Exhibit 4.3
[FORM OF SERIES B SENIOR NOTE]
XXXXX INDUSTRIES, INC.
5.47% SENIOR NOTE
SERIES B, DUE MAY 15, 2013
No. BR-[_____] [Date]
$[_______] PPN: [ ]
FOR VALUE RECEIVED, the undersigned, XXXXX INDUSTRIES, INC. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Delaware, promises to pay to [ ], or registered assigns, the
principal sum of $[ ] on May 15, 2013, with interest (computed on the basis of a
360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the
rate of 5.47% per annum from the date hereof, payable semiannually, on May 15
and November 15, in each year, commencing with the May or November next
succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law on any overdue payment
(including any overdue prepayment) of principal, any overdue payment of interest
and any overdue payment of any Make-Whole Amount (as defined in the Note
Purchase Agreement referred to below), payable semiannually as aforesaid (or, at
the option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 7.47% or (ii) 2% over the rate of
interest publicly announced by Bank of America, or its successor, from time to
time in Chicago, Illinois as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America in Chicago, Illinois or at
such other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the
"Notes") issued pursuant to a Note Purchase Agreement dated as of May 15, 2003
(as from time to time amended, the "Note Purchase Agreement"), between the
Company and the respective Purchasers named therein and is entitled to the
benefits thereof. Reference is made to the Note Purchase Agreement for the
definitions used herein and the method of calculating the interest and other
payments to be made on or in respect of this Note. Each holder of this Note will
be deemed, by its acceptance hereof, (i) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase Agreement and (ii) to
have made the representations and agreement set forth in Section 6.2 of the Note
Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such xxxxxx's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
This Note is subject to optional prepayment, in whole or from time
to time in part, at the times and on the terms specified in the Note Purchase
Agreement but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
This Note shall be construed and enforced in accordance with, and
the rights of the parties shall be governed by, the law of the Commonwealth of
Massachusetts excluding choice-of-law principles of the law of such State that
would require the application of the laws of a jurisdiction other than such
State.
XXXXX INDUSTRIES, INC.
By:
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Name:
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Title:
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