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EXHIBIT 4.3
Speciman Global Note
KITTY HAWK, INC.
9.95% Senior Secured Notes Due 2004
CUSIP: 498326 AA 5
No. _________ $________________
KITTY HAWK, INC., a Delaware corporation (the "Company", which
term includes any successor under the Indenture hereinafter referred to), for
value received, promises to pay to Cede & Co., or its registered assigns, the
principal sum of __________________________ Dollars ($ __________) on November
15, 2004.
Interest Payment Dates: May 15 and November 15, commencing May
15, 1998.
Regular Record Dates: May 1 and November 1.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
THIS NOTE WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND HAS NOT BEEN
REGISTERED UNDER 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 FOLLOWING
SENTENCES. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON EXEMPTIONS FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES
ACT. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL NOT, WITHIN THE
TIME PERIOD REFERRED TO IN RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF
RULE 144(d), IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT WITH RESPECT
TO SUCH TRANSFER, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO KITTY
HAWK, INC. (THE "COMPANY") OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT AT
MATURITY OF NOTES OF LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED
TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION 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
RESTRICTIONS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR SUCH OTHER REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF INTERESTS IN THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.08 OF THE INDENTURE.
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IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
Date: November 19, 1997 KITTY HAWK, INC.
By:
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Name: X. Xxx Xxxxxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
By:
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
-- Finance, Chief
Financial Officer and
Secretary
(Trustee's Certificate of Authentication)
This is one of the 9.95% Senior Secured Notes Due 2004 described in the within
mentioned Indenture.
BANK ONE, NA,
as Trustee
By:
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Xxxx Xxxxxxx
Trust Officer
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KITTY HAWK, INC.
9.95% Senior Secured Note Due 2004
1. Principal and Interest.
The Company will pay the principal of this Note on November 15,
2004.
The Company promises to pay interest on the principal amount of
this Note on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest will be payable semiannually (to the holders of record
of the Notes at the close of business on the May 1 or November 1 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
May 15, 1998.
If the exchange offer contemplated by Registration-Statement
under the Securities Act is not consummated or, if required, a Shelf
Registration Statement under the Securities Act with respect to resales of the
Notes is not declared effective by the Commission, on or before May 19, 1998,
in accordance with the terms of the Registration Rights Agreement dated as of
November 19, 1997, between the Company, the Guarantors and Xxxxxx Xxxxxxx & Co.
Incorporated, BT Alex. Brown Incorporated and Fieldstone FPCG Services, L.P.,
then the interest rate per annum accruing on the Notes shall, effective May 19,
1998, be increased by 0.5% per annum, until the exchange offer is completed or
such Shelf Registration Statement is declared effective. The Holder of this
Note is entitled to the benefits of such Registration Rights Agreement.
Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from November
19, 1997; provided that, if there is no existing default in the payment of
interest and this Note is authenticated between a Regular Record Date referred
to on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such Interest Payment Date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium,
if any, and interest on overdue installments of interest, to the extent lawful,
at a rate borne by the Notes.
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2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes as provided above on each May 15 and November 15
to the persons who are Holders (as reflected in the Security Register at the
close of business on the May 1 and November 1 immediately preceding the
Interest Payment Date), in each case, even if the Note is canceled on
registration of transfer, registration of exchange, redemption or repurchase
after such record date; provided that, with respect to the payment of
principal, the Company will make payment to the Holder that surrenders this
Note to a Paying Agent on or after November 15, 2004.
The Company will pay principal, premium, if any, and as provided
above, interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. However, the Company, at
its option, may pay principal, premium, if any, and interest by its check
payable in such money. It may mail an interest check to a Holder's registered
address (as reflected in the Security Register). If a payment date is a date
other than a Business Day at a place of payment, payment may be made at that
place on the next succeeding day that is a Business Day and no interest shall
accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating agent, Paying
Agent and Registrar. The Company may change any authenticating agent, Paying
Agent or Registrar without notice. The Company, any Subsidiary or any
Affiliate of any of them may act as Paying Agent, Registrar or co-Registrar.
4. Indenture; Limitations.
The Company issued the Notes under an Indenture dated as of
November 19, 1997 (the "Indenture"), between the Company, the Guarantors and
Bank One, NA, as trustee and collateral trustee (collectively, the "Trustee").
Capitalized terms herein are used as defined in the Indenture unless otherwise
indicated. 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. The
Notes are subject to all such terms, and Holders are referred to the Indenture
and the Trust Indenture Act for a statement of all such terms. To the extent
permitted by applicable law, in the event of any inconsistency between the
terms of this Note and the terms of the Indenture, the terms of the Indenture
shall control.
The Notes are senior secured obligations of the Company.
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5. Redemption.
The Notes will be redeemable, at the Company's option, in whole
or in part, at any time or from time to time, on or after November 15, 2001 and
prior to maturity, upon not less than 30 nor more than 60 days' prior notice
mailed by first class mail to each Holder's last address as it appears in the
Security Register, at the following Redemption Prices (expressed in percentages
of principal amount), plus accrued and unpaid interest, if any, to the
Redemption Date (subject to the right of Holders of record on the relevant
Regular Record Date that is on or prior to the Redemption Date to receive
interest due on an Interest Payment Date), if redeemed during the 12-month
period commencing November 15, of the years set forth below:
Redemption
Year Price
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2001 104.975%
2002 102.488%
2003 100.000%
In addition, at any time prior to November 15, 2000, the
Company may redeem up to 35% of the principal amount of the Notes with the
proceeds of one or more Public Equity Offerings, at any time or from time to
time, at a Redemption Price (expressed as a percentage of principal amount) of
109.95%, plus accrued and unpaid interest to the Redemption Date (subject to
the rights of Holders of record on the relevant Regular Record Date that is
prior to the Redemption Date to receive interest due on an Interest Payment
Date); provided that at least $150 million aggregate principal amount of Notes
remains outstanding after each such redemption.
Notice of any optional redemption will be mailed at least 30
days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at his last address as it appears in the Security
Register. Notes in denominations larger than $1,000 may be redeemed in part.
On and after the Redemption Date, interest ceases to accrue on Notes or
portions of Notes called for redemption, unless the Company defaults in the
payment of the Redemption Price.
6. Repurchase upon Change of Control Triggering Event.
Upon the occurrence of a Change of Control Triggering Event,
the Company must commence, within 30 days of the occurrence of a Change of
Control Triggering Event, and consummate an Offer to Purchase for all Notes
then outstanding, at a purchase price equal to 101% of the principal amount
thereof, plus accrued interest (if any) to the Payment Date.
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Notes in denominations larger than $1,000 may be sold to the
Company in part. On and after the Payment Date, interest ceases to accrue on
Notes or portions of Notes surrendered for purchase by the Company, unless the
Company defaults in the payment of the Change of Control Payment.
7. Denominations; Transfer; Exchange.
The Notes are in registered form without coupons in
denominations of $1,000 of principal amount and any integral multiple in excess
thereof. A Holder may register the transfer or exchange of Notes in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture. The Registrar need not
register the transfer or exchange of any Notes selected for redemption. Also,
it need not register the transfer or exchange of any Notes for a period of 15
days before the day of the mailing of a notice of redemption of Notes selected
for redemption.
8. Persons Deemed Owners.
A Holder shall be treated as the owner of a Note for all
purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its written request. After that, Holders
entitled to the money must look to the Company for payment, unless an abandoned
property law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
The Company or the Guarantors generally will be discharged
from the Indenture and the Notes, except in certain circumstances for certain
sections thereof, if, among other things, the Company and the Guarantors (A)
deposit with the Trustee money or U.S. Government Obligations sufficient to pay
the then outstanding principal of, premium, if any, and accrued interest on the
Notes on the Stated Maturity of such payments in accordance with the terms of
the Indenture and the Notes and (B) deliver (i) an Opinion of Counsel or
Internal Revenue Service ruling directed to the Trustee with respect to the tax
effects of such deposits and (ii) an Opinion of Counsel
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concerning Investment Company Act of 1940 and United States Bankruptcy Code
ramifications of the deposits, (C) in conjunction with such deposits, ensure
there is an absence of certain Events of Default and (D) provide an Opinion of
Counsel concerning the potential delisting of the Notes from a national
securities exchange as a result of the deposits; provided that if
simultaneously with the deposit of the money and/or U.S. Government Obligations
referred to in (A) above, the Company or any Guarantor has caused an
irrevocable, transferable, standby letter of credit to be issued by a bank with
capital and surplus exceeding the principal amount of the Notes then
outstanding, expiring not earlier than 180 days from its issuance, in favor of
the Trustee which permits the Trustee to draw an amount equal to the principal,
premium, if any, and accrued interest on the Notes through the expiry date of
the letter of credit, then the Company and the Guarantors will be deemed to
have paid and discharged any and all obligations in respect of the Notes on the
date of the deposit and issuance of the letter of credit.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Escrow and
Security Agreement or the Notes may be amended or supplemented 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 may be
waived with the consent of the Holders of at least a majority in principal
amount of the Notes then outstanding. Without notice to or the consent of any
Holder, the parties thereto may amend or supplement the Indenture, the Note
Guarantees or the Notes to, among other things, cure any ambiguity, defect or
inconsistency and make any change that, in the opinion of the Board of
Directors of the Company evidenced by a Board resolution, does not materially
and adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of
the Company and its Restricted Subsidiaries, among other things, to Incur
additional Indebtedness, make Restricted Payments, suffer to exist restrictions
on the ability of Restricted Subsidiaries to make certain payments to the
Company, issue Capital Stock of Restricted Subsidiaries, engage in transactions
with Affiliates, suffer to exist or incur Liens, or merge, consolidate or
transfer substantially all of its assets. On or before a date not more than 90
days after the end of each fiscal year, the Company shall deliver to the
Trustee an Officers' Certificate stating whether or not the signers know of any
Default or Event of Default under such restrictive covenants or a Collateral
Access Event.
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13. Successor Persons.
When a successor person or other entity assumes all the
obligations of its predecessor under the Notes and the Indenture, the
predecessor person will be released from those obligations.
14. Defaults and Remedies.
The following events constitute "Events of Default" with
respect to the Notes under the Indenture: (a) the Company defaults in the
payment of principal of (or premium, if any, on) any Note when the same becomes
due and payable at maturity, upon acceleration, redemption or otherwise; (b)
the Company defaults in the payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30 days;
(c) the Company defaults in the performance or breaches the provisions of
Article Five or fails to make or consummate an Offer to Purchase in accordance
with Section 4.11 or Section 4.14; (d) the Company or any Guarantor defaults in
the performance of or breaches any other covenant or agreement of the Company
in the Indenture or under the Notes (other than a default specified in clause
(a), (b) or (c) above) and such default or breach continues for a period of 30
consecutive days after written notice by the Trustee or the Holders of 25% or
more in aggregate principal amount of the Notes; (e) there occurs with respect
to any issue or issues of Indebtedness of the Company or any Guarantor or
Significant Subsidiary having an outstanding principal amount of $10 million or
more in the aggregate for all such issues of all such Persons, whether such
Indebtedness now exists or shall hereafter be created, (I) an event of default
that has caused the holder thereof to declare such Indebtedness to be due and
payable prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or annulled
within 30 days of such acceleration and/or (II) the failure to make a principal
payment at the final (but not any interim) fixed maturity and such defaulted
payment shall not have been made, waived or extended within 30 days of such
payment default; (f) any final judgment or order (not covered by insurance) for
the payment of money in excess of $10 million in the aggregate for all such
final judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against the
Company or any Guarantor or Significant Subsidiary and shall not be paid or
discharged, and there shall be any period of 30 consecutive days following
entry of the final judgment or order that causes the aggregate amount for all
such final judgments or orders outstanding and not paid or discharged against
all such Persons to exceed $10 million during which a stay of enforcement of
such final judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; (g) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company, any Guarantor or any
Significant Subsidiary in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B) appointment of
a receiver, liquidator, assignee, custodian, trustee, sequestrator or
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similar official of the Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any Significant
Subsidiary or (C) the winding up or liquidation of the affairs of the Company
or any Significant Subsidiary and, in each case, such decree or order shall
remain unstayed and in effect for a period of 30 consecutive days; (h) the
Company, any Guarantor or any Significant Subsidiary (A) commences a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary
or for all or substantially all of the property and assets of the Company or
any Significant Subsidiary or (C) effects any general assignment for the
benefit of creditors; or (i) any Note Guarantee shall cease to be, or shall be
asserted in writing by the Company or any Guarantor not to be, in full force
and effect or enforceable in accordance with its terms.
If an Event of Default, except for certain ones, or a
Collateral Access Event, as defined in the Indenture, occurs and is continuing
under the Indenture, the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes, then outstanding, may declare all the Notes to
be due and payable. If a bankruptcy or insolvency default with respect to the
Company occurs and is continuing, the Notes automatically become due and
payable. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may require indemnity satisfactory to it before
it enforces the Indenture or the Notes. Subject to certain limitations,
Holders of at least a majority in principal amount of the Notes then
outstanding may direct the Trustee in its exercise of any trust or power.
15. Security.
The Collateral securing the Notes will consist of (i) nine
Boeing 747s (including the Optioned Boeing 747s), eight Lockheed L-1011s and
thirteen Boeing 727s, along with the Engines, (ii) all insurance and
requisition proceeds and other similar payments with respect to each of the
Aircraft, (iii) all monies or securities deposited or required to be deposited
with the Trustee, (iv) any purchase agreements and any related documentation to
the extent assignable for each Aircraft, (v) all logs, data and records related
to the Aircraft, (vi) the Pledged Securities on deposit in the Escrow Account,
the Escrow Account and certain related assets, (vii) all rights of any Owner
under any Lease relating to any Aircraft, and (viii) all proceeds of the
foregoing. The Pledged Securities shall be sufficient to provide for (i) the
purchase of the two Optioned Boeing 747s or other Eligible Aircraft and (ii)
the conversion of such Aircraft to freighter configuration.
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16. Trustee Dealings with the Company.
The Trustee under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from and perform services
for the Company or its Affiliates and may otherwise deal with the Company or
its Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No incorporator, stockholder, other officer, director,
employee or controlling person of the Company or any Guarantor or of any
successor Person thereof shall have any liability for any obligations of the
Company under the Notes, the Guarantees, the Escrow and Security Agreement or
the Indenture or for any claim based on, or otherwise in respect of or by
reason thereof, such obligations or their creation. Each Holder by accepting a
Note expressly waives and releases all such liability. The waiver and release
are a condition of, and part of the consideration for the issuance of the Notes
and the related Guarantees.
18. Guarantees.
The Company's obligations under the Notes are irrevocably
guaranteed by the Guarantors.
19. Authentication.
This Note shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Note.
20. 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).
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to Kitty
Hawk, Inc., P.O. Box 612787, 0000 Xxxx 00xx Xxxxxx, Xxxxxx/Xxxx Xxxxx
Xxxxxxxxxxxxx Xxxxxxx, XX 00000, Attention: Chief Financial Officer
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
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Please print or typewrite name and address including zip code of assignee
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the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _________________________________ attorney to transfer said Note on
the books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES]
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date the shelf registration statement is
declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act of 1933
provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with
the conditions of transfer set forth in this Note and the
Indenture.
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If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date:
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NOTICE: The signature to this assignment must
correspond with the name as written upon the face
of the within-mentioned instrument in every
particular, without alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933 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.
Date:
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NOTICE: To be executed by an executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to an Offer to Purchase in accordance with the terms of the Indenture,
check the Box: [ ]
If you wish to have a portion of this Note purchased by the
Company pursuant to an Offer to Purchase in accordance with the terms the
Indenture, state the amount: $___________________.
Date:
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Your Signature:
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(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:(1)
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(1) The Holder's signature must be guaranteed by a member firm of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., a commercial bank or trust company having an office or
correspondent in the United States or an "eligible guarantor institution" as
defined by Rule 17Ad-15 under the Exchange Act.
