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ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | 1 | |||||||
Section 1.01 | Definitions | 1 | ||||||
Section 1.02 | Other Definitions | 30 | ||||||
Section 1.03 | Rules of Construction | 31 | ||||||
ARTICLE 2 THE NOTES | 32 | |||||||
Section 2.01 | Form, Dating and Denominations; Legends | 32 | ||||||
Section 2.02 | Execution and Authentication; Additional Notes | 33 | ||||||
Section 2.03 | Registrar, Paying Agent and Authenticating Agent; Paying Agent to Hold Money in Trust | 34 | ||||||
Section 2.04 | Replacement of Notes | 34 | ||||||
Section 2.05 | Outstanding Notes | 34 | ||||||
Section 2.06 | Temporary Notes | 35 | ||||||
Section 2.07 | Cancellation | 35 | ||||||
Section 2.08 | CUSIP and CINS Numbers | 36 | ||||||
Section 2.09 | Registration, Transfer and Exchange | 36 | ||||||
Section 2.10 | Restrictions on Transfer and Exchange | 39 | ||||||
Section 2.11 | Temporary Offshore Global Notes | 41 | ||||||
Section 2.12 | Title and Terms | 42 | ||||||
Section 2.13 | Persons Deemed Owners | 42 | ||||||
Section 2.14 | Payment of Interest Rights Preserved | 42 | ||||||
ARTICLE 3 REDEMPTION; OFFER TO PURCHASE | 44 | |||||||
Section 3.01 | Optional Redemption | 44 | ||||||
Section 3.02 | Redemption with Proceeds of Public Equity Offering | 44 | ||||||
Section 3.03 | Other Redemptions | 44 | ||||||
Section 3.04 | Method and Effect of Redemption | 45 | ||||||
Section 3.05 | Offer to Purchase | 46 | ||||||
ARTICLE 4 COVENANTS | 49 | |||||||
Section 4.01 | Payment of Notes | 49 | ||||||
Section 4.02 | Maintenance of Office or Agency | 49 | ||||||
Section 4.03 | Money for Payments to Be Held in Trust | 50 | ||||||
Section 4.04 | Financial Reports | 51 | ||||||
Section 4.05 | Certificates to Trustee | 52 | ||||||
Section 4.06 | Limitation on Debt and Disqualified or Preferred Stock | 52 | ||||||
Section 4.07 | Limitation on Restricted Payments | 56 |
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Section 4.08 | Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries | 60 | ||||||
Section 4.09 | Limitation on Asset Sales | 62 | ||||||
Section 4.10 | Limitation on Transactions with Affiliates | 64 | ||||||
Section 4.11 | Limitation on Liens | 66 | ||||||
Section 4.12 | Repurchase of Notes upon a Change of Control | 66 | ||||||
Section 4.13 | Limitation on Line of Business | 66 | ||||||
Section 4.14 | Limited Applicability of Covenants when Notes are Rated Investment-Grade | 67 | ||||||
Section 4.15 | Existence | 68 | ||||||
Section 4.16 | Payment of Taxes and Other Claims | 68 | ||||||
Section 4.17 | Maintenance of Properties and Insurance | 68 | ||||||
Section 4.18 | Additional Note Guaranties | 69 | ||||||
Section 4.19 | Designation of Restricted and Unrestricted Subsidiaries | 69 | ||||||
Section 4.20 | Further Assurances; Collateral Inspections | 71 | ||||||
ARTICLE 5 CONSOLIDATION, MERGER OR SALE OF ASSETS | 72 | |||||||
Section 5.01 | Consolidation, Merger or Sale of Assets by the Company | 72 | ||||||
Section 5.02 | Consolidation, Merger or Sale of Assets by a Guarantor | 73 | ||||||
Section 5.03 | Opinion of Counsel to Trustee | 74 | ||||||
ARTICLE 6 REMEDIES | 74 | |||||||
Section 6.01 | Events of Default | 74 | ||||||
Section 6.02 | Acceleration | 76 | ||||||
Section 6.03 | Other Remedies | 76 | ||||||
Section 6.04 | Waiver of Past Defaults | 77 | ||||||
Section 6.05 | Control by Majority | 77 | ||||||
Section 6.06 | Limitation on Suits | 77 | ||||||
Section 6.07 | Rights of Holders to Receive Payment | 78 | ||||||
Section 6.08 | Collection Suit by Trustee | 78 | ||||||
Section 6.09 | Trustee May File Proofs of Claim | 78 | ||||||
Section 6.10 | Priorities | 79 | ||||||
Section 6.11 | Undertaking for Costs | 79 | ||||||
Section 6.12 | Restoration of Rights and Remedies | 79 | ||||||
Section 6.13 | Rights and Remedies Cumulative | 80 | ||||||
Section 6.14 | Waiver of Stay, Extension or Usury Laws | 80 | ||||||
Section 6.15 | Delay or Omission Not Waiver | 80 | ||||||
ARTICLE 7 THE TRUSTEE | 80 | |||||||
Section 7.01 | Certain Duties and Responsibilities | 80 |
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Section 7.02 | Notice of Defaults | 81 | ||||||
Section 7.03 | Certain Rights of Trustee | 82 | ||||||
Section 7.04 | Not Responsible for Recitals or Issuance of Notes | 83 | ||||||
Section 7.05 | Trustee’s Disclaimer | 83 | ||||||
Section 7.06 | May Hold Notes | 84 | ||||||
Section 7.07 | Money Held in Trust | 84 | ||||||
Section 7.08 | Compensation and Reimbursement | 84 | ||||||
Section 7.09 | Conflicting Interests | 84 | ||||||
Section 7.10 | Corporate Trustee Required; Eligibility | 85 | ||||||
Section 7.11 | Resignation and Removal; Appointment of Successor | 85 | ||||||
Section 7.12 | Acceptance of Appointment by Successor | 86 | ||||||
Section 7.13 | Merger, Conversion, Consolidation or Succession to Business | 87 | ||||||
Section 7.14 | Preferential Collection of Claims Against the Company | 87 | ||||||
Section 7.15 | Appointment of Authenticating Agent | 87 | ||||||
ARTICLE 8 HOLDERS’ LIST AND REPORTS BY THE TRUSTEE AND THE COMPANY | 88 | |||||||
Section 8.01 | The Company to Furnish Trustee Names and Addresses of Holders; Stock Exchange Listing | 88 | ||||||
Section 8.02 | Preservation of Information; Communications to Holders | 88 | ||||||
Section 8.03 | Reports by Trustee | 89 | ||||||
ARTICLE 9 AMENDMENT, SUPPLEMENT OR WAIVER | 89 | |||||||
Section 9.01 | Without Consent of the Holders | 89 | ||||||
Section 9.02 | With Consent of Holders | 90 | ||||||
Section 9.03 | Effect of Consent | 91 | ||||||
Section 9.04 | Trustee’s Rights and Obligations | 92 | ||||||
Section 9.05 | Conformity With Trust Indenture Act | 92 | ||||||
Section 9.06 | Payments for Consents | 92 | ||||||
ARTICLE 10 DEFEASANCE AND DISCHARGE | 92 | |||||||
Section 10.01 | Discharge of Company’s Obligations | 92 | ||||||
Section 10.02 | Legal Defeasance | 93 | ||||||
Section 10.03 | Covenant Defeasance | 94 | ||||||
Section 10.04 | Application of Trust Money | 95 | ||||||
Section 10.05 | Repayment to Company | 95 | ||||||
Section 10.06 | Reinstatement | 95 | ||||||
ARTICLE 11 NOTE GUARANTIES | 96 | |||||||
Section 11.01 | The Guarantees | 96 |
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Section 11.02 | Guarantee Unconditional | 96 | ||||||
Section 11.03 | Discharge; Reinstatement | 97 | ||||||
Section 11.04 | Waiver by the Guarantors | 97 | ||||||
Section 11.05 | Subrogation and Contribution | 97 | ||||||
Section 11.06 | Stay of Acceleration | 97 | ||||||
Section 11.07 | Limits of Guarantees | 97 | ||||||
Section 11.08 | Execution and Delivery of Note Guaranty | 98 | ||||||
Section 11.09 | Release of Note Guaranty | 98 | ||||||
ARTICLE 12 SECURITY INTEREST | 99 | |||||||
Section 12.01 | Grant of Security Interest | 99 | ||||||
Section 12.02 | Release of Security Interest | 100 | ||||||
Section 12.03 | Documents to be Delivered Prior to Release of Security Interest | 102 | ||||||
Section 12.04 | Pledge of Additional Collateral; Etc. | 102 | ||||||
Section 12.05 | Second Lien Collateral Agent | 103 | ||||||
Section 12.06 | Replacement of Second Lien Collateral Agent | 103 | ||||||
Section 12.07 | Collateral Trust Agreement | 103 | ||||||
Section 12.08 | Agreement for the Benefit of Holders of First-Priority Liens | 103 | ||||||
Section 12.09 | Notes and Note Guaranties Not Subordinated | 104 | ||||||
ARTICLE 13 MISCELLANEOUS | 104 | |||||||
Section 13.01 | Trust Indenture Act of 1939 | 104 | ||||||
Section 13.02 | Noteholder Communications | 105 | ||||||
Section 13.03 | Notices | 105 | ||||||
Section 13.04 | Certificate and Opinion as to Conditions Precedent | 106 | ||||||
Section 13.05 | Statements Required in Certificate or Opinion | 106 | ||||||
Section 13.06 | Payment Date Other Than a Business Day | 107 | ||||||
Section 13.07 | Governing Law; Submission to Jurisdiction | 107 | ||||||
Section 13.08 | No Adverse Interpretation of Other Agreements | 107 | ||||||
Section 13.09 | Successors | 107 | ||||||
Section 13.10 | Duplicate Originals | 107 | ||||||
Section 13.11 | Separability | 108 | ||||||
Section 13.12 | Table of Contents and Headings | 108 | ||||||
Section 13.13 | No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders | 108 | ||||||
Section 13.14 | Acts of Holders; Record Dates | 108 | ||||||
Section 13.15 | Waiver of Jury Trial | 110 | ||||||
Section 13.16 | Force Majeure | 110 |
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EXHIBIT A | Form of Note | |||||||
EXHIBIT B | Form of Supplemental Indenture | |||||||
EXHIBIT C | Restricted Legend | |||||||
EXHIBIT D | DTC Legend | |||||||
EXHIBIT E | OID Legend | |||||||
EXHIBIT F | Rule 144A Certificate | |||||||
EXHIBIT G | Certificate of Beneficial Ownership | |||||||
EXHIBIT H | Temporary Offshore Global Note Legend | |||||||
EXHIBIT I | Regulation S Certificate |
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Term | Defined in Section | |||
Acceptable Commitment | 4.09 | |||
Act | 13.14 | |||
Additional Interest | 6.03 | |||
Applicable Premium | 3.03 | |||
Bankruptcy Default | 6.01 | |||
Defaulted Interest | 2.14 | |||
Event of Default | 6.01 | |||
Excess Proceeds | 4.09 | |||
Expiration Date | 13.14 | |||
Offer to Purchase | 3.05 | |||
Outstanding Notes | 2.05 | |||
Permitted Credit Facility Debt | 4.06 | |||
Permitted Debt | 4.06 | |||
Permitted Refinancing Debt | 4.06 | |||
Place of Payment | 4.02 |
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Term | Defined in Section | |||
purchase date | 3.05 | |||
purchase amount | 3.05 | |||
refinance | 4.06 | |||
Register | 2.09 | |||
Registrar | 2.09 | |||
Related Party Transaction | 4.10 | |||
repurchase deadline | 3.05 | |||
Restricted Payment | 4.07 | |||
Reversion Date | 4.14 | |||
Second Commitment | 4.09 | |||
Suspended Covenants | 4.14 | |||
Suspension Period | 4.14 |
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A | B | C | ||||
U.S. Global Note | U.S. Global Note | (1 | ) | |||
U.S. Global Note | Offshore Global Note | (2 | ) | |||
U.S. Global Note | Certificated Note | (3 | ) | |||
Offshore Global Note | U.S. Global Note | (4 | ) | |||
Offshore Global Note | Offshore Global Note | (2 | ) | |||
Offshore Global Note | Certificated Note | (5 | ) | |||
Certificated Note | U.S. Global Note | (4 | ) | |||
Certificated Note | Offshore Global Note | (2 | ) | |||
Certificated Note | Certificated Note | (3 | ) |
(1) | No certification is required. | |
(2) | The Person requesting the transfer or exchange must deliver or cause to be delivered to the Trustee a duly completed Regulation S Certificate;providedthat if the requested transfer or exchange is made by the Holder of a |
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Certificated Note or a beneficial interest in a Global Note that either does not bear the Restricted Legend or is no longer subject to the restrictions on transfer set forth in the Restricted Legend, then no certification is required. | ||
(3) | The Person requesting the transfer or exchange must deliver or cause to be delivered to the Trustee (x) a duly completed Rule 144A Certificate or (y) a duly completed Regulation S Certificate and/or an Opinion of Counsel and such other certifications and evidence as the Company may reasonably require in order to determine that the proposed transfer or exchange is being made in compliance with the Securities Act and any applicable securities laws of any state of the United States;providedthat if the requested transfer or exchange is made by the Holder of a Certificated Note or a beneficial interest in a Global Note that either does not bear the Restricted Legend or is no longer subject to the restrictions on transfer set forth in the Restricted Legend, then no certification is required. In the event that (i) the requested transfer or exchange takes place after the Restricted Period and a duly completed Regulation S Certificate is delivered to the Trustee or (ii) a Certificated Note or a beneficial interest in a Global Note that either does not bear the Restricted Legend or is no longer subject to the restrictions on transfer set forth in the Restricted Legend, is surrendered for transfer or exchange, upon transfer or exchange the Trustee will deliver a Certificated Note that does not bear the Restricted Legend. | |
(4) | The Person requesting the transfer or exchange must deliver or cause to be delivered to the Trustee a duly completed Rule 144A Certificate if such transfer occurs prior to the termination of the Rule 144 holding period for the applicable Certificated Notes. | |
(5) | Notwithstanding anything to the contrary contained herein, no such exchange is permitted if the requested exchange involves a beneficial interest in a Temporary Offshore Global Note. If the requested transfer involves a beneficial interest in a Temporary Offshore Global Note, the Person requesting the transfer must deliver or cause to be delivered to the Trustee a duly completed Rule 144A Certificate and/or an Opinion of Counsel and such other certifications and evidence as the Company may reasonably require in order to determine that the proposed transfer is being made in compliance with the Securities Act and any applicable securities laws of any state of the United States. If the requested transfer or exchange involves a beneficial interest in a Permanent Offshore Global Note, no certification is required and the Trustee will deliver a Certificated Note that does not bear the Restricted Legend. |
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12-month period | ||
commencing | ||
March 1 | ||
in Year | Percentage | |
2014 | 104.875% | |
2015 | 102.438% | |
2016 and thereafter | 100.000% |
(1) | 1.0% of the principal amount of such Note; and |
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(2) | the excess, if any, of (a) the present value at such Redemption Date of (i) the Redemption Price of such Note on March 1, 2014 (as stated in Section 3.01), plus (ii) all required interest payments due on such Note through March 1, 2014 (excluding accrued but unpaid interest, if any, to the Redemption Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b) the principal amount of such Note. |
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343 State Street
Rochester, NY 14650
Attention: General Counsel
Facsimile: (585) 724-9549
and
Attention: Treasurer
Facsimile: (585) 724-5174
101 Barclay Street, 8W
New York, NY 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-4779
Facsimile: (732) 667-9185
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EASTMAN KODAK COMPANY | ||||
By: | /s/ William G. Love | |||
Name: | William G. Love | |||
Title: | Treasurer | |||
CREO MANUFACTURING AMERICA LLC KODAK AVIATION LEASING LLC | ||||
By: | /s/ William G. Love | |||
Name: | William G. Love | |||
Title: | Manager | |||
EASTMAN GELATINE CORPORATION EASTMAN KODAK INTERNATIONAL CAPITAL COMPANY, INC. FAR EAST DEVELOPMENT LTD. FPC INC. KODAK (NEAR EAST), INC. KODAK AMERICAS, LTD. KODAK IMAGING NETWORK, INC. KODAK PORTUGUESA LIMITED KODAK REALTY, INC. LASER EDIT, INC. LASER-PACIFIC MEDIA CORPORATION PACIFIC VIDEO, INC. PAKON, INC. QUALEX INC. | ||||
By: | /s/ William G. Love | |||
Name: | William G. Love | |||
Title: | Treasurer |
KODAK PHILIPPINES, LTD. NPEC INC. | ||||
By: | /s/ William G. Love | |||
Name: | William G. Love | |||
Title | Assistant Treasurer |
THE BANK OF NEW YORK MELLON, as Trustee and Second Lien Collateral Agent | ||||
By: | /s/ Franca M. Ferrera | |||
Name: | Franca M. Ferrera | |||
Title: | Senior Associate | |||
No. | [CUSIP/CINS] No. | |
$ |
Interest Rate: | 9.75% per annum | |
Interest Payment Dates: | March 1 and September 1 of each year commencing September 1, 2010 | |
Regular Record Dates: | February 15 and August 15 of each year |
1 | To be included in any Global Note. |
A-1
EASTMAN KODAK COMPANY | ||||
By: | ||||
Name: | ||||
Title: |
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The Bank of New York Mellon, as Trustee | ||||
By: | ||||
Authorized Signatory | ||||
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2 | For Additional Notes, may be the date of their original issue or the most recent interest payment date. |
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Seller | ||||
By | ||||
the name as written upon the face of the within-mentioned
instrument in every particular, without alteration or any change
whatsoever.
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By | ||||
To be executed by an executive officer | ||||
3 | Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Securities Transfer Association 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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4 | Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
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Principal amount of | ||||||||
this Global Note | ||||||||
Amount of decrease | Amount of increase | following such | Signature of | |||||
in principal amount | in principal amount | decrease (or | authorized officer of | |||||
Date of Exchange | of this Global Note | of this Global Note | increase) | Trustee | ||||
5 | For Global Notes |
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EASTMAN KODAK COMPANY | ||||
By: | ||||
Name: | ||||
Title: | ||||
[GUARANTORS] | ||||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NEW YORK MELLON, as Trustee and Second Lien Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: |
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101 Barclay Street, 8W
New York, New York, 10286
Attention: Corporation Trust Administration
Re: | EASTMAN KODAK COMPANY 9.75% Senior Secured Notes due March 1, 2018 (the “Notes”) Issued under the Indenture (the “Indenture”) Dated as of March 5, 2010 |
o A. | Our proposed purchase of $ ___ principal amount of Notes issued under the Indenture. | ||
o B. | Our proposed exchange of $ ___ principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us. |
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Very truly yours, [NAME OF PURCHASER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)] | ||||
By: | ||||
Name: | ||||
Title: | ||||
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101 Barclay Street, 8W
New York, New York, 10286
Attention: Corporation Trust Administration
Re: | EASTMAN KODAK COMPANY 9.75% Senior Secured Notes due March 1, 2018 (the “Notes”) Issued under the Indenture (the “Indenture”) dated as as of March 5, 2010 relating to the Notes |
o A. | We are a non-U.S. person (within the meaning of Regulation S under the Securities Act of 1933, as amended). | ||
o B. | We are a U.S. person (within the meaning of Regulation S under the Securities Act of 1933, as amended) that purchased the Notes in a transaction that did not require registration under the Securities Act of 1933, as amended. |
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Very truly yours, [NAME OF BENEFICIAL OWNER] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address: | ||||
To: | The Bank of New York Mellon | |
101 Barclay Street, 8W | ||
New York, New York, 10286 | ||
Attention: Corporation Trust Administration | ||
Re: | EASTMAN KODAK COMPANY | |
9.75% Senior Secured Notes due March 1, 2018 (the “Notes”) | ||
Issued under the Indenture (the “Indenture”) dated as | ||
as of March 5, 2010 relating to the Notes |
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Yours faithfully, [Name of DTC Participant] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address: | ||||
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To: | The Bank of New York Mellon | |
101 Barclay Street, 8W | ||
New York, New York, 10286 | ||
Attention: Corporation Trust Administration | ||
Re: | EASTMAN KODAK COMPANY | |
9.75% Senior Secured Notes due March 1, 2018 (the “Notes”) | ||
Issued under the Indenture (the “Indenture”) dated as | ||
as of March 5, 2010 relating to the Notes |
o A. | This Certificate relates to our proposed transfer of $____ principal amount of Notes issued under the Indenture. We hereby certify as follows: |
1. | The offer and sale of the Notes was not and will not be made to a person in the United States (unless such person is excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the account held by it for which it is acting is excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances described in Rule 902(h)(3)) and such offer and sale was not and will not be specifically targeted at an identifiable group of U.S. citizens abroad. | ||
2. | Unless the circumstances described in the parenthetical in paragraph 1 above are applicable, either (a) at the time the buy order was originated, the buyer was outside the United States or we and any person acting on our behalf reasonably believed that the buyer was outside the United States or (b) the transaction was executed in, on |
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or through the facilities of a designated offshore securities market, and neither we nor any person acting on our behalf knows that the transaction was pre-arranged with a buyer in the United States. | |||
3. | Neither we, any of our affiliates, nor any person acting on our or their behalf has made any directed selling efforts in the United States with respect to the Notes. | ||
4. | The proposed transfer of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act. | ||
5. | If we are a dealer or a person receiving a selling concession, fee or other remuneration in respect of the Notes, and the proposed transfer takes place during the Restricted Period (as defined in the Indenture), or we are an officer or director of the Company or an Initial Purchaser (as defined in the Indenture), we certify that the proposed transfer is being made in accordance with the provisions of Rule 904(b) of Regulation S. |
o B. | This Certificate relates to our proposed exchange of $____ principal amount of Notes issued under the Indenture for an equal principal amount of Notes to be held by us. We hereby certify as follows: |
1. | At the time the offer and sale of the Notes was made to us, either (i) we were not in the United States or (ii) we were excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(vi) or the account held by us for which we were acting was excluded from the definition of “U.S. person” pursuant to Rule 902(k)(2)(i) under the circumstances described in Rule 902(h)(3); and we were not a member of an identifiable group of U.S. citizens abroad. | ||
2. | Unless the circumstances described in paragraph 1(ii) above are applicable, either (a) at the time our buy order was originated, we were outside the United States or (b) the transaction was executed in, on or through the facilities of a designated offshore securities market and we did not pre-arrange the transaction in the United States. | ||
3. | The proposed exchange of Notes is not part of a plan or scheme to evade the registration requirements of the Securities Act. |
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Very truly yours, [NAME OF SELLER (FOR TRANSFERS) OR OWNER (FOR EXCHANGES)] | ||||
By: | ||||
Name: | ||||
Title: | ||||
Address: | ||||
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