EXHIBIT 4.3
Exhibit B
to
Placement Agency
Agreement
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"), AND MAY BE SOLD OR TRANSFERRED ONLY IF REGISTERED PURSUANT TO
THE PROVISIONS THEREOF OR IF AN INSTITUTIONAL INVESTOR APPROVED AS AN EXEMPTION
FROM REGISTRATION IS AVAILABLE. BY ITS ACCEPTANCE OF THIS NOTE, THE PURCHASER
REPRESENTS AND AGREES THAT IT IS AN "ACCREDITED INVESTOR", AS DEFINED IN
REGULATION D PROMULGATED UNDER THE 1933 ACT ("INSTITUTIONAL ACCREDITED
INVESTOR"), AND THAT THIS NOTE IS BEING ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR FOR SALE IN CONNECTION WITH, THE PUBLIC DISTRIBUTION THEREOF AND
THAT ANY RESALE OF THIS NOTE WILL BE MADE ONLY (i) TO MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED OR YELLOW CORPORATION OR (ii) THROUGH MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED TO AN INSTITUTIONAL ACCREDITED INVESTOR OR
TO A "QUALIFIED INSTITUTIONAL BUYER", AS DEFINED IN RULE 144A IN A TRANSACTION
THAT MEETS THE REQUIREMENTS OF RULE 144A OR (iii) DIRECTLY TO AN INSTITUTIONAL
ACCREDITED INVESTOR APPROVED BY YELLOW CORPORATION OR (iv) THROUGH A DEALER TO A
QUALIFIED INSTITUTIONAL BUYER (OTHER THAN A TRANSACTION DESCRIBED IN CLAUSE
(ii)) WHICH MEETS THE REQUIREMENTS OF RULE 144A OR (v) DIRECTLY (i.e., NOT TO OR
THROUGH OR WITH THE APPROVAL OF YELLOW CORPORATION OR MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED) TO A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
THAT MEETS THE REQUIREMENTS OF REGULATIONS UNDER THE 1933 ACT; PROVIDED THAT THE
AGREEMENT OF THE PURCHASER IS SUBJECT TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF THE PURCHASER'S PROPERTY SHALL AT ALL TIMES BE AND REMAIN WITHIN
ITS CONTROL. ANY TRANSFER DESCRIBED IN CLAUSES (iii), (iv) AND (v) REQUIRES THE
SUBMISSION TO THE ISSUING AND PAYING AGENT (AS DEFINED HEREIN) OF THE TRANSFER
FORM ON THE NOTE DULY COMPLETED OR A DULY COMPLETED TRANSFER INSTRUMENT
SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT A. ANY RESALE OF OTHER
TRANSFER OR ATTEMPTED RESALE OR OTHER TRANSFER OF ANY NOTE WHICH IS NOT MADE IN
COMPLIANCE WITH SUCH RESTRICTIONS WILL NOT BE RECOGNIZED BY YELLOW CORPORATION.
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YELLOW CORPORATION
Original
Interest Rate Issue Date Maturity Date Principal Sum
- ------------- ---------- ------------- -------------
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Interest Payment Dates:
Record Dates:
Redemption Provisions:
Additional Terms;
Yellow Corporation, a Delaware corporation (the 'Company'), for value
received, hereby promises to pay to _________________________________________,
or registered assigns, the Principal Sum stated above on the Maturity Date
stated above and to pay interest (computed on the basis of a 360-day year of
twelve 30-day months) on the unpaid principal amount hereof, from the original
issue date of this Note until the Principal Sum hereof has been paid in full, at
the Interest Rate stated above, in consecutive semiannual payments on the 15th
day of April and October in each year (unless other interest payment dates are
specified above), and at maturity, commencing with the interest payment date
next succeeding the date hereof. Notwithstanding the foregoing, if the original
issue date of this Note is between a record date and the related interest
payment date, the first payment of interest on this Note will be due and payable
on the second interest payment date following the original issue date of this
Note. Unless other record dates are specified above, interest payable on any
interest payment date other than at maturity shall be payable to the person in
whose name this Note is registered at the close of business on the last day of
the month next preceding the month in which such interest payment is due (a
"record date"). Interest payable at maturity shall be payable to the person to
whom the principal of this Note shall be payable.
Payments of principal and interest shall be made in such coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts. Payments of interest other than
interest payable at maturity will be made by draft mailed to the register holder
hereof at the address shown in the register maintained
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by the Company at the office of Citibank N.A. (the "Issuing and Paying Agent")
for such purpose or, at the option of the registered holder hereof, to such
other place in the United States of America as the registered holder hereof
shall be designated to the Company in writing.
The principal amount hereof and interest due at maturity will be paid upon
maturity in immediately available funds against presentation of this Note at the
office of the Issuing and Paying Agent in New York, New York (as of the date of
this Note, such office being located at 111 Wall Street, New York, New York),
or at such other office or agency of the Company as the Company shall designate
by written notice to the registered holder of this Note. The Company may treat
the person in whose name this Note is registered as the owner of such Note for
the purpose of receiving payments of principal and interest on this Note and for
all other purposes whatsoever. The Company shall not be obligated to register
and transfer of this Note made without compliance with the restrictions on
transfer set forth above.
This Note has been issued by the Company pursuant to the Issuing and
Paying Agency Agreement dated as of April 22, 1993 between the Issuing and
Paying Agent and the Company (the "Issuing and Paying Agency Agreement").
Unless otherwise specified above, this Note is not redeemable or subject
to voluntary prepayment.
Liens. The Company will not, and will not permit any of its subsidiaries
to, pledge or otherwise subject to any lien any of its property or assets unless
this Note and all other outstanding Notes issued under the Issuing and Paying
Agency Agreement are secured by such pledge or lien equally and ratably with all
other obligations and indebtedness secured thereby so long as such other
obligations and indebtedness shall be so secured. The agreement of the Company
contained in this paragraph does not apply to:
(i) liens existing on April 26, 1993;
(ii) the pledge of any assets to secure any financing by the Company
of the exporting of goods to or between, or the marketing thereof in,
foreign countries, in connection with which the Company reserves the
right, in accordance with customary and established banking practice, to
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deposit, or otherwise subject to a lien, cash, securities or receivables,
for the purpose of securing banking accommodations or as the basis for the
issuance of bankers' acceptances or in aid of other similar borrowing
arrangements;
(iii) the pledge of receivables payable in foreign currencies to
secure borrowings in foreign countries;
(iv) any deposit of assets of the Company or any subsidiary thereof
with any surety company or clerk of any court, or in escrow, as collateral
in connection with, or in lieu of, any bond on appeal by the Company or
any subsidiary thereof from any judgment or decree against it, or in
connection with other proceedings in actions at law or in equity by or
against the Company or any subsidiary thereof or to exercise any privilege
or license, performance of bids, contracts or leases, or to secure other
public or statutory obligations of the Company or any subsidiary thereof
or other similar deposits or pledges made in the ordinary course of
business;
(v) any lien or charge on any property, tangible or intangible, real
or personal, existing at the time of acquisition thereof (whether through
purchase or through merger or consolidation) or given to secure the
payment of all or any part of the purchase price thereof or to secure any
indebtedness incurred prior to, at the time of, or within sixty (60) days
after, the acquisition thereof for the purpose of financing all or any
part of the purchase price thereof, provided that such liens do not extend
to any other property of the Company or any subsidiary thereof;
(vi) liens on real property owned as of the date hereof, provided
that the indebtedness which such liens secure does not exceed the fair
market value of such real property;
(vii) liens on personal property granted to secure indebtedness
incurred in the ordinary course of business not exceeding $50,000,000 in
the aggregate;
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(viii) mechanics', workmen's, repairmen's, materialmen's or
carriers, liens; or other similar liens arising in the ordinary course of
business; or deposits or pledges to obtain the release of any such liens;
(ix) liens arising out of judgments or awards against the Company or
any subsidiary thereof with respect to which the Company or any subsidiary
thereof shall in good faith be prosecuting an appeal or proceedings for
review; or liens incurred by the Company or any subsidiary thereof for the
purpose of obtaining a stay or discharge in the course of any legal
proceeding to which the Company or any subsidiary thereof is a party;
(x) liens for taxes not yet subject to penalties for nonpayment or
contested, or minor survey exceptions, or minor encumbrances, assessments
or reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar purposes,
or zoning or other restrictions as to the use of real properties, which
encumbrances, easements, reservations, rights and restrictions do not in
the aggregate materially detract from the value of said properties or
materially impair their use in the operation of the business of the
Company or any subsidiary thereof owning the same; and
(xi) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any lien,
charge or pledge referred to in the foregoing clauses (i) to (vi)
inclusive of this paragraph, provided, however, that the amount of any and
all obligations and indebtedness secured thereby shall not exceed the
amount thereof so secured immediately prior to the time of such extension,
renewal or replacement and that such extension, renewal or replacement
shall be limited to all or a part of the property which secured the charge
or lien so extended, renewed or replaced (plus improvements on such
property).
Events of Default. The registered holder of this Note may, by notice in
writing to the Company, declare the
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principal of such Note to be, and the same shall thereupon become, forthwith due
and payable, together with interest accrued thereon, upon the occurrence and
continuation of one or more of the following events of default:
(i) default in the payment of any interest on this Note when due or
in the payment of any interest on or principal of any other note issued by
the Issuing and Paying Agent on behalf of the Company pursuant to the
Issuing and Paying Agency Agreement when due, which default continues for
at least thirty (30) calendar days;
(ii) a judgment, decree or order by a court having jurisdiction
shall have been entered adjudicating the Company or any subsidiary thereof
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization of the Company or any subsidiary thereof under the
Bankruptcy Code or any other similar applicable Federal or state law, and
such judgment, decree or order shall have continued undischarged and
unstayed for a period of sixty (60) calendar days; or a judgment, decree
or order of a court having jurisdiction for the appointment of a receiver
or liquidator or trustee or assignee in bankruptcy or insolvency of the
Company or any subsidiary thereof or the property of any thereof, or for
the winding up or liquidation of the affairs of any thereof, shall have
been entered, and such judgment, decree or order shall have continued
undischarged and unstayed for a period of sixty (60) calendar days; or
(iii) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization under the Bankruptcy Code or any other similar
applicable Federal or State law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of it or its
property, or shall make an assignment for the benefit of creditors, or
shall admit in writing
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its inability to pay its debt generally as they become due; or
(iv) the Company shall fail to perform or observe any other term,
covenant or agreement contained in this Note to be performed or observed
by it, and any such failure shall continue and remain unremedied for at
least thirty (30) calendar days after notice has been given in writing to
the Company by the holder thereof; or
(v) the Company or any subsidiary thereof shall default in the
payment when due (subject to any applicable grace period), whether at
stated maturity or otherwise, of any principal of or interest on
(howsoever designated) any indebtedness for borrowed money of, or
guaranteed by, the Company or any subsidiary thereof (except any such
indebtedness of any subsidiary of the Company to the Company or to any
other such subsidiary thereof) in the aggregate principal amount of at
least $500,000, whether such indebtedness now exists or shall hereafter be
created.
Defeasance. If, at or prior to the maturity of this Note, the
Company shall deposit with the Issuing and Paying Agent, in trust for the
benefit of the holder hereof, either
(a) cash sufficient to pay the principal of and interest, if any, on
this Note as and when the same become due and payable, or
(b) such amount of U.S. Government Securities as defined in the
Issuing and Paying Agency Agreement) as will together with the income to
accrue thereon without consideration of any reinvestment thereof be
sufficient to pay the principal of and interest, if any, on this Note as
and when the same become due and payable,
then in such case, the Company shall be deemed to have satisfied and discharged
this Note.
Notices. All notices to the Company under this Note shall be in
writing and addressed to the Company at 10777 Barkley Avenue, Overland Park,
Kansas 66211-1162, Attention: Vice President and Treasurer or to such other
address of the
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Company as the Company may notify to the registered holder of this Note.
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This Note shall be governed by the laws of the State of New York.
YELLOW CORPORATION
By______________________
[Name]
[Title]
Countersigned for authentication
only on ____________, 199_:
CITIBANK, N.A.
as ISSUING AND PAYING AGENT
By._________________________________
This Note is not valid for any purpose unless manually countersigned
by Citibank, N.A., as Issuing and Paying Agent.