EXHIBIT 4.3
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY
OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR TO A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER 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 HEREIN.
Registered No. 1 Principal Amount $300,000,000, as revised by
the Schedule of Increases and Decreases in
Global Security attached hereto
CUSIP No. 216669 AE 1
ISIN: US216669AE16
XXXXXX INDUSTRIES, INC.
5.25% SENIOR NOTES DUE 2007
XXXXXX INDUSTRIES, INC., a corporation duly organized and existing
under the laws of the State of Ohio (herein called 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 the principal amount of Three Hundred Million Dollars
($300,000,000), as revised by the Schedule of Increases and Decreases in Global
Security attached hereto, on July 1, 2007 and to pay interest (computed on the
basis of a 360-day year of twelve 30-day months) on January 1 and July 1
("Interest Payment Date") in each year and on July 1, 2007 on said principal
amount, at the rate of 5.25% per annum, from the Interest Payment Date next
preceding the date of authentication of this Note to which interest has been
paid, unless the date of authentication of this Note is a date to which interest
has been paid, in which case from the date of authentication of this Note, or
unless no interest has been paid on this Note, in which case from June 21, 2002
(the "Original Issue Date"), until payment of said principal amount has been
made or duly provided for. Notwithstanding the foregoing, if the date of
authentication of this Note is on or after a Regular Record Date (as hereinafter
defined) and before the next following Interest Payment Date, this Note shall
bear interest from such Interest Payment Date, unless the Company shall default
in the payment of interest due on such Interest Payment Date, in which case this
Note shall bear interest from the next preceding Interest Payment Date to which
interest has been paid, or unless no interest has been paid on this Note, in
which case this Note shall bear interest from the Original Issue Date. Interest
payments on this Note will include interest accrued to but excluding the
Interest Payment Date. The interest so payable on any Interest Payment Date
(other than at maturity) will be paid to the person in whose name this Note is
registered at the close of business on the December 15 or June 15, as the case
may be, prior to such Interest Payment Date (whether or not a Business Day)
(each such date, a "Regular Record Date"), unless the Original Issue Date is
after a Regular Record Date and before the next following Interest Payment Date,
in which case the first payment of interest will be made on the Interest Payment
Date following the next succeeding Regular Record Date to the person in whose
name this Note is registered on such next succeeding Regular Record Date or
unless the Company shall default in the payment of interest due on any such
Interest Payment Date, in which case such defaulted interest shall be paid to
the person in whose name this Note is registered at the close of business on a
special record date for the payment of such defaulted interest established by
notice to the holders of Notes not less than ten days preceding such special
record date. Notwithstanding the foregoing, interest payable at maturity shall
be payable to the person to whom the principal is payable. In any case where the
date for any payment on the Notes is not a Business Day, such payment shall be
made on the next succeeding Business
Day, and no interest shall accrue for the period from and after such date to
such next succeeding Business Day. A Business Day is any day that is not a
Saturday or Sunday and that, in New York, New York, is not a day on which
banking institutions are authorized by law to close.
Principal of, premium, if any, and interest on this Note are payable in
immediately available funds of the United States of America which at the time of
payment is legal tender for the payment of public and private debts. Payments of
principal, premium, if any, and interest will be made in New York, New York at
the corporate trust office of JPMorgan Chase Bank, or at such other office or
agency of the Company (the "Paying Agent") as the Company shall designate
pursuant to the Indenture referred to on the reverse hereof.
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.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee
under the Indenture referred to on the reverse hereof.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by its authorized officer.
Dated: November 4, 2002
XXXXXX INDUSTRIES, INC.,
By:
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Vice President and Treasurer
Attest:
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Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This Note is one of the series of Debentures referred to in the within-mentioned
Indenture.
JPMORGAN CHASE BANK, as Trustee
By:
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Authorized Officer
[Reverse of Note]
XXXXXX INDUSTRIES, INC.
5.25% SENIOR NOTES DUE 2007
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 an indenture dated as of January 15, 1990, as supplemented by the First
Supplemental Indenture dated May 15, 2002, the Second Supplemental Indenture
dated June 21, 2002 and the Third Supplemental Indenture dated October 28, 2002
(hereinafter called the "Indenture"), among the Company, Xxxxxx Industries, Ltd.
(the "Guarantor") and JPMorgan Chase Bank (formerly The Chase Manhattan Bank
(National Association)), as trustee (hereinafter called the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the respective rights and duties thereunder of the Trustee, the
Company, the Guarantor and the holders of the Securities. The terms of this Note
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended. 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), may be subject to different covenants and Events of Default and may
otherwise vary as permitted in the Indenture. This Note is one of a series
designated as the "5.25% Senior Notes due 2007" of the Company (hereinafter
called the "Notes") issued under the Indenture and initially limited in
aggregate principal amount to $300,000,000. Unless otherwise provided herein,
all terms used in this Note that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
Pursuant to the Indenture, the Guarantor has fully and unconditionally
guaranteed to each holder of a Note authenticated and delivered by the Trustee,
and to the Trustee on behalf of such holder, the due and punctual payment of the
principal of, premium, if any, and interest, if any, on the Notes and all other
obligations of the Company under the Indenture when and as the same shall become
due and payable, whether at the stated maturity, by acceleration or otherwise,
in accordance with the terms of the Notes and of the Indenture.
The Notes will not have a sinking fund. The Notes are not subject to
redemption except in the case of a Change in Tax Law that causes Guarantor (or a
successor) to pay Additional Amounts as provided in the Indenture. In such case,
the Notes may be redeemed in whole, but not in part, on the terms set forth in
the Indenture, together with interest accrued and unpaid on the principal amount
redeemed to the date of redemption. Notice of each redemption of any Note shall
be given to the holders of the Notes to be redeemed not less than 30 nor more
than 60 days prior to the date of redemption. If this Note is called for
redemption and payment thereof is duly provided for as specified in the
Indenture, interest shall cease to accrue hereon from and after the date of
redemption.
The Indenture contains provisions for defeasance, at the Company's
option, at any time of (i) the entire indebtedness of this Note or (ii) certain
restrictive covenants and Events of
Default with respect to this Note, in each case upon compliance with certain
conditions set forth in the Indenture.
In case an Event of Default with respect to the Notes, as defined in
the Indenture, shall have occurred and be continuing, the principal hereof 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 permitting, with certain exceptions
as therein provided, the Company, the Guarantor 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 to be affected,
evidenced as provided in the Indenture, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or Securities of a
series or modifying in any manner the rights of the holders of the Securities of
such series to be affected. In addition, the Indenture contains provisions
permitting, with certain exceptions as therein provided, the Company, the
Guarantor and the Trustee, without the consent of the holders of any of the
Securities at the time outstanding, to execute supplemental indentures for
certain purposes, including, but not limited to, the following purposes: (i) to
cure any ambiguity or to correct or supplement any provision contained in the
Indenture or in any supplemental indenture or Securities of a series which may
be defective or inconsistent with any other provision of the Indenture or any
supplemental indenture or Securities of a series; or (ii) to make such other
provisions in regard to matters or questions arising under the Indenture or any
supplemental indenture or Securities of a series which shall not adversely
affect the interests of the holders of the Securities. The Indenture also
provides that, prior to any declaration accelerating the maturity of the
Securities of a series, the holders of a majority in aggregate principal amount
of the Securities of such series at the time outstanding may, on behalf of the
holders of all of the Securities of such series, waive compliance by the Company
or the Guarantor with certain provisions of the Indenture and certain past
defaults or Events of Default with respect to the Securities of such series and
their consequences. Any such consent or waiver by the holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such holder and upon all future holders and owners of this Note and any
Notes which may be issued in exchange or substitution herefor, irrespective of
whether or not any notation thereof is made upon this Note or such other Notes.
As provided in and subject to the provisions of the Indenture, the
holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the holders of not less than 25% in principal amount of the Notes at the
time outstanding shall have made a written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
holders of a majority in principal amount of Notes at the time outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the holder of
this Note for the enforcement of any payment of
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principal hereof or any premium or interest hereon on or after the respective
due dates expressed herein.
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, premium, if any, and
interest on this Note at the place, at the respective times, at the rate and in
the coin or currency herein prescribed; provided, however, this Note is subject
in all respects to the provisions of Article Thirteen of the Indenture providing
under the circumstances set forth therein for discharge of certain of the
Company's obligations under the Indenture.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof, 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 an equal aggregate principal
amount of Notes of other authorized denominations having the same tenor at the
office or agency of the Company maintained for such purpose in New York, New
York. Upon due presentment for registration of transfer of this Note at the
office or agency of the Company for such registration in New York, New York, a
new Note or Notes of authorized denominations for an equal aggregate principal
amount having the same tenor as the Note so presented will be issued to the
transferee in exchange herefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any Paying Agent and any Security registrar may deem and
treat the registered holder hereof as the absolute owner of this Note (whether
or not this Note shall be overdue and not withstanding any notation of ownership
or other writing hereon), for all purposes, and neither the Company nor the
Trustee nor any Paying Agent nor any Security registrar shall be affected by any
notice to the contrary. All payments made to or upon the order of such holder
shall be valid, and, to the extent of the sum or sums so paid, effectual to
satisfy and discharge the liability for moneys payable on this Note.
No recourse for the payment of the principal of, premium, if any, or
interest on this Note, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, officer or director, as such, of
the Company or any successor, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released..
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
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[FORM OF ASSIGNMENT]
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
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(Print or type assignee's name, address and zip code)
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(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ________________ as agent for the transfer of
this Note on the books of the Company. The agent may substitute another
to act for him.
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Date: Your Signature:
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Signature Guarantee:
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(Signature must be guaranteed)
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Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made
Amount of increase in Amount of decrease in Principal Amount of this Signature of authorized
Date of Principal Amount of this Principal Amount of this Global Note following each signatory of Trustee or
Exchange Global Note Global Note decrease or increase Securities Custodian
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