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Premium Standard Farms Inc/New, et al. – ‘S-4’ on 6/29/01 – EX-4.1.B

On:  Friday, 6/29/01, at 3:15pm ET   ·   Accession #:  950123-1-504009   ·   File #s:  333-64180, -01, -02, -03, -04

Previous ‘S-4’:  None   ·   Next & Latest:  ‘S-4/A’ on 8/10/01

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 6/29/01  Premium Standard Farms Inc/New    S-4                   49:2.3M                                   RR Donnelley/FA
          Lundy International Inc
          Premium Standard Farms of North Carolina Inc
          Lundy Packing Co/MO
          PSF Group Holdings Inc

Registration of Securities Issued in a Business-Combination Transaction   —   Form S-4
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-4         Registration of Securities Issued in a               170    804K 
                          Business-Combination Transaction                       
 2: EX-1.1      Placement Agreement                                   26     97K 
 3: EX-2.1      Articles of Merger                                     6     33K 
 4: EX-3.1.A    Certificate of Incorporation                          17     70K 
 5: EX-3.1.B    Certificate of Amendment                               2     17K 
14: EX-3.10     Restated By-Laws                                      20     80K 
 6: EX-3.2.A    Certificate of Incorporation                           2     19K 
 7: EX-3.2.B    Certificate of Correction                              1     16K 
 8: EX-3.4      Articles of Incorporation                              3     20K 
 9: EX-3.5      Certificate of Incorporation                           3     19K 
10: EX-3.6      Amended and Restated By-Laws                          22     88K 
11: EX-3.7      Amended and Restated By-Laws                          20     84K 
12: EX-3.8      Restated By-Laws                                      23     94K 
13: EX-3.9      Restated By-Laws                                      23     94K 
15: EX-4.1.A    Indenture                                            106    411K 
16: EX-4.1.B    Specimen Certificate                                  12     47K 
17: EX-4.2      Registration Rights Agreement                         21     82K 
18: EX-4.3.A    Credit Agreement                                      73    278K 
19: EX-4.3.B    First Amendment to Credit Agreement                   15     59K 
20: EX-4.3.C    Second Amendment to Credit Agreement                   8     41K 
21: EX-4.3.D    Third Amendment to Credit Agreement                    5     28K 
22: EX-4.3.E    Fourth Amendment to Credit Agreement                  27    102K 
23: EX-4.3.F    Fifth Amendment to Credit Agreement                   13     55K 
24: EX-4.3.G    Guaranty Agreement                                     7     39K 
25: EX-5.1      Opinion of Blackwell Sanders Peper Martin LLP          2     20K 
26: EX-10.1     1999 Equity Incentive Plan                            20     77K 
36: EX-10.10    Stock Purchase Agreement                              47    184K 
37: EX-10.11    Market Hog Contract Grower Agreement                   9     44K 
27: EX-10.2     Long-Term Incentive Plan                               9     32K 
28: EX-10.3     Executive Level Severance Plan                        13     54K 
29: EX-10.4     Vice President Level Severance Plan                   13     54K 
30: EX-10.5     Special Executive Retirement Plan                     16     69K 
31: EX-10.6.A   Premium Standard Farms Deferred Compensation Plan     17     71K 
32: EX-10.6.B   Amendment No.1 Psf Deferred Compensation Plan          2     17K 
33: EX-10.7     Consulting Agreememt                                   8     36K 
34: EX-10.8     Services Agreement                                    10     47K 
35: EX-10.9     Consulting Agreement                                   4     22K 
38: EX-12.1     Statement Re Computation of Ratio of Earnings          1     17K 
39: EX-21.1     Subsidiaries                                           1     14K 
40: EX-23.2     Consent of Arthur Andersen LLP                         1     14K 
41: EX-23.3     Consent of Kpmg LLP                                    1     14K 
42: EX-25.1     Form T-1                                              29     98K 
43: EX-25.2     Statement of Eligibility and Qualification on T-1     30    100K 
44: EX-99.1     Form of Letter                                         2     22K 
45: EX-99.2     Form of Letter of Transmittal                          9     42K 
46: EX-99.3     Form of Notice of Guaranteed Delivery                  4     24K 
47: EX-99.4     Form of Instructions                                   2     20K 
48: EX-99.5     Form of Letter to Clients                              2±    16K 
49: EX-99.6     Guidelines                                             4±    23K 


EX-4.1.B   —   Specimen Certificate

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EXHIBIT 4.1(b) [APPLICABLE LEGENDS] [FACE OF NOTE] PREMIUM STANDARD FARMS, INC. 9-1/4% Senior Note due 2011 [CUSIP] [CINS] [__________] No. ____ $ PREMIUM STANDARD FARMS, INC. a Delaware corporation (the "Company", which term includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to _____________, or its registered assigns, the principal sum of ____________ ($____) on June 15, 2011. Interest Payment Dates: June 15 and December 15, commencing December 15, 2001. Regular Record Dates: June 1 and December 1. PSF Group Holdings, Inc., a Delaware corporation, The Lundy Packing Company, a North Carolina corporation, Premium Standard Farms of North Carolina, Inc., a Delaware corporation, and Lundy International, Inc., a North Carolina corporation (collectively, the "Guarantors", which term includes any successors under the Indenture hereinafter referred to and any Restricted Subsidiary that provides a Note Guarantee pursuant to the Indenture), have jointly and severally, fully and unconditionally guaranteed the payment of principal of premium, if any, and interest on the Notes. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized officers. PREMIUM STANDARD FARMS, INC. By: Name: Title: By: Name: Title: (Trustee's Certificate of Authentication) This is one of the 9-1/4% Senior Notes due 2011 described in the within-mentioned Indenture. Date: [________, ____] WILMINGTON TRUST COMPANY, as Trustee By: Authorized Signer 2
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[REVERSE SIDE OF NOTE] PREMIUM STANDARD FARMS, INC. 9-1/4% Senior Note due 2011 1. Principal and Interest. The Company will pay the principal of this Note on June 15, 2011. The Company promises to pay interest on the principal amount of this Note on each Interest Payment Date, as set forth below, at the rate per annum shown above. Interest will be payable semiannually (to the holders of record of the Notes at the close of business on the June 1 or December 1 immediately preceding the Interest Payment Date) on each Interest Payment Date, commencing December 15, 2001. If neither an exchange offer (the "Exchange Offer") registered under the Securities Act is consummated nor a shelf registration statement (the "Shelf Registration Statement") under the Securities Act with respect to resales of the Notes is declared effective by the Commission, on or before December 7, 2001 in accordance with the terms of the Registration Rights Agreement dated June 4, 2001 among the Company, each of the Guarantors and Morgan Stanley & Co. Incorporated and J.P Morgan Securities, Inc., then the annual interest rate borne by the Notes shall be increased by 0.5% from the rate shown above accruing from December 7, 2001, payable in cash semiannually, in arrears, on each Interest Payment Date, commencing December 15, 2001 until the earlier of (a) the consummation of the Exchange Offer or the effectiveness of the Shelf Registration Statement and (b) the expiration of the period set forth in Rule 144(k) under the Securities Act of 1933 with respect to the Notes. The Holder of this Note is entitled to the benefits of such Registration Rights Agreement. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from June 7, 2001; provided that, if there is no existing default in the payment of interest and this Note is authenticated between a Regular Record Date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such Interest Payment Date. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Company shall pay interest on overdue principal and premium, if any, and interest on overdue installments of interest, to the extent lawful, at a rate per annum that is 2% in excess of the rate otherwise payable. 2. Method of Payment. The Company will pay interest (except defaulted interest) on the principal amount of the Notes as provided above on each June 15 and December 15, commencing December 15, 2001 to the persons who are Holders (as reflected in the Security Register at the close of business on the June 1 or December 1 immediately preceding the Interest Payment Date), in each case, even if the Note is cancelled on registration of transfer or registration of exchange after such 3
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record date; provided that, with respect to the payment of principal, the Company will make payment to the Holder that surrenders this Note to a Paying Agent on or after June 15, 2011. The Company will pay principal, premium, if any, and as provided above, interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. However, the Company may pay principal, premium, if any, and interest by its check payable in such money. It may mail an interest check to a Holder's registered address (as reflected in the Security Register). If a payment date is a date other than a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day and no interest shall accrue for the intervening period. The Notes may be exchanged or transferred at the office or agency of the Company in The Borough of Manhattan, The City of New York. Initially, Computerserve Trust Company of New York, Wall Street Plaza, 88 Pine Street, New York, New York 10005 will serve as such office. If you give the Company wire transfer instructions, the Company will pay all principal, premium and interest on your Notes in accordance with your instructions. If the Company is not given wire transfer instructions, payments of principal, premium and interest will be made at the office or agency of the paying agent which will initially be the Trustee, unless the Company elects to make interest payments by check mailed to the Holders. 3. Paying Agent and Registrar. Initially, the Trustee will act as authenticating agent, Paying Agent and Registrar. The Company may change any authenticating agent, Paying Agent or Registrar without notice. The Company, any Subsidiary or any Affiliate of any of them may act as Paying Agent, Registrar or co-Registrar. 4. Indenture; Limitations. The Company issued the Notes under an Indenture dated as of June 7, 2001 (the "Indenture"), among the Company, each of the Guarantors and Wilmington Trust Company Company, trustee (the "Trustee"). Capitalized terms herein are used as defined in the Indenture unless otherwise indicated. 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. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture shall control. The Notes are general unsecured obligations of the Company. The Company may, subject to Article Four of the Indenture and applicable law, issue additional Notes under the Indenture. 5. Optional Redemption. The Notes are redeemable, at the Company's option, in whole or in part, at any time or from time to time, on or after June 15, 2006 and prior to maturity, upon not less than 30 nor more 4
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than 60 days' prior notice mailed by first-class mail to each Holder's last address, as it appears in the Security Register, at the following Redemption Prices (expressed in percentages of principal amount), plus accrued and unpaid interest to the Redemption Date (subject to the right of Holders of record on the relevant Regular Record Date that is prior to the Redemption Date to receive interest due on an Interest Payment Date), if redeemed during the 12-month period commencing June 15 of the years set forth below: [Download Table] Redemption Year Price ---------------------------------------------------------- 2006........................................... 104.625% 2007........................................... 103.083% 2008........................................... 101.542% 2009 and thereafter............................ 100.000% In addition, at any time prior to June 15, 2004, the Company may redeem up to 35% of the aggregate principal amount of the Notes with the Net Cash Proceeds of one or more sales of Capital Stock of the Company (other than Disqualified Stock) or a capital contribution to the Company's common equity, at any time as a whole or from time to time in part, at a Redemption Price (expressed as a percentage of principal amount) of 109.250%, plus accrued and unpaid interest to the Redemption Date (subject to the rights of Holders of record on the relevant Regular Record Date that is prior to the Redemption Date to receive interest due on an Interest Payment Date); provided that (i) at least 65% of the aggregate principal amount of Notes originally issued on the Closing Date remains outstanding after each such redemption and (ii) notice of such redemption is mailed within 60 days after such sale of Capital Stock. Notes in original denominations larger than $1,000 may be redeemed in part. On and after the Redemption Date, interest ceases to accrue on Notes or portions of Notes called for redemption, unless the Company defaults in the payment of the Redemption Price. 6. Repurchase upon Change of Control. Upon the occurrence of any Change of Control, each Holder shall have the right to require the repurchase of its Notes by the Company in cash pursuant to the offer described in the Indenture at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase (the "Payment Date"). A notice of such Change of Control will be mailed within 30 days after any Change of Control occurs to each Holder at its last address as it appears in the Security Register. Notes in original denominations larger than $1,000 may be sold to the Company in part. On and after the Payment Date, interest ceases to accrue on Notes or portions of Notes surrendered for purchase by the Company, unless the Company defaults in the payment of the purchase price. 7. Denominations; Transfer; Exchange. The Notes are in registered form without coupons in denominations of $1,000 of principal amount and multiples of $1,000 in excess thereof. A Holder may register the transfer or exchange of Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any 5
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taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer or exchange of any Notes selected for redemption. Also, it need not register the transfer or exchange of any Notes for a period of 15 days before the day of mailing of a notice of redemption of Notes selected for redemption. 8. Persons Deemed Owners. A Holder shall be treated as the owner of a Note for all purposes. 9. Unclaimed Money. If money for the payment of principal, premium, if any, or interest remains unclaimed for two years, the Trustee and the Paying Agent will pay the money back to the Company at its request. After that, Holders entitled to the money must look to the Company for payment, unless an abandoned property law designates another Person, and all liability of the Trustee and such Paying Agent with respect to such money shall cease. 10. Discharge Prior to Redemption or Maturity. If the Company deposits with the Trustee money or U.S. Government Obligations sufficient to pay the then outstanding principal of, premium, if any, and accrued interest on the Notes (a) to redemption or maturity, the Company will be discharged from the Indenture and the Notes, except in certain circumstances for certain provisions thereof, and (b) to the Stated Maturity, the Company will be discharged from certain covenants set forth in the Indenture. 11. Amendment; Supplement; Waiver. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding, and any existing default or compliance with any provision may be waived with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding. Without notice to or the consent of any Holder, the parties thereto may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, defect or inconsistency and make any change that does not materially and adversely affect the rights of any Holder. 12. Restrictive Covenants. The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries, among other things, to Incur additional Indebtedness, make Restricted Payments, suffer to exist restrictions on the ability of Restricted Subsidiaries to make certain payments to the Company, issue Capital Stock of Restricted Subsidiaries, Guarantee Indebtedness of the Company, engage in transactions with Affiliates, suffer to exist or incur Liens, enter into sale-leaseback transactions, use the proceeds from Asset Sales, or merge, consolidate or transfer substantially all of its assets. Within 45 days after the end of each of the first three fiscal quarters of each year and within 90 days after the end of the last fiscal quarter of each year, the Company shall deliver to the Trustee an Officers' Certificate stating whether or not the signers thereof know of any Default or Event of Default under such restrictive covenants. 6
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13. Successor Persons. When a successor person or other entity assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor person will be released from those obligations. 14. Defaults and Remedies. Any of the following events constitutes an "Event of Default" under the Indenture: (a) default in the payment of principal of (or premium, if any, on) any Note when the same becomes due and payable at maturity, upon acceleration, redemption or otherwise; (b) default in the payment of interest on any Note when the same becomes due and payable, and such default continues for a period of 30 days; (c) default in the performance or breach of the provisions of the Indenture applicable to (A) mergers, consolidations and transfers of all or substantially all of the assets of the Company or PSF Group Holdings or (B) mergers or consolidations of any Subsidiary Guarantor or (ii) the failure by the Company to make or consummate an Offer to Purchase in accordance with Section 4.11 or Section 4.12 of the Indenture; (d) the Company, any Subsidiary Guarantor or PSF Group Holdings defaults in the performance of or breaches any other covenant or agreement of the Company in the Indenture or under the Notes (other than a default specified in clause (a), (b) or (c) above) and such default or breach continues for a period of 30 consecutive days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount of the Notes; (e) there occurs with respect to any issue or issues of Indebtedness of the Company, any Subsidiary Guarantor, PSF Group Holdings or any Significant Subsidiary having an outstanding principal amount of $7.5 million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created, (A) an event of default that has caused the holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such Indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such acceleration and/or (B) the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within 30 days of such payment default; (f) final judgments or orders (not covered by insurance) for the payment of money in excess of $7.5 million in the aggregate for all such final judgments or orders against all such Persons (treating any deductibles, self-insurance or retention as not so covered) shall be rendered against the Company, any Subsidiary Guarantor, PSF Group Holdings or any Significant Subsidiary and shall not be paid or discharged, and there shall be any period of 30 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or discharged against all such 7
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Persons to exceed $7.5 million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; (g) a court having jurisdiction in the premises enters a decree or order for (A) relief in respect of the Company, any Subsidiary Guarantor, PSF Group Holdings or any Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, (B) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company, any Subsidiary Guarantor, PSF Group Holdings or any Significant Subsidiary or for all or substantially all of the property and assets of the Company, any Subsidiary Guarantor, PSF Group Holdings or any Significant Subsidiary or (C) the winding up or liquidation of the affairs of the Company, any Subsidiary Guarantor, PSF Group Holdings or any Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; (h) the Company, any Subsidiary Guarantor, PSF Group Holdings or any Significant Subsidiary (A) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, (B) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Company, any Subsidiary Guarantor, PSF Group Holdings or any Significant Subsidiary or for all or substantially all of the property and assets of the Company, any Subsidiary Guarantor, PSF Group Holdings or any Significant Subsidiary or (C) effects any general assignment for the benefit of creditors; or (i) any Guarantor repudiates its obligations under its Note Guarantee or, except as permitted by the Indenture, any Note Guarantee is determined to be unenforceable or invalid or shall for any reason cease to be in full force and effect. If an Event of Default, as defined in the Indenture, occurs and is continuing, the Trustee may, and at the direction of the Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall, declare all the Notes to be due and payable. If a bankruptcy or insolvency default with respect to the Company or any Guarantor occurs and is continuing, the Notes automatically become due and payable. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of at least a majority in principal amount of the Notes then outstanding may direct the Trustee in its exercise of any trust or power. 15. Guarantee. The Company's obligations under the Notes are fully and unconditionally guaranteed, jointly and severally, by the Guarantors. 16. Trustee Dealings with the Company. The Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from and perform services for the Company, the Guarantors or their 8
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Affiliates and may otherwise deal with the Company, the Guarantors or their Affiliates as if it were not the Trustee. 17. No Recourse Against Others. No incorporator or any past, present or future partner, stockholder, other equityholder, officer, director, employee or controlling person, as such, of the Company or of any successor Person shall have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. 18. Authentication. This Note shall not be valid until the Trustee or authenticating agent signs the certificate of authentication on the other side of this Note. 19. 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). The Company will furnish a copy of the Indenture to any Holder upon written request and without charge. Requests may be made to Premium Standard Farms, Inc. 423 West 8th Street, Suite 200, Kansas City, Missouri 645105; Attention: Chief Financial Officer. 9
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[FORM OF TRANSFER NOTICE] FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto Insert Taxpayer Identification No. Please print or typewrite name and address including zip code of assignee the within Note and all rights thereunder, hereby irrevocably constituting and appointing attorney to transfer said Note on the books of the Company with full power of substitution in the premises. [THE FOLLOWING PROVISION TO BE INCLUDED ON ALL NOTES OTHER THAN EXCHANGE NOTES, TEMPORARY OFFSHORE GLOBAL NOTES AND UNLEGENDED PHYSICAL NOTES] In connection with any transfer of this Note occurring prior to the date which is the earlier of (i) the date the Shelf Registration Statement is declared effective or (ii) the end of the period referred to in Rule 144(k) under the Securities Act, the undersigned confirms that without utilizing any general solicitation or general advertising that: [Check One] [ ] (a) this Note is being transferred in compliance with the exemption from registration under the Securities Act of 1933 provided by Rule 144A thereunder. or [ ] (b) this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture. 10
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If none of the foregoing boxes is checked, the Trustee or other Registrar shall not be obligated to register this Note 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 2.08 of the Indenture shall have been satisfied. Date: NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever. Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee. TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED. The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it 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 of 1933 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 11
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OPTION OF HOLDER TO ELECT PURCHASE If you wish to have this Note purchased by the Company pursuant to Section 4.11 or 4.12 of the Indenture, check the Box: [ ] If you wish to have a portion of this Note purchased by the Company pursuant to Section 4.11 or 4.12 of the Indenture, state the principal amount: $___________________. Date: Your Signature: ____________________________________ (Sign exactly as your name appears on the other side of this Note) Signature Guarantee: ______________________________ Signature must be guaranteed by a participant in a recognized signature guaranty medallion program or other signature guarantor acceptable to the Trustee. 12

Dates Referenced Herein

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6/15/064
6/15/045
12/15/0113
12/7/013
Filed on:6/29/01
6/7/0134
6/4/013
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