EXHIBIT 4.3
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THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE
DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
REGISTERED $300,000,000
Xx. 000 XXXXX # 00000 RA B6
THE XXXXX XXXXXX COMPANIES INC.
5.550% SENIOR NOTES DUE 2017
The Xxxxx Xxxxxx Companies Inc., a Delaware corporation (the
"Company"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal amount stated above on May 15, 2017 (the
"Maturity Date") and to pay interest thereon at the rate per annum equal to
5.550% (the "Interest Rate") until the principal hereof is fully paid or duly
made available for payment. The Company will pay interest (computed on the basis
of a 360-day year of twelve 30-day months) semi-annually in arrears on May 15
and November 15 of each year (each an "Interest Payment Date") commencing
November 15, 2007 and on the Maturity Date on said principal amount at the
Interest Rate per annum specified above. Interest on this Note will accrue from
the most recent Interest Payment Date to which interest has been paid or duly
provided for or, if no interest has been paid, from May 1, 2007 until the
principal hereof has been paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on the Interest Payment
Dates, will, as provided in the Indenture referred to below, be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the May 1 or November 1 whether or not a Business Day,
as the case may be, next preceding such Interest Payment Date; provided,
however, that interest payable on the Maturity Date will be payable to the
Person to whom the principal hereof shall be payable; and provided, further,
however, that if such Interest Payment Date would fall on a day that is not a
Business Day, such Interest Payment Date shall be the following day that is a
Business Day. Any such interest which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
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of this Note not less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture.
Payment of the principal of and interest on this Note shall be
made at the office or agency of the Trustee maintained for that purpose in the
Borough of Manhattan, The City of New York, 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 debt; provided, however, that payment of interest
on any Interest Payment Date (other than the Maturity Date) 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, or by wire
transfer of immediately available funds, if the registered holder has so
requested by a notice in writing delivered to the Trustee not less than 16 days
prior to the Interest Payment Date on which such payment is due, which notice
shall provide appropriate instructions for such transfer.
The principal hereof and interest due at maturity will be paid
upon maturity in immediately available funds against presentation of this Note
at the office or agency of the Trustee maintained for that purpose in the
Borough of Manhattan, The City of New York.
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 ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with
the laws of the State of New York.
Unless the certificate of authentication hereon has been
executed by U.S. Bank Trust National Association, as successor in interest to
State Street Bank and Trust Company, N.A., the Trustee under the Indenture, or
its successor thereunder by the manual signature of one of its authorized
signatories, this Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated May 1, 2007 THE XXXXX XXXXXX COMPANIES INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Executive Vice President
and Chief Financial Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL
ASSOCIATION, as successor in
interest to STATE STREET BANK AND
TRUST COMPANY, N.A., as Trustee
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Authorized Signatory
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[Reverse of Note]
THE XXXXX XXXXXX COMPANIES INC.
5.550% SENIOR NOTES DUE 2017
This Note is one of a duly authorized issue of debentures, notes
or other evidences of indebtedness (hereinafter called the "Securities") of the
Company of the series hereinafter specified, all such Securities issued and to
be issued under the Indenture dated as of November 5, 1999 (herein called the
"Indenture") between the Company and U.S. Bank Trust National Association, as
successor in interest to State Street Bank and Trust Company, N.A., as trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures or officers' certificates,
as applicable, supplemental thereto (including without limitation that certain
Officers' Certificate dated May 1, 2007 relating to the Company's 5.550% Senior
Notes due 2017) reference is hereby made for a statement of the respective
rights and limitations of rights thereunder of the Company, the Trustee and the
Holders of the Securities, and the terms upon which the Securities are, and are
to be, authenticated and delivered. As provided in the Indenture, 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 repayment provisions, if any, may be subject
to different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided or permitted. This Note is one of a series of the Securities
designated as 5.550% Senior Notes due 2017 (the "Notes"). The Notes are
unsecured and rank pari passu with all other unsecured and unsubordinated
indebtedness of the Company. The Notes are not subject to a sinking fund.
The Notes are redeemable, in whole or in part, at the Company's
option at any time at a redemption price equal to the Make-Whole Price. The
"Make-Whole Price" means an amount equal to the greater of (1) 100% of the
principal amount of the Notes being redeemed, or (2) an amount equal to, as
determined by an Independent Investment Banker, the sum of the present value of
the remaining scheduled payments of principal and interest on the Notes being
redeemed, discounted to the date of redemption on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury
Rate, plus, in each case, accrued and unpaid interest thereon to the date of
redemption. Notice of any redemption will be mailed at least 30 days but not
more than 60 days before the date of redemption to each registered holder of the
Notes to be redeemed. Unless the Company defaults in payment of the redemption
price, on and after the date of redemption, interest will cease to accrue on the
Notes or portion thereof called for redemption.
"Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semi-annual yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
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(expressed as a percentage of its principal amount) that is the same as the
Comparable Treasury Price for such redemption date, plus 15 basis points.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker that (1) has the maturity
comparable to the remaining term of the Notes to be redeemed and (2) would be
used, at the time of selection and in accordance with customary financial
practice, to price new issues of corporate debt securities with a maturity
comparable to the remaining term of the Notes to be redeemed.
"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, (B) if the trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Reference Treasury
Quotations, or (C) if only one Reference Treasury Dealer Quotation is received,
such Reference Treasury Dealer Quotation.
"Independent Investment Banker" means one of the Reference
Treasury Dealers appointed by the trustee after consultation with the Company.
"Reference Treasury Dealer" means (A) Citigroup Global Markets
Inc. or X.X. Xxxxxx Securities Inc. (or their affiliates which are Primary
Treasury Dealers) and their respective successors; provided, however, that if
any of the foregoing shall cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company will
substitute therefor another Primary Treasury Dealer; and (B) any other Primary
Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotation" 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 5:00 p.m. (New York
City time) on the third business day preceding such redemption date.
If any Event of Default (as defined in the Indenture) with
respect to the Notes shall occur and be continuing, the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Notes may declare
the principal of all the Notes due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time Outstanding of each
series affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal amount of the Securities
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of each series at the time Outstanding, on behalf of the Holders of all
Securities of each series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof whether or not notation of such consent or waiver is
made upon this Note.
Holders of Securities may not enforce their rights pursuant to
the Indenture or the Securities except as provided in the Indenture. No
reference herein to the Indenture and no provision of this Note or the Indenture
shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company, and this Note duly executed by,
the Holder hereof or by his attorney duly authorized in writing and thereupon
one or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
minimum denominations of $2,000 and integral multiples of $1,000. As provided in
the Indenture and subject to certain limitations therein set forth, this Note is
exchangeable for a like aggregate principal amount of Notes of different
authorized denominations as requested by the Holder surrendering the same.
No service charge will be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice of the contrary.
All capitalized terms used in this Note and not otherwise defined
herein shall have the meanings assigned to them in the Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and
not as tenants in common
UNIF GIFT MIN ACT - ___________________ Custodian ______________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
____________________________________________
(State)
Additional abbreviations may also be used though not in the above list.
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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 TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL 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.
Dated: ____________________________________
____________________________________
(Signature Guarantee)
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