Attached files
file | filename |
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8-K - FORM 8-K - STEWART ENTERPRISES INC | h81434e8vk.htm |
EX-4.1 - EX-4.1 - STEWART ENTERPRISES INC | h81434exv4w1.htm |
EX-10.1 - EX-10.1 - STEWART ENTERPRISES INC | h81434exv10w1.htm |
EX-99.1 - EX-99.1 - STEWART ENTERPRISES INC | h81434exv99w1.htm |
Exhibit 4.2
FORM OF NOTE
[Face of Note]
CUSIP ___________
No. _______ | **$[ ]** |
STEWART ENTERPRISES, INC.
6.50% Senior Notes due 2019
Issue Date: April 18, 2011
Stewart Enterprises, Inc., a Louisiana Corporation (the Company, which term includes any
successor under the Indenture hereinafter referred to), for value received, promises to pay to CEDE
& CO., or its registered assigns, the principal sum of [ ], DOLLARS ($[ ]) on
April 15, 2019.
Interest Payment Dates: April 15 and October 15, commencing October 15, 2011.
Record Dates: April 1 and October 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.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officers.
STEWART ENTERPRISES, INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
This is one of the 6.50% Senior Notes due 2019 described in the within-mentioned Indenture.
Dated:
U.S. Bank National Association, as Trustee
By: | ||||
Authorized Signatory | ||||
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), TO ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS 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
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS
NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED
HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE OR FOREIGN SECURITIES LAWS. NEITHER THIS
NOTE NOR THE GUARANTEES ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED,
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, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON BY
ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
WHICH IS ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED
HEREON (OR ANY PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE RESALE
RESTRICTION TERMINATION DATE) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE 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 OR (E) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE COMPANYS AND THE TRUSTEES RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D) PRIOR TO THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E) PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION 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 NOTE IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
[Reverse Side of Note]
STEWART ENTERPRISES, INC.
6.50% Senior Notes due 2019
Capitalized terms used herein shall have the meanings assigned to them in this Indenture
referred to below unless otherwise indicated.
1. Interest. The Company promises to pay interest on the principal amount of
this Note at 6.50% per annum from the date hereof until maturity and shall pay the Additional
Interest, if any, payable pursuant to Section 5 of the Registration Rights Agreement referred to
below. The Company shall pay interest and Additional Interest, if any, semi-annually in arrears on
April 15 and October 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an Interest Payment Date). Interest on the 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 original issuance; provided that if there is no existing Default in the payment of
interest, and if this 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; provided further that the first Interest Payment Date shall be October 15,
2011. The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest (without regard to any applicable grace periods) from time to time
on demand at the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes (except
defaulted interest) and Additional Interest, if any, to the Persons who are registered Holders of
Notes at the close of business on the April 1 or October 1 next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.13 of the Indenture with respect to defaulted interest. The
Notes shall be payable as to principal, premium and Additional Interest, if any, and interest at
the office or agency of the Company maintained for such purpose in The City of New York maintained
for such purposes, or, at the option of the Company, payment of interest and Additional Interest,
if any, may be made by check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available funds shall be
required with respect to principal of and interest, premium and Additional Interest, if any, on,
all Global Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Company or 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.
3. Paying Agent and Registrar. Initially, U.S. Bank National Association, the
Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without prior notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as of April
18, 2011 (Indenture) among the Company, the Guarantors and the Trustee. 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, as amended. The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture, the provisions of the
Indenture shall govern and be controlling. The Indenture pursuant to which this Note is issued
provides that an unlimited aggregate principal amount of Additional Notes may be issued thereunder.
5. Optional Redemption. (a) Except as set forth in paragraph 5(b) below, the Company
shall not have the option to redeem the Notes prior to April 15, 2014. On or after April 15, 2014,
the Company shall have the option to redeem the Notes, in whole or in part, upon not less than 30
nor more than 60 days prior notice, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and Additional Interest, if any,
thereon to the applicable redemption date, subject to the rights of the Holders of the Notes on the
relevant record date to receive interest on the relevant interest payment date, if redeemed during
the twelve-month period beginning on April 15 of the years indicated below:
Year | Percentage | |||
2014 |
104.875 | % | ||
2015 |
103.250 | % | ||
2016 |
101.625 | % | ||
2017 and thereafter |
100.000 | % |
(b) At any time prior to April 15, 2014, the Company may redeem all or a part of the
Notes, upon not less than 30 nor more than 60 days notice, at a redemption price equal to the sum
of (i) 100% of the principal amount thereof, plus (ii) the Applicable Premium as of the date of
redemption, plus (iii) accrued and unpaid interest and Additional Interest, if any, thereon, to the
applicable redemption date, subject to the rights of the Holders of the Notes on the relevant
record date to receive interest on the relevant interest payment date.
6. Mandatory Redemption. The Company shall not be required to make mandatory redemption
payments or sinking fund payments with respect to the Notes.
7. Selection and Notice of Redemption. If less than all of the Notes are to be redeemed
at any time, the Trustee will select Notes for redemption as follows: (i) if the Notes are listed,
in compliance with the requirements of the principal national securities exchange on which the
Notes are listed, or (ii) if the Notes are not so listed, on a pro rata basis, by lot or by any
method as the Trustee deems fair and appropriate. No Notes of $2,000 or less may 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 that Note shall state the portion of the
principal amount thereof to be redeemed. A new Note in principal amount equal to the
unredeemed portion of the original Note 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 and Additional Interest, if any, cease to
accrue on Notes or portions of them called for redemption.
8. Repurchase at Option of Holder. Upon the occurrence of a Change of Control, each
Holder of Notes shall have the right to require the Company to repurchase all or any part (equal to
minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof) of such
Holders Notes pursuant to the offer described below (the Change of Control Offer") at an offer
price in cash equal to 101% of the aggregate principal amount repurchased plus accrued and unpaid
interest and Additional Interest thereon, if any, to the date of purchase (the Change of Control
Payment"). Within 30 days following any Change of Control, the Company shall mail a notice to each
Holder describing the transaction or transactions that constitute the Change of Control and
offering to repurchase Notes on the date specified in such notice which shall be no earlier than 30
days and no later than 60 days from the date such notice is mailed, pursuant to the procedures
required by the Indenture and described in such notice.
9. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in
denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes
may be registered and 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 Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company is not required to transfer or exchange any Note selected
for redemption. Also, the Company is not required to transfer or exchange any Note for a period of
15 days before a selection of Notes to be redeemed.
10. Persons Deemed Owners. The registered Holder of a Note will be treated as its owner
for all purposes.
11. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture 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 Additional Notes, if any, voting as a single
class (including, without limitation, consents obtained in connection with a purchase of, or tender
offer or exchange offer for, the Notes), and any existing Default or compliance with any provision
of the Indenture or the Notes may be waived with the consent of the Holders of a majority in
principal of the Notes then outstanding and Additional Notes, if any, voting as a single class
(including, without limitation, consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Notes). Without the consent of any Holder of Notes, the Indenture or
the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide
for uncertificated Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Companys or any Guarantors obligations to Holders of the Notes in the case of a
merger or consolidation or sale of all or substantially all of the assets of the Company or any
Guarantor, 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 under the Indenture of any such
Holder to comply with the provisions described in Section 4.11 of the Indenture, to evidence and
provide for the acceptance of
appointment by a successor Trustee, or to provide for the issuance of Additional Notes in
accordance with the Indenture.
12. Defaults and Remedies. In the case of an Event of Default, as defined in the
Indenture arising from certain events of bankruptcy or insolvency with respect to the Company or
any of its Restricted Subsidiaries, all outstanding Notes will become due and payable immediately
without further action or notice. If any other 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 Notes to be due and payable immediately by notice in writing to the Company
specifying the Event of Default. Holders of the Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment of principal or
interest or Additional Interest, if any) if it determines that withholding notice is in their
interest. 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 the Indenture except a continuing Default or Event
of Default in the payment of interest or Additional Interest, if any, on, or the principal of, the
Notes.
In the case of any Event of Default occurring by reason of any willful action or inaction
taken or not taken by the Company or on their behalf with the intention of avoiding payment of the
premium that the Company would have had to pay if the Company then had elected to redeem the Notes
pursuant to the optional redemption provisions of the Indenture, 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 Event of Default occurs during any time that the Notes are outstanding, by reason
of any willful action (or inaction) taken (or not taken) by the Company or on its behalf with the
intention of avoiding the prohibition on redemption of the Notes, then the premium specified in the
Indenture shall also become immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.
13. Trustee Dealings with Company. The Trustee, 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.
14. No Recourse Against Others. No director, officer, employee, incorporator or
stockholder of the Company or of any of the Guarantors as such will have any liability for any of
the Companys or any Guarantors obligations under the Notes, the Indenture, any Note Guarantees,
or for any claim based on, in respect of, or by reason of, these obligations or their creation.
Each Holder by accepting a Note waives and releases these individuals from this liability. The
waiver and release are part of the consideration for issuance of the Notes.
15. Authentication. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
16. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive
Notes. In addition to the rights provided to Holders under the Indenture, Holders of Restricted
Global Notes and Restricted Definitive Notes shall have all the rights set forth in the
Registration Rights Agreement dated as of April 18, 2011, between the Company, the Guarantors and
the parties named on the signature pages thereof or, in the case of Additional Notes, Holders of
Additional Notes shall have the rights set forth in one or more registration rights agreements, if
any, between the Company, the Guarantors and the other parties thereto, relating to rights given by
the Company and the Guarantors to the purchasers of Additional Notes (the Registration Rights
Agreement).
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes
and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company 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:
Stewart Enterprises, Inc.
1333 S. Clearview Parkway
Jefferson, LA 70121
Telecopier No.: (504) 729-1407
Attention: Lewis J. Derbes, Jr., Senior Vice President, Chief Financial Officer and Treasurer
1333 S. Clearview Parkway
Jefferson, LA 70121
Telecopier No.: (504) 729-1407
Attention: Lewis J. Derbes, Jr., Senior Vice President, Chief Financial Officer and Treasurer
Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: |
||
(Insert assignees legal name) | ||
(Insert assignees soc. sec. or tax I.D. no.) |
||
(Print or type assignees name, address and zip code) |
and irrevocably appoint
|
||
to transfer this Note on the books of the Company. The agent may substitute another to act for
him.
Date:
Your Signature: | ||||
(Sign exactly as your name appears on the face of this Note) |
Signature Guarantee*:
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.08 of
the Indenture, check the box below:
£
If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.08 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 Note) |
||||
Tax Identification No.: |
Signature Guarantee*:
* | Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). |
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE
The following exchanges of a part of this Regulation S Temporary Global Note for an interest
in another Global Note or of other Restricted Global Notes for an interest in this Regulation S
Temporary Global Note, have been made:
Principal Amount at | ||||||||||||||||||
Amount of Decrease in | Amount of Increase in | Maturity | Signature of | |||||||||||||||
Principal Amount at | Principal Amount at | of this Global Note | Authorized Officer | |||||||||||||||
Maturity | Maturity | Following such | of Trustee or | |||||||||||||||
Date of Exchange | of this Global Note | of this Global Note | decrease (or increase) | Note Custodian |
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Stewart Enterprises, Inc.
1333 S. Clearview Parkway
Jefferson, LA 70121
Telecopier No.: (504) 729-1407
Attention: Lewis J. Derbes, Jr., Senior Vice President, Chief Financial Officer and Treasurer
1333 S. Clearview Parkway
Jefferson, LA 70121
Telecopier No.: (504) 729-1407
Attention: Lewis J. Derbes, Jr., Senior Vice President, Chief Financial Officer and Treasurer
U.S. Bank National Association
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107
Telecopier No.: (651) 495-8097
Attention: Corporate Trust Services
60 Livingston Avenue
EP-MN-WS3C
St. Paul, MN 55107
Telecopier No.: (651) 495-8097
Attention: Corporate Trust Services
Re: 6.50% Senior Notes due 2019
Reference is hereby made to the Indenture, dated as of April 18, 2011 (the Indenture), among
Stewart Enterprises, Inc., a Louisiana Corporation (the Company), the Guarantors, and U.S. Bank
National Association, as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
___________________ (the Transferor) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount at maturity of $___________ in
such Note[s] or interests (the Transfer), to ___________________________ (the Transferee), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:
[CHECK ALL THAT APPLY]
1. o Check if Transferee will take delivery of a beneficial interest in the 144A
Global Note or a Definitive Note Pursuant to Rule 144A. The 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
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or Definitive Note 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 and such
Transfer is in compliance with any applicable blue sky securities laws of any state of the United
States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture,
the transferred beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
2. o Check if Transferee will take delivery of a beneficial interest in the
[Regulation S Temporary Global Note, the Regulation S Permanent Global Note] or a Definitive Note
pursuant to Regulation S. The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United States and either (x)
at the time the buy order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee
was outside the United States or (y) the transaction was executed in, on or through the facilities
of a designated offshore securities market and neither such Transferor nor any Person acting on its
behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of Rule 903(a) or Rule
904(a) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or
scheme to evade the registration requirements of the Securities Act and (iv) if the proposed
transfer is being made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on the [Regulation S
Permanent Global Note, the Regulation S Temporary Global Note] and/or the Definitive Note and in
the Indenture and the Securities Act.
3. o Check and complete if Transferee will take delivery of a beneficial interest in
a Restricted Global Note or a Restricted Definitive Note pursuant to any provision of the
Securities Act other than Rule 144A or Regulation S. The Transfer is being effected in
compliance with the transfer restrictions applicable to beneficial interests in Restricted Global
Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) o such Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act and 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);
or
(b) o such Transfer is being effected to the Company or a subsidiary thereof;
or
(c) o such Transfer is being effected pursuant to an effective registration statement
under the Securities Act and in compliance with the prospectus delivery requirements of the
Securities Act.
4. o Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) o Check if Transfer is Pursuant to Rule 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
(b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being
effected pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.
[Insert Name of Transferor] |
By: | ||||
Name: | ||||
Title: | ||||
Dated: ______________
ANNEX A TO CERTIFICATE OF TRANSFER
1. | The Transferor owns and proposes to transfer the following: |
[CHECK ONE OF (A) OR (B)]
(A) | o a beneficial interest in the: |
(i) | 144A Global Note (CUSIP ____); or | ||
(ii) | Regulation S Global Note (CUSIP ____); |
(B) | o a Restricted Definitive Note. |
2. | After the Transfer the Transferee will hold: |
[CHECK ONE]
(A) | o a beneficial interest in the: |
(i) | 144A Global Note (CUSIP ____); or | ||
(ii) | Regulation S Global Note (CUSIP ____); | ||
(iii) | Unrestricted Global Note (CUSIP ____); or |
(B) | o a Restricted Definitive Note; or | ||
(C) | o an Unrestricted Definitive Note, |
in accordance with the terms of the Indenture. |