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EXHIBIT 10.4
XXXXXXXXXXX GROUP, INC.
$230,000,000
6% Senior Notes
Due December 1, 2037
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NOTE AGREEMENT
Dated as of November 4, 1997
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NOTE AGREEMENT
NOTE AGREEMENT, dated as of November 4, 1997, by Xxxxxxxxxxx
Group, Inc., a Delaware corporation ("Company"), for the equal and ratable
benefit of the Holders of the Company's 6% Senior Notes due December 1, 2037
("Notes"):
WHEREAS, the Board of Directors of the Company has determined to
effect a redemption of the outstanding shares of the Class C Common Stock, par
value $0.01 per share ("Class C Common Stock"), and the Class D Common Stock,
par value $0.01 per share ("Class D Common Stock");
WHEREAS, the amended and restated certificate of incorporation of
the Company provides that upon such redemption, the holders of the Class C
Common Stock and Class D Common Stock are to receive, among other things, the
Notes;
NOW THEREFORE, the Company agrees as follows:
ARTICLE 1.
DEFINITIONS
Section 1.01. Definitions.
"Affiliate" of a Person means any Person directly or indirectly
controlling, controlled by or under common control with such Person. As used in
this definition of Affiliate, the term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal
or state law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company
or any authorized committee of the Board.
"Business Day" means any day other than a Legal Holiday.
"Certificate" means that certain Certificate of Long-Term
Indemnity Indebtedness dated November 4, 1997 issued by the Company.
"Class C Units" means the Class C units of limited partner
interest of PIMCO Advisors to be issued to Opfin pursuant to the Contribution
Agreement.
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"Company" has the meaning set forth in the first paragraph of
this Agreement.
"Contribution Agreement" means that certain Contribution
Agreement dated November 4, 1997 among the Company, Opfin, PIMCO Advisors and
Value Advisors.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Equity Security" means a share of capital stock, a partnership
or limited liability company interest, or other equity interest, or any security
convertible or exchangeable, with or without consideration, into any such
security or interest, or carrying any warrant, option or right to subscribe to
or purchase any such security or interest or any such convertible or
exchangeable security, or any such warrant, option or right.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means with respect to any Person, (i) any
liability, contingent or otherwise, of such Person (A) for borrowed money
(whether or not recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof), (B) evidenced by a note, debenture or
similar instrument (including a purchase money obligation) given in connection
with the acquisition of any property or assets, (C) for any letter of credit or
performance bond in favor of such Person, or (D) for the payment of money
relating to a capitalized lease obligation; (ii) any liability of any other
Person of the kind described in the preceding clause (i), which such Person has
guaranteed or which is otherwise its legal liability, contingent or otherwise;
(iii) any obligation secured by a lien to which the property or assets of such
Person are subject, whether or not the obligations secured thereby shall have
been assumed by or shall otherwise be such Person's legal liability; (iv) all
other items, which in accordance with generally accepted accounting principles,
would be included as a liability on the balance sheet of such Person on the date
of determination; and (v) any and all deferrals, renewals, extensions or
refinancing of, or amendments, modifications or supplements to, any liability of
the kind described in any of the preceding clauses (i), (ii), (iii) or (iv).
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in The City of New York or at a place of payment are
authorized or obligated by law, regulation or executive order to remain closed.
"Merger Agreement" means that certain Agreement and Plan of
Merger, dated November 4, 1997 (the "Merger Agreement"), by and among the
Company, Opfin, PIMCO Advisors, PIMCO Advisors Transitory Merger LLC, a Delaware
limited liability company, the Seller Trust, under Declaration of Trust dated
July 22, 1997, as amended, and the Indemnity Trust, under Declaration of Trust
dated July 22, 1997, as amended.
"Note Agreement" means this Note Agreement as amended from time
to time.
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"Notes" has the meaning set forth in the first paragraph of this
Note Agreement.
"Officers" means the President, the Treasurer, any Assistant
Treasurer, Controller, Secretary or any Vice-President of the Company or any
other obligor upon the Notes.
"Opfin" means Xxxxxxxxxxx Financial Corp., a Delaware
corporation, a wholly owned subsidiary of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PIMCO Advisors" means PIMCO Advisors L.P., a Delaware limited
partnership.
"principal" of a debt security means the principal of the
security plus the premium, if any, on the security.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" has the meaning set forth in Regulation S-X
promulgated under the Securities Act.
"Value Advisors" means Value Advisors LLC, a Delaware limited
liability company.
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating.
The Notes shall be substantially in the form of Exhibit A, which
is part of this Note Agreement. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. Each Note shall be
dated the date of its issuance.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Notes.
Section 2.03. Registrar and Paying Agent.
The Company shall act as paying agent and registrar of the Notes.
The Company (or any other obligor upon the Notes) shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
paying agent. The Company shall preserve in as
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current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders.
Section 2.04. Transfer and Exchange.
(a) The issuance of the Notes has not been registered under the
Securities Act and will be offered pursuant to an exemption thereunder. A Holder
may not transfer any Notes unless such sale or transfer is (i) registered under
the Securities Act or (ii) exempt from registration thereunder and the Company
is presented with (A) an opinion of counsel, reasonably satisfactory to the
Company, that registration is not required and (B) the following representations
in writing by the transferee:
(1) The transferee is acquiring the Notes for its own
account for investment and not on behalf of or for the benefit of any other
Person, and not with a view to, or for offer or sale in connection with, any
distribution thereof (within the meaning of the Securities Act) that would
violate the Securities Act.
(2) The transferee understands that the issuance of the
Notes has not been registered under the Securities Act and that the Notes were
offered pursuant to an exemption thereunder. The transferee will not sell or
transfer the Notes except in compliance with this Section 2.04.
(3) The transferee understands that the Notes to be issued
upon transfer or exchange will bear the following legend: "The securities
evidenced or constituted hereby have been acquired for investment and have not
been registered under the Securities Act of 1933, as amended. Such securities
may not be sold, transferred, pledged or hypothecated unless the registration
provisions of said Act have been complied with or unless the Company has
received an opinion of counsel reasonably satisfactory to the Company that such
registration is not required."
(4) The transferee acknowledges that (i) it has been given
access to and reviewed such documents and information (including publicly filed
reports) regarding the Company as it has deemed appropriate, and (ii) it has
been given the opportunity to ask questions of and to obtain documents from the
representatives of the Company regarding the operations of the Company and the
terms and conditions of the issuance of such securities and the merits and risks
of acquiring the same, and all such questions and documents have been answered
and provided to the transferee's full satisfaction.
(b) Where Notes are presented to the Company with a request to
register, transfer or exchange them for an equal principal amount of Notes of
other denominations, the Company shall register the transfer or make the
exchange if its reasonable requirements for such transactions are met; provided,
however, that (i) any Note presented or surrendered for registration of transfer
or exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Company duly executed by the Holder or his
attorney duly authorized in writing and (ii) the opinions and representations
described above, if applicable, have been provided to the Company.
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(c) No service charge shall be made for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than such
transfer tax or similar governmental charge payable upon exchanges pursuant to
Section 7.04).
Section 2.05. Replacement Notes.
If any mutilated Note is surrendered, or the Company receives
evidence to its satisfaction of the destruction, loss or theft of any Note, the
Company shall issue a replacement Note. If required by the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Company to protect the Company from any loss which it may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note. Every
replacement Note is an additional obligation of the Company.
Section 2.06. Outstanding Notes.
The Notes outstanding at any time are all the Notes issued by the
Company except for those canceled by it, those delivered to it for cancellation
and those described in this Section as not outstanding. If a Note is replaced
pursuant to Section 2.05, it ceases to be outstanding unless the Company
receives proof satisfactory to it that the replaced Note is held by a bona fide
purchaser. If the principal amount of any Note is paid in full, it ceases to be
outstanding and interest on it ceases to accrue. A Note does not cease to be
outstanding because the Company or an Affiliate holds the Note.
Section 2.07. Notes Held by the Company and its Affiliates.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, unless all
of the Notes are owned by the PIMCO Advisors or the Company, Notes owned by the
Company, any other obligor upon the Notes or their respective Affiliates shall
be deemed to be not outstanding.
Section 2.08. Cancellation.
The Company shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation. The Company may not
issue new Notes to replace Notes that it has paid in full or that have been
canceled.
ARTICLE 3.
COVENANTS
Section 3.01. Payment of Principal and Interest.
The Company shall pay the principal of and interest on the Notes
on the dates and in the manner provided in the Notes.
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Section 3.02. Limitations on Business Activities .
From and after the contribution contemplated by Section 1 of the
Contribution Agreement, the Company and its Subsidiaries shall not engage in any
business other than (i) directly or indirectly holding the Class C Units, (ii)
discharging their obligations under or in connection with this Note Agreement,
the Notes, the Certificate, the Merger Agreement, the Contribution Agreement and
any Indebtedness of the Company to PIMCO Advisors, and (iii) their respective
governance and existence.
Section 3.03. Limitation on Restricted Payments and Indebtedness.
From and after the completion of the contribution contemplated by
Section 1 of the Contribution Agreement, the Company will not, and will not
permit any Subsidiary to, directly or indirectly:
(a) declare or pay any dividend or make any distribution with
respect to the Company's capital stock, or purchase, redeem or otherwise acquire
or retire for value any Equity Security of the Company or any Affiliate of the
Company other than PIMCO Advisors or a wholly-owned subsidiary of the Company,
if at the time such dividend or distribution is declared, or such purchase,
redemption, acquisition or retirement is effected (i) there is any unpaid
principal or interest under the Notes, or (ii) a Default or Event of Default
shall have occurred and be continuing or shall occur as a consequence thereof;
or
(b) create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to any Indebtedness other than
Indebtedness subordinated to the Notes and the Certificate as provided in
Section 4(d) of the Contribution Agreement.
Section 3.04. Corporate Existence.
The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, will not
consolidate with, merge with or into, or sell or transfer all or substantially
all of its assets to, any other Person, and will continue to maintain Opfin as a
wholly-owned Subsidiary; provided, however, that the Company may cause Opfin to
merge with or liquidate into the Company.
Section 3.05. Negative Pledge.
The Company will not, and will not permit Opfin to, sell, assign,
transfer or otherwise dispose of, or pledge or otherwise encumber, any of the
Class C Units except as contemplated by the Contribution Agreement.
Section 3.06. No Amendment of Contribution Agreement.
The Company will not consent to any amendment of Section 3(b) or
4(d) of the Contribution Agreement without the consent of holders of at least a
majority in principal amount of the then outstanding Notes.
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ARTICLE 4.
[OMITTED]
ARTICLE 5.
DEFAULTS AND REMEDIES
Section 5.01. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any Note
when the same becomes due and payable and the Default continues for a
period of 15 days;
(2) the Company defaults in the payment of the principal of any
Note when the same becomes due and payable at maturity;
(3) the Company fails to observe or perform any other covenant,
condition or agreement on the part of the Company to be observed or
performed pursuant to the Notes or this Note Agreement and such failure
continues uncured for the period and after the written notice to the
Company specified below;
(4) the Company or Opfin pursuant to or within the meaning of any
Bankruptcy Law: (a) commences a voluntary case, (b) consents to the
entry of an order for relief against it in an involuntary case, (c)
consents to the appointment of a Custodian of it or for all or
substantially all of its property, (d) makes a general assignment for
the benefit of its creditors, or (e) generally is not paying its debts
as the same become due; or
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (a) is for relief against the Company or
Opfin in an involuntary case, (b) appoints a Custodian of the Company or
Opfin or for all or substantially all of the property of the Company or
Opfin, or (c) orders the liquidation of the Company or any Opfin, and
such order or decree remains unstayed and in effect for 60 days.
Any Event of Default shall not be deemed to have occurred under
clause (3) above until the Company shall have received written notice from any
of the Holders. A Default under clause (3) is not an Event of Default until the
Holders of at least 25% in principal amount of the then outstanding Notes notify
the Company of the Default and the Company does not cure the Default within 30
days after receipt of the notice. The notice must specify the Default, demand
that it be remedied and state that the notice is a "Notice of Default."
Section 5.02. Acceleration.
If an Event of Default (other than an Event of Default specified
in clauses (4) and (5) of Section 5.01) occurs and is continuing, the Holders of
at least 25% in principal amount of the then outstanding Notes, by written
notice to the Company, may declare the unpaid principal of and any accrued
interest on all the Notes to be due and payable. Upon such declaration the
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principal and interest shall be due and payable immediately. If an Event of
Default specified in clause (4) or (5) of Section 5.01 occurs, such an amount
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of any Holder. The Holders of a majority in
principal amount of the then outstanding Notes by written notice to the Company
may rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal or interest that has become due solely because
of the acceleration) have been cured or waived.
Section 5.03. Waiver of Past Defaults.
The Holders of a majority in principal amount of the then
outstanding Notes by notice to the Company may waive an existing Default or
Event of Default and its consequences except a continuing Default or Event of
Default in the payment of the principal of or interest on any Note. 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 this Note
Agreement; but no such waiver shall extend to any subsequent or other Default or
impair any right consequent thereon.
Section 5.04. Control by Majority.
The Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Holders.
Section 5.05. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Note Agreement, the
right of any Holder of a Note to receive payment of principal and interest on
the Note, on or after the respective due dates expressed in the Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of the Holder.
Section 5.06. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Note Agreement, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by a Holder pursuant to Section 5.05, or a
suit by Holders of more than 10% in principal amount of the then outstanding
Notes.
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ARTICLE 6.
TERMINATION
Section 6.01. Termination of Company's Obligations.
This Note Agreement shall cease to be of further effect when all
outstanding Notes theretofore issued have been delivered (other than destroyed,
lost or stolen Notes which have been replaced or paid) to the Company for
cancellation and the Company has paid all sums payable hereunder.
ARTICLE 7.
AMENDMENTS
Section 7.01. Without Consent of Holders.
This Note Agreement is made by the Company for the benefit of the
Holders of the Notes. The Company may amend this Note Agreement or the Notes
without the consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to
certificated Notes; or
(3) to make any change that does not adversely affect the legal
rights hereunder of any Holder.
The Company may execute any Supplemental Note Agreement
authorized or permitted by the terms of this Note Agreement and make any further
appropriate agreements and stipulations which may be therein contained.
Section 7.02. With Consent of Holders.
The Company may amend this Note Agreement or the Notes with the
written consent of the Holders of at least a majority in principal amount of the
then outstanding Notes. The Holders of a majority in principal amount of the
Notes then outstanding may waive compliance in a particular instance by the
Company with any provision of this Note Agreement or the Notes.
It shall not be necessary for the consent of the Holders under
this Section 7.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or waiver under this Section becomes
effective, the Company shall mail to the Holders of each Note affected thereby a
notice briefly describing the amendment or waiver. Any failure of the Company to
mail such notice, or any defect therein,
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shall not, however, in any way impair or affect the validity of any such
Supplemental Note Agreement.
Without the consent of each Holder affected, an amendment or
waiver under this Section may not:
(1) reduce the principal amount of Notes whose Holders must
consent to an amendment or waiver;
(2) reduce the rate of or change the time for payment of interest
on any Note;
(3) reduce the principal of or change the fixed maturity of any
Note;
(4) make any Note payable in money other than that stated in the
Note;
(5) make any change in Section 5.03 or 5.05 or in this sentence
of this Section 7.02;
(6) waive a Default in the payment of principal of or interest
on, or redemption payment with respect to, any Note or an Event of
Default under clause (4) or (5) of Section 5.01.
Section 7.03. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it
by a Holder of a Note is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
his Note or portion of a Note if the Company receives written notice of
revocation from the Holder or subsequent Holder with respect to all or a portion
of the principal amount of the Note before the date the amendment or waiver
becomes effective. An amendment or waiver becomes effective in accordance with
its terms and thereafter binds every Holder.
Section 7.04. Notation on or Exchange of Notes.
The Company in exchange for all Notes may issue new Notes that
reflect the amendment or waiver.
ARTICLE 8.
MISCELLANEOUS
Section 8.01. Notices.
Any notice or communication to the Company is duly given if in
writing and delivered in person or mailed by first-class mail (registered or
certified, return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to:
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Xxxxxxxxxxx Group, Inc.
c/o PIMCO Advisors L.P.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
The Company or any other obligor upon the Notes, by notice to the
Holders, may designate additional or different addresses for subsequent notices
or communications.
All notices and communications to the Company shall be deemed to
have been duly given at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail, certified or registered, return receipt requested, to his
address shown on the register kept by the registrar of the Notes. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
If a notice or communication to a Holder is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.
Section 8.02. Limited Recourse; No Recourse Against Others.
The Notes shall be limited in recourse solely to the assets of
the Company. A director, officer, employee or stockholder of the Company, as
such, shall not have any liability for any obligations of the Company under the
Notes or this Note Agreement 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.
Section 8.03. Governing Law.
The laws of the State of New York shall govern and be used to
construe this Note Agreement and the Notes.
Section 8.04. Successors.
All agreements of the Company in this Note Agreement and the
Notes shall bind its successor.
Section 8.05. Severability.
In case any provision in this Note Agreement or in the Notes
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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Section 8.06. Table of Contents, Headings, etc.
The Table of Contents, and Headings of the Articles and Sections
of this Note Agreement have been inserted for convenience of reference only, are
not to be considered a part hereof and shall in no way modify or restrict any of
the terms or provisions hereof.
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SIGNATURES
Dated as of November 4, 1997 XXXXXXXXXXX GROUP, INC.
By /s/ XXXXX X. XXXXXXX
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
Attest:
[SIG]
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(SEAL)
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EXHIBIT A
THE SECURITIES EVIDENCED OR CONSTITUTED HEREBY HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS THE REGISTRATION PROVISIONS OF SAID ACT HAVE BEEN
COMPLIED WITH OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
6% SENIOR NOTE
DUE DECEMBER 1, 2037
No. $__________
XXXXXXXXXXX GROUP, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars on December 1, 2037
Interest Payment Dates: March 1, June 1, September 1, December 1
Record Dates: February 15, May 15, August 15, November 15
Dated: November 4, 1997
XXXXXXXXXXX GROUP, INC.
By _________________________________
By _________________________________
(SEAL)
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6% SENIOR NOTE
DUE DECEMBER 1, 2037
1. Interest. Xxxxxxxxxxx Group, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at the
rate per annum shown above from the date this Note is issued until maturity. The
Company will pay interest quarterly on the interest payment dates referred to on
the face hereof. 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 the date of
issuance; provided, that if there is no existing Default in 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 December 1, 1997. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes
to the Persons who are registered Holders of Notes ("Holders" and each a
"Holder") at the close of business on the record date next preceding the
interest payment date, even if such Notes are canceled after such record date
and on or before such interest payment date. The Holder must surrender this Note
to the Company to collect principal payments. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
interest and principal by check payable in such money, and may mail interest
checks to a Holder's registered address.
3. Paying Agent and Registrar. The Company will act as paying
agent and registrar of the Notes.
4. Note Agreement. The Company issued the Notes under a Note
Agreement dated as of November 4, 1997 ("Note Agreement") entered into by the
Company for the benefit of the Holders. The terms of the Notes include those
stated in the Note Agreement. The Notes are subject to all such terms, and
Holders are referred to the Note Agreement for a statement of such terms. The
Notes are general obligations of the Company limited to $230,000,000 in
aggregate principal amount.
5. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Note Agreement. The Company may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Note
Agreement. The Notes are subject to restrictions on transfer as provided in the
Note Agreement.
6. Persons Deemed Owners. The registered holder of a Note shall
be treated as its owner for all purposes.
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0. Amendments and Waivers. Subject to certain exceptions, the
Note Agreement or the Notes may be amended with the consent of the Holders of at
least a majority in principal amount of the then outstanding Notes (other than
Notes held by the Company and its Affiliates unless the Company and its
Affiliates hold all of the Notes), and any existing default (except a payment
default) may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (other than Notes held by the
Company and its Affiliates). Without the consent of any Holder, the Note
Agreement or the Notes may be amended to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to certificated
Notes, or to make any change that does not adversely affect the rights of any
Holder.
8. Defaults and Remedies. Events of Default include: default in
payment of interest on the Notes for 15 days; default in payment of principal on
the Notes; failure by the Company to comply with any of its other agreements in
the Note Agreement or the Notes (in some cases, for 30 days after notice); and
certain events of bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Holders of at least 25% in principal amount of the then
outstanding Notes (other than Notes held by the Company and its Affiliates) may
declare all the Notes to be due and payable immediately, except that in the case
of an Event of Default arising from certain events of bankruptcy or insolvency,
all outstanding Notes become due and payable immediately without further action
or notice.
9. Limited Recourse; No Recourse Against Others. The Notes shall
be limited in recourse solely to the assets of the Company. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Notes or the Note Agreement 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.
10. Exchange Right. The Holder of this Note is entitled to the
benefits accorded by that certain Exchange Right dated November 4, 1997.
11. 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 to any Holder upon written request and
without charge a copy of the Note Agreement. Requests may be made to:
Xxxxxxxxxxx Group, Inc.
c/o PIMCO Advisors L.P.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
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