EXHIBIT 4.3
(Face of Note)
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CUSIP
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91/2% Senior Subordinated Notes due 2005
No. $
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▇▇▇▇▇▇▇ PRODUCTS, INC.
promises to pay to or registered assigns, the principal sum of
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Dollars on April 15, 2005.
Interest Payment Dates: April 15 and October 15
Record Dates: April 1 and October 1
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Dated: ,1998
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▇▇▇▇▇▇▇ PRODUCTS, INC.
By:
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Name:
Title:
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
State Street Bank and Trust Company,
as Trustee
By:
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Dated:
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(Back of Note)
9 1/2% Senior Subordinated Notes due 2005
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. ▇▇▇▇▇▇▇ Products, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
91/2% per annum from April 22, 1998 until maturity. The Company will pay
interest semi-annually on April 15 and October 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
April 22, 1998; 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; and provided further
that the first Interest Payment Date shall be October 15, 1998. 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 (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) to the Persons who are registered Holders of Notes at the
close of business on the April 1 or October 1 next preceding the Interest
Payment Date, even if such Notes are cancelled 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 payable as to
principal, premium and interest at the office of the Paying Agent and Registrar.
Holders of Notes must surrender their Notes to the Paying Agent to collect
principal payments, and the Company may pay principal and interest by check and
may mail checks to a Holder's registered address; provided that all payments
with respect to Global Notes and Definitive Notes, the Holders of which have
given wire transfer instructions to the Company, will be required to be made by
wire transfer of immediately available funds to the accounts specified by the
Holders thereof. 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
April 22, 1998 ("Indenture") 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, as amended (15
U.S. Code (S)(S) 77aaa-77bbbb). 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 the Indenture shall govern and be
controlling. The Notes are obligations of the Company limited to $115.0 million
in aggregate principal amount.
5. OPTIONAL REDEMPTION.
a. Except as provided in subparagraph (b) of this Paragraph 5, the
Notes may not be redeemed at the option of the Company prior to April
15, 2001. During the 12-month period beginning on April 15 of the
years indicated below, the Notes will be redeemable, at the option of
the Company, in whole or in part, on at least 30 but not more than 60
days' notice to each Holder of Notes to be redeemed, at the redemption
prices in cash (expressed as percentages of the principal amount) set
forth below, plus any accrued and unpaid interest to the redemption
date:
Year Percentage
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2001............................ 104.750%
2002............................ 103.167%
2003............................ 101.583%
2004 and thereafter............. 100.000%
b. Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, prior to April 15, 2001, the Company may (but shall not
have the obligation to) redeem up to one-third of the aggregate
principal amount of Notes ever issued under the Indenture at a
redemption price in cash of 109 1/2% of the principal amount thereof,
plus accrued and unpaid interest to the redemption date, with the net
proceeds of one or more Equity Offerings (as defined in the
Indenture); provided that at least two-thirds of the aggregate
principal amount of Notes ever issued under the Indenture remains
outstanding immediately after the occurrence of any such redemption;
and provided further that any such redemption shall occur within 60
days of the date of the closing of any such Equity Offering.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be required
to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
a. Upon the occurrence of a Change of Control (such date being the
"Change of Control Trigger Date"), each Holder of Notes shall have the
right to require the Company to purchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes
pursuant to an Offer (as defined in the Indenture) pursuant to Section
3.08 of the Indenture at a purchase price in cash equal to 101% of the
aggregate principal amount thereof, plus any accrued and unpaid
interest to the date of purchase. Within 30 days following any Change
of Control Trigger Date, subject to the provisions of the Indenture,
the Company shall mail a notice to each Holder of Notes at such
Holder's registered address setting forth the procedures governing the
Offer as required by the Indenture.
b. When the aggregate amount of Excess Proceeds (as defined in the
Indenture) in connection with an Asset Sale exceeds $10,000,000 (such
date being an "Asset Sale Trigger Date"), the Company shall make an
Offer pursuant to Section 3.08 of the Indenture to all Holders of
Notes to purchase the maximum principal amount of the Notes then
outstanding that may be purchased out of Excess Proceeds, at an offer
price in cash equal to 100% of principal amount thereof, plus any
accrued and unpaid interest to the Purchase Date, in accordance with
the procedures set forth in the Indenture. Notwithstanding the
foregoing, to the extent that any or all of the Net Proceeds of an
Asset Sale is prohibited or delayed by applicable local law from being
repatriated to the United States, the portion of such Net Proceeds so
affected will not be required to be applied as described in this or
the preceding paragraph, but may be retained for so long, but only for
so long, as the applicable local law prohibits repatriation to the
United States. To the extent that any Excess Proceeds remain after
completion of an Offer, the Company may use such remaining amount for
general corporate purposes. If the aggregate principal amount of Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds,
the Trustee shall select the Notes to be purchased on a pro rata
basis. Holders of Notes that are subject to 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
side of this Note.
8. NOTICE OF REDEMPTION. Notice of any redemption or offer to purchase
will be mailed at least 30 days but not more than 60 days before the redemption
or purchase date to each Holder of Notes to be redeemed or purchased at such
Holder's 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
will cease 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 the Indenture, the Indenture, the Note 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 Notes then outstanding under the Indenture voting as
a single class and any existing default (other than a payment default) or
compliance with any provision of the Indenture, the Note Guarantees or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding under the Indenture voting as a single class.
Without the consent of any Holder of Notes, the Company and the Trustee may
amend or supplement the Indenture, the Note Guarantees or the Notes 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 by
a successor corporation of the Company's or Guarantors' obligations to Holders
of the Notes in case of a Disposition, 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 or to allow any
Guarantor to execute a supplemental indenture to the Indenture and/or a Note
Guarantee with respect to the Notes.
12. DEFAULTS AND REMEDIES. Events of Default include: (a) a default for 30
days in payment of interest on the Notes (whether or not prohibited by the
subordination provisions of the Indenture); (b) a default in payment when due of
principal or premium, if any, with respect to the Notes (whether or not
prohibited by the subordination provisions of the Indenture); (c) the failure of
the Company to comply with any of its other agreements or covenants in, or
provisions of, such Indenture or the Notes outstanding under such Indenture and
the Default continues for the period, if applicable, and after the notice
specified in the next paragraph; (d) a default by the Company or any Restricted
Subsidiary under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any Restricted Subsidiary (or the payment of which is
guaranteed by the Company or any Restricted Subsidiary), whether such
Indebtedness or guarantee now exists or shall be created hereafter, if (1)
either (A) such default results from the failure to pay principal of or interest
on any such Indebtedness at or after the final maturity thereof (after giving
effect to any extensions thereof) and such default continues for 30 days beyond
any applicable grace period, or (B) as a result of such default the maturity of
such Indebtedness has been accelerated prior to its expressed maturity, and (2)
the principal amount of such Indebtedness, together with the principal amount of
any other such Indebtedness in default for failure to pay principal or interest
thereon at final maturity, or, because of the acceleration of the maturity
thereof, aggregates in excess of $10,000,000; (e) a failure by the Company or
any Restricted Subsidiary to pay final judgments (not covered by insurance)
aggregating in excess of $5,000,000 which judgments a court of competent
jurisdiction does not rescind, annul or stay within 45 days after their entry
and the Default or an Event of Default continues for such period and after the
notice specified in the next paragraph; (f) certain events of bankruptcy or
insolvency involving the Company or any Significant Subsidiary; and (g) except
as permitted by the Indenture, any Note Guarantee shall be held in any judicial
proceeding unenforceable or invalid or shall cease for any reason to be in full
force and effect or any Guarantor, or any Person acting on
behalf of any Guarantor, shall deny or disaffirm its obligations under its Note
Guarantee. A Default or Event of Default under clause (c) of this Paragraph 12
(other than an Event of Default arising pursuant to Section 5.01 of the
Indenture which shall be an Event of Default with the notice but without the
passage of time specified in this paragraph) is not an Event of Default under
the Indenture until the Trustee or the Holders of at least 25% in principal
amount of the Notes then outstanding notify the Company of the Default and the
Company does not cure the Default within 30 days after receipt of the notice. A
Default or Event of Default under clause (f) of this Paragraph 12 will result in
the Notes automatically becoming due and payable without further action or
notice. Upon the occurrence of an Event of Default (other than under clause (f)
of this Paragraph 12), the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all Notes to be due and payable
by notice in writing to the Company and the Trustee as specified in the
Indenture, and, upon receipt by the Company of such notice, the principal of,
premium, if any, and any accrued and unpaid interest on, all Notes shall be due
and payable immediately; or (ii) if there are any amounts outstanding under the
Credit Agreement, to be due and payable immediately upon the first to occur of
(A) an acceleration under the Credit Agreement or (B) five business days after
receipt by the Company of such notice, but only if such Event of Default is then
continuing.
13. SUBORDINATION. The payment of principal of, premium, and interest
on the Notes will be subordinated in right of payment, as set forth in the
Indenture, to the prior payment in full in cash of all Senior Indebtedness,
whether outstanding on the date of the Indenture or thereafter incurred. The
Company agrees, and each Holder by accepting a Note agrees, that the payment of
principal of, premium and interest on the Notes is subordinated in right of
payment, to the extent and in the manner provided in the Indenture, to the prior
payment in full in cash of all Senior Indebtedness (whether outstanding on the
date hereof or thereafter created, incurred, assumed or guaranteed), and that
the subordination is for the benefit of the holders of Senior Indebtedness.
14. NOTE GUARANTEES. The payment of principal of, premium, and
interest on the Notes will be unconditionally guaranteed, jointly and severally,
on a senior subordinated basis by the Guarantors.
15. TRUSTEE DEALINGS WITH COMPANY. 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.
16. No RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company 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.
17. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
18. 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).
19. 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:
▇▇▇▇▇▇▇ Products, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: 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 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:
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Your Signature:
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(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee:
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 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 Note)
Tax Identification No:
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Signature Guarantee:
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:
Amount of Amount of
decrease in increase in Principal Amount Signature of
Principal Amount Principal of this Global Note authorized officer
of this Amount of this following such of Trustee or
Date of Exchange Global Note Global Note decrease (or increase) Note Custodian
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