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Exhibit 4.4
NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER
THE ACT) OR (B) IT IS AN "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION, (2) AGREES
THAT IT WILL NOT WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF THIS NOTE
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT, (C) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE ACT, (D) INSIDE THE UNITED STATES TO AN
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON
ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (E)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904
UNDER THE ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE ACT (IF AVAILABLE) (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THREE YEARS
AFTER ORIGINAL ISSUANCE OF THIS NOTE, IF THE PROPOSED TRANSFEREE IS AN
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION
AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE ACT.
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THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
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 IT REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR 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.
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CUSIP 759664-AG-0
RENAISSANCE COSMETICS, INC.
Number R-1
11 3/4% SENIOR NOTE DUE 2004
RENAISSANCE COSMETICS, INC., a Delaware corporation (the "Company"),
for value received, promises to pay to CEDE & CO. or registered assigns the
principal sum of $200.0 million dollars on February 15, 2004.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
RENAISSANCE COSMETICS, INC.
By: /s/ XXXX X. XXXXXXX
-------------------------------------
Title: Secretary
By: /s/ XXXXXX X.X. KAUNG
-------------------------------------
Title: Group Vice President
Dated: February 7, 1997
Certificate of Authentication
This is one of the 11 3/4% Senior Notes due 2004 referred to in the
within-mentioned indenture.
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: /s/ XXXXXX X. XXXXX
-------------------------------------
Authorized Signatory
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REVERSE OF NOTE
RENAISSANCE COSMETICS, INC.
11 3/4% SENIOR NOTE DUE 2004
1. Interest. Renaissance Cosmetics, Inc., a Delaware corporation
(the "Company"), promises to pay, until the principal hereof is paid or made
available for payment, interest on the principal amount set forth on the face
hereof at a rate of 11 3/4% per annum. Interest hereon will accrue from and
including the most recent date to which interest has been paid or, if no
interest has been paid, from and including February 7, 1997 to but excluding the
date on which interest is paid. Interest shall be payable in arrears on each
February 15 and August 15 commencing August 15, 1997. Interest will be computed
on the basis of a 360-day year of twelve 30-day months. The Company shall pay
interest on overdue principal and on overdue interest (to the full extent
permitted by law) at a rate of 13 3/4% per annum.
2. Method of Payment. The Company will pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of
business on February 1 or August 1 next preceding the interest payment date
(whether or not a Business Day). Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company will pay principal and interest in
money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Interest may be paid by check
mailed to the Holder entitled thereto at the address indicated on the register
maintained by the Registrar for the Notes.
3. Paying Agent and Registrar. Initially, United States Trust
Company of New York (the "Trustee") will act as a Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice. Neither the
Company nor any of its Affiliates may act as Paying Agent or Registrar.
4. Indenture. The Company issued the Notes under an Indenture dated
as of February 7, 1997 (the "Indenture") among the Company (as defined in the
Indenture) and the Trustee. This is one of the Notes of the Company issued under
the Indenture. 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 amended from time to time. The Notes are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of them. Capitalized and certain other terms used herein and
not otherwise defined have the meanings set forth in the Indenture. The Notes
are obligations of the Company limited in aggregate principal amount to $200.0
million. The Indenture limits, among other things, the ability of the Company
and its Subsidiaries to: (i) incur additional Indebtedness; (ii) pay dividends
and make distributions; (iii) make certain investments;
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(iv) create liens; (v) enter into transactions with affiliates; (vi) issue stock
of its Subsidiaries; (vii) enter into agreements restricting the ability of such
Subsidiaries to pay dividends and make distributions; (viii) enter into sale and
leaseback transactions; (ix) merge or consolidate the Company; (x) transfer or
sell assets; and (xi) finance certain acquisitions. These covenants are subject
to a number of important exceptions. The Company must report to the Trustee
quarterly in compliance with the limitations contained in the Indenture.
5. Optional Redemption. The Company, at its option, may redeem the
Notes, in whole or in part, at any time on or after February 15, 2002 upon not
less than 30 nor more than 60 days' notice, at the redemption prices (expressed
as percentages of principal amount), set forth below, together, in each case,
with accrued and unpaid interest to the Redemption Date, if redeemed during the
twelve-month period beginning on February 15 of each year listed below:
Year Redemption Price
---- ----------------
2002........................................... 103.358%
2003........................................... 101.679%
Notwithstanding the foregoing, the Company may redeem in the
aggregate up to 35% of the original principal amount of Notes at any time and
from time to time on or prior to February 15, 2000 at a redemption price equal
to 111.75% of the aggregate principal amount thereof, plus accrued and unpaid
interest thereon to the Redemption Date with the Net Proceeds of one or more
Public Equity Offerings or Strategic Equity Investments; provided, that at least
$130.0 million of the principal amount of Notes originally issued remains
outstanding immediately after the occurrence of any such redemption and that any
such redemption occurs within 90 days following the closing of any such Public
Equity Offering or Strategic Equity Investment.
6. Notice of Redemption. Notice of redemption will be mailed at
least 30 days but not more than 60 days before the Redemption Date to each
Holder of Notes to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue on Notes or portions thereof called for redemption.
7. Offers to Purchase. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein, the Company shall make an offer to purchase
outstanding Notes in accordance with the procedures set forth in the Indenture.
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8. Registration Rights. Pursuant to a Registration Rights Agreement
between the Company and CIBC Wood Gundy Securities Corp., as initial purchaser
of the Notes, the Company will be obligated to consummate an exchange offer
pursuant to which the Holder of this Note shall have the right to exchange this
Note for Notes of a separate series issued under the Indenture (or a trust
indenture substantially identical to the Indenture in accordance with the terms
of the Registration Rights Agreement) which have been registered under the
Securities Act, in like principal amount and having substantially identical
terms as the Notes. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions all pursuant to and in accordance with the terms of the
Registration Rights Agreement.
9. Disbursement of Funds, Escrow Account. The Company has
transferred approximately 17.5 million of the net proceeds from the offering of
the Notes to the Guarantor in exchange for the Subsidiary Guarantee. The
Guarantor has placed such amount into an Escrow Account for the benefit of the
holders of the Notes. Until disbursed in accordance with the Escrow Agreement
and the Indenture, the Escrow Account is designed to provide security for a
portion of the Company's obligations under the Notes for the first two years
after the Issue Date. In addition, the Indenture provides that, (i) so long as
no Default or Event of Default has occurred and is continuing, the Guarantor is
obligated to pay to the Trustee for the benefit of the holders of the Notes, on
each interest payment date, an amount equal to the amount of interest then due
on $79.0 million aggregate principal amount of the Notes (such amount, the
"Interest Portion") and (ii) upon the occurrence and during the continuation of
a Default or an Event of Default, the Guarantor must pay the full amount of
interest on the Notes at the regular, pre-default rate, as the same becomes due
and payable, unless paid from another source. The escrow Agreement provides,
among other things, that funds will be disbursed from the Escrow Account (i) on
any interest payment date, to pay the Interest Portion and (ii) upon a Default
or an Event of Default, to pay the full amount due on the Notes under the
Subsidiary Guarantee. Pending such disbursement, the Company will cause all the
funds contained in the Escrow Account to be invested in Temporary Cash
Investments. Interest earned on these Temporary Cash Investments will be added
to the Escrow Account. The Indenture provides that the proceeds of the Escrow
Account will be applied first to the payment of interest on the Notes so long as
interest thereon is due or will become due under the Notes and that only in the
event that interest is no longer due and will not become due (whether because
the full principal amount of the Notes is to be repaid or otherwise) will the
proceeds of the Escrow Account be applied to principal or premium, if any.
10. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. A Holder may transfer or exchange Notes in accordance with the
Indenture. The
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Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay to it any taxes and fees required
by law or permitted by the Indenture. The Registrar need not transfer or
exchange any Notes or portion of a Note selected for redemption, or transfer or
exchange any Notes for a period of 15 days before a mailing of notice of
redemption.
11. Persons Deemed Owners. The registered Holder of this Note may be
treated as the owner of this Note for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee will pay the money back to
the Company at its written request. After that, Holders entitled to the money
must look to the Company for payment as general creditors unless an "abandoned
property" law designates another Person.
13. Amendment, Supplement, Waiver, Etc. The Company, the Guarantor
and the Trustee (if a party thereto) may, without the consent of the Holders of
any outstanding Notes, amend, waive or supplement the Indenture or the Notes for
certain specified purposes, including, among other things, curing ambiguities,
defects or inconsistences, maintaining the qualification of the Indenture under
the Trust Indenture Act of 1939, as amended, and making any change that does not
materially and adversely affect the rights of any Holder. Other amendments and
modifications of the Indenture or the Notes may be made by the Company, the
Guarantor and the Trustee with the consent of the Holders of not less than a
majority of the aggregate principal amount of the outstanding Notes, subject to
certain exceptions requiring the consent of the Holders of the particular Notes
to be affected.
14. Successor Corporation. When a successor corporation assumes all
the obligations of its predecessor under the Notes and the Indenture and the
transaction complies with the terms of Article V of the Indenture, the
predecessor corporation will, except as provided in Article V, be released from
those obligations.
15. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.1(a)(vi) or (vii)
of the Indenture with respect to the Company) occurs and is continuing, the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
outstanding Notes may, by written notice to the Trustee and the Company, and the
Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the outstanding Notes shall, declare all principal of and
accrued interest on all Notes to be immediately due and payable. If an Event of
Default specified in Section 6.1(a)(vi) or (vii) of the Indenture occurs with
respect to the Company, the principal amount of and interest on, all Notes shall
ipso facto become and be immediately due and payable without any declaration or
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other act on the part of the Trustee or any Holder. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Notes. 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 notice of any continuing
default (except a default in payment of principal or interest) if it
determines that withholding notice is in their interests. The Company must
furnish an annual compliance certificate to the Trustee.
16. 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 Trustee.
17. No Recourse Against Others. A trustee, director, officer,
employee, stockholder or incorporator, as such, of the Company or the Guarantor
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, either directly or through the Company or any
successor Person or by virtue of any statute or other rule of law. Each Holder,
by accepting a Note, waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Notes.
18. Discharge. The Company's obligations pursuant to the Indenture
will be discharged, except for obligations pursuant to certain sections thereof,
subject to the terms of the Indenture, upon the payment of all the Notes or upon
the irrevocable deposit with the Trustee of United States dollars or U.S.
Government Obligations sufficient to pay when due principal of and interest on
the Notes to maturity or redemption, as the case may be.
19. Guarantee; Security. The Note is initially entitled to the
benefits of the Subsidiary Guarantee of the Guarantor. Upon the terms and
subject to the conditions set forth in the Indenture, the Guarantor has
unconditionally guaranteed that the principal of, and premium, if any, interest
and Additional Interest, if any, on and any additional amounts, if any, with
respect to the Notes will be duly and punctually paid in full when due, whether
at maturity, by acceleration or otherwise, and interest on overdue principal
premium, if any, and (to the extent permitted by law) interest on any interest
or Additional Interest, if any, on the Notes and all other Obligations of the
Company to the Holders under the Notes or the Indenture (including fees,
expenses or other Obligations) will be promptly paid in full or performed. The
Subsidiary Guarantee constitutes a limited guarantee by the Guarantor of all
sums due under the Notes limited in amount to the value of the property held in
the Escrow Account. The Guarantor shall be released from the Subsidiary
Guarantee upon the terms and subject
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to the conditions set forth in the Indenture. Reference is hereby made to
Article X of the Indenture and to Exhibit G to the Indenture for the terms of
the Subsidiary Guarantee. The Guarantor's obligations under the Subsidiary
Guarantee are secured by a first priority security interest in the Escrow
Account and the Temporary Cash Investments held therein.
20. Authentication. This Note shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Note.
21. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THIS SENIOR NOTE WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. The
Trustee, the Company, the Guarantor and the Holders agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Indenture or the Notes.
22. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (=
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).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
RENAISSANCE COSMETICS, INC.
000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
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ASSIGNMENT
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
________________________________________________________________________________
________________________________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act provided by Rule 144A thereunder.
or
[ ] (b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or 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 2.17 of the Indenture shall have been satisfied.
Date: _________________ Your Signature: _______________________________
_______________________________________________
(Sign exactly as your name appears on the other
side of this Note)
Signature Guarantee _______________________________________________
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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
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 Company 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 want to elect to have all or any part of this Note purchased
by the Company pursuant to Section 4.13 or Section 4.15 of the Indenture, check
the appropriate box:
|_| Section 4.13 |_| Section 4.15
If you want to have only part of the Note purchased by the Company
pursuant to Section 4.13 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:
$________________________
(multiple of $1,000)
Date: _______________________
Your Signature: _________________________
(Sign exactly as your name appears on the
face of this Note)
_____________________________
Signature Guaranteed
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GUARANTEE
The undersigned (the "Guarantor") hereby unconditionally guarantees,
to the extent set forth in the Indenture dated as of February 7, 1997 by and
among Renaissance Cosmetics, Inc., as issuer, the Guarantor, as guarantor, and
United States Trust Company of New York, as Trustee (as amended, restated or
supplemented from time to time the "Indenture"), and subject to the provisions
of the Indenture, (a) the due and punctual payment of the principal of and
interest on the Notes, whether at maturity, by acceleration or otherwise, the
due and punctual payment of interest on overdue principal, and, to the extent
permitted by law, interest, and the due and punctual performance of all other
obligations of the Company to the Noteholders or the Trustee, all in accordance
with the terms set forth in Article X of the Indenture, and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
The obligations of the Guarantor to the Noteholders and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article X of the Indenture and reference is hereby made to the
Indenture for the precise terms and limitations of this Subsidiary Guarantee.
RENAISSANCE GUARANTOR, INC.
BY: /s/ XXXX X. XXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
