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EXHIBIT 4.09
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[FORM OF FACE OF SECURITY]
[UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CORPORATION
(AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR
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.
TRANSFERS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.9 OF THE
INDENTURE (AS DEFINED BELOW).]*
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* Include only on a Global Note.
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No. $
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XXXXXX XXXXXXXX MATERIALS, INC.
5.875%
Note Due December 1, 2008
CUSIP 573284 AE 6
XXXXXX XXXXXXXX MATERIALS, INC., a North Carolina corporation, for
value received hereby promised to pay to __________, or registered assigns, the
principal sum of _______________________ DOLLARS ($________) on December 1,
2008.
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Additional Provisions of this Note are set forth on the following pages
of this Note.
Attest: [SEAL] XXXXXX XXXXXXXX MATERIALS, INC.
By:
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Secretary Chief Executive Officer
Dated:
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Authenticated:
This is one of the Securities
of the series designated herein
and referred to in the within-
named Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:
-----------------------,
Authorized Officer
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[FORM OF REVERSE OF SECURITY]
XXXXXX XXXXXXXX MATERIALS, INC.
5.875%
NOTE DUE DECEMBER 1, 2008
1. Interest. Xxxxxx Xxxxxxxx Materials, Inc., a North Carolina
corporation (the "Corporation"), promises to pay interest on the principal
amount of this Security at the rate per annum shown above. The Corporation will
pay interest semi-annually on June 1 and December 1 of each year. Interest on
the Securities will accrue from the most recent date to which interest has been
paid, or if no interest has been paid, from December 7, 1998. Unless otherwise
specified, interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment. Except as described above, the Corporation will
pay interest on the Securities (except defaulted interest, which shall be paid
as set forth below) to the persons who are registered holders of the Securities
at the close of business on the record date for the next interest payment date
even though the Securities are cancelled after the record date and on or before
the interest payment date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such regular
record date and may either be paid to the Person in whose name this Security (or
one or more predecessor Securities) 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 for the Securities, notice whereof shall be given to the Holders of
Securities not less than 15 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 this Security may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Holders must surrender the Securities to a Paying
Agent to collect principal payments. The Corporation will pay principal and
interest in the money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Corporation may pay
principal and interest by its check payable in such money. It may mail an
interest check to a holder's registered address. To the extent lawful, the
Corporation shall pay interest on overdue principal at the rate borne by the
Securities and it shall pay interest on overdue installments of interest at the
same rate.
3. Paying Agent and Registrar. Initially, First Union National Bank
("Trustee"), Corporate Trust Division, 000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, will act as Paying Agent and Registrar.
The Corporation may change any Paying Agent, Registrar or co-registrar without
notice. The Corporation or any of its Subsidiaries (as defined in the Indenture)
may act as Paying Agent, Registrar or co-registrar.
4. Indenture. The Corporation issued the Securities under an Indenture
dated as of December 7, 1998 ("Indenture"), between the Corporation and the
Trustee. The terms of the Securities 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) ("Act"). The Securities are subject to all
such terms, and holders are referred to the Indenture, all applicable
supplemental indentures and the Act for a statement of those terms. As provided
in the Indenture, 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 in the Indenture
provided or permitted. This Security is one of a series of the Securities
designated on the face hereof, limited in aggregate principal amount of
$200,000,000 (except as otherwise provided in the Indenture).
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5. Redemption. The Securities are not redeemable by the Corporation.
6. Denominations; Transfer; Exchange. The Securities are in registered
form without coupons in denominations of $1,000 and any multiple of $1,000. A
holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar 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 Indenture. Also, it need not transfer or exchange any
Securities for a period of 15 days before a selection of Securities to be
redeemed or before an interest payment date.
7. Persons Deemed Owners. The registered holder of this Security may
be treated as the owner of it for all purposes, and neither the Corporation, the
Trustee, nor any Registrar, Paying Agent or co-registrar shall be affected by
notice to the contrary.
8. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Corporation at its request. After that, holders entitled to
unclaimed money must look only to the Corporation and not the Trustee for
payment unless an abandoned property law designates another person.
9. Defeasance. The Indenture contains provisions for defeasance at any
time of the entire principal of the Securities of any series upon compliance by
the Corporation with certain conditions set forth therein.
10. Amendment; Supplement; Waiver. Subject to certain exceptions as
therein provided, the Indenture or the Securities may be amended or supplemented
with the consent of the holders of not less than a majority in principal amount
of the Securities, and, subject to certain exceptions and limitations as
provided in the Indenture, any past default or compliance with any provision may
be waived with the consent of the holders of a majority in principal amount of
the Securities. Without the consent of any holder, the Indenture or the
Securities may be amended or supplemented, for among other reasons, to cure any
ambiguity, omission, defect or inconsistency, to provide for uncertificated
Securities in addition to or in place of certificated Securities or to make any
change that does not materially adversely affect the rights of any holder.
Without the consent of any holder, the Trustee may waive compliance with any
provision of the Indenture or the Securities if the waiver does not materially
adversely affect the rights of any holder.
11. Restrictive Covenants. The Indenture does not limit unsecured debt
of the Corporation or any of its Subsidiaries. It does limit certain mortgages,
liens and sale-leaseback transactions. The limitations are subject to a number
of important qualifications and exceptions. Once a year the Corporation must
report to the Trustee on compliance with the limitations.
12. Successors. When a successor entity assumes all the obligations of
the Corporation or its successors under the Securities and the Indenture, the
predecessor corporation will be released from those obligations.
13. Defaults and Remedies. An Event of Default is: default for 30 days
in payment of any interest on the Securities; default in payment of any
principal on the Securities; failure by the Corporation for 90 days after notice
to it to comply with any of its other agreements in the Indenture or the
Securities; and certain events of bankruptcy or insolvency. If an Event of
Default with respect to Securities of this series shall occur and be continuing,
the principal of the Securities of this series and accrued interest thereon may
be declared due and payable in the manner and with the effect provided in the
Indenture. Holders of Securities may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives indemnity satisfactory to it.
Subject to certain limitations, holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from holders notice of any continuing default (except a
default in payment of principal or interest) if it determines in good faith that
withholding notice is in the interests of such holders.
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14. Trustee Dealings with the Corporation. First Union National Bank,
the Trustee under the Indenture, in its individual or any other capacity may
make loans to, accept deposits from and perform services for the Corporation or
any of its affiliates, and may otherwise deal with the Corporation or its
affiliates as if it were not Trustee.
15. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Corporation shall not have any liability for any
obligations of the Corporation under the Securities 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 Security waives and releases all such
liability. This waiver and release are part of the consideration for the issue
of the Securities.
16. Authentication. This Security shall not be valid until the Trustee
or other Authenticating Agent manually signs the certificate of authentication
on this Security.
17. 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).
18. Miscellaneous. This Security shall for all purposes be governed by,
and construed in accordance with, the laws of the State of New York.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Corporation will furnish to any holder upon written request and
without charge a copy of the Indenture. Requests may be made to: Xxxxxx Xxxxxxxx
Materials, Inc., 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Secretary.
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I or we assign and transfer to
Insert social security or other identifying number of assignee
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(Print or type name, address and zip code of assignee)
this Note and irrevocably appoint ___________________ agent to transfer this
Note on the books of the Corporation. The agent may substitute another to act
for him.
Dated:
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Signed:
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(Sign exactly as name appears on the front page of this Note)
Signature Guarantee:
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Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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