EXHIBIT 4.18
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN 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 GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 312 AND 313 OF THE INDENTURE.
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") AND HAS NOT BEEN REGISTERED UNDER ANY STATE
SECURITIES LAWS, AND THIS NOTE (AND ANY INTEREST OR PARTICIPATION HEREIN) MAY
NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, ENCUMBERED OR OTHERWISE TRANSFERRED OR
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF
THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS NOTE IN AN OFFSHORE TRANSACTION AND (2) AGREES FOR THE BENEFIT OF THE
ISSUERS THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED OR DISPOSED OF ONLY (I) INSIDE THE UNITED STATES TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (II) OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (IV)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (V)
TO THE ISSUERS, IN EACH CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND SUBJECT TO
THE ISSUERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(X) PURSUANT TO CLAUSE (II) OR (III) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND (Y) IN THE CASE OF ANY OF THE FOREGOING CLAUSES (I) THROUGH (V), TO REQUIRE
THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE ISSUERS AND THE
TRUSTEE, THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTION REFERRED TO ABOVE. AS
USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION" AND "U.S.
PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
EXCEPT AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN), BENEFICIAL
OWNERSHIP INTERESTS IN THIS OFFSHORE TEMPORARY GLOBAL NOTE WILL NOT BE
EXCHANGEABLE FOR INTERESTS IN THE OFFSHORE PERMANENT GLOBAL NOTE OR ANY OTHER
SECURITY REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO
NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION
OF THE "40 DAY DISTRIBUTION COMPLIANCE PERIOD" (WITHIN THE MEANING OF RULE
903(B)(2) OF REGULATIONS UNDER THE SECURITIES ACT). DURING SUCH 40 DAY
DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS OFFSHORE
TEMPORARY GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED THROUGH
EUROCLEAR BANK S.A./N.A., AS OPERATOR OF THE EUROCLEAR SYSTEM OR CLEARSTREAM
BANKING, SOCIETE ANONYME.
2
JAFRA COSMETICS INTERNATIONAL, INC.
and
DISTRIBUIDORA COMERCIAL JAFRA, S.A. de C.V.
10 3/4% Senior Subordinated Notes Due 2011
CUSIP No. P58922AA6
ISIN No. USP58922AA61
No. A-2 $1,390,000
Each of Jafra Cosmetics International, Inc., a corporation duly organized
and existing under the laws of the State of Delaware ("Jafra US"), and
Distribuidora Comercial Jafra, S.A. de C.V., a corporation organized under the
laws of Mexico ("Jafra Distribution (Mexico)", and together with Jafra US, the
"Issuers", such term to include any Successor of either (as such term is
defined in the Indenture referred to hereinafter), for value received, hereby
severally, but not jointly, promises to pay to Cede & Co., or registered
assigns, its several share in the proportion set forth below (with respect to
each Issuer, such relative proportion, a "Several Share") of the aggregate
principal sum of $1,390,000 (One Million Three Hundred and Ninety Thousand
United States Dollars) (or such lesser or greater amount as shall be
outstanding hereunder from time to time in accordance with Sections 312 and 313
of the Indenture referred to on the reverse hereof) (the "Principal Amount") on
May 15, 2011; provided that Jafra US shall be severally liable for only 40% of
the Principal Amount (the "Jafra US Portion") and Jafra Distribution (Mexico)
shall be severally liable for only 60% of the Principal Amount (the "Jafra
Distribution (Mexico) Portion", and each of the Jafra US Portion and the Jafra
Distribution (Mexico) Portion, a "Portion"). Each Issuer hereby severally, but
not jointly, promises to pay interest on its respective Portion, semi-annually
on May 15 and November 15 in each year, commencing November 15, 2003, at the
rate of 10 3/4% per annum (subject to adjustment as provided below), until the
Principal Amount is paid or made available for payment. Interest on this Note
will accrue from the most recent date to which interest on this Note or any of
its Predecessor Notes has been paid or duly provided for or, if no interest has
been paid, from the Issue Date. Interest on the Notes shall be computed on the
basis of a 360-day year of twelve 30-day months. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this 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 the May 1 or November 1
(whether or not a Business Day), as the case may be, next preceding such
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 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 whereof shall be given to Holders of Notes not more than 15
days nor less than 10 days prior to such Special Record Date,
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or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement, dated May 20, 2003, among the Issuers, Credit Suisse First
Boston LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and the Note
Guarantors named therein (the "Registration Rights Agreement"). Until (i) the
date on which this Note has been exchanged for a freely transferable Exchange
Security (as defined in the Registration Rights Agreement) in the Registered
Exchange Offer (as defined in the Registration Rights Agreement), (ii) the date
on which this Note has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement (as defined in
the Registration Rights Agreement), or (iii) the date on which this Note is
distributed to the public pursuant to Rule 144 of the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act (or otherwise is
eligible for resale pursuant to Rule 144 (or any successor provision) under the
Securities Act without volume restriction, if any: From and including the date
on which a Registration Default (as defined below) shall occur to but excluding
the date on which such Registration Default has been cured, additional interest
will accrue on this Note at the rate of (a) prior to the 91st day of such period
(for so long as such period is continuing), 0.25% per annum and (b) thereafter
(so long as such period is continuing), 0.50% per annum. Any such additional
interest shall not exceed such respective rates for such respective periods, and
shall not in any event exceed 0.50% per annum in the aggregate, regardless of
the number of Registration Defaults that shall have occurred and be continuing.
Any such additional interest shall be paid in the same manner and on the same
dates as interest payments in respect of this Note. Following the cure of all
Registration Defaults, the accrual of such additional interest will cease. All
Registration Defaults shall be deemed cured upon consummation of the Registered
Exchange Offer. For purposes of the foregoing, each of the following events, as
more particularly defined in the Registration Rights Agreement, is a
"Registration Default": (i) neither the Exchange Offer Registration Statement
(as defined in the Registration Rights Agreement) nor a Shelf Registration
Statement has been filed with the SEC on or before the 195th day after the Issue
Date (or if such day is not a business day, the first business day thereafter);
(ii) the Registered Exchange Offer is not consummated on or before the 255th day
after the Issue Date (or if such day is not a business day, the first business
day thereafter); (ii) the Registered Exchange Offer is not consummated on or
before the 255th day after the Issue Date (or if such day is not a business day,
the first business day thereafter); (iii) if a Shelf Registration Statement is
required to be filed under the Registration Rights Agreement, (A) the Shelf
Registration Statement is not declared effective by the SEC on or before the
285th day after the Issue Date (or if such day is not a business day, the first
business day thereafter) (or, in the case of a Shelf Registration Statement
required to be filed in response to any change in applicable interpretations of
the staff of the SEC, if later, on or before the 90th day after publication of
such change) or (B) after such Shelf Registration Statement is declared
effective and during the time the Company and the Issuers are required to use
their reasonable best efforts to keep the Shelf Registration Statement in
effect, the Company and the Issuers shall have suspended and be
4
continuing to suspend the availability of the Shelf Registration Statement, for
more than 30 days in the aggregate in any consecutive twelve-month period.
Payment of the principal of (and premium, if any) and interest on this
Note will be made at the office or agency of the Issuers maintained for that
purpose in The Borough of Manhattan, The City of New York; provided, however,
that at the option of the Issuers payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture or be valid or obligatory
for any purpose.
5
IN WITNESS WHEREOF, each of the Issuers has caused this instrument to
be duly executed.
JAFRA COSMETICS INTERNATIONAL, INC.
By
-------------------------------
Name:
Title:
DISTRIBUIDORA COMERCIAL JAFRA, S.A. de C.V.
By
-------------------------------
Name:
Title:
6
This is one of the Notes referred to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION
As Trustee
By
----------------------------
Authorized Officer
Dated:
7
REVERSE OF NOTE
This Note is one of the duly authorized issue of 10 3/4% Senior
Subordinated Notes Due 2011 of the Issuers (herein called the "Notes"), issued
under an Indenture, dated as of May 20, 2003 (herein called the "Indenture,"
which term shall have the meaning assigned to it in such instrument), among the
Issuers, Jafra Worldwide Holdings (Lux) S.ar.l. and the other Note Guarantors
from time to time parties thereto, as Note Guarantors, and U.S. Bank National
Association, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), and reference is hereby made to the
Indenture for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Issuers, any other obligor upon this
Note, the Trustee and the Holders of the Notes and of the terms upon which the
Notes are, and are to be, authenticated and delivered. The terms of the Notes
include those stated in the Indenture and those made a part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended, as in effect from
time to time (the "TIA"). The Notes are subject to all such terms, and Holders
are referred to the Indenture and the TIA for a statement of such terms.
Additional Notes may be issued under the Indenture which may vote as a class
with the Notes and otherwise be treated as Notes for purposes of the Indenture.
All terms used in this Note that are defined in the Indenture shall have
the meaning assigned to them in the Indenture.
This Note is entitled to the benefits of the certain senior subordinated
Note Guarantees of the Note Guarantors and may hereafter be entitled to certain
other senior subordinated Note Guarantees made for the benefit of the Holders.
Reference is made to Article Thirteen of the Indenture and to the Note
Guarantees for terms relating to such Note Guarantees, including the release,
termination and discharge thereof. Neither the Issuers nor any Note Guarantor
shall be required to make any notation on this Note to reflect any Note
Guarantee or any such release, termination or discharge.
The Notes are subordinated to Senior Indebtedness of the Issuers, as
defined in the Indenture, and the Note Guarantees are subordinated to Senior
Indebtedness of the relevant Note Guarantor, as defined in the Indenture. To
the extent provided in the Indenture, Senior Indebtedness must be paid before
the Notes or the relevant Note Guarantee may be paid. The Issuers and the Note
Guarantors agree, and each Noteholder by accepting a Note agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such
purposes.
The Notes will be redeemable, at the Issuers' option, in whole or in part,
and from time to time on and after May 15, 2007 and prior to maturity;
provided, however, that any such optional redemption may only be effected
concurrently by both of the Issuers on a pro rata basis as between their
respective Portions, based on the relative proportions of the Jafra US Portion
and the Jafra Distribution (Mexico) Portion. Such redemption may be made upon
notice mailed
8
by first-class mail to each Holder's registered address in accordance with the
Indenture. Any such redemption and notice may, in the Issuers' discretion, be
subject to the satisfaction of one or more conditions precedent. The Notes will
be so redeemable at the following Redemption Prices (expressed as a percentage
of principal amount), plus accrued interest, if any, to the relevant Redemption
Date (subject to the right of Holders of record on the relevant Regular Record
Date to receive interest due on the relevant Interest Payment Date), if redeemed
during the 12-month period commencing on May 15 of the years set forth below:
<Table>
<Caption>
Redemption
Period Price
------ ----------
2007............................ 105.375%
2008............................ 102.688%
2009 and thereafter............. 100.000%
</Table>
In addition, at any time and from time to time prior to May 15, 2006, the
Issuers at their option may concurrently redeem the Notes, on a pro rata basis
as between their respective Portions (based on the relative proportions of the
Jafra US Portion and the Jafra Distribution (Mexico) Portion), in an aggregate
principal amount equal to up to 35% of the original aggregate principal amount
of the Notes (including the principal amount of any Additional Notes), with
funds in an aggregate amount not exceeding the aggregate cash proceeds of one or
more Equity Offerings, at a Redemption Price (expressed as a percentage of
principal amount thereof) of 110.750% plus accrued interest, if any, to the
Redemption Date (subject to the right of Holders of record on the relevant
Record Date to receive interest due on the relevant Interest Payment Date);
provided, however, that an aggregate principal amount of the Notes equal to at
least 65% of the original aggregate principal amount of the Notes (including the
principal amount of any Additional Notes) must remain outstanding after each
such redemption. The Issuers may make such redemption upon notice mailed by
first-class mail to each Holder's registered address in accordance with the
Indenture (but in no event more than 180 days after the completion of the
related Equity Offering). Any such notice may be given prior to the completion
of the related Equity Offering, and any such redemption or notice may, at the
Issuers' discretion, be subject to the satisfaction of one or more conditions
precedent, including the completion of the related Equity Offering.
The Jafra Distribution (Mexico) Portion of the Notes may be redeemed, at
the option of Jafra Distribution (Mexico), at any time as a whole but not in
part, on not less than 30 nor more than 60 days' notice in accordance with the
Indenture at a Redemption Price equal to 100% of the principal amount thereof,
plus accrued and unpaid interest (if any) to the date of redemption (subject to
the right of Holders of record on the relevant Record Date to receive interest
due on the relevant Interest Payment Date), in the event Jafra Distribution
(Mexico), any successor to Jafra Distribution (Mexico) or any current or future
Note Guarantor of such Jafra Distribution (Mexico) Portion has become or would
become obligated to pay, on the next date on which any amount would be payable
with respect to the Notes, and such obligation cannot be
9
avoided by such Person's taking reasonable measures available to it, any
Additional Amounts in excess of Additional Amounts that Jafra Distribution
(Mexico), such successor or such Note Guarantor would be required to pay if
payments by Jafra Distribution (Mexico), such successor or such Note Guarantor
were subject to a 4.9% Mexican withholding tax as a result of a change in or an
amendment to applicable treaties or laws (including any regulations promulgated
thereunder) of Mexico (or any political subdivision or taxing authority thereof
or therein), or any change in or amendment to any official position regarding
the application or interpretation of such treaties, laws or regulations, which
change or amendment is announced or becomes effective on or after May 2, 2003
("Excessive Additional Amounts"); provided, however, that no such notice of
redemption may be given earlier than 60 days prior to the earliest date on
which Jafra Distribution (Mexico), such successor or such Note Guarantor
would, but for such redemption, be obligated to pay such Excessive Additional
Amounts. Prior to the publication of any notice of redemption pursuant to this
provision, Jafra Distribution (Mexico), any successor to Jafra Distribution
(Mexico) or any Note Guarantor will deliver to the Trustee (a) a certificate
duly signed by an officer of Jafra Distribution (Mexico), such successor or
such Note Guarantor stating that Jafra Distribution (Mexico), such successor or
such Note Guarantor is entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to the right of Jafra
Distribution (Mexico), such successor or such Note Guarantor so to redeem have
occurred and (b) a written opinion of Mexican legal counsel reasonably
acceptable to the Trustee to the effect that Jafra Distribution (Mexico), such
successor or such Note Guarantor has or will become obligated to pay such
Excessive Additional Amounts as a result of an amendment or change referred to
in this provision.
In the event of any partial redemption (other than a redemption
described in this immediately preceding paragraph), the several obligation of
each Issuer for each Note that remains outstanding shall continue in the same
proportion as the relative proportions of the Jafra US Portion and the Jafra
Distribution (Mexico) Portion, respectively.
The Indenture provides that, upon the occurrence of a Change of
Control, each Holder will have the right to require that the Issuers
repurchase, on a several basis in proportion to each Issuer's Several Share in
respect of the Notes, all or any part of such Holder's Notes at a repurchase
price in cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest, if any, to the date of such repurchase; provided,
however, that the Issuers shall not be obligated to purchase Notes in the event
they have exercised their right to redeem all the Notes as described above.
The Notes will not be entitled to the benefit of a sinking fund.
The Indenture contains provision for defeasance at any time of the
entire indebtedness of this Note or certain restrictive covenants and certain
Events of Default with respect to this Note, in each case upon compliance with
certain conditions set forth in the Indenture.
10
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuers and the rights of the Holders of the Notes to be affected under the
Indenture at any time by the Issuers and the Trustee with the consent of the
Holders of at least a majority in principal amount of the Notes at the time
Outstanding to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Notes at the
time Outstanding, on behalf of the Holders of all Notes, to waive compliance by
the Issuers with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any 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.
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to pursue such
remedy in respect of such Event of Default as Trustee and offered the Trustee
reasonable security or indemnity, and the Trustee shall not have received from
the Holders of a majority in principal amount of Notes at the time Outstanding
a direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and
offer of security or indemnity. The foregoing shall not apply to any suit
instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after the respective
due dates expressed herein.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the several obligation of each Issuer,
which is absolute and unconditional, to pay its Several Share of the principal
of and any premium and interest on this Note at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuers in a Place of Payment, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Issuers and the Note
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in writing,
11
and thereupon one or more new Notes of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000.00 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth, the Notes
are exchangeable for a like aggregate principal amount of Notes of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration, transfer or
exchange, but the Issuers may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration or transfer, the
Company, the Issuers, any other obligor in respect of this Note, the Trustee
and any agent of the Company, the Issuers, such other obligor 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 be overdue, and none of the Company,
the Issuers, or any other obligor upon this Note, the Trustee nor any such
agent shall be affected by notice to the contrary.
No director, officer, employee, incorporator or stockholder of the Company,
the Issuers, any Note Guarantor or any Subsidiary of any thereof shall have any
liability for any obligation of the Company, the Issuers or any Note Guarantor
under the Indenture, the Notes or any Note Guarantee, or for any claim based on,
in respect of, or by reason of, any such obligation or its creation. Each
Holder, by accepting this Note, hereby waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE SAME ARE NOT
MANDATORILY APPLICABLE BY STATUTE AND THE APPLICATION OF THE LAW OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY. THE TRUSTEE, THE ISSUERS, ANY OTHER
OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE
HOLDERS, AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR
STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE, THE NOTES AND
THE NOTE GUARANTEES.
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[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned holder hereby sell(s) assign(s) and
transfer(s) unto
__________________________________________________________________
Insert Taxpayer Identification No.
__________________________________________________________________
(Please print or typewrite name and address including zip code of assignee)
__________________________________________________________________
__________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing
__________________________________________________________________
attorney to transfer such Note on the books of the Issuers with the full power
of substitution in the premises.
[Check One]
[ ](a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
or
[ ](b) this Note is being transferred other than in compliance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Note
Registrar shall not be obligated to register this Note in the name of any
Person other than the Holder hereof unless and until the conditions to any
such transfer of registration set forth herein and in Section 313 of the
Indenture shall have been satisfied.
Date:__________________________________
_______________________________________
13
NOTICE: The signature to this
assignment must correspond with the name
as written upon the face of the within-
mentioned instrument in every particular,
without alteration or any change
whatsoever.
Signature Guarantee: ______________________________________
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note 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 Note Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
14
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933, as amended,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuers as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: _________________________ _____________________________________
NOTICE: To be executed by an
executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Issuers pursuant to Section
411 or 415 of the Indenture, check the box: [ ].
If you wish to have a portion of this Note purchased by the Issuers
pursuant to Section 411 or 415 of the Indenture, state the amount (in principal
amount) below:
$_______________
Date: _______________
Your Signature: ________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: ____________________________
Signature must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note 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 Note 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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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Date of Amount of Amount of Principal Signature
Exchange decreases in increases in amount of authorized
Principal Principal of this Global officer of
Amount of this Amount of this Note following Trustee or
Global Note Global Note such decreases Notes
or increases Custodian
17