Exhibit 4.2
THIS SENIOR NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. 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), (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") OR (C) IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS SENIOR NOTE IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE
904 OF REGULATION S UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT,
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SENIOR NOTE, RESELL OR
OTHERWISE TRANSFER THIS SENIOR NOTE EXCEPT (A) TO 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 SENIOR NOTE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND 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
OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 OR ANY OTHER APPLICABLE EXEMPTION 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 SENIOR NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SENIOR NOTE
WITHIN TWO YEARS AFTER THE ORIGINAL
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 SENIOR NOTE IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, OR BY ANY SUCH NOMINEE OF THE
DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF SUCH SUCCESSOR DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
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 SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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.
TRANSFERS OF THIS GLOBAL SECURITY 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 PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN
2
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.17 OF THE INDENTURE.
3
CUSIP NO.: 825095 AC 6
SHOPPERS FOOD WAREHOUSE CORP.
9 3/4% SENIOR NOTE DUE 2004
No. 1 $200,000,000
SHOPPERS FOOD WAREHOUSE CORP., a Delaware corporation (the "Company,"
which term includes any successor corporation), for value received promises to
pay to Cede & Co. or registered assigns the principal sum of Two Hundred Million
Dollars ($200,000,000), on June 15, 2004.
Interest Payment Dates: June 15 and December 15.
Record Dates: May 31 and November 30.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Dated: June 26, 1997
Attest: SHOPPERS FOOD WAREHOUSE CORP.
/s/ Elliott R. Arditti By: /s/ Mark A. Flint
- --------------------------- ----------------------------
Name: Elliot R. Arditti Name: Mark A. Flint
Title: Secretary Title: President and Chief
Executive Officer
Certificate of Authentication
This is one of the 9 3/4% Senior Notes due 2004 referred to in the
within-mentioned Indenture.
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
Dated: June 26, 1997 By: /s/ Raymond S. Haverstock
-----------------------------------
Authorized Signatory
4
SHOPPERS FOOD WAREHOUSE CORP.
9 3/4% SENIOR NOTE DUE 2004
Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to them in the Indenture, dated as of June 26, 1997 (the
"Indenture"), and as amended from time to time, by and among Shoppers Food
Warehouse Corp., a Delaware corporation (the "Company"), SFW Holding Corp., a
Delaware corporation (the "Guarantor") and Norwest Bank Minnesota, National
Association, as trustee (the "Trustee").
1. INTEREST.
--------
(a) The Company promises to pay interest on the principal amount
of this Security at a rate of 9.75% per annum. The Company shall
further pay the Liquidated Damages payable pursuant to Section 5
of the Registration Rights Agreement. The Company will pay
interest and Liquidated Damages, if any, semi-annually in arrears
on June 15 and December 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 Securities will accrue
from the most recent date on which interest has been paid or, if
no interest has been paid, from June 26, 1997; provided, however,
that if there is no existing Default in the payment of interest,
and if this Security 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, however, that the first
Interest Payment Date shall be December 15, 1997.
(b) To the extent lawful, the Company shall pay interest
(including post-petition interest in any proceeding under any
Bankruptcy Law) on (i) overdue principal, premium, if any, and
Liquidated Damages, if any, at the rate borne by the Securities,
compounded semiannually; and (ii) overdue installments of
interest, and Liquidated Damages, if any (without regard to any
applicable grace period) at the same rate, compounded
semiannually.
(c) Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
-----------------
to the Persons who are registered Holders at the close of business on the May
31 and
5
November 30 next preceding the applicable Interest Payment Date, even
if such Securities are cancelled after such record date and on or before such
Interest Payment Date. The Securities will be payable as to principal,
interest and Liquidated Damages, if any, at the office or agency of the
Company maintained for such purpose within the City and State of New York,
or, at the option of the Company, payment of interest or Liquidated Damages,
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 or Federal funds check will be required with
respect to principal of and interest and Liquidated Damages, if any, on the
Global Security. Such payment shall be in currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts.
3. PAYING AGENT AND REGISTRAR. Initially, the Trustee under the Indenture
--------------------------
will act as Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company or any of its
Subsidiaries may, subject to certain exceptions, act in any such capacity.
4. INDENTURE. The Company issued the Securities under the Indenture. Each
---------
Holder, by accepting the Securities, agrees to be bound by all the terms and
provisions of the Indenture, as the same may be amended from time to time in
accordance with its terms. The terms of the Securities include those stated
in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code (S)(S) 7aaa-77bbbb)
("TIA"). The Securities are subject to all such terms, and Holders are
referred to the Indenture and the TIA for a statement of such terms. Except
as provided in Paragraph 6 hereof, the Securities are general unsecured
obligations of the Company limited to $200 million in aggregate principal
amount, plus amounts, if any, sufficient to pay interest, premium and
Liquidated Damages, if any, on outstanding Securities as set forth in
Paragraph 2 hereof. Payment on each Security and performance by the Company
within applicable grace periods of the other Obligations is guaranteed by the
Guarantor pursuant to Article 10 of the Indenture. In order to secure the
Obligations, the Guarantor has granted a security interest in the Collateral
to the Trustee for the benefit of the Holders pursuant to the Indenture.
5. REDEMPTION AT THE COMPANY'S OPTION. The Securities are redeemable, in
----------------------------------
whole or in part, at the option of the Company at any time on or after June
15, 2001, at the redemption prices (expressed as a percentage of the
principal amount redeemed) set forth below (the "Optional Redemption Price"),
plus any accrued and unpaid interest to the date of redemption, if redeemed
during the period indicated:
Year Optional Redemption Price
---- -------------------------
June 15, 2001 through June 14, 2002............... 104.875%
June 15, 2002 through June 14, 2003............... 102.4375%
June 15, 2003 and thereafter...................... 100%
In addition, until June 15, 2000, the Company may, at its option, use the
net
6
cash proceeds of one or more Equity Offerings to redeem up to an aggregate of
35% (up to 10% if the Special Mandatory Redemption described in Paragraph 6
hereof has occurred) of the principal amount of the Securities originally
issued, at a redemption price equal to 109.75% of the principal amount
thereof, plus any accrued and unpaid interest thereon to the date of
redemption; provided, however, that at least 65% of the principal amount of
the Securities originally issued remains outstanding immediately after the
occurrence of such redemption and; provided, further, that any such
redemption shall reduce, on a dollar for dollar basis, the principal amount
of the Securities required to be redeemed pursuant to the Special Mandatory
Redemption.
6. SPECIAL MANDATORY REDEMPTION. If, on or prior to June 30, 1998, the
----------------------------
closing of a Settlement has not occurred or the Company has not paid to Dart
the Restricted Proceeds to fund a Settlement, Securities in an aggregate
principal amount of $50,000,000 (subject to reduction pursuant to Paragraph 5
above) shall be redeemed pursuant to a Special Mandatory Redemption at any
time on or prior to August 14, 1998, at 101% of the principal amount thereof,
plus any accrued and unpaid interest thereon to the date of redemption. Any
Special Mandatory Redemption shall be paid using the Restricted Proceeds
(including any interest or other profit earned thereon).
The Company shall deposit $50,000,000 of the proceeds from the Offering
with the Trustee in the Restricted Account simultaneously with receipt of
payment therefor on the Issue Date. All amounts so deposited will be held by
the Trustee pursuant to the Pledge Agreement as collateral to secure the
obligations of the Company under the Securities, subject to release from the
Restricted Account as set forth in the Pledge Agreement. The Pledge Agreement
provides that on or prior to June 30, 1998, the Restricted Proceeds may be
released to the Company only to make a payment to Dart for purposes of
funding a Settlement. The Pledge Agreement further provides that, prior to
the release to the Company of the Restricted Proceeds from the Restricted
Account for the purpose of funding a Settlement, an Officers' Certificate
must be delivered to the Trustee stating that the closing of a Settlement is
occurring simultaneously with the release of the Restricted Proceeds. Upon
receipt of such Officers' Certificate, the Trustee will release the
Restricted Proceeds held pursuant to the Pledge Agreement to the Company and
the Pledge Agreement will terminate. Following such release of the Restricted
Proceeds, including any interest or profit earned thereon, from the
Restricted Account and termination of the Pledge Agreement, all of the
Securities will be unsecured obligations of the Company.
Pending release of the Restricted Proceeds from the Restricted Account
pursuant to the Pledge Agreement either to make a payment to Dart to fund a
Settlement or to fund the Special Mandatory Redemption, the Restricted
Proceeds shall be invested in Cash Equivalents as directed by the Company. If
a Special Mandatory Redemption occurs, then any interest or other profit
earned on the Restricted Proceeds shall be used to fund the Special Mandatory
Redemption (including any accrued and unpaid interest on the Securities that
are redeemed), except that any amount in the Restricted Account not needed to
fund the Special Mandatory
7
Redemption may be used by the Company for general corporate purposes
(including payment of interest on the Securities). If the Restricted Proceeds
are released to the Company from the Restricted Account and used to make a
payment to Dart to fund a Settlement, then any interest or other profit
earned on the Restricted Proceeds may be used by the Company for general
corporate purposes (including payment of interest on the Securities).
7. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
--------------------
days but not more than 60 days before the redemption date to each Holder
whose Securities are to be redeemed at its registered address. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Securities held by a Holder are to be
redeemed. On and after the redemption date, interest ceases to accrue on
Securities or portions thereof called for redemption as long as the Company
has deposited with the Paying Agent funds in satisfaction of the redemption
price pursuant to the Indenture. If Securities are redeemed subsequent to a
record date with respect to any Interest Payment Date specified above and on
or prior to such Interest Payment Date, then any accrued interest on such
Securities will be paid to the Holders in whose names such Securities are
registered at the close of business on such record date.
8. CHANGE IN CONTROL OFFER. If a Change in Control occurs, each Holder
-----------------------
shall have the right to require the Company to repurchase all of such
Holder's Securities, or any portion thereof that is an integral multiple of
$1,000, for cash at a price equal to 101% of the principal amount of such
Securities to be repurchased, plus any accrued and unpaid interest, if any,
to the Repurchase Date. Within 30 days after the occurrence of a Change in
Control, the Company shall mail a notice to each Holder setting forth the
procedures governing the Change in Control repurchase right as required by
the Indenture. A Holder may tender or refrain from tendering all or any
portion of his or her Securities at his or her discretion by completing the
form entitled "OPTION OF HOLDER TO ELECT PURCHASE" appearing on this Security
and delivering such form, together with the Securities with respect to which
the repurchase right is being exercised, duly endorsed for transfer to the
Company, to the Trustee within 30 days after receipt of the Company Notice.
Any portion of Securities tendered must be in integral multiples of $1,000.
9. DENOMINATIONS; TRANSFER; EXCHANGE. The Securities are in registered
---------------------------------
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. The transfer of Securities may be registered and Securities 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 need not
exchange or register the transfer of any Security or portion of a Security
selected for redemption, except for the unredeemed portion of any Security
being redeemed in part. Also, it need not exchange or register the transfer
of any Securities for a period of 15 days before a selection of Securities to
be redeemed or during
8
the period between a record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
---------------------
treated as its owner for all purposes.
11. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture
----------------------
or the Securities may be amended with the consent of the Holders of at least
a majority in aggregate principal amount of the Securities then outstanding.
Without the consent of any Holder, the Company and the Trustee may amend,
waive or supplement the Indenture or the Securities to (i) cure any
ambiguity, defect or inconsistency, (ii) mortgage, pledge, hypothecate or
grant a security interest in favor of the Trustee as additional security for
the payment and performance of the obligations under the Indenture, in any
property or assets, including any which is required to be mortgaged, pledged
or hypothecated, or in which a security interest is required to be granted,
to the Trustee, (iii) make any change that does not adversely affect the
rights of any Holder, (iv) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power conferred upon the
Company under the Indenture, or to provide any additional rights or benefits
to the Holders, (v) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the obligations of the
Company hereunder and under the Indenture, (vi) to set out the form of the
Exchange Notes and to set forth such other matters as are necessary in
connection with the Exchange Offer that do not adversely affect the rights of
any Holder, or (vii) to maintain the qualification of the Indenture under the
TIA.
12. DEFAULTS AND REMEDIES. An Event of Default is: default for 30 days in
---------------------
payment of interest on the Securities; default in payment of principal or
premium, if any, on the Securities when due (including a default in the
obligation to effectuate the Special Mandatory Redemption as described in
Paragraph 6 hereof or in payment upon the exercise by a Holder of its right
to require repurchase of its Securities pursuant to Paragraph 8 hereof);
failure by the Company or the Guarantor for 30 days after notice to it to
comply with any of its other agreements or covenants in the Indenture or the
Pledge Agreement; certain defaults under and accelerations prior to maturity
of other indebtedness; certain final judgments which remain undischarged;
certain events of bankruptcy or insolvency; and the cessation of the
Indenture (or, prior to the termination in accordance with its terms, the
Pledge Agreement) to be in full force and effect or to provide the Trustee,
in any material respect, the Liens, rights, powers and privileges purported
to be created thereby. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
outstanding Securities may declare all the Securities to be due and payable
immediately, except that in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Securities become
due and payable without further action or notice. Securityholders may not
enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it
9
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in aggregate principal amount of the then outstanding
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing default
(except a default in payment of principal or interest) if it determines that
withholding notice is in their best interests. The Company must furnish an
annual compliance certificate to the Trustee.
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 were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
--------------------------
incorporator or stockholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Securities or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation, including with respect to any certificates
delivered hereunder or thereunder from any such Person. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
15. AUTHENTICATION. This Security shall not be valid until authenticated
--------------
by the manual signature of the Trustee or an authenticating agent.
16. 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).
17. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED SECURITIES. In
--------------------------------------------------------------
addition to the rights provided to Holders of Securities under the Indenture,
Holders of Restricted Securities shall have all the rights set forth in the
Registration Rights Agreement referred to above.
The Company will 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:
Shoppers Food Warehouse Corp.
4600 Forbes Blvd.
Lanham, MD 20706
Attention: President
18. GOVERNING LAW. The Laws of the State of New York shall govern this
-------------
10
Security and the Indenture, without regard to principles of conflicts of law.
19. ADJUSTMENTS. This Global Security shall represent such of the
-----------
outstanding Securities as shall be specified herein and shall represent the
aggregate amount of outstanding Securities from time to time endorsed hereon
and the aggregate amount of outstanding Securities represented hereby may
from time to time be reduced or increased, as appropriate, by adjustments
made on the records of the Trustee, as custodian for the Depository, to
reflect exchanges and redemptions. Any endorsement of this Global Security to
reflect the amount of any increase or decrease in the amount of outstanding
Securities represented hereby shall be made by the Trustee or the Securities
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder hereof as required in Section 2.6 of the Indenture.
11
GUARANTEE
SFW Holding Corp., a Delaware corporation, hereby unconditionally guarantees to
the Holder of the Security upon which this guarantee is endorsed the due and
punctual payment, as set forth in the Indenture pursuant to which such Security
and this guarantee were issued, of the principal of, premium (if any) and
interest on such Security when and as the same shall become due and payable for
any reason according to the terms of such Security and Article 10 of the
Indenture. The guarantee of the Security upon which this guarantee is endorsed
will not become effective until the Trustee signs the certificate of
authentication on such Security.
SFW HOLDING CORP.
By /s/ Mark A. Flint
--------------------------
Name: Mark A. Flint
Title: President
12
[FORM OF ASSIGNMENT]
I or we assign this Security to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and ZIP Code of assignee)
Please insert Social Security or other
identifying number of assignee
- ----------------------------------------
and irrevocably appoint _____________________ agent to transfer this Security on
the books of the Company. The agent may substitute another to act for him.
Dated: Signed:
------------------------------ ----------------------------------
- --------------------------------------------------------------------------------
(Sign exactly as your name appears on the front of this Security)
Signature Guarantee:
-----------------------------------------------------------
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date of the declaration by the SEC of
the effectiveness of a registration statement under the Securities Act of 1933,
as amended (the "Securities Act") covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the second anniversary of the Issue Date (provided, however,
-------- -------
that neither the Company nor any affiliate of the Company has held any
beneficial interest in such Security, or portion thereof, at any time on or
prior to the second anniversary of the Issue Date), the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer and that this Security is being transferred:
13
(Check One)
---------
(1) to the Company or a Subsidiary thereof; or
-----
(2) pursuant to and in compliance with Rule 144A under the Securities
----- Act; or
(3) to an institutional "accredited investor" (as defined in Rule
----- 501(a)(1), (2), (3) or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) outside the United States to a "foreign person" in compliance with
----- Rule 904 of Regulation S under the Securities Act; or
(5) pursuant to the exemption from registration provided by Rule 144
----- under the Securities act; or
(6) pursuant to an effective registration statement under the Securities
----- Act; or
(7) pursuant to another available exemption from the registration
----- requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided that if box (3), (4), (5) or (7) is
--------
checked, the Company or the Trustee may require, prior to registering any such
transfer of the Securities, in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (3) or (4))
and other information as the Trustee or the Company has reasonably requested 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.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Security 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 2.17 of the Indenture shall have
been satisfied.
Dated: Signed:
---------------------------- -----------------------------
(Sign exactly as name appears
on the other side of this
Security)
Signature Guarantee:
-----------------------------------------------------------
14
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which if 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
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
----------------------------- -------------------------------------
NOTICE: To be executed by an
executive officer
15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.9 or Section 4.19 of the Indenture, check the appropriate
box below:
[_] Section 4.9 (Change in Control)
[_] Section 4.19 (Asset Sale)
If you want to elect to have only part of the Security purchased by the
Company pursuant to Section 4.9 or Section 4.19, state the amount you elect to
have purchased: $_________
Date: Your Signature:
---------- ------------------------------
(Sign exactly as your name appears on the face
of this Security)
Tax Identification No.:
--------------
Signature Guarantee:
----------------------------
16