Exhibit 4.5
[Front Side of Daily Note]
The Xxxxxxx Group, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Subordinated Daily Note - Series D2
Date of Issue ____________, 20_____ No._________________________
FOR VALUE RECEIVED, The Xxxxxxx Group, Inc. (the "Issuer") hereby
promises to pay the principal amount of ___________________________ Dollars
($_________), together with accrued interest, upon any demand by the Holder or
redemption by the Issuer as provided herein, to
Name _________________________
_________________________ Social Security or
Employer I.D. No.
Address___________________________ _______________
___________________________
(the "Holder"), or registered assigns, in the manner provided for on the reverse
side hereof.
This Subordinated Daily Note (the "Daily Note") shall bear interest on
the unpaid principal amount at the initial rate of____________________________%.
This rate may fluctuate as described on the reverse side hereof. Interest shall
accrue daily and be compounded daily.
ISSUANCE UNDER INDENTURE. This Daily Note is one of a series of a duly
authorized issue of securities of the Issuer ((each a "Security") and, together,
the "Securities") issued and to be issued in one or more series under an
Indenture, dated as of February 17, 1998 (herein called the "Indenture") between
the Issuer and The Bank of New York, as Trustee (herein called the "Trustee"
which term includes any successor Trustee under the Indenture) to which the
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations, duties and immunities
thereunder of the Issuer, the Trustee and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered.
Reference is made to the further provisions of this Daily 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.
Unless the Certificate of Authentication hereon has been executed by
the Trustee referred to herein, either directly or through an Authenticating
Agent, by the manual or facsimile signature of an authorized signer, this Daily
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
THIS SECURITY IS NOT A DEPOSIT, SAVINGS ACCOUNT OR AN OBLIGATION OF AN
INSURED DEPOSITORY INSTITUTION AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION (FDIC) OR ANY OTHER GOVERNMENTAL AGENCY.
[Front Side of Daily Note]
ATTEST: THE XXXXXXX GROUP, INC.
By: ________________________________ By: _________________________________
Xxxxx X. Xxxx, Secretary Xxxxx X. Xxxxxxx
Chairman of the Board, President
[SEAL] and Chief Executive Officer
Authentication Certificate:
This Daily Note is one of the series of Securities referred to in the
within-mentioned Indenture.
The Bank of New York, as Trustee
_________________________________
Authorized Agent
2
[Reverse Side of Subordinated Daily Note]
PAYMENT AND INTEREST ACCRUAL. Payment of the principal amount of this
Daily Note, and any accrued interest thereon, either upon demand by the Holder
or upon full or partial redemption by the Issuer, shall be made on a Business
Day in lawful money of the United States at the principal office of The Xxxxxxx
Group, Inc., 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such
other place as the Issuer may designate to the Holder in writing (a "Place of
Payment"); PROVIDED, HOWEVER, that any such payment may be made, at the option
of the Issuer, by check mailed to the registered address of the Holder. Upon
payment or tender of payment of the full principal amount and accrued interest
thereon, this Daily Note shall be surrendered to the Issuer for cancellation at
the Place of Payment. Unless otherwise agreed in writing by the Issuer, interest
hereon shall cease to accrue, and the Issuer shall have no further liability
with respect thereto, upon payment (or tender of payment in the aforesaid
manner) of the full principal amount hereof and accrued interest thereon.
INTEREST RATE AND INTEREST RATE ADJUSTMENT. The interest rate shall be
the initial rate set forth on the front of this Daily Note unless it is adjusted
by the Issuer. The Issuer may adjust the interest rate on the series of the
Securities. Any adjustment to the interest rate pursuant to the preceding
sentence will be made by the Issuer on the last Business Day of a month, shall
be effective on the first day of the second month following such adjustment and
shall remain in effect until next adjusted by the Issuer. The Issuer shall
notify the Holder promptly by first class mail of any adjustment in the interest
rate.
OPTIONAL REDEMPTION BY ISSUER. The Issuer shall have the right at its
option to redeem this Daily Note, in whole or in part, without premium, together
with accrued interest, on any Business Day; PROVIDED, HOWEVER, that upon a
partial redemption, a minimum outstanding principal amount of $50 must be
maintained. Each partial redemption payment shall be made as provided in the
Indenture on the Outstanding Securities of this series of the Securities called
for redemption.
PARTIAL REDEMPTIONS REQUIRING SURRENDER OF THIS NOTE; INTEREST RATE
REDUCTION. If this Term Note is redeemed in part and such redemption results in
a principal balance (the "New Principal Amount") that would accrue a lower
annual interest rate than would have accrued if this Term Note had been
originally issued at the New Principal Amount as one of this series of the
Securities, this Term Note shall be surrendered to the Issuer and cancelled and
a new Term Note constituting one of this series of the Securities shall be
issued to the Holder in a denomination equal to the New Principal Amount. Such
new Term Note shall be issued on the terms, including the rate of interest, then
applicable to a Term Note of this series of the Securities having a denomination
equal to the New Principal Amount.
DEMAND BY XXXXXX. The Holder shall have the right at its option to
demand full or partial payment of principal and accrued interest under this
Daily Note on any Business Day; PROVIDED, HOWEVER, that upon a demand for
partial payment, a minimum outstanding principal amount of $50 must be
maintained.
RECORDATIONS OF ADDITIONS OR PARTIAL REDEMPTIONS. Upon presentation of
this Daily Note at a Place of Payment, the Issuer, or the Issuer's agent, will,
for the Holder's convenience, record on the register that is a part hereof any
adjustments to the original principal amount of this Daily Note, such as
additional purchases or partial payments or redemptions.
ASSIGNMENT. As provided in the Indenture and subject to certain
limitations therein set forth, this Daily Note shall not be transferable to any
person except by endorsement and delivery by the Holder, or his duly authorized
representative at the Place of Payment referred to above, and upon surrender to
the Issuer with proper endorsement, a new instrument of like tenor shall be
issued in the name of the transferee. No service charge shall be made for any
such registration of transfer or exchange, but the Issuer may require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. Unless and until transferred in the manner aforesaid, the
Issuer, the Trustee and any agent of either of them may treat the Holder whose
name or names appear on the face of this instrument as the absolute owner hereof
for all purposes and neither the Issuer, the Trustee nor any Paying Agent shall
be affected by notice to the contrary. If this Security is payable to two or
more persons, they shall be deemed to be joint tenants with right of
survivorship and any and all payments herein shall be made to either, or the
survivor of them.
3
[Reverse Side of Subordinated Daily Note]
SUBORDINATION. THE INDEBTEDNESS EVIDENCED BY THIS DAILY NOTE IS, TO THE
EXTENT AND IN THE MANNER PROVIDED IN THE INDENTURE, SUBORDINATE AND SUBJECT IN
RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN FULL OF ALL SENIOR INDEBTEDNESS (AS
DEFINED IN THE INDENTURE) OF THE ISSUER, WHETHER OUTSTANDING AT THE DATE OF THE
INDENTURE OR THEREAFTER INCURRED. EACH HOLDER OF THIS DAILY NOTE, BY HIS
ACCEPTANCE HEREOF, AGREES TO AND SHALL BE BOUND BY ALL THE PROVISIONS OF THE
INDENTURE RELATING TO SUCH SUBORDINATION.
EVENT OF DEFAULT. If an Event of Default, as defined in the Indenture,
shall occur and be continuing, the principal of all the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
WHEN PAYMENT DATE IS NOT A BUSINESS DAY. In any case where any
redemption date shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Daily Note) payment of principal
and interest need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the redemption date, provided that no interest
shall accrue for the period from and after such redemption date.
ISSUABLE IN REGISTERED FORM ONLY. This Daily Note is one of a series of
Securities issuable only in registered form without coupons.
DEFINED TERMS. All capitalized terms in this Daily Note which are
defined in the Indenture and not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
Initial Purchase/Register Balance
This Daily Note Register is provided for the convenience of the Holder.
Entries may be made only by an authorized agent of the Issuer to reflect
additional purchases or redemptions. The Issuer will not be liable for any
transaction unless an entry is made hereon by an authorized agent of the Issuer.
The Holder will receive statements on a quarterly basis which will include all
transactions for the period.
----------------------------------------------------------------------------------------------------------------------
Transaction Date Received/Paid
By Redemptions Purchases
--------------------------- ---------------------- ----------------------------- -------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
4
