EXHIBIT 4.3
(Face of Note)
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 2.06
OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE COMPANY.
CUSIP #__________________
13% Senior Notes due 2007
No. $
This Note is issued with original issue discount for purposes of Section
1271 et seq. of the Internal Revenue Code. For each $1,000 of principal amount
of this Security, the issue price is $949.35 and the amount of original issue
discount is $50.65. The issue date of this Security is December 1, 1999 and the
yield to maturity is 14.074%.
EQUINIX, INC.
promises to pay to Cede & Co., or registered assigns, the principal sum of
______________ Dollars on December 1, 2007.
Interest Payment Dates: December 1 and June 1.
Record Dates: November 15 and May 15.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
EQUINIX, INC.
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
Trustee's Certificate of Authentication
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This is one of the Notes referred to in the within-mentioned Indenture:
Dated:
STATE STREET BANK AND TRUST COMPANY
OF CALIFORNIA, N.A., as Trustee
By: ___________________________________
Authorized Signatory
(Back of Note)
13% Senior Notes due 2007
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Equinix, Inc., a Delaware corporation (the "Company"),
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promises to pay interest on the principal amount of this Note at 13% per annum
from December 1, 1999 until maturity and shall pay the Liquidated Damages
payable in accordance with the provisions of the following paragraph. The
Company shall pay interest and Liquidated Damages semi-annually on December 1
and June 1 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 issuance; provided that if there
is no existing Default or Event of Default relating to 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 June 1, 2000. 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 1.0% 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 Liquidated Damages
(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.
The Holder of this Note is entitled to the benefits of the
Registration Rights Agreement. If (a) the Company fails to file any of the
Registration Statements required by the Registration Rights Agreement on or
before the date specified for such filing, (b) any of such Registration
Statements is not declared effective by the Commission on or prior to the date
specified for such effectiveness, (c) the Company fails to consummate the
Registered Exchange Offer within 210 days of the Issue Date with respect to the
Exchange Offer Registration Statement, or (d) any Registration Statement
required by the Registration Rights Agreement is declared effective but
thereafter ceases to be effective or usable in connection with its intended
purpose (each such event referred to in clauses (a) through (d) above a
"Registration Default"), then the Company shall pay to each holder of Transfer
Restricted Notes (as defined in the Registration Rights Agreement) affected
thereby liquidated damages ("Liquidated Damages") which shall accrue and be
payable semi-annually on the Notes and the Exchange Notes (in addition to the
stated interest on the Notes and the Exchange Notes) from and including the date
such Registration Default occurs to, but excluding the date on which the
applicable Registration Statement is filed or is declared effective, the
Registered Exchange Offer is consummated, or the applicable Registration
Statement is again declared effective or made usable. During the time that
Liquidated Damages is accruing continuously, the rate of such Liquidated Damages
shall be 0.50% per annum during the first 90-day period and shall increase by
0.25% per annum for each subsequent 90-day period, but in no event shall such
rate exceed 1.50% per annum in the aggregate regardless of the number of
Registration Defaults. If, after the cure of all Registration
Defaults then in effect, there is a subsequent Registration Default, the rate of
Liquidated Damages for such subsequent Registration Default shall initially be
0.50%, regardless of the Liquidated Damages rate in effect with respect to any
prior Registration Default at the time of the cure of such Registration Default.
2. METHOD OF PAYMENT. The Company shall pay interest on the Notes
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(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders at the close of business on May 15 or November 15 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 2.12 of the Indenture with respect to defaulted interest. The Notes
shall be payable as to principal, premium and Liquidated Damages, if any, and
interest at the office or agency of the Company maintained for such purpose
within or outside of the City and State of New York, or, at the option of the
Company, payment of interest and Liquidated Damages may be made by check mailed
to the Holders at their addresses set forth in the register of Holders kept by
the Registrar, and provided that payment by wire transfer of immediately
available funds shall be required with respect to principal of and interest,
premium and Liquidated Damages 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, State Street Bank and Trust
--------------------------
Company of California, N.A., the Trustee under the Indenture, shall 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 Restricted Subsidiaries
may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
---------
as of December 1, 1999 ("Indenture") between the Company 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 (15
U.S. Code Sections 77aaa-77bbbb) (the "TIA"). The Notes are subject to all such
terms, and Holders are referred to the Indenture and the TIA 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 Notes are obligations of the Company limited to $200 million in
aggregate principal amount.
5. OPTIONAL REDEMPTION.
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(a) The Notes shall not be redeemable at the Company's option prior to
December 1, 2003. Thereafter, the Notes shall be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below, plus accrued and unpaid
interest thereon to the applicable redemption date (subject to the right of
Holders as of the relevant Record Date to receive interest due on the relevant
Interest Payment Date), if redeemed during the twelve-month period beginning on
December 1 of the years indicated below:
Year Percentage
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2003...................................... 106.500%
2004...................................... 103.250%
2005 and thereafter....................... 100.000%
(b) Any redemption pursuant to this Section 5 shall be made pursuant
to the provisions of Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. The Company shall not be required to make
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mandatory redemption or sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
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(a) Upon the occurrence of a Change of Control, each Holder shall have
the right to require the Company to purchase all or any part (equal to $1,000 or
an integral multiple thereof) of such Holder's Notes pursuant to the offer
described below (the "Change of Control Offer") at a purchase price in cash
equal to 101% of the aggregate principal amount thereof (the "Change of Control
Payment"), plus accrued and unpaid interest (and Liquidated Damages, if any)
thereon to the date of purchase (subject to the right of Holders as of a Record
Date to receive interest due on the relevant Interest Payment Date); provided,
that, the Company shall not be obligated to repurchase Notes pursuant to a
Change of Control Offer in the event that it has exercised its rights to redeem
all of the Notes pursuant to the Indenture. 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 purchase Notes on the date specified in such notice, which date shall be no
earlier than 30 and no later than 60 days from the date such notice is mailed
(the "Change of Control Payment Date"), in accordance with the procedures
required by the Indenture and described in such notice.
(b) The Company shall comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations to the extent
such laws and regulations are applicable in connection with the purchase of
Notes as a result of a Change of Control. To the extent that the provisions of
any securities laws or regulations conflict with any of the provisions of this
covenant, the Company shall comply with the applicable securities laws and
regulations and will be deemed not to have breached its obligations under this
covenant by virtue thereof.
(c) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment plus accrued and unpaid
interest thereon and Liquidated Damages, if any, in respect of all Notes or
portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail or deliver to each Holder so
tendered the Change of Control Payment plus accrued and unpaid interest thereon
and Liquidated Damages, if any, for such Notes, and the Trustee
shall promptly authenticate and mail or deliver (or cause to be transferred by
book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of Notes surrendered, if any; provided that each such new
Note will be in a principal amount of $1,000 or an integral multiple thereof.
The Company shall publicly announce the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Payment Date.
(d) The Company shall not, and shall not permit any of the Restricted
Subsidiaries to, directly or indirectly, consummate any Asset Sale, unless (i)
the Company (or such Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (as determined in good faith by the Board of Directors (including as to
the value of all noncash consideration) and set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Equity Interests issued
or sold or otherwise disposed of and (ii) at least 75% of the consideration
therefor is in the form of cash and/or Cash Equivalents or Qualified
Consideration, and (iii) the Net Cash Proceeds received by the Company (or such
Restricted Subsidiary, as the case may be) from such Asset Sale are applied
within 360 days following the receipt of such Net Cash Proceeds, to the extent
the Company (or such Restricted Subsidiary, as the case may be) elects, (a) to
the redemption or repurchase of outstanding Indebtedness (I) that is either (A)
secured Indebtedness or (B) Indebtedness of the Company that ranks equally with
the Notes but has a maturity date that is prior to the maturity date of the
Notes, in either case other than Subordinated Indebtedness or (II) that is
Indebtedness of a Restricted Subsidiary and/or (b) to reinvest such Net Cash
Proceeds (or any portion thereof) in properties or assets (including Equity
Interests of a person that will become a Restricted Subsidiary as a result of
such investment) that will be used in a Permitted Business. The balance of such
Net Cash Proceeds, after the application of such Net Cash Proceeds as described
in the immediately preceding clauses (a) and (b), shall constitute "Excess
Proceeds."
(e) When the aggregate amount of Excess Proceeds equals or exceeds $10
million (taking into account income earned on such Excess Proceeds), the Company
shall be required to make a pro rata offer to all Holders and pari passu
Indebtedness with comparable provisions requiring such Indebtedness to be
purchased with the proceeds of such Asset Sale (an "Asset Sale Offer") to
purchase the maximum principal amount or accreted value in the case of
Indebtedness issued with an original issue discount of Notes and pari passu
Indebtedness that may be purchased out of the Excess Proceeds, at a purchase
price in cash in an amount equal to 100% of the principal amount thereof or the
accreted value thereof, as applicable, plus accrued and unpaid interest thereon
to the date of purchase (subject to the right of Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment
Date), in accordance with the procedures set forth in Article 3 of the Indenture
and the agreements governing such pari passu Indebtedness. To the extent that
any Excess Proceeds remain after consummation of an Asset Sale Offer, the
Company may use such Excess Proceeds for any purpose not otherwise prohibited by
the Indenture. If the aggregate principal amount of Notes and pari passu
Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof
exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and
pari passu Indebtedness to be purchased on a pro rata basis in proportion to the
respective principal amounts (or accreted values in the case of Indebtedness
issued with an original issue discount) of the Notes and such other
Indebtedness. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero for purposes of the first sentence of this
paragraph.
8. NOTICE OF REDEMPTION. Notice of redemption shall be mailed at
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least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest shall cease to accrue on
Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
---------------------------------
form without coupons in denominations of $1,000 and integral multiples of
$1,000. 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 need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a Record
Date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note on the
---------------------
Registrar's books may be treated as its owner for all purposes under the
Indenture.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
--------------------------------
the Indenture and the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Note may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes. Without
the consent of any Holder of a Note, the Indenture or the Notes may be amended
or supplemented among other things, 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 Company's obligations
to Holders of the Notes in case of a merger or consolidation or sale of all or
substantially all of the Company's assets in accordance with the terms of the
Indenture, 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, or to comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the TIA.
12. DEFAULTS AND REMEDIES.
---------------------
(a) Events of Default under the Indenture include: (i) the failure to
pay interest on, including Liquidated Damages, if any, with respect to, the
Notes, when the same becomes due and payable if such default continues for a
period of 30 days, (ii) the failure to pay principal of any Notes when such
principal becomes due and payable, at maturity, upon redemption or otherwise;
(iii) failure by the Company or any Restricted Subsidiary to comply with
Sections 4.10 or 4.14 of the Indenture; (iv) failure by the Company or any
Restricted Subsidiary for 60 days after notice to comply with any of its other
agreements in the Indenture, the Escrow Agreement or this Note; (v) default
under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness by the Company or any of the Restricted Subsidiaries (or the
payment of which is Guaranteed by the Company or any of the Restricted
Subsidiaries) whether such Indebtedness or Guarantee now exists, or is created
after the Issue Date, and either such Indebtedness is already due and payable or
such default results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the amount of any such Indebtedness,
together with the amount of any other such Indebtedness or the maturity of which
has been so accelerated, aggregates $10.0 million or more; (vi) failure by the
Company or any of the Restricted Subsidiaries to pay final judgments not subject
to appeal aggregating in excess of $10.0 million; (vii) one or more judgments,
orders or decrees for the payment of money in excess of $10.0 million,
individually or in the aggregate (net of applicable insurance coverage which is
acknowledged in writing by the insurer), shall be entered against the Company or
any Restricted Subsidiary or any of their respective properties and shall not be
discharged and there shall have been a period of 60 days or more during which a
stay of enforcement of such judgment or order, by reason of pending appeal or
otherwise, shall not be in effect; (viii) the Company shall assert or
acknowledge in writing that the Escrow Agreement is invalid or unenforceable; or
(ix) certain events of bankruptcy or insolvency with respect to the Company or
any of its Significant Subsidiaries.
(b) If any 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 principal of, premium (if any) on and interest on the Notes to
be due and payable immediately. Notwithstanding the foregoing, in the case of
an Event of Default arising from certain events of bankruptcy or insolvency with
respect to the Company or a Significant Subsidiary, all outstanding Notes will
become due and payable without further action or notice.
(c) Holders may not directly 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.
(d) The Holders of a majority in aggregate principal amount of the
then outstanding Notes by notice to the Trustee may on behalf of all the Holders
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
principal of, premium, if any, or interest on the Notes.
(e) The Company shall be required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company shall be
required upon becoming aware of any Default or Event of Default to deliver to
the Trustee a statement specifying such Default or Event of Default. The
Trustee may withhold from Holders notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal of, premium, if any, or interest on, the Notes) if it determines that
withholding notice is in their interest.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
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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, as such, will have any liability for
any obligations of the Company with respect to the Notes or the Indenture, or
for any claim based on, or in respect or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note will waive and release any
and all such liability. Such waiver and release are part of the consideration
for issuance of the Notes. Such waiver may not be effective to waive
liabilities under federal securities laws and it is the view of the Commission
that such a waiver is against public policy.
15. AUTHENTICATION. This Note shall not be valid until authenticated
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by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
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of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entirety), 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 RESTRICTED GLOBAL NOTES AND
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RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders
- ---------------------------
under the Indenture, Holders shall have all the rights set forth in the
Registration Rights Agreement.
18. 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:
Equinix, Inc.
901 Marshall Street
Redwood City, CA 94063
Attention: Chief Financial Officer
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's 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)
Tax Identification No.:_______________________________
SIGNATURE GUARANTEE:
______________________________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar,
which requirements include membership or participation
in the Security Transfer Agent 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.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.14 of the Indenture, check the box below:
Section 4.10 Section 4.14
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10 or Section 4.14 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:
______________________________________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar,
which requirements include membership or participation
in the Security Transfer Agent 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.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been made:
Principal Amount of
Amount of decrease Amount of increase this Global Note
in Principal Amount in Principal Amount following such
Date of Exchange of this Global Note of this Global Note decrease (or increase)
- ---------------- ------------------- ------------------- ----------------------