EXHIBIT 4.9
XXXXXX GROUP INTERNATIONAL, INC.
% SERIES [ ] SENIOR GUARANTEED NOTES DUE [ ]
No. ______ $__________
CUSIP No.
XXXXXX GROUP INTERNATIONAL, INC., a corporation incorporated under the
laws of the State of Delaware (herein called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to [ ] or registered assigns, the
principal sum of _______________ Dollars on [ ], at the office or agency
of the Company referred to below, and to pay interest thereon on ________ and
__________, in each year, commencing on ________________, accruing 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 the original date of issuance, at the
rate of % per annum, until the principal hereof is paid or duly provided
for. Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
If the Guarantor fails to consummate equity transactions having gross
proceeds of at least $200,000,000 in the aggregate prior to [ ],
additional interest ("Penalty Interest") shall accrue at a rate of .25% per
annum for the first 90 days following such anniversary date, increasing by an
additional .25% per annum at the beginning of each subsequent 90-day period;
provided, however, that such Penalty Interest may not exceed 1.0% per annum; and
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provided further, that such Penalty Interest shall cease to accrue upon the
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consummation by the Guarantor of an equity transaction, the gross proceeds of
which, together with the gross proceeds of all other equity transactions
consummated by it after [ ] are equal to or greater than
$200,000,000.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Physical Note (or one
or more Predecessor Notes) is registered at the close of business on the Regular
Record Date for such interest, which shall be [ ] or [ ]
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date (each a "Regular Record Date"). Any such interest not so
punctually paid, or duly provided for, and interest on such defaulted interest
at the rate borne by the Physical Notes, to the extent lawful, 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 Physical Note (or one or more Predecessor
Notes) 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 of which
shall be given to Holders of Senior Notes not less than 10 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
Senior Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in such Indenture.
The Holder of this Physical Note is entitled to the benefits of a
Registration Rights Agreement, dated as of October 4, 1996, among the Company,
the Guarantor and the Initial Purchasers named therein (the "Registration Rights
Agreement"). The Registration Rights Agreement contains provisions permitting
an increase in the interest rate borne by this Physical Note in the event of the
failure to file or to have declared effective an Exchange Offer Registration
Statement or Shelf Registration Statement (as such terms are defined in the
Registration Rights Agreement), or to consummate an Exchange Offer within
prescribed time periods specified in such Registration Rights Agreement.
Payment of the principal of, premium, if any, and interest on this
Physical Note will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan in The City of New York, or at such
other office or agency of the Company as may be maintained for such purpose, 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; provided, however, that
payment of interest 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 on the
security register maintained by the Registrar.
Reference is hereby made to the further provisions of this Physical
Note set forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, and a seal
has been affixed hereon, this Physical Note shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
XXXXXX GROUP INTERNATIONAL, INC.
By:_____________________________
Name:
Title:
[SEAL]
Attest:
By:__________________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Physical Notes of the series designated therein
referred to in the within-mentioned Indenture.
FLEET NATIONAL BANK,
as TRUSTEE
By: __________________________________
Authorized Officer
(Reverse of Note)
1. Indenture. This Note is one of a duly authorized series of
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Senior Notes of the Company designated as its % Series [ ] Senior
Guaranteed Notes due [ ] (the "Senior Notes"), which may be issued under an
indenture (herein called the "Indenture") dated as of [ ], among
Xxxxxx Group International, Inc., a Delaware corporation, as issuer (the
"Company"), The Xxxxxx Group Inc., as guarantor of the obligations of the
Company under the Indenture (the "Guarantor") and Fleet National Bank, a
national banking association, as trustee (herein called the "Trustee," which
term includes any successor Trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Company, the Trustee, the Guarantor and the Holders of the
Senior Notes, and of the terms upon which the Senior Notes are, and are to be,
authenticated and delivered.
All capitalized terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this Note or
of the Indenture shall alter or impair the obligation of the Company or the
Guarantor, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Note at the times, place and rate, and in
the coin or currency, herein prescribed.
2. Redemption. [The Senior Notes will not be redeemable at the
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option of the Company.]*
[(a) Optional Redemption. The Senior Notes are subject to redemption,
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at the option of the Company, as a whole or in part, in principal amounts of
$1,000 or any integral multiple of $1,000, at any time on or after [ ]
upon not less than 30 nor more than 60 days' prior notice at the following
Redemption Prices (expressed as percentages of the principal amount) if redeemed
during the 12-month period beginning [ ] of the years indicated below:
Redemption
Year Price
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_________%
_________%
_________%
plus accrued and unpaid interest, if any, to the Redemption Date, all as
provided in the Indenture.
(b) Partial Redemption. In the event of redemption of this Note
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in part only, a new Senior Note or Senior Notes for the unredeemed portion
hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.]**
3. Guarantee. This Note is entitled to a senior Guarantee made
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for the benefit of the Holders. Reference is hereby made to the Guarantee
attached hereto and the Indenture (including, without limitation, Article 10
thereof) for the terms of the Guarantee.
4. Offers to Purchase. Sections 4.11 and 4.12 of the Indenture
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provide that upon the occurrence of a Change of Control and following certain
Asset Sales, and subject to further limitations contained
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* Applicable only to Series 3 Senior Guaranteed Notes due 2001
** Applicable only to Series 4 Senior Guaranteed Notes due 2003
therein, the Company shall make an offer to purchase certain amounts of the
Senior Notes in accordance with the procedures set forth in the Indenture.
5. Defaults and Remedies. If an Event of Default shall occur and be
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continuing, the principal of all of the outstanding Senior Notes, plus all
accrued and unpaid interest, if any, to and including the date the Senior Notes
are paid, may be declared due and payable in the manner and with the effect
provided in the Indenture.
6. Defeasance. The Indenture contains provisions (which provisions
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apply to this Note) for defeasance at any time of (a) the entire indebtedness of
the Company and the Guarantor under this Note and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
7. Amendments and Waivers. The Indenture permits, with certain
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exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders 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 Senior
Notes of each series at the time outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of each series of the Senior Notes at the time outstanding, on
behalf of the Holders of all the Senior Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past Defaults under the Indenture and this Senior Note and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Senior 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.
8. Denominations, Transfer and Exchange. The Senior Notes are issuable
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only in registered form without coupons in denominations of $1,000 and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Senior Notes are exchangeable for a like
aggregate principal amount of Senior Notes of a different authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable on the security register of
the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company maintained for such purpose in the Borough of
Manhattan in The City of New York or at such other office or agency of the
Company as may be maintained for such purpose, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Senior Notes, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
No service charge shall be made for any registration of transfer or
exchange or redemption of Senior Notes, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
9. Persons Deemed Owners. Prior to and at the time of due presentment
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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 shall be overdue, and neither the Company, the Trustee nor any agent shall
be affected by notice to the contrary.
10. Governing Law. This Note and the Guarantee shall be governed by and
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construed in accordance with the laws of the State of New York, without regard
to conflicts of law principles.
