[Face of Note]
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CUSIP ____________
ISIN
______________
10.875% Series B Senior Subordinated Notes due 2011
No. 1 $____________
THE XXXXXXX XXXXXX COMPANY
promises to pay to holder
or registered assigns,
the principal sum of
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Dollars on August 15, 2011.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Dated: August 15, 2001
THE XXXXXXX XXXXXX COMPANY
By:
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Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
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Authorized Signatory
[Back of Note]
10.875% Series B Senior Subordinated Notes due 2011
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. The Xxxxxxx Xxxxxx Company, a Massachusetts corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at 10.875% per annum from February 15, 2002 until maturity and shall pay the
Special Interest, if any, payable pursuant to Section 2 of the Registration
Rights Agreement referred to below. The Company will pay interest and Special
Interest, if any, semi-annually in arrears on February 15 and August 15 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an "Interest Payment Date"). 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 February 15,
2002. The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal and premium, if any,
from time to time on demand at a rate that is 1% per annum in excess of the rate
then in effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Special Interest (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. 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
(except defaulted interest) and Special Interest, if any, to the Persons who are
registered Holders of Notes at the close of business on the February 1 or August
1 next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Notes will be presented for payment and payable as to principal, premium and
Special Interest, if any, and interest at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest and Special Interest may
be made by check mailed to the Holders at their addresses set forth in the
register of Holders, and PROVIDED that payment by wire transfer of immediately
available funds will be required with respect to principal of and interest,
premium and Special Interest on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Company
or the Paying Agent. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and Trust
Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to any Holder. The Company or any of its Subsidiaries may act in any such
capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated as
of August 15, 2001 ("Indenture"), by and among the Company, the Guarantors and
the Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code xx.xx. 77aaa-77bbbb) as in effect on the date on which this
Indenture is qualified under the Trust Indenture Act. The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with
the express provisions of the Indenture, the provisions of this Indenture shall
govern and be controlling. The Company shall be entitled, subject to its
compliance with Section 4.09 of the Indenture, to issue additional Notes
pursuant to Section 2.13 of the Indenture.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to August 15, 2006.
Thereafter, the Company shall have the option to redeem the Notes, in whole or
in part, upon not less than 30 nor more than 60 days' notice, at the redemption
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Special Interest, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on August 15 of the years indicated below:
YEAR PERCENTAGE
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2006......................................... 105.438%
2007......................................... 103.625%
2008......................................... 101.813%
2009 and thereafter.......................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this Paragraph 5,
at any time prior to August 15, 2004, the Company may on one or more occasions
redeem up to 35% of the aggregate principal amount of the Notes at a redemption
price equal to 110.875% of the aggregate principal amount thereof, plus accrued
and unpaid interest and Special Interest thereon, if any to the redemption date,
using the proceeds of one or more equity offerings, as further described in
Section 3.07(b) of the Indenture; PROVIDED that at least 65% of the aggregate
principal amount remains outstanding immediately after the occurrence of such
redemption (excluding Notes held by the Company and its Subsidiaries) and that
such redemption occurs within 90 days of the date of the closing of such Equity
Offering.
6. MANDATORY REDEMPTION.
The Company shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
7. REPURCHASE AT OPTION HOLDER.
(a) Upon the occurrence of a Change of Control, the Company shall make
an offer (a "Change of Control Offer") to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of each Holder's Notes at a purchase
price equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest and Special Interest thereon, if any, on the Notes repurchased
to the date of purchase (the "Change of Control Payment"). Within 10 days
following any Change of Control, the Company shall mail a notice to each Holder
(i) describing the transaction or transactions constituting the Change of
Control and (ii) offering to repurchase the Notes. Such notice shall set forth
the procedures governing the Change of Control Offer as required by the
Indenture and will take all other such action as required by the Indenture with
respect to a Change of Control.
(b) If the Company or a Subsidiary consummates any Asset Sales, subject
to Section 4.10 of the Indenture, within 30 days after each date on which the
aggregate amount of Excess Proceeds from Asset Sales exceeds $10.0 million, the
Company shall commence an offer to all holders of Notes and Other Indebtedness
that is pari passu with the Notes and which contain similar asset sale
provisions (as "Asset Sale Offer") pursuant to Section 3.09 and 4.10 of the
Indenture to purchase the maximum principal amount of Notes (including any
Additional Notes) and such other pari passu Indebtedness that may be purchased
out of the Excess Proceeds at an offer price in cash in an amount equal to 100%
of the principal amount thereof plus accrued and unpaid interest and Special
Interest thereon, if any, to the date fixed for the closing of such Asset Sale
Offer, in accordance with the procedures set forth in the Indenture. The Company
may use such excess proceeds for any purpose not otherwise prohibited by the
Indenture and such remaining proceeds shall cease to be Excess Proceeds with
respect to any future Asset Sale. If the aggregate principal amount of Notes and
Other Indebtedness upon tender exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes and Other Indebtedness to be purchased on a PRO
RATA basis. Holders of Notes that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Company prior to any related purchase date
and may elect to have such Notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Notes.
8. NOTICE OF REDEMPTION. Subject to Section 3.09 of the Indenture,
notice of redemption will be mailed at least 30 days but not more than 60 days
before the redemption date to each Holder whose Notes are to be redeemed at its
registered address. Notes in denominations larger than $1,000 may be redeemed in
part but only in whole multiples of $1,000, unless all of the Notes held by a
Holder are to be redeemed. On and after the redemption date interest ceases to
accrue on Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of
any Notes for a period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding Interest Payment
Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions set
forth in this Indenture, the Indenture, the Subsidiary Guarantees or the Notes
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes and Additional Notes,
if any, voting as a single class (including, without limitation, consents
obtained in connection with a purchase of, or tender offer of Notes), and any
existing default or compliance with any provision of the Indenture, the
Subsidiary Guarantees or the Notes may be waived with the consent of the Holders
of a majority in principal amount of the then outstanding Notes and Additional
Notes, if any, voting as a single class (including, without limitation, consents
obtained in connection with a purchase of, or tender offer of Notes). Without
the consent of any Holder of a Note, the Indenture, the Subsidiary Guarantees or
the Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's or
Guarantor's obligations to Holders of the Notes by a successor to the Company,
pursuant to Article 5 of the Indenture, to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder, to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act, to provide for the
Issuance of Additional Notes in accordance with the limitations set forth in the
Indenture, or to allow any Guarantor to execute a supplemental indenture to the
Indenture and/or a Subsidiary Guarantee with respect to the Notes.
12. DEFAULTS AND REMEDIES. Under the Indenture, Events of Default
include: (i) default for 30 days in the payment when due of interest or Special
Interest on the Notes; (ii) default in payment when due of principal of or
premium, if any, on the Notes when the same becomes due and payable at maturity,
upon redemption (including in connection with an offer to purchase) or
otherwise, (iii) failure by the Company to comply with Sections 4.07 or 4.09 and
such failure continues for 30 days after notice thereof, (iv) failure by the
Company to comply with Section 4.10, 4.15 or 5.01 of the Indenture; (v) failure
by the Company for 60 days after notice to the Company by the Trustee or the
Holders of at least 25% in principal amount of the Notes (including Additional
Notes, if any) then outstanding voting as a single class to comply with certain
other agreements in the Indenture, the Notes; (vi) default under certain other
agreements relating to Indebtedness of the Company in excess of $15 million
which default results in the acceleration of such Indebtedness prior to its
express maturity or is caused by a failure to pay such Indebtedness due at
maturity and such Indebtedness equals $15 million or more in the aggregate;
(vii) certain final judgments for the payment of money in excess of $15 million
that remain undischarged, unpaid or unstayed for a period of 60 days; (viii)
certain events of bankruptcy or insolvency with respect to the Company or
certain of its Significant Subsidiaries; and (ix) except as permitted by the
Indenture, any Subsidiary Guarantee shall be held in any judicial proceeding to
be unenforceable or invalid or shall cease for any reason to be in full force
and effect or any Guarantor or any Person acting on its behalf shall deny or
disaffirm its obligations under such Guarantor's Subsidiary Guarantee. If any
Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare by notice to the Company all the Notes to
be due and payable. Notwithstanding the foregoing, in the case of an Event of
Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes will become due and payable without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes waive any existing Default or Event of
Default and its consequences under the Indenture except a continuing Default or
Event of Default in the payment of interest, premium or Special Interest, if
any, on, or the principal of, the Notes. The Company is required to deliver to
the Trustee annually a statement regarding compliance with the Indenture, and
the Company is required within 30 days of becoming aware of any Default or Event
of Default, to deliver to the Trustee a statement specifying such Default or
Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. Subject to certain limitations in
the Indenture and the Act, the Trustee, in its individual or any other capacity,
may make loans to, accept deposits from, and perform services for the Company or
its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company or any Guarantor or the Trustee as
such, shall not have any liability for any obligations of the Company or the
Guarantors under the Notes or the Indenture 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.
15. AUTHENTICATION. This Note shall not be valid until an authorized
signatory of the Trustee (or authenticating agent) manually signs the
certificate of authentication on the reverse side of this Note, authenticated by
the manual signature of the Trustee or an authenticating agent.
16. 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).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the A/B Exchange
Registration Rights Agreement dated as of August 15, 2001, by and among the
Company, the Guarantors and the parties named on the signature pages thereof
(the "Registration Rights Agreement").
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER UPON WRITTEN REQUEST AND WITHOUT
CHARGE A COPY OF THE INDENTURE AND/OR THE REGISTRATION RIGHTS AGREEMENT.
REQUESTS MAY BE MADE TO:
THE XXXXXXX XXXXXX COMPANY
THE PROSCENIUM
0000 XXXXXXXXX XXXXXX XX, XXXXX 000
XXXXXXX, XX 00000
ATTENTION: SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
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(Insert assignee's legal name)
(Insert assignee's soc. sec. or tax I.D. no.)
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _______________
Your Signature:
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(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the appropriate box
below:
/ / Section 4.10 / / Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased:
$
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Date:_______________
Your Signature:
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(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:
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Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
[INSERT THE SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE IN THE
FOLLOWING FORM, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE INDENTURE]
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
PRINCIPAL AMOUNT
AMOUNT OF DECREASE OF THIS GLOBAL NOTE SIGNATURE OF
IN PRINCIPAL AMOUNT AMOUNT OF INCREASE IN FOLLOWING SUCH AUTHORIZED OFFICER
OF PRINCIPAL AMOUNT OF DECREASE OF TRUSTEE OR
DATE OF EXCHANGE THIS GLOBAL NOTE THIS GLOBAL NOTE (OR INCREASE) NOTE CUSTODIAN
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