CUSIP NUMBER: 832110 AJ 9 ISIN NUMBER : US832110AJ93 $275,000,000
Exhibit 4.1
CUSIP NUMBER: 832110 AJ 9
ISIN NUMBER : US832110AJ93
$275,000,000
ISIN NUMBER : US832110AJ93
$275,000,000
[THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), SHALL ACT AS THE DEPOSITARY WITH
RESPECT TO THE NOTES UNTIL A SUCCESSOR SHALL BE APPOINTED BY THE COMPANY. UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF 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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT 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 THEREIN.]*
XXXXX INTERNATIONAL, INC.
6% SENIOR NOTE DUE 2016
XXXXX INTERNATIONAL, INC., a Delaware corporation (the “Company”, which term includes any
successor corporation under the Indenture referred to on the reverse hereof), for value received,
hereby promises to pay to [Cede & Co.], or registered assigns, at the office or agency of the
Company in New York, New York, the principal sum of Two Hundred Seventy-Five Million Dollars on
December 15, 2016, in the coin or currency of the United States, and to pay interest, semi-annually
on June 15 and December 15 of each year, commencing December 15, 2006, on said principal sum at
said office or agency, in like coin or currency, at the rate per annum specified in the title of
this Note, from the June 15 or the December 15, as the case may be, next preceding the date of this
Note to which interest has been paid or duly provided for, unless the date hereof is a date to
which interest has been paid or duly provided for, in which case from the date of this Note, or
unless no interest has been paid or duly provided for on this Note, in which case from June 15,
2006, until payment of said principal sum has been made or duly provided for, and to pay interest
(including post-petition interest in any proceeding under any applicable bankruptcy laws) on
overdue installments of interest (without regard to any applicable grace period) and on overdue
principal and premium, if any, from time to time on demand at the rate per annum specified in the
title of this Note, in each case to the extent lawful; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register unless this Note is a Global
Security, in which case all payments hereon shall be made by wire transfer. Notwithstanding the
foregoing, if the date hereof is after June 1 or December 1, as the case may be, and before the
following June 15 or December 15, this Note shall bear interest from such June 15 or December 15;
provided, however, that if the Company shall default in the payment of interest due on such June 15
or December 15, then this Note shall bear interest from the next preceding June 15 or December 15,
to which interest has been paid or duly provided for or, if no interest has been paid or duly
provided for on this Note, from June 15, 2006. The interest so payable on any June 15 or December
15 will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof,
be paid to the person in whose name this Note is registered at the close of business on June 1 or
December 1, as the case may be, next preceding such June 15 or December 15, whether or not such day
is a Business Day.
Reference is made to the further provisions of this Note set forth on the reverse hereof. Such
further provisions shall for all purposes have the same effect as though fully set forth at this
place.
| * | Include only if this Note is issued in global form. |
This Note shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee under the Indenture.
IN WITNESS WHEREOF, Xxxxx International, Inc. has caused this instrument to be signed manually
or by facsimile by its duly authorized officer and has caused its corporate seal to be affixed
hereunto or imprinted hereon.
Dated:
| (SEAL) | XXXXX INTERNATIONAL, INC. |
|||
| By: | ||||
| Name: | ||||
| Title: | ||||
Attest:
_______________________________
Name:
Title:
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated pursuant to the within-mentioned
Indenture.
| THE BANK OF NEW YORK, as Trustee |
||||
| By: | ||||
| Authorized Signatory | ||||
Date of Authentication:
REVERSE OF NOTE
XXXXX INTERNATIONAL, INC.
6% SENIOR NOTE DUE 2016
This Note is one of a duly authorized issue of debentures, notes, bonds or other evidences of
indebtedness of the Company (hereinafter called the “Securities”) of the series hereinafter
specified, all issued or to be issued under and pursuant to an indenture dated as of September 8,
1997 (herein called the “Indenture”), duly executed and delivered by the Company and The Bank of
New York, as Trustee (herein called the “Trustee”), to which Indenture, all indentures supplemental
thereto and all resolutions of the Board of Directors establishing the form or terms of any series
of Securities, reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the
Securities. The Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times, may bear interest (if
any) at different rates, may be subject to different redemption provisions (if any), may be subject
to different sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Note is one of a series designated as the 6% Senior Notes due 2016 (herein
called “the Notes”) of the Company, limited initially in aggregate principal amount to
$275,000,000, with the Company having the option to issue additional Notes in an unlimited
aggregate principal amount from time to time after the original issuance of the Notes.
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, to the extent lawful, on overdue installments of
interest at the rate per annum borne by this Note. If a payment date is not a Business Day as
defined in the Indenture 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.
In case an Event of Default with respect to Notes, as defined in the Indenture, shall have
occurred and be continuing, the principal hereof and the interest accrued hereon, if any, may be
declared, and upon such declaration shall become, due and payable, in the manner, with the effect
and subject to the conditions provided in the Indenture.
The Indenture contains provisions which provide that the Company and the Trustee may enter
into one or more supplemental indentures amending the Indenture and the Securities of any series
with the consent of the Holders of at least a majority in principal amount of the Outstanding
Securities of each series affected by such supplemental indenture, and the Holders of at least a
majority in principal amount of the Outstanding Securities of any series may waive (a) any past
default under the Indenture with respect to such series and its consequences and (b) either past or
future compliance by the Company with any provision of Sections 10.4 to 10.8 of the Indenture;
provided that, without the consent of each Holder of the Securities of each series affected
thereby, an amendment or waiver, including a waiver of past defaults, may not: (i) change the due
date of the principal of, or any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or any premium
payable upon redemption thereof, or reduce the amount of the principal of any Security
that would be due and payable upon a declaration of the maturity thereof pursuant to the Indenture,
or change the place of payment where, or the coin or Currency in which, any Security or any premium
or the interest thereon is denominated or payable (or, in the case of certain Securities which
provide for less than the entire principal amount thereof to be due and payable upon a declaration
of acceleration of the maturity thereof pursuant to the Indenture, reduce the amount of principal
payable upon such a declaration of acceleration of the maturity thereof), or impair the right to
institute suit for the enforcement of any such payment on or after the due date thereof (or, in the
case of redemption, on or after the date of redemption), (ii) reduce the percentage of the
principal amount of the Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with the aforesaid provisions of the Indenture or defaults thereunder and
their consequences) provided for in the Indenture or (iii) modify any of the provisions of Section
5.13, Section 9.2 or Section 10.10 of the Indenture, except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain conditions, the Holders of at
least a majority in principal amount of the Outstanding Securities of any series may waive an
existing default with respect to the Securities of such series and its consequences, except a
default in the payment of principal of (or premium, if any) or interest on any Security of such
series or in respect of a covenant or provision of the Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of the Indenture; but no such waiver shall
extend to any subsequent or other default or impair any right consequent thereto.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Note in the manner, at the place, at the
respective times, at the rate and in the coin or Currency herein prescribed.
The Notes are issuable initially in fully registered form, without coupons, in denominations
of $1,000 and any whole multiple thereof at the office or agency of the Company in New York, New
York, and in the manner and subject to the limitations provided in the Indenture, but, without the
payment of any service charge, Notes may be exchanged for a like aggregate principal amount of
Notes of other authorized denominations.
The Notes shall be redeemable, in whole or in part at any time, at the option of the Company
on any date (a “Redemption Date”), at a redemption price equal to accrued interest thereon to the
date of redemption plus the greater of (i) 100% of the principal amount of such notes or (ii) the
sum of the present values of the remaining scheduled payments of principal and interest thereon
(exclusive of interest accrued to the Redemption Date) discounted to the Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate
plus 16 basis points.
“Comparable Treasury Issue” means the United States Treasury security or securities selected
by an Independent Investment Banker as having an actual or interpolated maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of
a comparable maturity to the remaining term of such Notes.
“Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the
Trustee after consultation with the Company.
“Comparable Treasury Price” means, with respect to any Redemption Date, (A) the average of the
Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations.
“Reference Treasury Dealer Quotations"' means, with respect to each Reference Treasury Dealer
and any Redemption Date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m. New York time on
the third business day preceding such Redemption Date.
“Reference Treasury Dealer” means each of Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated,
Calyon Securities (USA) Inc., Greenwich Capital Markets, Inc., X.X. Xxxxxx Securities Inc. and
LaSalle Financial Services, Inc. or their affiliates which are primary U.S. Government securities
dealers, and their respective successors; provided, however, that if any of the foregoing or their
affiliates shall cease to be a primary U.S. Government securities dealer in The City of New York (a
“Primary Treasury Dealer’’), the Company shall substitute therefor another Primary Treasury
Dealer.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the
semiannual equivalent yield to maturity or interpolated yield (on a day count basis) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption
Date.
Upon due presentment for registration of transfer of this Note at the office or agency of the
Company in New York, New York, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange therefor, subject to the
limitations provided in the Indenture, without charge except for any tax or other governmental
charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may deem and treat the
registered Holder hereof as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of
receiving payment of, or on account of, the principal hereof and, subject to the provisions hereof,
interest hereon, and for all other purposes, and neither the Company nor the
Trustee nor any agent
of the Company or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Company in the
Indenture, any indenture supplemental thereto or in any Note, or because of any indebtedness
evidenced thereby, shall be had against any incorporator, stockholder, officer or director, as
such, past, present, or future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof.
This Note shall be governed by and construed in accordance with the internal laws of the State
of New York without regard to conflicts of laws principles thereof.
Terms used herein which are defined in the Indenture shall have the respective meanings
assigned thereto in the Indenture.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the Note and all rights thereunder, hereby irrevocably constituting and appointing such person
attorney to transfer such Note on the books of the Company, with full power of substitution in the
premises.
| Dated: | ||||
| Signature: | ||||
| NOTICE: | The signature to this assignment must correspond with the name as written upon the face of the within Note in every particular without alteration or enlargement or any change whatsoever. |
Signature Guarantee: ___________________________________________________________________
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.
