
Securities referred to in the Indenture initially issued
in an aggregate principal amount of ONE HUNDRED AND FIFTY MILLION DOLLARS
($150,000,000).
1. Further
Provisions Relating to Interest
Liquidated
Damages. The
Holder of this Note shall be entitled to receive Liquidated Damages as and to the extent provided in
the Indenture and that certain Registration Rights
Agreement.
Additional
Amounts. The
Holder of this Note shall be entitled to receive Additional Amounts as and to
the extent provided in the Indenture.
Additional
Interest. The Holder of this Note
shall be entitled to receive Additional Interest as and to the extent provided
in the Indenture.
2. Method of
Payment
The Company will pay interest on the
Notes to the Persons who are registered Holders of Notes at 5:00 p.m.
(New York City time) on the
Record Date with respect to the applicable Interest Payment Date even if Notes
are canceled after the Record Date and on or before the Interest Payment Date,
except as otherwise provided in the Indenture. Holders must
surrender Notes to a Paying Agent to collect
principal payments. The Company will pay principal and interest
(including Liquidated Damages, Additional Interest and Additional Amounts, if
any) in money of the United States of America that at the time of payment
is legal tender for payment of public and
private debts.
The Company shall make payments in
respect of the Notes by check mailed to a Holder’s registered address or, with respect to
Global Notes, by wire transfer.
3. Paying Agent and
Registrar
Initially, Deutsche Bank Trust Company Americas (the
“Trustee”) will act as Paying Agent, Registrar
and Conversion Agent. The Company may appoint and change any Paying
Agent, Registrar or co-registrar or Conversion Agent without
notice. The Company or any of its domestically organized Wholly Owned Subsidiaries
may act as Paying Agent or Registrar or co-registrar.
4. Ranking
The Notes are senior unsecured
obligations of the Company and rank equal in right of payment to all of the
Company’s existing senior unsecured debt and
senior to all of the
Company’s future subordinated
debt.
5. Redemption
The Notes will not be subject to
redemption prior to October 22, 2014 except as set forth in Section 3.01 of the
Indenture. On or after October 22, 2014, the Company shall have the
right to redeem the Notes,
in whole or in part, at any time or from time to time for a cash Redemption
Price, as described in the Indenture, plus any accrued and unpaid interest
(including Liquidated Damages, Additional Interest and Additional Amounts, if
any) thereon up to, but not including, the
Redemption Date.
If the Redemption Date is on a date that
is after a Record Date and on or prior to the corresponding Interest Payment
Date, the Company shall pay the related interest (including Liquidated Damages,
Additional Interest and
Additional Amounts, if any) to a Holder on such regular Record
Date.
6. Purchase at
the Option of the Holder
Pursuant to Section 3.07 of the
Indenture, the Notes, in whole or in part, shall be purchased by the Company at
the option of the Holder on
October 15, 2014, October 15, 2017 and October 15, 2022 or the next Business Day
following such dates to the extent any such date is not a Business Day, in U.S.
legal tender (“cash”) equal to 100% of the principal amount
of Notes to be purchased
plus accrued and unpaid interest, if any (including Liquidated Damages,
Additional Interest and Additional Amounts, if any), thereon to, but excluding
the Purchase Date. No Notes may be purchased by the Company at the
option of Holders if there has occurred and is continuing an Event of
Default with respect to the Notes, other than a default that is cured by payment
of the Purchase Price with respect to the Notes.
Any Holder delivering to the Paying
Agent a Purchase Notice shall have the right to withdraw such Purchase Notice at any time
prior to the close of business on the Business Day prior to the Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with the provisions of the Indenture. If the Purchase
Notice is withdrawn during such period, the
Company will not be obligated to purchase the related Notes.
7. Purchase at the Option of
Holders Upon a Fundamental Change
Pursuant to Section 3.08 of the
Indenture, if a Fundamental Change occurs at any time that the Notes remain outstanding, the Notes shall
be purchased by the Company, in whole or in part, at the option of the Holder
thereof, as of the date that is 35 Business Days after the occurrence of the
Fundamental Change, such date the Fundamental Change Purchase Date, at a purchase price equal to 100%
of the principal amount plus, accrued and unpaid interest, if any to, but
excluding, the Fundamental Change Purchase Date. No Notes may be
purchased by the Company at the option of Holders upon a Fundamental
Change if the principal amount of the Notes has
been accelerated, and such acceleration has not been rescinded, on or prior to
Fundamental Change Purchase Date.
If the Purchase Notice is withdrawn
pursuant to Section 3.09 of the Indenture, the Company will not be obligated to purchase the related
Notes.
8. Conversion
Subject to and upon compliance with the
provisions of the Indenture, this Note or any part hereof may be converted by a
Holder into cash, shares of Class A Common Stock or a combination thereof, if
any, at any time prior to
the close of business on the Business Day immediately preceding the Stated
Maturity; provided,
however, that this Note may
be converted only during the periods and under the conditions specified in
clauses (i) through (vii) of Section 10.01(a) of the
Indenture. The Settlement Amount deliverable upon any such conversion
shall be as described in Section 10.02 of the Indenture.
9. Denominations,
Transfer, Exchange
The Notes are issuable in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. A Holder of this Note may transfer or exchange Notes in
accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder of this Note, among other things,
to furnish appropriate endorsements or
transfer documents and to pay any taxes required by law or permitted by the
Indenture.
10. Persons
Deemed Owners
The registered Holder of this Note may
be treated as the owner of it for all purposes.
11. Unclaimed
Money
Subject to any applicable abandoned property law,
the Trustee and the Paying Agent shall pay to the Company upon request any money
held by them for the payment of principal or interest that remains unclaimed for
two years, and, thereafter, Holders entitled to the money must look to the Company for payment
as general creditors.
12. Amendment, Waiver
Subject to certain exceptions set forth
in the Indenture, (i) the Indenture or the Notes may be amended without prior
notice to any Holder but with the written consent or affirmative vote of the Holders of at least
a majority in aggregate principal amount of the outstanding Notes and (ii) any
Default or Event of Default may be waived by Notice to the Trustee by the
Holders of at least a majority in aggregate principal amount of the outstanding Notes. In
certain circumstances set forth in the Indenture, the Company and the Trustee
may amend or supplement the Indenture or the Notes without the consent of any
Holder.
13. Defaults and
Remedies
Subject to Section 11.02 of the
Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.01(ix) or 6.01(x)
with respect to the Company) occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding may declare the principal of and accrued
but unpaid interest, if any (including Liquidated Damages, Additional Interest
and Additional Amounts, if any) on all the outstanding Notes to be immediately
due and payable, except as provided in the Indenture. If an Event of Default specified in Section
6.01(ix) or 6.01(x) of the Indenture occurs and is continuing with respect to
the Company, the principal of and accrued and unpaid interest, if any (including
Liquidated Damages, Additional Interest and Additional Amounts, if any), on all the Notes then
outstanding, will, automatically and without any action by the Trustee or any
Holder, become and be immediately due and payable. Under certain
circumstances, the Holders of a majority in aggregate principal amount
of the outstanding Notes may rescind any
such declaration with respect to the Notes and its consequences. No
reference herein to the Indenture and no provision of this Note or of the
Indenture shall impair, as among the Company and the Holder of the Notes,
the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest (including
Liquidated Damages, Additional Interest and Additional Amounts, if any) on this
Note at the place, at the respective times, at the rate and in the coin or currency herein and in the
Indenture prescribed or to convert the Note as provided in the
Indenture.
14. Trustee
Dealings with the Company
Subject to certain limitations imposed
by the TIA, the Trustee under the Indenture, in its individual or any other capacity, may become the owner
or pledgee of Notes and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee.
15. Indenture
and Notes Solely Corporate Obligations
No recourse for the payment of
the principal of or
interest on any Notes or for any claim based upon any Notes or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture or in any supplemental indenture or in
any Notes or because of the creation of any
indebtedness represented thereby shall be had against any incorporator,
stockholder, member, manager, employee, agent, officer, director or subsidiary,
as such, past, present or future, of the Company or any of the Company’s subsidiaries or of any successor
thereto, either directly or through the Company or any of the
Company’s subsidiaries or any successor thereto,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessmentor penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of the
Indenture and the issue of the Notes.
16. Authentication
This Note shall not be valid until an authorized
signatory of the Trustee manually signs the certificate of authentication on the
other side of this Note.
17. Abbreviations
Customary abbreviations may be used in
the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of Minors
Act).
18. GOVERNING
LAW
THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
19. CUSIP
Number
Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the
Company has caused a CUSIP
number to be printed on the Notes and has directed the Trustee to use CUSIP
numbers in all notices issued to Holders of this Note as a convenience to such
Holders. No representation is made as to the accuracy of such numbers
either as printed on the Notes or as contained in
any such notice and reliance may be placed only on the other identification
numbers placed thereon.
The Company will furnish to any Holder
of Notes upon written request and without charge to the Holder a copy of the
Indenture.
CONVERSION
NOTICE
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TO:
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EXCEL MARITIME CARRIERS LTD. and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Conversion
Agent
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The undersigned registered owner of this
Note hereby irrevocably exercises the option to convert this Note, or the
portion thereof (which is
$1,000 or a multiple thereof) below designated, in accordance with the terms of
the Indenture referred to in this Note, and directs that the check in payment
for cash and/or the shares of Class A Common Stock, as the case may be, issuable
and deliverable upon such conversion, and any
cash deliverable upon conversion in lieu of fractional shares and any Notes
representing any unconverted principal amount hereof, be issued and delivered to
the registered Holder hereof unless a different name has been indicated below. Capitalized terms
used herein but not defined shall have the meanings ascribed to such terms in
the Indenture. If shares or any portion of this Note not converted
are to be issued in the name of a person other than the undersigned,
the undersigned will provide the appropriate
information below and pay all taxes or duties payable with respect
thereto. Any amount required to be paid by the undersigned on account
of interest accompanies this Note.
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Dated:
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Signature(s)
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Signature(s) must be guaranteed by
an “eligible
guarantor institution” meeting the requirements of the
Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
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Signature
Guarantee
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Fill in the registration of shares of
Class A Common Stock, if
any, if to be issued, and Notes if to be delivered, and the person to whom cash,
if any, and payment in cash for fractional shares is to be made, if to be made,
other than to and in the name of the registered Holder:
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Please print name and
address
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(Name)
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(Street
Address)
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(City, State and Zip
Code)
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Principal amount to be converted
(if less than all):
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$
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Social Security or Other Taxpayer
Identification Number:
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NOTICE: The signature on this Conversion
Notice must correspond with
the name as written upon the face of the Notes in every particular without
alteration or enlargement or any change whatever.
PURCHASE NOTICE
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TO:
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EXCEL MARITIME CARRIERS LTD. and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Conversion
Agent
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The undersigned registered owner of this Note hereby
irrevocably acknowledges receipt of a notice from Excel Maritime Carriers Ltd.
(the “Company”) regarding the right of Holders to
elect to require the Company to purchase the Notes and requests and instructs
the Company to repay the
entire principal amount of this Note, or the portion thereof (which is $1,000 or
an integral multiple thereof) below designated, in accordance with the terms of
the Indenture at the price of 100% of such entire principal amount or portion
thereof, together with accrued and unpaid
interest, if any, (including Liquidated Damages, Additional Interest and
Additional Amounts, if any) to, but excluding, the Purchase Date to the
registered Holder hereof. Capitalized terms used herein but not
defined shall have the meanings ascribed to such
terms in the Indenture. The Notes shall be purchased by the Company
as of the Purchase Date pursuant to the terms and conditions specified in the
Indenture.
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Dated:
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Signature(s)
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NOTICE: The above signatures of the Holder(s) hereof
must correspond with the name as written upon the face of the Notes in every
particular without alteration or enlargement or any change
whatever.
Notes Certificate Number (if
applicable): ______
Principal amount to be purchased
(if less than all, must be $1,000 or
whole multiples thereof): _____
Social Security or Other Taxpayer
Identification Number: ______
FUNDAMENTAL CHANGE PURCHASE
NOTICE
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TO:
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EXCEL MARITIME CARRIERS LTD. and
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Conversion
Agent
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The undersigned registered owner of this
Note hereby irrevocably acknowledges receipt of a notice from Excel Maritime
Carriers Ltd. (the “Company”) regarding the right of Holders to
elect to require the Company to purchase the Notes and requests and instructs the Company to
repay the entire principal amount of this Note, or the portion thereof (which is
$1,000 or an integral multiple thereof) below designated, in accordance with the
terms of the Indenture at the price of 100% of such entire principal amount or portion
thereof, together with accrued and unpaid interest, if any, (including
Liquidated Damages, Additional Interest and Additional Amounts, if any) to, but
excluding, the Fundamental Change Purchase Date to the registered
Holder hereof. Capitalized terms used herein
but not defined shall have the meanings ascribed to such terms in the
Indenture. The Notes shall be purchased by the Company as of the
Fundamental Change Purchase Date pursuant to the terms and conditions specified
in the Indenture.
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Dated:
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Signature(s)
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NOTICE: The above signatures of the
Holder(s) hereof must correspond with the name as written upon the face of the
Notes in every particular without alteration or enlargement or any change
whatever.
Notes Certificate Number (if
applicable): _____
Principal amount to be
purchased
(if less than all, must be $1,000 or
whole multiples thereof): _____
Social Security or Other Taxpayer
Identification Number: _____
ASSIGNMENT
For value received _________________ hereby sell(s) assign(s) and
transfer(s) unto _____________ (Please insert social security or other Taxpayer
Identification Number of assignee) the within Notes, and hereby irrevocably
constitutes and appoints _________________ attorney to transfer said Notes on the books of the
Company, with full power of substitution in the premises.
In connection with any transfer of the
Notes prior to the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision) (other than
any transfer pursuant to a registration statement that has become effective
under the Securities Act), the undersigned confirms that such Notes are being
transferred:
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r
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To Excel Maritime Carriers Ltd.
or a subsidiary
thereof; or
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To a “qualified institutional buyer”
in compliance with
Rule 144A under the Securities Act of 1933, as amended;
or
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Pursuant to and in compliance with
Rule 144 under the Securities Act of 1933, as amended;
or
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Pursuant to a Registration
Statement which has become effective under the Securities Act of 1933, as
amended, and which continues to be effective at the time of
transfer.
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Unless one of the boxes is
checked, the Trustee
will refuse to register any of the Notes evidenced by this certificate in
the name of any person other than the registered Holder
thereof.
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Signature(s)
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Signature(s) must be guaranteed by
an “eligible
guarantor institution” meeting the requirements of the
Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program”
as may be determined
by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as
amended.
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Signature
Guarantee
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NOTICE: The signature on this Assignment
must correspond with the name as written upon the face of the Notes in
every particular without
alteration or enlargement or any change whatever.
