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REVLON WORLDWIDE (PARENT) CORPORATION
Senior Secured Discount Notes Due 2001
and
Series B Senior Secured Discount Notes Due 2001
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INDENTURE
Dated as of March 1, 1997
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THE BANK OF NEW YORK,
Trustee
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TABLE OF CONTENTS
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions...................................................... 1
SECTION 1.02. Other Definitions................................................ 23
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act................................................ 24
SECTION 1.04. Rules of Construction............................................ 25
ARTICLE II
The Securities
SECTION 2.01. Form and Dating.................................................. 26
SECTION 2.02. Execution and Authentication..................................... 27
SECTION 2.03. Registrar and Paying Agent....................................... 28
SECTION 2.04. Paying Agent To Hold Money
in Trust ................................................... 29
SECTION 2.05. Securityholder Lists............................................. 29
SECTION 2.06. Transfer and Exchange............................................ 29
SECTION 2.07. Replacement Securities........................................... 30
SECTION 2.08. Outstanding Securities........................................... 31
SECTION 2.09. Temporary Securities............................................. 31
SECTION 2.10. Cancelation...................................................... 32
SECTION 2.11. CUSIP Numbers.................................................... 32
SECTION 2.12. Book-Entry Provisions for
U.S. Global Note............................................. 32
SECTION 2.13. Special Transfer Provisions...................................... 34
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee............................................... 39
SECTION 3.02. Selection of Securities To Be
Redeemed..................................................... 40
SECTION 3.03. Notice of Redemption............................................. 40
SECTION 3.04. Effect of Notice of Redemption................................... 42
SECTION 3.05. Deposit of Redemption Price...................................... 42
SECTION 3.06. Securities Redeemed in Part...................................... 42
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ARTICLE IV
Covenants
SECTION 4.01 Payment of Securities............................................ 42
SECTION 4.02. SEC Reports...................................................... 42
SECTION 4.03. Limitation on Debt of the Company,
Revlon Worldwide and Revlon,
Inc.; Limitation on Preferred
Stock of Revlon Worldwide,
Revlon, Inc. and RCPC........................................ 43
SECTION 4.04. Limitation on Debt of RCPC
and its Subsidiaries......................................... 45
SECTION 4.05. Limitation on Restricted Payments................................ 47
SECTION 4.06. Limitation on Restrictions on
Distributions from Subsidiaries.............................. 49
SECTION 4.07. Limitation on Liens and Sales of
Assets and Subsidiary Stock.................................. 51
SECTION 4.08. Limitation on Transactions with
Affiliates................................................... 52
SECTION 4.09. Change of Control................................................ 54
SECTION 4.10. Limitation on Other Business
Activities................................................... 55
SECTION 4.11. The Escrow Release and the Merger................................ 55
SECTION 4.12. Minimum Collateral Percentage.................................... 56
SECTION 4.13. Maintenance of Non-Investment
Company Status............................................... 56
SECTION 4.14. Compliance Certificate........................................... 56
SECTION 4.15. Further Instruments and Acts..................................... 57
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer
Assets....................................................... 57
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default................................................ 58
SECTION 6.02. Acceleration..................................................... 60
SECTION 6.03. Other Remedies................................................... 61
SECTION 6.04. Waiver of Past Defaults.......................................... 61
SECTION 6.05. Control by Majority.............................................. 61
SECTION 6.06. Limitation on Suits.............................................. 62
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SECTION 6.07. Rights of Holders to Receive
Payment...................................................... 62
SECTION 6.08. Collection Suit by Trustee....................................... 62
SECTION 6.09. Trustee May File Proofs of Claim................................. 62
SECTION 6.10. Priorities....................................................... 63
SECTION 6.11. Undertaking for Costs............................................ 63
SECTION 6.12. Waiver of Stay or Extension Laws................................. 64
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee................................................ 64
SECTION 7.02. Rights of Trustee................................................ 65
SECTION 7.03. Individual Rights of Trustee..................................... 66
SECTION 7.04. Trustee's Disclaimer............................................. 66
SECTION 7.05. Notice of Defaults............................................... 66
SECTION 7.06. Reports by Trustees to Holders................................... 67
SECTION 7.07. Compensation and Indemnity....................................... 67
SECTION 7.08. Replacement of Trustee........................................... 68
SECTION 7.09. Successor Trustee by Merger...................................... 69
SECTION 7.10. Eligibility; Disqualification.................................... 69
SECTION 7.11. Preferential Collection of Claims
Against Company.............................................. 70
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on
Securities; Defeasance....................................... 70
SECTION 8.02. Conditions to Defeasance......................................... 71
SECTION 8.03. Application of Trust Money....................................... 73
SECTION 8.04. Repayment to Company............................................. 73
SECTION 8.05. Indemnity for Government
Obligations.................................................. 73
SECTION 8.06. Reinstatement.................................................... 73
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders....................................... 74
SECTION 9.02. With Consent of Holders.......................................... 75
SECTION 9.03. Compliance with Trust Indenture
Act ........................................................ 76
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SECTION 9.04. Revocation and Effect of Consents
and Waivers.................................................. 76
SECTION 9.05. Notation on or Exchange of
Securities................................................... 77
SECTION 9.06. Trustee To Sign Amendments....................................... 77
SECTION 9.07. Payment for Consent.............................................. 77
ARTICLE X
Security and Pledge of Collateral
SECTION 10.01. Grant of Security Interest....................................... 78
SECTION 10.02. Delivery of Collateral........................................... 79
SECTION 10.03. Representations and Warranties................................... 80
SECTION 10.04. Further Assurances............................................... 80
SECTION 10.05. Dividends; Voting Rights;
Substitution of Collateral................................... 81
SECTION 10.06. Trustee Appointed Attorney-in-Fact............................... 88
SECTION 10.07. Trustee May Perform.............................................. 88
SECTION 10.08. Trustee's Duties................................................. 88
SECTION 10.09. Remedies Upon Event of Default................................... 88
SECTION 10.10. Application of Proceeds.......................................... 89
SECTION 10.11. Continuing Lien.................................................. 90
SECTION 10.12. Certificates and Opinions........................................ 90
SECTION 10.13. Additional Agreements............................................ 90
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls..................................... 91
SECTION 11.02. Notices.......................................................... 91
SECTION 11.03. Communication by Holders with Other
Holders...................................................... 92
SECTION 11.04. Certificate and Opinion as to
Conditions Precedent......................................... 92
SECTION 11.05. Statements Required in Certificate
or Opinion................................................... 93
SECTION 11.06. When Securities Disregarded...................................... 93
SECTION 11.07. Rules by Trustee, Paying Agent and
Registrar.................................................... 94
SECTION 11.08. Legal Holidays................................................... 94
SECTION 11.09. Governing Law.................................................... 94
SECTION 11.10. No Recourse Against Others....................................... 94
SECTION 11.11. Successors....................................................... 94
SECTION 11.12. Multiple Originals............................................... 94
SECTION 11.13. Table of Contents; Headings...................................... 94
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Exhibit A - Form of Initial Notes
Exhibit B - Form of Exchange Note
Exhibit C - Form of Certificate to Be Delivered Upon
Termination of Restricted Period
Exhibit D - Form of Certificate to Be Delivered in
Connection with Transfers to Non-QIB
Institutional Accredited Investors
Exhibit E - Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to
Regulation S
Exhibit F - Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to
Rule 144A
Schedule I - Pledged Shares
Schedule II - Permitted Transactions
INDENTURE dated as of March 1, 1997,
between REVLON WORLDWIDE (PARENT) CORPORATION, a
Delaware corporation (the "Company"), and The Bank
of New York, a New York banking corporation (the
"Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's
Senior Secured Discount Notes Due 2001 (the "Initial Notes") and the Company's
Series B Senior Secured Discount Notes due 2001 (the "Exchange Notes"):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions.
"Accreted Value" as of any date (the "Specified Date")
means, with respect to each $1,000 Principal Amount at Maturity of Securities:
(i) if the Specified Date is one of the following dates
(each a "Semi-Annual Accrual Date"), the amount set forth opposite
such date below:
Semi-Annual Accrual Accreted Value
------------------- --------------
Date
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March 5, 1997............................... $655.90
March 15, 1997.............................. $657.81
September 15, 1997.......................... $693.17
March 15, 1998.............................. $730.42
September 15, 1998.......................... $769.68
March 15, 1999.............................. $811.06
September 15, 1999.......................... $854.65
March 15, 2000.............................. $900.59
September 15, 2000.......................... $948.99
March 15, 2001.............................. $1,000.00
(ii) if the Specified Date occurs between two SemiAnnual
Accrual Dates, the sum of (A) the Accreted Value for the Semi-Annual
Accrual Date immediately preceding the Specified Date and (B) an
amount equal to the product of (i) the Accreted Value for the
immediately
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following Semi-Annual Accrual Date less the Accreted Value for the
immediately preceding Semi-Annual Accrual Date and (ii) a fraction,
the numerator of which is the number of days from the immediately
preceding SemiAnnual Accrual Date to the Specified Date, using a 360-
day year of twelve 30-day months, and the denominator of which is 180
(or, if the Semi-Annual Accrual Date immediately preceding the
Specified Date is March 5, 1997, the denominator of which is 10).
Whenever the redemption price, Due Amount or Put Amount is paid in connection
with the redemption, purchase or repurchase of a portion of a Security, the
Accreted Value of such Security is reduced by the Accreted Value of the
portion of the Security so redeemed, purchased or repurchased.
"Affiliate" of any specified Person means (i) any other
Person which, directly or indirectly, is in control of, is controlled by or is
under common control with such specified Person or (ii) any other Person who
is a director or officer (A) of such specified Person, (B) of any subsidiary
of such specified Person or (C) of any Person described in clause (i) above.
For purposes of this definition, control of a Person means the power, direct
or indirect, to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Applicable Premium" means, with respect to a Security at
any time, the greater of (i) 1.0% of the Accreted Value of such Security at
such time and (ii) the excess of (A) the present value at such time of the
Principal Amount at Maturity plus any required interest payments due on such
Security, computed using a discount rate equal to the Treasury Rate plus 100
basis points, over (B) the Accreted Value of such Security at such time.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) of
shares of Capital Stock of a Subsidiary of the Company (other than directors'
qualifying shares and other than Capital Stock of an Unrestricted Subsidiary
or a Non-Recourse Subsidiary), property or other assets (each referred to for
the purposes of this definition as a "disposition") by the Company or any of
its Subsidiaries (other than an Unrestricted Subsidiary or a Non-Recourse
Subsidiary) (including any disposition by means of a merger, consolidation or
similar transaction) other than (i) a disposition by a Subsidiary of RCPC to
RCPC
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or by RCPC or a Subsidiary of RCPC to a Wholly Owned Recourse Subsidiary, (ii)
a disposition of property or assets by RCPC or its Subsidiaries at fair market
value in the ordinary course of business, (iii) a disposition by RCPC or its
Subsidiaries of obsolete assets in the ordinary course of business, (iv) a
disposition subject to or permitted by Section 4.05, (v) a disposition by the
Company of any Unrestricted Assets, (vi) a Revlon, Inc. Primary Issuance,
(vii) a disposition of (A) Capital Stock of Revlon Worldwide to the Company,
(B) Capital Stock of Revlon, Inc. to the Company or Revlon Worldwide or (C)
Capital Stock of RCPC to Revlon, Inc., (viii) an issuance of employee stock
options, (ix) a merger of Revlon, Inc. with or into RCPC or the Company, (x)
the Merger and (xi) a disposition by RCPC or any of its Subsidiaries in which
RCPC or its Subsidiaries receive as consideration Capital Stock of (or similar
interests in) a Person engaged in, or assets that will be used in, the
businesses of RCPC and its Wholly Owned Recourse Subsidiaries, or
additionally, in the case of a disposition by a Subsidiary that is not a
Wholly Owned Recourse Subsidiary, the business of such Subsidiary, existing on
the Issue Date or in businesses reasonably related thereto, as determined by
the Board of Directors of RCPC, the determination of which shall be conclusive
and evidenced by a resolution of the Board of Directors of RCPC.
"Bank Debt" means any and all amounts payable by RCPC or any
Subsidiary of RCPC under or in respect of the Credit Agreement or any
Refinancing Agreement, or any other agreements with lenders party to the
foregoing, including principal, premium (if any), interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to RCPC), fees, charges, expenses, reimbursement
obligations, Guarantees and all other amounts payable thereunder or in respect
thereof; provided, however, that nothing in this definition shall permit RCPC
or any Subsidiary of RCPC to Issue any Debt that is not permitted pursuant to
Section 4.04.
"Board of Directors" means, with respect to any Person, the
Board of Directors of such Person or any committee thereof duly authorized to
act on behalf of such Board.
"Business Day" means each day which is not a Legal
Holiday.
"Capital Lease Obligations" of a Person means any obligation
which is required to be classified and accounted for as a capital lease on the
face of a balance sheet of such Person prepared in accordance with GAAP; the
amount of
4
such obligation shall be the capitalized amount thereof, determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible
into or exchangeable for such equity.
"Change of Control" means the occurrence of any of
the following events:
(i) prior to the earlier to occur of the first public
offering of Voting Stock of Parent or the first public offering of
Voting Stock of the Company, the Permitted Holders cease to be the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all shares that any such Person has the
right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of a
majority in the aggregate of the total voting power of the Voting
Stock of the Company, whether as a result of Issuance of securities
of the Company, any merger, consolidation, liquidation or dissolution
of the Company, any direct or indirect transfer of securities by
Parent or otherwise (for purposes of this clause (i) and clause (ii)
below, the Permitted Holders shall be deemed to beneficially own any
Voting Stock of a corporation (the "specified corporation") held by
any other corporation (the "parent corporation") so long as the
Permitted Holders beneficially own (as so defined), directly or
indirectly, in the aggregate a majority of the voting power of the
Voting Stock of the parent corporation);
(ii) any "Person" (as such term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than one or more Permitted
Holders, is or becomes the beneficial owner (as defined in clause (i)
above), directly or indirectly, of more than 35% of the total voting
power of the Voting Stock of the Company; provided, however, that the
Permitted Holders "beneficially own" (as so defined), directly or
indirectly, in the aggregate a lesser percentage of the total voting
power of the Voting Stock of the Company than such other Person and
5
do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board
of Directors of the Company (for the purposes of this clause (ii),
such other Person shall be deemed to beneficially own any Voting
Stock of a specified corporation held by a parent corporation, if
such other Person "beneficially owns" (as so defined), directly or
indirectly, more than 35% of the voting power of the Voting Stock of
such parent corporation and the Permitted Holders "beneficially own"
(as so defined), directly or indirectly, in the aggregate a lesser
percentage of the voting power of the Voting Stock of such parent
corporation and do not have the right or ability by voting power,
contract or otherwise to elect or designate for election a majority
of the Board of Directors of such parent corporation);
(iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors of the Company (together with any new directors whose
election by such Board of Directors or whose nomination for election
by the shareholders of the Company was approved by a vote of 66-2/3%
of the directors of the Company then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the Board of Directors of the
Company then in office; or
(iv) a "Change of Control," as defined in any RCPC
Indenture, shall have occurred as a result of a pledgee (or pledgees)
or their transferees following foreclosure of shares of Common Stock
of Revlon, Inc. becoming the "beneficial owner" (as defined in such
RCPC Indenture) of such shares.
"Closing Price" on any Trading Day with respect to the per
share price of any Capital Stock means the last reported sales price regular
way or, in case no such reported sale takes place on such Trading Day, the
average of the reported closing bid and asked prices regular way, on the
principal national securities exchange on which such Capital Stock is listed
or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the National Association of Securities
Dealers Automated Quotations National Market System or, if such Capital Stock
is not listed or admitted to trading on any national securities exchange or
quoted on such National Market System, the average of the closing bid and
asked
6
prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm that is selected from time to time by the Company for
that purpose and is reasonably acceptable to the Trustee.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the indenture securities.
"Consolidated EBITDA Coverage Ratio" for any period means
the ratio of (i) the aggregate amount of EBITDA for such period to (ii)
Consolidated Interest Expense for such period; provided, however, that (1) if
RCPC or any Subsidiary of RCPC has Issued any Debt since the beginning of such
period that remains outstanding or if the transaction giving rise to the need
to calculate the Consolidated EBITDA Coverage Ratio is an Issuance of Debt, or
both, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such Debt as if such
Debt had been Issued on the first day of such period and the discharge of any
other Debt Refinanced or otherwise discharged with the proceeds of such new
Debt as if such discharge had occurred on the first day of such period, (2) if
since the beginning of such period RCPC or any Subsidiary of RCPC shall have
made any Asset Disposition, EBITDA for such period shall be reduced by an
amount equal to the EBITDA (if positive) directly attributable to the assets
which are the subject of such Asset Disposition for such period, or increased
by an amount equal to the EBITDA (if negative), directly attributable thereto
for such period and Consolidated Interest Expense for such period shall be
reduced by an amount equal to the Consolidated Interest Expense directly
attributable to any Debt of RCPC or any Subsidiary of RCPC Refinanced or
otherwise discharged with respect to RCPC and its continuing Subsidiaries in
connection with such Asset Dispositions for such period (or if the Capital
Stock of any Subsidiary of RCPC is sold, the Consolidated Interest Expense for
such period directly attributable to the Debt of such Subsidiary to the extent
RCPC and its continuing Subsidiaries are no longer liable for such Debt after
such sale) and (3) if since the beginning of such period RCPC or any
Subsidiary of RCPC (by merger or otherwise) shall have made an Investment in
any Subsidiary of RCPC (or any Person which becomes a Subsidiary of RCPC) or
an acquisition of assets, including any acquisition of assets occurring in
connection with a
7
transaction causing a calculation to be made hereunder, which constitutes all
of an operating unit of a business, EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving pro forma effect thereto, as
if such Investment or acquisition occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to
an acquisition of assets, the amount of income or earnings relating thereto,
and the amount of Consolidated Interest Expense associated with any Debt
Issued in connection therewith, the pro forma calculations shall be determined
in good faith by a responsible financial or accounting Officer of RCPC. If any
Debt bears a floating rate of interest and is being given pro forma effect,
the interest on such Debt shall be calculated as if the rate in effect on the
date of determination had been the applicable rate for the entire period.
"Consolidated Interest Expense" means, for any period, the
sum of (a) the interest expense of RCPC and its consolidated Subsidiaries
(other than Non-Recourse Subsidiaries) for such period as determined in
accordance with GAAP consistently applied, plus (b) Preferred Stock dividends
in respect of Preferred Stock of RCPC or any Subsidiary of RCPC (other than a
Non-Recourse Subsidiary) held by Persons other than RCPC or a Wholly Owned
Recourse Subsidiary, plus (c) the cash contributions to an employee stock
ownership plan of RCPC and its Subsidiaries (other than Non-Recourse
Subsidiaries) to the extent such contributions are used by an employee stock
ownership plan to pay interest.
"Consolidated Net Income" means with respect to any Person,
for any period, the consolidated net income (or loss) of such Person and its
consolidated Subsidiaries for such period as determined in accordance with
GAAP, adjusted to the extent included in calculating such net income (or
loss), by excluding (i) all extraordinary gains or losses; (ii) the portion of
net income (or loss) of such Person and its consolidated Subsidiaries
attributable to minority interests in unconsolidated Persons except to the
extent that, in the case of net income, cash dividends or distributions have
actually been received by such Person or one of its consolidated Subsidiaries
(subject, in the case of a dividend or distribution received by a Subsidiary
of such Person, to the limitations contained in clause (v) below) and, in the
case of net loss, such Person or any Subsidiary of such Person has actually
contributed, lent or transferred cash to such unconsolidated Person; (iii) net
income (or loss) of any other Person attributable to any period prior to the
date of combination of such other Person
8
with such Person or any of its Subsidiaries on a "pooling of interests" basis;
(iv) net gains or losses in respect of dispositions of assets by such Person
or any of its Subsidiaries (including pursuant to a sale-and-leaseback
arrangement) other than in the ordinary course of business; (v) the net income
of any Subsidiary of such Person to the extent that the declaration of
dividends or distributions by that Subsidiary of that income is not at the
time permitted, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulations applicable to that Subsidiary or its shareholders;
(vi) any net income or loss of any Non-Recourse Subsidiary, except that such
Person's equity in the net income of any such Non-Recourse Subsidiary for such
period shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Non-Recourse Subsidiary during
such period to such Person as a dividend or other distribution; and (vii) the
cumulative effect of a change in accounting principles; provided, however,
that in using Consolidated Net Income for purposes of calculating the
Consolidated EBITDA Coverage Ratio at any time, net income of a Subsidiary of
the type described in clause (v) of this definition shall not be excluded;
provided further, however, that in calculating Consolidated Net Income of the
Company, net income of a Subsidiary of the type described in clause (v) of
this definition shall not be excluded.
"Consolidated Net Worth" of any Person means, at any date,
all amounts which would, in conformity with GAAP, be included under
shareholders' equity on a consolidated balance sheet of such Person as at such
date, less (x) any amounts attributable to Redeemable Stock and (y) any
amounts attributable to Exchangeable Stock.
"Credit Agreement" means the Amended and Restated Credit
Agreement dated as of January 24, 1996, by and among RCPC, The Chase Manhattan
Bank, N.A., Chemical Bank and Citibank, N.A., as agents, and the Banks named
therein, as the same may be amended or restated from time to time.
"Debt" of any Person means, without duplication,
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person;
9
(iii) all obligations of such Person issued or assumed as
the deferred purchase price of property, all conditional sale
obligations of such Person and all obligations of such Person under
any title retention agreement (but excluding trade accounts payable
and other accrued current liabilities arising in the ordinary course
of business);
(iv) all obligations of such Person for the reimbursement of
any obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (i)
through (iii) above) entered into in the ordinary course of business
of such Person to the extent such letters of credit are not drawn
upon or, if and to the extent drawn upon, such drawing is xxxx bursed
no later than the third Business Day following receipt by such Person
of a demand for reimbursement following payment on the letter of
credit);
(v) the amount of all obligations of such Person with
respect to the redemption, repayment (including liquidation
preference) or other repurchase of, in the case of a Subsidiary of
RCPC, any Preferred Stock and, in the case of any other Person, any
Redeemable Stock (but excluding in each case any accrued dividends);
(vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons and all dividends of other Persons for
the payment of which, in either case, such Person is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise,
including Guarantees of such obligations and dividends; and
(vii) all obligations of the type referred to in clauses (i)
through (vi) of other Persons secured by any Lien on any property or
asset of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the
obligation so secured.
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees
and successors.
10
"Due Amount" as of any date means with respect to each
$1,000 Principal Amount at Maturity of Securities, the Accreted Value thereof
on such date plus any premium due and payable thereon.
"EBITDA" for any period means the Consolidated Net Income of
RCPC for such period, plus the following to the extent included in calculating
such Consolidated Net Income: (i) income tax expense, (ii) Consolidated
Interest Expense, (iii) depreciation expense, (iv) amortization expense, (v)
all other noncash charges (excluding any noncash charge to the extent that it
requires an accrual of or a reserve for cash disbursements for any future
period) and (vi) foreign currency gains or losses.
"Escrow Agent" means the Escrow Agent from time to time
under the Escrow Agreement.
"Escrow Agreement" means the Escrow and Pledge Agreement
dated as of March 5, 1997, between the Company and The Bank of New York, as
Escrow Agent, as amended from time to time.
"Escrowed Property" has the meaning given such term in the
Escrow Agreement.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Exchangeable Stock" means any Capital Stock of a Person
which by its terms or otherwise is required to be exchanged or converted or is
exchangeable or convertible at the option of the holder into another security
(other than Capital Stock of such Person which is neither Exchangeable Stock
nor Redeemable Stock).
"Foreign Subsidiary" means any Subsidiary of RCPC which (i)
is organized under the laws of any jurisdiction outside of the United States,
(ii) is organized under the laws of Puerto Rico or the U.S. Virgin Islands,
(iii) has substantially all its operations outside of the United States, or
(iv) has substantially all its operations in Puerto Rico or the U.S. Virgin
Islands.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, as in effect
from time to time, except that for purposes of calculating Consolidated EBITDA
Coverage Ratio, it shall mean generally accepted accounting principles in the
United States as in effect on the Issue Date.
11
"Guarantee" means any obligation, contingent or otherwise,
of any Person directly or indirectly guaranteeing any Debt or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreement
to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for purposes of assuring in any other manner the obligee of
such Debt or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided,
however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" or "Securityholder" means the Person in whose name
a Security is registered on the Registrar's books.
"Investment" in any Person means any loan or advance to, any
net payment on a guarantee of, any acquisition of Capital Stock, equity
interest, obligation or other security of, or capital contribution or other
investment in, such Person. Investments shall exclude advances to customers
and suppliers in the ordinary course of business. The term "Invest" has a
corresponding meaning. For purposes of the definitions of "Non-Recourse
Subsidiary," "Unrestricted Subsidiary" and "Restricted Payment" and for
purposes of Section 4.05, (i) "Investment" shall include a designation after
the Issue Date of a Subsidiary as a Non-Recourse Subsidiary, and such
Investment shall be valued at an amount equal to the portion (proportionate to
the Company's equity interest in such Subsidiary) of the fair market value of
the net assets of such Subsidiary at the time that such Subsidiary is
designated a Non-Recourse Subsidiary; and (ii) any property transferred to or
from a Non-Recourse Subsidiary or an Unrestricted Subsidiary shall be valued
at its fair market value at the time of such transfer, in each case as
determined in good faith by the Board of Directors of the Company (or of RCPC
in the case of a Non-Recourse Subsidiary), and if such property so transferred
(including in a series of related transactions) has a fair market value, as so
determined by such Board of Directors, in excess of $10 million, such
determination shall be confirmed by an independent appraiser.
12
"Issue" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Debt or Capital Stock of a
Person existing at the time such Person becomes a Subsidiary of another Person
(whether by merger, consolidation, acquisition or otherwise) shall be deemed
to be issued by such Subsidiary at the time it becomes a Subsidiary of such
other Person.
"Issue Date" means the date of original issue of the Initial
Notes.
"Issuer Capital Contributions" means capital contributions
made to the Company which, together with the Escrowed Property, are in an
amount sufficient to enable the Company to make the Deposit (as defined in the
Escrow Agreement) as contemplated by Section 4.11(a).
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions are not required to be open in the State of New York or in
any place of payment.
"Lien" means any mortgage, pledge, security interest,
conditional sale or other title retention agreement or other similar lien.
"Mafco Holdings" means Mafco Holdings Inc., a Delaware
corporation.
"Market Value" means as of any date the sum of (i) in
respect of Revlon, Inc. Pledged Shares, an amount equal to the product of (x)
the average of the Closing Prices per share of the Class A Common Stock of
Revlon, Inc. during the five Trading Days ending immediately prior to such date
and (y) the number of Revlon, Inc. Pledged Shares, (ii) as to Collateral
consisting of cash, the amount of such cash, (iii) as to any other Collateral
having a purported value equal to or less than $5 million, the fair market
value thereof as of such date as determined by the Board of Directors of the
Company (the determination of which shall be conclusive and shall be evidenced
by a resolution of such Board of Directors), and (iv) as to any other
Collateral having a purported value of more than $5 million, the fair market
value thereof as of such date as determined by an independent appraiser.
"Merger" means the merger of Revlon Worldwide with and into
the Company.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to
13
a note or installment receivable or otherwise, but only as and when received,
but excluding any other consideration received in the form of assumption by
the acquiring Person of Debt or other obligations relating to such properties
or assets or received in any other noncash form) therefrom, in each case net
of (i) all legal, title and recording tax expenses, commissions and other fees
and expenses incurred, and all Federal, state, provincial, foreign and local
taxes required or estimated in good faith to be required to be accrued as a
liability under Generally Accepted Accounting Principles, as a consequence of
such Asset Disposition, (ii) all payments made on any Debt which is secured by
any assets subject to such Asset Disposition, in accordance with the terms of
any Lien upon or other security agreement of any kind with respect to such
assets, or which must by its terms, or in order to obtain a necessary consent
to such Asset Disposition, or by applicable law be repaid out of the proceeds
from or in connection with such Asset Disposition and (iii) all distributions
and other payments required to be made to minority interest holders in
Subsidiaries or joint ventures as a result of such Asset Disposition;
provided, however, that in connection with an Asset Disposition to a
Subsidiary of RCPC (other than a Wholly Owned Recourse Subsidiary), Net
Available Cash will be deemed to be a percentage of Net Available Cash (as
calculated above) equal to (A) 100% minus (B) RCPC's percentage ownership in
such Subsidiary.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
estimated in good faith to be payable as a result thereof.
"Non-Convertible Capital Stock" means, with respect to any
corporation, any non-convertible Capital Stock of such corporation and any
Capital Stock of such corporation convertible solely into non-convertible
common stock of such corporation; provided, however, that NonConvertible
Capital Stock shall not include any Redeemable Stock or Exchangeable Stock.
"Non-Recourse Debt" means Debt or that portion of Debt (i)
as to which neither RCPC nor its Subsidiaries (other than a Non-Recourse
Subsidiary) (A) provide credit support (including any undertaking, agreement
or instrument which would constitute Debt), (B) is directly or indirectly
liable or (C) constitute the lender and (ii) no default with
14
respect to which (including any rights which the holders thereof may have to
take enforcement action against the assets of a Non-Recourse Subsidiary) would
permit (upon notice, lapse of time or both) any holder of any other Debt of
RCPC or its Subsidiaries (other than Non-Recourse Subsidiaries) to declare a
default on such other Debt or cause the payment thereof to be accelerated or
payable prior to its Stated Maturity.
"Non-Recourse Subsidiary" means a Subsidiary of RCPC (i)
which has been designated as such by RCPC, (ii) which has no Debt other than
Non-Recourse Debt and (iii) which is in the same line of business as RCPC and
its Wholly Owned Recourse Subsidiaries existing on the Issue Date or in
businesses reasonably related thereto.
"Obligations" means (a) the full and punctual payment of
Principal of and interest on the Securities when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations
of the Company under this Indenture and the Securities and (b) the full and
punctual performance of all other obligations of the Company under this
Indenture and the Securities.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Treasurer, an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, Vice Chairman, the President or a Vice President
(regardless of Vice Presidential designation), and by the Treasurer, an
Assistant Treasurer, Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the Officers signing an Officers' Certificate
delivered pursuant to Section 4.14 or 10.05(f)(i) shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company (or its Parent or one of its
Subsidiaries) or the Trustee.
"Parent" means Revlon Holdings Inc., a Delaware corporation,
and any other Person which acquires or owns directly or indirectly 80% or more
of the voting power of the Voting Stock of the Company.
"Permitted Affiliate Debt" means (i) Debt of RCPC
Issued to the Company or an Affiliate of the Company
15
representing amounts owing by RCPC pursuant to the Tax Sharing Agreements
described under clauses (i) and (iii) of the definition of "Tax Sharing
Agreements" and (ii) Debt of RCPC Issued to the Company or an Affiliate of the
Company to the extent of cash actually received by RCPC, which cash either is
required to be advanced or contributed to RCPC pursuant to the terms of the
Credit Agreement or any Refinancing Agreement or, if not advanced or
contributed to RCPC, would lead to a default under the Credit Agreement or any
Refinancing Agreement.
"Permitted Holders" means Xxxxxx X. Xxxxxxxx (or in the
event of his incompetence or death, his estate, heirs, executor,
administrator, committee or other Personal representative (collectively,
"heirs")) or any Person controlled, directly or indirectly, by Xxxxxx X.
Xxxxxxxx or his heirs.
"Permitted Transactions" means (i) any transaction or series
of similar transactions (including the purchase, sale, lease or exchange of
any property or the rendering of any service) between the Company, Revlon
Worldwide, Revlon, Inc., RCPC or any Subsidiary of RCPC, on the one hand, and
any Affiliate of the Company or any legal or beneficial owner of 10% or more
of the voting power of Voting Stock of the Company or an Affiliate of any such
owner, on the other hand, existing on, or pursuant to an agreement in effect
on, the Issue Date and disclosed in Schedule II to this Indenture and (ii) any
Tax Sharing Agreement.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution
of assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Principal" of a Security as of any date means the Accreted
Value of the Security as of such date plus the premium, if any, payable on the
Security which is due or overdue or is to become due at the relevant time.
"Principal Amount at Maturity" of a Security means the
amount specified as such on the face of such Security.
16
"Put Amount" as of any date means, with respect to each
$1,000 Principal Amount at Maturity of Securities, 101% of the Accreted Value
thereof as of the date of repurchase.
"QIB" means a "Qualified Institutional Buyer" under Rule
144A.
"RCPC" means Revlon Consumer Products Corporation, a Delaware
corporation which is a wholly owned direct Subsidiary of Revlon, Inc. on the
Issue Date, and its successors.
"RCPC Indentures" means the Indenture, dated as of February
15, 1993, the Indenture dated as of April 1, 1993, and the Indenture dated as
of June 1, 1993, each between RCPC and the trustee thereunder, and in each case
as in effect on the Issue Date; provided, however, for purposes of interpreting
provisions of this Indenture that refer to the RCPC Indentures, the provisions
of the RCPC Indentures (but not the Debt Issued thereunder) shall be deemed to
be in effect whether or not such Indentures have been discharged.
"Redeemable Stock" means any Capital Stock that by its terms
or otherwise is required to be redeemed on or prior to the first anniversary of
the Stated Maturity of the Securities or is redeemable at the option of the
holder thereof at any time on or prior to the first anniversary of the Stated
Maturity of the Securities.
"Refinance" means, in respect of any Debt, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to Issue
Debt in exchange or replacement for, such Debt. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Agreement" means any credit agreement, indenture
or other agreement pursuant to which RCPC or any Subsidiary of RCPC Refinances,
in whole or in part, Debt of RCPC or any Subsidiary of RCPC Issued under
Section 4.04(b)(1); provided, however, that the principal amount of the
Refinancing Debt Issued pursuant to such Refinancing Agreement may exceed the
principal amount of the Debt so Refinanced, but, to the extent such
Refinancing Debt is Issued pursuant to Section 4.04(b)(1), such Refinancing
Debt shall in no event exceed, after taking into account all other Debt
outstanding under the Credit Agreement and all other Refinancing Agreements (to
the extent such other outstanding Debt was Issued pursuant to Section
4.04(b)(1)) $600 million.
17
"Refinancing Costs" means, with respect to any Debt or
Preferred Stock being Refinanced, any premium actually paid thereon and
reasonable costs and expenses, including underwriting discounts, in connection
with such Refinancing; provided, that if any Debt Issued in connection with
such a Refinancing is Issued at a discount, Refinancing Costs shall be an
amount equal to the accreted value (as of the Stated Maturity of the Debt
being Refinanced) of the portion of such Debt used to pay such premiums, costs
and expenses.
"Registration Agreement" means the Registration Agreement
dated March 5, 1997, between the Company and certain other parties.
"Registered Exchange Offer" has the meaning ascribed thereto
in the Registration Agreement.
"Required Actions" has the meaning ascribed thereto in the
Escrow Agreement.
"Restricted Payment" means, as to any Person making a
Restricted Payment, (i) any dividend or any distribution on or in respect of
the Capital Stock of such Person (including any payment in connection with any
merger or consolidation involving such Person) or to the holders of the Capital
Stock of such Person (except dividends or distributions payable solely in the
Non-Convertible Capital Stock of such Person or in options, warrants or other
rights to purchase the Non-Convertible Capital Stock of such Person), (ii) any
purchase, redemption or other acquisition or retirement for value of any
Capital Stock of the Company or of any direct or indirect parent of the Company
or (iii) any Investment in (A) any Affiliate of the Company other than a
Subsidiary of the Company and other than an Affiliate of the Company which will
become a Subsidiary of the Company as a result of any such Investment, or (B) a
Non-Recourse Subsidiary or (C) an Unrestricted Subsidiary.
"Revlon, Inc." means Revlon, Inc., a Delaware corporation
which is the immediate parent corporation of RCPC on the Issue Date, and its
successors.
"Revlon, Inc. Collateral Number" means 20,000,000; provided,
however, that in the event, prior to the Merger, of (i) the distribution of a
dividend upon shares of Revlon, Inc. in shares of Revlon, Inc., (ii) the
combination of shares of Common Stock of Revlon, Inc. into a smaller number of
shares or other units, (iii) the subdivision of outstanding shares of Common
Stock of Revlon, Inc., (iv) the conversion or reclassification of shares of
Common Stock of
18
Revlon, Inc. by issuance or exchange of other securities or (v) a
consolidation, merger or binding shares exchange, the Revlon, Inc. Collateral
Number in effect immediately before such action shall be adjusted to equal the
number of shares of Common Stock of Revlon, Inc. that would have constituted
Revlon, Inc. Pledged Shares had the Merger occurred immediately prior to such
action.
"Revlon, Inc. Nonpledged Shares" means the Capital Stock of
Revlon, Inc. that does not constitute Revlon, Inc. Collateral.
"Revlon, Inc. Primary Issuance" means any primary issuance of
Capital Stock of Revlon, Inc.
"Revlon Worldwide" means Revlon Worldwide Corporation, a
Delaware corporation which is the immediate parent corporation of Revlon, Inc.
and the wholly owned direct subsidiary of the Company on the Issue Date, and
its successors.
"Revlon Worldwide Indenture" means the Indenture dated as of
March 15, 1993, between Revlon Worldwide and the trustee thereunder, pursuant
to which the Revlon Worldwide Notes were issued, as such agreement may be
amended and in effect from time to time.
"Revlon Worldwide Notes" means the Series B Senior Secured
Discount Notes Due 1998 of Revlon Worldwide.
"Revlon Worldwide Notes Defeasance" means the termination of
certain obligations under the Revlon Worldwide Indenture pursuant to Section
8.01(b)(ii) thereof.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Secured Non-Recourse Guarantee" means any Guarantee by the
Company or an Unrestricted Subsidiary of obligations of any other Person in
respect of which Guarantee the holders thereof have no recourse to any assets
of the Company or its Subsidiaries, other than Unrestricted Assets.
"Securities" means the Initial Notes and the Exchange Notes,
treated as a single class of securities.
19
"Securities Act" means the Securities Act of 1933, as
amended.
"Semi-Annual Accrual Date" has the meaning set forth in the
definition of Accreted Value.
"Shelf Registration Statement" has the meaning ascribed
thereto in the Registration Agreement.
"Significant Subsidiary" means (i) prior to the Merger,
Revlon Worldwide, (ii) any Subsidiary (other than a Non-Recourse Subsidiary and
other than an Unrestricted Subsidiary) of the Company which at the time of
determination either (A) had assets which, as of the date of RCPC's most recent
quarterly consolidated balance sheet, constituted at least 5% of RCPC's total
assets on a consolidated basis as of such date, in each case determined in
accordance with Generally Accepted Accounting Principles, or (B) had revenues
for the 12-month period ending on the date of RCPC's most recent quarterly
consolidated statement of income which constituted at least 5% of RCPC's total
revenues on a consolidated basis for such period, or (iii) any Subsidiary of
the Company (other than a Non-Recourse Subsidiary and other than an
Unrestricted Subsidiary) which, if merged with all Defaulting Subsidiaries (as
defined below) of the Company, would at the time of determination either (A)
have had assets which, as of the date of RCPC's most recent quarterly
consolidated balance sheet, would have constituted at least 10% of RCPC's total
assets on a consolidated basis as of such date or (B) have had revenues for
the 12-month period ending on the date of RCPC's most recent quarterly
consolidated statement of income which would have constituted at least 10% of
RCPC's total revenues on a consolidated basis for such period (each such
determination being made in accordance with Generally Accepted Accounting
Principles). "Defaulting Subsidiary" means any Subsidiary of the Company (other
than a Non-Recourse Subsidiary and other than an Unrestricted Subsidiary) with
respect to which an event described under Section 6.01(6), 6.01(7), 6.01(8) or
6.01(9) has occurred and is continuing.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the principal of
such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency).
20
"Subsidiary" means, with respect to any Person, any
corporation, association, partnership or other business entity of which more
than 50% of the total voting power of shares of Capital Stock or other
interests (including partnership interests) entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers
or trustees thereof is at the time owned, directly or indirectly, by (i) such
Person, (ii) such Person and one or more Subsidiaries of such Person or (iii)
one or more Subsidiaries of such Person.
"Tax Sharing Agreements" means (i) that certain agreement
dated June 24, 1992, as amended to the Issue Date, among, Revlon Holdings
Inc., RCPC, certain of its Subsidiaries, Revlon, Inc. and Mafco Holdings, (ii)
that certain agreement dated March 17, 1993, as amended to the Issue Date,
between Revlon Worldwide and Mafco Holdings and (iii) any other tax allocation
agreement between the Company or any of its Subsidiaries with the Company,
Revlon Worldwide, Revlon, Inc., RCPC or any direct or indirect shareholder of
the Company with respect to consolidated or combined tax returns including the
Company or any of its Subsidiaries but only to the extent that amounts payable
from time to time by the Company or any such Subsidiary under any such
agreement do not exceed the corresponding tax payments that the Company or
such Subsidiary would have been required to make to any relevant taxing
authority had the Company or such Subsidiary not joined in such consolidated
or combined returns, but instead had filed returns including only the Company
or its Subsidiaries (provided that any such agreement may provide that, if the
Company or any such Subsidiary ceases to be a member of the affiliated group
of corporations of which Mafco Holdings is the common parent for purposes of
filing a consolidated federal income tax return (such cessation, a
"Deconsolidation Event"), then the Company or such Subsidiary shall indemnify
such direct or indirect shareholder with respect to any federal, state or
local income, franchise or other tax liability (including any related
interest, additions or penalties) imposed on such shareholder as the result of
an audit or other adjustment with respect to any period prior to such
Deconsolidation Event that is attributable to the Company, such Subsidiary or
any predecessor business thereof (computed as if the Company, such Subsidiary
or such predecessor business, as the case may be, were a stand-alone entity
that filed separate tax returns as an independent corporation), but only to
the extent that any such tax liability exceeds any liability for taxes
recorded on the books of the Company or such Subsidiary with respect to any
such period).
21
"Temporary Cash Investments" means any of the following: (i)
any investment in direct obligations of the United States of America or any
agency thereof or obligations Guaranteed by the United States of America or
any agency thereof, in each case, maturing within 360 days of the date of
acquisition thereof, (ii) investments in time deposit accounts, certificates
of deposit and money market deposits maturing within 180 days of the date of
acquisition thereof issued by a bank or trust company (including the Trustee)
which is organized under the laws of the United States of America, any state
thereof or any foreign country recognized by the United States having capital,
surplus and undivided profits aggregating in excess of $250,000,000 and whose
debt is rated "A" (or such similar equivalent rating) or higher by at least
one nationally recognized statistical rating organization (as defined in Rule
436 under the Securities Act) or any money-market fund sponsored by any
registered broker dealer or mutual fund distributor, (iii) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (i) above entered into with a bank meeting the
qualifications described in clause (ii) above, (iv) investments in commercial
paper, maturing not more than 90 days after the date of acquisition, issued by
a corporation (other than an Affiliate or Subsidiary of the Company) organized
and in existence under the laws of the United States of America or any foreign
country recognized by the United States of America with a rating at the time
as of which any investment therein is made of "P-2" (or higher) according to
Xxxxx'x Investors Service, Inc. or "A-2" (or higher) according to Standard and
Poor's Corporation, (v) securities with maturities of six months or less from
the date of acquisition backed by standby or direct pay letters of credit
issued by any bank satisfying the requirements of clause (ii) above and (vi)
securities with maturities of six months or less from the date of acquisition
issued or fully Guaranteed by any state, commonwealth or territory of the
United States of America, or by any political subdivision or taxing authority
thereof, and rated at least "A" by Standard & Poor's Corporation or "A" by
Xxxxx'x Investors Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb) as in effect on the Issue Date.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are not traded on the
applicable securities exchange or in the applicable securities market.
22
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) which has become publicly available at least two business days prior
to the date fixed for repayment or, in the case of defeasance, prior to the
date of deposit (or, if such Statistical Release is no longer published, any
publicly available source of similar market data)) most nearly equal to the
then remaining average life to Stated Maturity) of the Securities; provided,
however, that if the average life to Stated Maturity of the Securities is not
equal to the constant maturity of a United States Treasury security for which
a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the
weekly average yields of United States Treasury securities for which such
yields are given, except that if the average life to Stated Maturity of the
Securities is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"Trust Officer" means any officer or assistant officer of
the Trustee assigned by the Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Assets" means (i) the Revlon, Inc. Nonpledged
Shares, (ii) Capital Stock of Unrestricted Subsidiaries and (iii) all
dividends, cash and other property and proceeds (including proceeds of sale)
from time to time received, receivable or otherwise distributed in respect of
or in exchange for any of the foregoing.
"Unrestricted Subsidiary" means a Subsidiary of the Company,
other than Revlon, Inc. or any of its Subsidiaries, which (i) is acquired or
organized by the Company or any other Unrestricted Subsidiary (or any
combination of the foregoing), (ii) is capitalized only with Unrestricted
Assets and (iii) does not have any Debt (A) which is held by the Company, (B)
as to which the Company or any of its Subsidiaries (other than an Unrestricted
Subsidiary) have provided credit support (other than any Secured Non-Recourse
Guarantee) or (C) any default
23
as to which would permit any holder (whether upon notice, after lapse of time
or both) of any Debt of the Company or any of its Subsidiaries (other than an
Unrestricted Subsidiary) to declare a default on such Debt or to cause the
payment thereof to be accelerated prior to its Stated Maturity.
"U.S. Government Obligations" means direct obliga tions (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" of a corporation means all classes of Capital
Stock of such corporation then outstanding and normally entitled to vote in
the election of directors.
"Wholly Owned Recourse Subsidiary" means a Subsidiary of
RCPC (other than a Non-Recourse Subsidiary) all the Capital Stock of which
(other than directors' qualifying shares) is owned by RCPC or another Wholly
Owned Recourse Subsidiary.
SECTION 1.02. Other Definitions.
Defined in
Term Section
---- ----------
"Agent Members".......................................... 2.12(a)
"Applicable Collateral".................................. 10.05(g)
"Applicable Portion"..................................... 10.05(g)
"Bankruptcy Law"......................................... 6.01
"Collateral"............................................. 10.01(d)
"Collateral Release Request"............................. 10.05(f)
"covenant defeasance option"............................. 8.01(b)
"CUSIP".................................................. 2.11
"Custodian".............................................. 6.01
"Default Amount"......................................... 6.02
"Determination Date"..................................... 10.05(f)
"Event of Default"....................................... 6.01
"IAI Global Note"........................................ 2.01(b)
"IAIs"................................................... 2.01(b)
"legal defeasance option"................................ 8.01(b)
"Offshore Notes Exchange Date"........................... 2.01(c)
"Outstanding"............................................ 2.08
24
Defined in
Term Section
---- -------
"Paying Agent"........................................... 2.03
"Permanent Offshore Physical Notes"...................... 2.01(c)
"Physical Notes"......................................... 2.01(e)
"Pledged Shares"......................................... 10.01(d)
"Pledged Securities"..................................... 10.13
"QIB Global Note"........................................ 2.01(b)
"Registrar".............................................. 2.03
"restricted period"...................................... 2.01(c)
"Revlon, Inc. Collateral"................................ 10.01(b)
"Revlon, Inc. Pledged Shares"............................ 10.01(b)
"Revlon Worldwide Collateral"............................ 10.01(a)
"Revlon Worldwide Pledged Shares"........................ 10.01(a)
"Substitute Collateral".................................. 10.01(c)
"Temporary Offshore Physical Notes"...................... 2.01(c)
"U.S. Global Note"....................................... 2.01(b)
"U.S. Physical Notes".................................... 2.01(d)
"Withdrawn Collateral"................................... 10.05(l)
"Withdrawn Shares"....................................... 10.05(l)
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another
25
statute or defined by SEC rule have the meanings assigned to them by such
definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP and all accounting calculations
will be determined in accordance with such principles;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) unsecured debt shall not be deemed to be subordinate or
junior to secured debt merely by virtue of its nature as unsecured
debt;
(7) the principal amount of any noninterest bearing or other
discount security at any date of Issuance shall be the principal
amount thereof that would be shown on a balance sheet of the issuer
dated such date prepared in accordance with GAAP and accretion of
principal on such security shall be deemed to be the Issuance of
Debt; provided, however, that the accretion of principal on such
security shall not be deemed to be the Issuance of Debt if the issuer
elects, at the time of original Issuance of such security, to treat
such accretion as if, on such date of original Issuance, there were
an additional Issuance of Debt in an aggregate principal amount equal
to the excess of the principal amount at maturity of such security
over the principal amount thereof that would be shown on a balance
sheet of the issuer dated such date prepared in accordance with GAAP
(except to the extent otherwise provided in Section 4.03(a)(1)), and,
unless repaid or redeemed, the amount of such additional Issuance of
Debt shall be treated as being outstanding for all purposes under
this Indenture until such security is paid in full;
(8) the principal amount of any Preferred Stock shall be (i)
the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory
26
redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater; and
(9) whenever in this Indenture or the Securities it is
provided that the Accreted Value, the Put Amount, the Due Amount or
the Principal Amount at Maturity with respect to a Security shall be
paid, such provision shall be deemed to require (whether or not so
expressly stated) the simultaneous payment of any accrued and unpaid
interest to the date of payment on such Security payable pursuant to
paragraph 1 of the Securities.
ARTICLE II
The Securities
SECTION 2.01. Form and Dating. (a) The Initial Notes and the
Trustee's certificate of authentication thereon shall be substantially in the
form of Exhibit A, which is hereby incorporated in and expressly made a part
of this Indenture, and as otherwise provided in this Article II. The Exchange
Notes and the Trustee's certificate of authentication thereon shall be
substantially in the form of Exhibit B, which is hereby incorporated in and
expressly made a part of this Indenture, and as otherwise provided in this
Article II. The Securities may have notations, legends or endorsements
required by law, stock exchange rule, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). Each Security shall be
dated the date of its authentication. The terms of the Securities set forth in
Exhibit A and Exhibit B are part of the terms of this Indenture.
(b) The Initial Notes offered and sold in reliance on Rule
144A to QIBs or on another exemption under the Securities Act to institutional
"Accredited Investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of the
Securities Act) ("IAIs") will be issued on the Issue Date in the form of two
permanent global Securities (with separate CUSIP numbers) substantially in the
form set forth in Exhibit A (each a "U.S. Global Note") deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. One U.S. Global Note
(which may be represented by more than one certificate, if so required by the
Depositary's rules regarding the maximum principal amount to be represented by
a single certificate) will represent Initial Notes sold to QIB's (the "QIB
Global Note"), and the
27
other will represent Initial Notes sold to IAIs (the "IAI Global Note"). The
aggregate principal amount of each U.S. Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided. Transfers
of Initial Notes from QIBs to IAIs, and from IAIs to QIBs, will be represented
by appropriate increases and decreases to the respective amounts of the
appropriate U.S. Global Notes, as more fully provided in Section 2.13.
(c) Initial Notes offered and sold in reliance on Regulation
S, if any, shall be issued initially in the form of temporary certificated
Notes in registered form substantially in the form set forth in Exhibit A (the
"Temporary Offshore Physical Notes"). The Temporary Offshore Physical Notes
will be registered in the name of, and held by, a temporary certificate holder
designated by Chase Securities Inc. until the later of the completion of the
distribution of the Initial Notes and the termination of the "restricted
period" (as defined in Regulation S) with respect to the offer and sale of the
Initial Notes (the "Offshore Notes Exchange Date"). The Company shall promptly
notify the Trustee in writing of the occurrence of the Offshore Notes Exchange
Date and, at any time following the Offshore Notes Exchange Date, upon receipt
by the Trustee and the Company of a certificate substantially in the form set
forth in Exhibit C, the Company shall execute, and the Trustee shall
authenticate and deliver, one or more permanent certificated Notes in
registered form substantially in the form set forth in Exhibit A (the
"Permanent Offshore Physical Notes") in exchange for the Temporary Offshore
Physical Notes of like tenor and amount.
(d) Initial Notes offered and sold other than as described
in the preceding two paragraphs, if any, shall be issued in the form of
permanent certificated Notes in registered form in substantially the form set
forth in Exhibits A (the "U.S. Physical Notes").
(e) The Temporary Offshore Physical Notes, Permanent
Offshore Physical Notes and U.S. Physical Notes are sometimes collectively
herein referred to as the "Physical Notes".
SECTION 2.02. Execution and Authentication. Two Officers
shall sign the Securities for the Company by manual or facsimile signature.
The Company's seal shall be impressed, affixed, imprinted or reproduced on the
Securities and may be in facsimile form.
28
If an Officer whose signature is on a Security no longer
holds that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory
of the Trustee manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
The Trustee shall authenticate and make available for
delivery (1) Initial Notes for original issue in an aggregate Principal Amount
at Maturity of $770,000,000 and (2) Exchange Notes from time to time for issue
only in exchange for a like principal amount of Initial Notes, in each case
upon a written order of the Company signed by two Officers or by an Officer
and either an Assistant Treasurer or an Assistant Secretary of the Company.
Such order shall specify the amount of the Securities to be authenticated, the
date on which the Securities are to be authenticated and, if such order is
being delivered other than on the Issue Date, whether the Securities are to be
Initial Notes or Exchange Notes. The aggregate Principal Amount at Maturity of
Securities outstanding at any time may not exceed that amount except as
provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited by
the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or
agent for service of notices and demands. The Company agrees to pay to any
authenticating agent compensation for its services hereunder.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange.
The Company may have one or more co-registrars and one or more additional
paying agents. The term "Paying Agent" includes any additional paying agent.
29
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this
Indenture, which shall incorporate the terms of the TIA. The agreement shall
implement the provi sions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of any such agent. If
the Company fails to maintain a Regis trar or Paying Agent, the Trustee shall
act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 7.07. The Company, Revlon Worldwide, Revlon, Inc., RCPC or
any of its domestically incorporated Wholly Owned Subsidiaries may act as
Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust. On or
prior to each due date of the Principal and interest, if any, on any Security,
the Company shall deposit with the Paying Agent a sum sufficient to pay such
Principal and interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Securityholders or the Trustee
all money held by the Paying Agent for the payment of Principal of or
interest, if any, on the Securities and shall notify the Trustee of any
default by the Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by the Paying Agent. Upon complying with this
Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee, in
writing at least five Business Days before each interest payment date, as of
the relevant record date, and at such other times as the Trustee may request
in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders.
SECTION 2.06. Transfer and Exchange. The Securities shall
be issued in registered form and shall be
30
transferable only upon the surrender of a Security for registration of
transfer. When a Security is presented to the Registrar or a co-registrar with
a request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(l) of the Uniform Commercial
Code are met. When Securities are presented to the Registrar or a co-registrar
with a request to exchange them for an equal Principal Amount at Maturity of
Securities of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit registration of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-registrar's request. The
Company may require payment of a sum sufficient to pay all taxes, assessments
or other governmental charges in connection with any transfer or exchange
pursuant to this Section. The Company shall not be required to make and the
Registrar need not register transfers or exchanges of Securities selected for
redemption (except, in the case of Securities to be redeemed in part, the
portion thereof not to be redeemed) or any Securities for a period of 15 days
before a selection of Securities to be redeemed.
Prior to the due presentation for registration of transfer
of any Security, the Company, the Trustee, the Paying Agent, the Registrar or
any co-registrar may deem and treat the Person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of Principal of and interest, if any, on such Security and for all
other purposes whatsoever, whether or not such Security is overdue, and none
of the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
Any Holder of a U.S. Global Note shall, by acceptance of
such Global Note, agree that transfers of beneficial interest in such Global
Note may be effected only through a book-entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial
interest in such Global Note shall be required to be reflected in a book
entry.
All Securities issued upon any transfer or exchange pursuant
to this Section 2.06 will evidence the same debt and will be entitled to the
same benefits under this Indenture as the Securities surrendered upon such
transfer or exchange.
SECTION 2.07. Replacement Securities. If a mutilated
Security is surrendered to the Registrar or if the Holder of a Security claims
that the Security has been lost,
31
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the requirements of Section 8-405 of
the Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee,
the Paying Agent, the Registrar and any co-registrar from any loss which any
of them may suffer if a Security is replaced. The Company and the Trustee may
charge the Holder for their expenses in replacing a Security.
In case any such mutilated, destroyed, lost or stolen
Security has become due and payable, the Company, in its discretion, may
instead of issuing a new Security, pay such Security.
Every replacement Security is an additional obligation of
the Company.
SECTION 2.08. Outstanding Securities. Securities outstanding
("Outstanding") at any time are all Securities authenticated and delivered by
the Trustee except for those canceled by it, those delivered to it for
cancelation and those described in this Section as not Outstanding. A Security
does not cease to be Outstanding because the Company or an Affiliate of the
Company holds the Security.
If a Security is paid or replaced pursuant to Section 2.07,
it ceases to be Outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all Principal and interest, if any, payable on that date
with respect to the Securities (or portions thereof) to be redeemed or
maturing, as the case may be, then on and after that date such Securities (or
portions thereof) cease to be Outstanding, the Accreted Value of such
Securities ceases to increase and interest, if any, on them ceases to accrue.
SECTION 2.09. Temporary Securities. Until definitive
Securities are ready for delivery, the Company may execute and the Trustee
shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall
32
execute and the Trustee shall authenticate definitive Securities and deliver
them in exchange for temporary Securities upon surrender of such temporary
Securities at the office or agency of the Company, without charge to the
Holder.
SECTION 2.10. Cancelation. The Company at any time may
deliver Securities to the Trustee for cancelation. The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment. The Trustee and no one else
shall cancel Securities surrendered for registration of transfer, exchange,
payment or cancelation and deliver such canceled Securities to the Company
upon the Company's written request. The Company may not Issue new Securities
to replace Securities it has redeemed, paid or delivered to the Trustee for
cancelation.
SECTION 2.11. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use) and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
SECTION 2.12. Book-Entry Provisions for U.S. Global Note.
(a) Each U.S. Global Note initially shall (i) be registered
in the name of the Depositary for such U.S. Global Note or the nominee of such
Depositary and (ii) be delivered to the Trustee as custodian for such
Depositary.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any U.S.
Global Note held on their behalf by the Depositary, or the Trustee as its
custodian, or under the U.S. Global Note, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such U.S. Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the
Depositary or shall impair, as between the
33
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) Transfers of a U.S. Global Note shall be limited to
transfers of such U.S. Global Note in whole, but not in part, to the
Depositary, its successors or their respective nominees. Interests of
beneficial owners in a U.S. Global Note may be transferred in accordance with
the rules and procedures of the Depositary and the provisions of Section 2.13.
If required to do so pursuant to any applicable law or regulation, beneficial
owners may obtain U.S. Physical Notes in exchange for their beneficial
interests in a U.S. Global Note upon written request in accordance with the
Depositary's and the Registrar's procedures. In addition, U.S. Physical Notes
shall be transferred to all beneficial owners in exchange for their beneficial
interests in a U.S. Global Note if (i) the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary for such U.S. Global
Note or the Depositary ceases to be a clearing agency registered under the
Exchange Act, at a time when the Depositary is required to be so registered in
order to act as Depositary, and in each case a successor depositary is not
appointed by the Company within 90 days of such notice or, (ii) the Company
executes and delivers to the Trustee and Note Registrar an Officers'
Certificate stating that such U.S. Global Note shall be so exchangeable or
(iii) an Event of Default has occurred and is continuing and the Registrar has
received a request from the Depositary.
(c) In connection with any transfer of a portion of the
beneficial interest in a U.S. Global Note pursuant to subsection (b) of this
Section to beneficial owners who are required to hold U.S. Physical Notes, the
Registrar shall reflect on its books and records the date and a decrease in
the Principal Amount at Maturity of such U.S. Global Note in an amount equal
to the Principal Amount at Maturity of the beneficial interest in the U.S.
Global Note to be transferred, and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more U.S. Physical Notes of like tenor
and amount.
(d) In connection with the transfer of an entire U.S. Global
Note to beneficial owners pursuant to subsection (b) of this Section, such
U.S. Global Note shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the
Depositary in exchange for its beneficial interest in such U.S. Global Note,
an equal aggregate
34
Principal Amount at Maturity of U.S. Physical Notes of authorized
denominations.
(e) Any U.S. Physical Note delivered in exchange for an
interest in a U.S. Global Note pursuant to subsection (c) or subsection (d) of
this Section shall, except as otherwise provided by paragraph (f) of Section
2.13, bear the applicable legend regarding transfer restrictions applicable to
the U.S. Physical Note set forth in Exhibit A.
(f) The registered holder of a U.S. Global Note may grant
proxies and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take any action
which a Holder is entitled to take under this Indenture or the Notes.
SECTION 2.13. Special Transfer Provisions. Unless and until
an Initial Note is transferred or exchanged under an effective registration
statement under the Securities Act, the following provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with respect to the
registration of any proposed transfer of an Initial Note to any IAI which is
not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Initial
Note if (x) the requested transfer is at least two years after the
original issue date of the Initial Note or (y) the proposed
transferee has delivered to the Registrar a certificate substantially
in the form set forth in Exhibit D.
(ii) If the proposed transferee is an Agent Member, and the
Initial Note to be transferred consists of U.S. Physical Notes or an
interest in the QIB Global Note, upon receipt by the Registrar of (x)
the document, if any, required by paragraph (i) and (y) instructions
given in accordance with the Depositary's and the Registrar's
procedures therefor, the Registrar shall reflect on its books and
records the date and an increase in the principal amount at maturity
of the IAI Global Note in an amount equal to (x) the principal amount
at maturity of the U.S. Physical Notes to be transferred, and the
Trustee shall cancel the U.S. Physical Note so transferred or (y) the
amount at maturity of the beneficial interest in the QIB Global Note
to be so transferred (in which case the Registrar shall reflect on
its books and
35
records the date and an appropriate decrease in the principal amount
at maturity of the QIB Global Note).
(iii) If the proposed transferee is entitled to receive a
U.S. Physical Note as provided in Section 2.12 and the proposed
transferor is an Agent Member holding a beneficial interest in a U.S.
Global Note, upon receipt by the Registrar of (x) the documents, if
any, required by paragraph (i) and (y) instructions given in
accordance with the Depositary's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the
date and a decrease in the principal amount at maturity of such U.S.
Global Note in an amount equal to the principal amount at maturity of
the beneficial interest in such U.S. Global Note to be transferred,
and the Company shall execute, and the Trustee shall authenticate and
deliver, one or more U.S. Physical Notes of like tenor and amount.
(iv) If the Initial Note to be transferred consists of U.S.
Physical Notes and the proposed transferee is entitled to receive a
U.S. Physical Note as provided in Section 2.12, upon receipt by the
Registrar of the document, if any, required by paragraph (i), the
Registrar shall register such transfer and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more U.S.
Physical Notes of like tenor and amount.
(v) Notwithstanding any provision herein to the contrary,
transfers by an IAI (x) which is not a QIB and (y) is an initial
investor in the Initial Notes, cannot be made to an IAI which is not
a QIB.
(b) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of an Initial Note
to a QIB (excluding Non-U.S.
Persons):
(i) If the Note to be transferred consists of U.S. Physical
Notes, Temporary Offshore Physical Notes, Permanent Offshore Physical
Notes or an interest in the IAI Global Note, the Registrar shall
register the transfer if such transfer is being made by a proposed
transferor who has provided the Registrar with a certificate
substantially in the form set forth in Exhibit F hereto.
(ii) If the proposed transferee is an Agent Member, and the
Initial Note to be transferred consists
36
of U.S. Physical Notes, Temporary Offshore Physical Notes, Permanent
Offshore Physical Notes or an interest in the IAI Global Note, upon
receipt by the Registrar of (x) the document, if any, required by
paragraph (i) and (y) instructions given in accordance with the
Depositary's and the Registrar's procedures therefor, the Registrar
shall reflect on its books and records the date and an increase in
the principal amount at maturity of the QIB Global Note in an amount
equal to (x) the principal amount at maturity of the U.S. Physical
Notes, Temporary Offshore Physical Notes or Permanent Offshore
Physical Notes, as the case may be, to be transferred, and the
Trustee shall cancel the Physical Note so transferred or (y) the
amount at maturity of the beneficial interest in the IAI Global Note
to be so transferred (in which case the Registrar shall reflect on
its books and records the date and an appropriate decrease in the
principal amount at maturity of the IAI Global Note).
(iii) If the proposed transferee is entitled to receive a
U.S. Physical Note as provided in Section 2.12 and the proposed
transferor is an Agent Member holding a beneficial interest in a U.S.
Global Note, upon receipt by the Registrar of (x) the documents, if
any, required by paragraph (i) and (y) instructions given in
accordance with the Depositary's and the Registrar's procedures
therefor, the Registrar shall reflect on its books and records the
date and a decrease in the principal amount at maturity of such U.S.
Global Note in an amount equal to the principal amount at maturity of
the beneficial interest in such U.S. Global Note to be transferred,
and the Company shall execute, and the Trustee shall authenticate and
deliver, one or more U.S. Physical Notes of like tenor and amount.
(iv) If the Initial Note to be transferred consists of U.S.
Physical Notes, Temporary Offshore Physical Notes or Permanent
Offshore Physical Notes and the proposed transferee is entitled to
receive a U.S. Physical Note as provided in Section 2.12, upon
receipt by the Registrar of the document, if any, required by
paragraph (i), the Registrar shall register such transfer and the
Company shall execute, and the Trustee shall authenticate and
deliver, one or more U.S. Physical Notes of like tenor and amount.
(c) Transfers by Non-U.S. Persons Prior to April 14, 1997.
The following provisions shall apply with
37
respect to registration of any proposed transfer of an Initial Note by a
Non-U.S. Person prior to April 14, 1997:
(i) The Registrar shall register the transfer of any Initial
Note (x) if the proposed transferee is a Non-U.S. Person and the
proposed transferor has provided the Registrar with a certificate
substantially in the form set forth in Exhibit E hereto or (y) if the
proposed transferee is a QIB and the proposed transferor has provided
the Registrar with a certificate substantially in the form set forth
in Exhibit F hereto. Unless clause (ii) below is applicable, the
Company shall execute, and the Trustee shall authenticate and
deliver, one or more Temporary Offshore Physical Notes of like tenor
and amount.
(ii) If the proposed transferee is an Agent Member in
connection with a proposed transfer of an Initial Note to a QIB, upon
receipt by the Registrar of (x) the document, if any, required by
paragraph (i) and (y) instructions given in accordance with the
Depositary's and the Registrar's procedures therefor, the Registrar
shall reflect on its books and records the date and an increase in
the principal amount at maturity of the QIB Global Note in an amount
equal to the principal amount at maturity of the Temporary Offshore
Physical Note to be transferred, and the Registrar shall cancel the
Temporary Offshore Physical Notes so transferred.
(d) Transfers by Non-U.S. Persons on or After April 14,
1997. The following provisions shall apply with respect to any transfer of an
Initial Note by a Non-U.S. Person on or after April 14, 1997:
(i)(x) If the Initial Note to be transferred is a Permanent
Offshore Physical Note, the Registrar shall register such transfer,
(y) if the Initial Note to be transferred is a Temporary Offshore
Physical Note, upon receipt of a certificate substantially in the
form set forth in Exhibit E from the proposed transferor, the
Registrar shall register such transfer and (z) in the case of either
clause (x) or (y), unless clause (ii) below is applicable, the
Company shall execute, and the Trustee shall authenticate and
deliver, one or more Permanent Offshore Physical Notes of like tenor
and amount.
(ii) If the proposed transferee is an Agent Member in
connection with a proposed transfer of an Initial Note to a QIB, upon
receipt by the Registrar of
38
instructions given in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and an increase in the principal amount at
maturity of the QIB Global Note in an amount equal to the principal
amount at maturity of the Temporary Offshore Physical Note or of the
Permanent Offshore Physical Note to be transferred, and the Trustee
shall cancel the Physical Note so transferred.
(e) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an Initial Note to a
Non-U.S. Person:
(i) Prior to April 14, 1997, the Registrar shall register
any proposed transfer of an Initial Note to a Non-U.S. Person upon
receipt of a certificate substantially in the form set forth in
Exhibit E from the proposed transferor and the Company shall execute,
and the Trustee shall authenticate and make available for delivery,
one or more Temporary Offshore Physical Notes.
(ii) On and after April 14, 1997, the Registrar shall
register any proposed transfer to any Non-U.S. Person (w) if the
Initial Note to be transferred is a Permanent Offshore Physical Note,
(x) if the Initial Note to be transferred is a Temporary Offshore
Physical Note, upon receipt of a certificate substantially in the
form set forth in Exhibit E from the proposed transferor, (y) if the
Initial Note to be transferred is a U.S. Physical Note or an interest
in a U.S. Global Note, upon receipt of a certificate substantially in
the form set forth in Exhibit E from the proposed transferor and (z)
in the case of either clause (w), (x) or (y), the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Permanent Offshore Physical Notes of like tenor and amount.
(iii) If the proposed transferor is an Agent Member holding
a beneficial interest in a U.S. Global Note, upon receipt by the
Registrar of (x) the document, if any, required by paragraph (i), and
(y) instructions in accordance with the Depositary's and the
Registrar's procedures therefor, the Registrar shall reflect on its
books and records the date and a decrease in the principal amount at
maturity of such U.S. Global Note in an amount equal to the principal
amount at maturity of the beneficial interest in the U.S. Global Note
to be transferred and the Company shall execute, and the Trustee
shall authenticate and deliver, one or more
39
Permanent Offshore Physical Notes of like tenor and amount.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement
Legend, the Registrar shall deliver only Notes that bear the Private Placement
Legend unless either (i) the circumstances contemplated by the paragraph of
Section 2.01(c) (relating to Permanent Offshore Physical Notes) or paragraph
(a)(i)(x), (d)(i) or (e)(ii) of this Section 2.13 exist or (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to
the Company and the Trustee to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act.
(g) General. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Note only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 2.12 or this
Section 2.13. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 5 of the Securities or is required to
redeem Securities pursuant to paragraph 6 of the Securities, it shall notify
the Trustee in writing of the redemption date, the Principal Amount at
Maturity of Securities to be redeemed and the paragraph of the Securities
pursuant to which the redemption will occur. If the Company is required to
redeem the Securities pursuant to paragraph 6 of the Securities, the Company
shall also so notify the Escrow Agent concurrently with its notification to
the Trustee.
40
In the case of a redemption pursuant to paragraph 5 of the
Securities, the Company shall give each notice to the Trustee provided for in
this Section at least 60 days before the redemption date unless the Trustee
consents to a shorter period. In the case of a redemption pursuant to
paragraph 6 of the Securities, the Company shall give such notices to the
Trustee and the Escrow Agent provided for in this Section promptly after the
event triggering the requirement to redeem the Securities. Any notice
delivered pursuant to paragraph 5 of the Securities shall be accompanied by an
Officers' Certificate to the effect that such redemption will comply with the
conditions herein. If fewer than all the Securities are to be redeemed, the
record date relating to such redemption for determining the Holders to whom
notice of redemption will be sent pursuant to Section 3.03 shall be selected
by the Company and given to the Trustee, which record date shall be not less
than 15 days after the date of notice to the Trustee unless the Trustee
consents to a shorter period.
SECTION 3.02. Selection of Securities To Be Redeemed. If
fewer than all the Securities are to be redeemed, the Trustee in its
discretion shall select the Securities to be redeemed pro rata or by lot or by
a method that complies with applicable legal and securities exchange
requirements, if any, and that the Trustee considers fair and appropriate and
in accordance with methods generally used at the time of selection by
fiduciaries in similar circumstances. The Trustee shall make the selection
from Outstanding Securities not previously called for redemption. The Trustee
may select for redemption portions of the Principal Amount at Maturity of
Securities that have denominations larger than $1,000. Securities and portions
of them the Trustee selects shall be in amounts of Principal Amount at
Maturity of $1,000 or a whole multiple of $1,000. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. In the case of a
redemption pursuant to paragraph 5 of the Securities, at least 30 days but not
more than 60 days before a date for redemption of Securities, the Company
shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed. In the case of a redemption pursuant to paragraph 6
of the Securities, the Company shall mail a notice of redemption by
first-class mail to each Holder of Securities on the date it delivers the
notice to the Trustee pursuant to Section 3.01.
41
Any notice delivered pursuant to this Section 3.03 shall
identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) if fewer than all the Outstanding Securities are to be
redeemed, the identification of the particular Securities to be
redeemed as well as the aggregate Principal Amount at Maturity of
Securities to be redeemed and if any Security is being redeemed in
part, the portion of the Principal Amount at Maturity of such
Security to be redeemed and that after the redemption date and upon
surrender of such Security a new Security or Securities will be
issued having a Principal Amount at Maturity equal to the Principal
Amount at Maturity of the Security surrendered less the Principal
Amount at Maturity of the portion of the Security redeemed;
(6) that, unless the Company defaults in making such
redemption payment, the Accreted Value on Securities (or portion
thereof) called for redemption ceases to increase, and interest
thereon, if any, ceases to accrue, on and after the redemption date;
(7) the paragraph of the Securities pursuant to which the
Securities called for redemption are being redeemed;
(8) the CUSIP number printed on the Securities being
redeemed; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or
printed on the Securities.
At the Company's request, the Trustee shall give the notice
of redemption in the Company's name and at the Company's expense. In such
event, the Company shall provide the Trustee with the information required by
this Section.
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SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable
on the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest, if any, to the redemption
date. Failure to give notice or any defect in the notice to any Holder shall
not affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. On or prior to
the redemption date, the Company shall deposit with the Paying Agent (or, if
the Company or a Subsidiary is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the redemption price of and accrued interest,
if any, on all Securities to be redeemed on that date other than Securities or
portions of Securities called for redemption which have been delivered by the
Company to the Trustee for cancelation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender
of a Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate for the Holder (at the Company's expense) a new
Security having a Principal Amount at Maturity equal to the Principal Amount at
Maturity of the Security surrendered less the Principal Amount at Maturity of
the portion of the Security so redeemed.
ARTICLE IV
Covenants
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the Principal of and interest, if any, on the Securities on the
dates and in the manner provided in the Securities and in this Indenture.
Principal and interest shall be considered paid on the date due if on such
date the Trustee or the Paying Agent holds in accordance with this Indenture
money sufficient to pay all Principal and interest then due. The Company shall
pay interest on overdue Principal at the rate specified therefor in the
Securities, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company
may not be required to be subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, from and after the earlier of (such date, the
43
"reporting date") (i) the effectiveness of a Registration Statement (as
defined in the Registration Agreement) or (ii) the Merger, the Company will
file or cause to be filed with the SEC and provide the Trustee and
Securityholders with the information, documents and other reports (or copies
of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) specified in Sections 13 and 15(d) of the Exchange Act.
Prior to the reporting date, the Company shall provide the Trustee and
Securityholders information that is substantially similar to that required to
be provided to such Persons after the reporting date. The Company also will
comply with the other provisions of TIA ss.314(a).
SECTION 4.03. Limitation on Debt of the Company, Revlon
Worldwide and Revlon, Inc.; Limitation on Preferred Stock of Revlon Worldwide,
Revlon, Inc. and RCPC. (a) The Company shall not, and shall not permit (i)
Revlon, Inc. or (ii) prior to the Merger, Revlon Worldwide, to, Issue any Debt;
provided, however, that the foregoing shall not prohibit the Issuance of the
following Debt:
(1) the Initial Notes, the Exchange Notes and Debt Issued by
the Company in exchange for, or the proceeds of which are used to
Refinance, any Debt permitted by this clause (1); provided, however,
that in the case of any Debt (other than any Exchange Notes) Issued
in connection with a Refinancing, (i) the Debt so Issued shall not
provide for any payment of principal or interest in cash prior to the
Stated Maturity of the Securities, (ii) the principal amount (or, in
the case of Debt Issued at a discount, the accreted value) of the
Debt so Issued as of the date of the Stated Maturity of the Debt
being Refinanced shall not exceed the sum of (A) the principal amount
(or if the Debt being Refinanced was Issued at a discount, the
accreted value) of the Debt being Refinanced as of the date of the
Stated Maturity of the Debt being Refinanced and (B) any Refinancing
Costs thereof, and (iii) the Stated Maturity of the Debt so Issued
shall be later than the Stated Maturity of the Securities;
(2) Debt owed to and held by RCPC or a Wholly Owned Recourse
Subsidiary; provided, however, that any subsequent Issuance or
transfer of any Capital Stock which results in any such Wholly Owned
Recourse Subsidiary ceasing to be a Wholly Owned Recourse Subsidiary
or any subsequent transfer of such Debt (other than to RCPC or a
Wholly Owned Recourse Subsidiary) shall be deemed, in each case, to
44
constitute the Issuance of such Debt by the Company, Revlon Worldwide
or Revlon, Inc., as the case may be;
(3) Debt of Revlon, Inc. outstanding on the Issue Date
consisting of a Guarantee of RCPC's obligations under or in respect
of the Credit Agreement and any Debt Issued in the form of a
Guarantee of any other Debt of RCPC and its Subsidiaries permitted to
be Issued under Section 4.04;
(4) the Revlon Worldwide Notes;
(5) any Secured Non-Recourse Guarantee;
(6) Debt of the Company acquired as a result of the Merger;
and
(7) Debt of the Company that is not secured by a Lien on any
assets, property or Capital Stock owned by the Company or any of its
Subsidiaries, the proceeds of which Debt are used solely for deposit
(or the purchase of U.S. Government Obligations to be deposited) with
the Escrow Agent in an aggregate principal amount not to exceed the
amount necessary, together with the net proceeds to the Company of
the Issuance of the Securities, to enable the Company to make the
Initial Deposit (as defined in the Escrow Agreement).
(b) The Company shall not permit (i) Revlon, Inc. or RCPC or
(ii) prior to the Merger, Revlon Worldwide to Issue any Preferred Stock;
provided, however, that Revlon, Inc. or RCPC may Issue the following Preferred
Stock:
(1) Preferred Stock outstanding on the Issue Date and
Preferred Stock Issued to Refinance any Preferred Stock permitted by
this clause (1); provided, however, that in the case of a
Refinancing, the liquidation value of the Preferred Stock so Issued
shall not exceed the liquidation value of the Preferred Stock so
Refinanced plus any Refinancing Costs thereof;
(2) Preferred Stock (other than Preferred Stock described in
clause (1) above) of Revlon, Inc. Issued to and held by the Company
and Preferred Stock (other than Preferred Stock described in clause
(1) above) of RCPC Issued to and held by the Company or Revlon, Inc.;
provided, however, that any subsequent transfer of such Preferred
Stock (other than to the Company or a wholly owned Subsidiary of the
Company), shall be deemed to constitute the Issuance of such
Preferred Stock by Revlon, Inc. or RCPC, as the case may be; and
45
(3) Preferred Stock (other than Preferred Stock described in
clauses (1) and (2) but including the Preferred Stock referred to in
the proviso to clause (2) above) Issued by RCPC; provided, however,
that the liquidation value of any Preferred Stock Issued pursuant to
this clause (3) shall constitute Debt of RCPC for purposes of Section
4.04 and dividends on such Preferred Stock shall be included in
determining Consolidated Interest Expense for purposes of calculating
the Consolidated EBITDA Coverage Ratio under Section 4.04(a).
SECTION 4.04. Limitation on Debt of RCPC and its
Subsidiaries. (a) The Company shall not permit RCPC or any Subsidiary of RCPC
to Issue, directly or indirectly, any Debt; provided, however, that RCPC and
its Subsidiaries will be permitted to Issue Debt if, at the time of such
Issuance, the Consolidated EBITDA Coverage Ratio for the period of the most
recently completed four consecutive fiscal quarters ending at least 45 days
prior to the date such Debt is Issued exceeds the ratio of 2.50 to 1.0.
(b) Notwithstanding the foregoing, RCPC and its
Subsidiaries may Issue the following Debt:
(1) Debt Issued pursuant to the Credit Agreement, any
Refinancing Agreement or any other credit agreement, indenture or
other agreement, in an aggregate principal amount not to exceed $600
million outstanding at any one time;
(2) Debt (other than Debt described in clause (1) above)
Issued for working capital and general corporate purposes in an
aggregate principal amount at the time of such Issue which, when
taken together with the aggregate principal amount then outstanding
of all other Debt Issued pursuant to this clause (2), shall not
exceed the sum of (i) 50% of the book value of the inventory of RCPC
and its consolidated Subsidiaries and (ii) 80% of the book value of
the accounts receivable of RCPC and its consolidated Subsidiaries, in
each case as determined in accordance with GAAP;
(3) Debt (other than Debt described in clauses (1) and (2)
above) in respect of the undrawn portion of the face amount of or
unpaid reimbursement obligations in respect of letters of credit for
the account of RCPC or any of its Subsidiaries in an aggregate amount
at any time outstanding not to exceed the excess of (i) $150 million
over (ii) the undrawn portion of the face amount of or unpaid
reimbursement obligations in
46
respect of letters of credit Issued under the Credit Agreement, any
Refinancing Agreement or any other credit agreement, indenture or
other agreement pursuant to clause (1) above;
(4) Debt of RCPC Issued to and held by a Wholly Owned
Recourse Subsidiary and Debt of a Subsidiary of RCPC Issued to and
held by RCPC or a Wholly Owned Recourse Subsidiary; provided,
however, that any subsequent Issuance or transfer of any Capital
Stock that results in any such Wholly Owned Recourse Subsidiary
ceasing to be a Wholly Owned Recourse Subsidiary or any subsequent
transfer of such Debt (other than to RCPC or a Wholly Owned Recourse
Subsidiary) shall be deemed, in each case, to constitute the Issuance
of such Debt by RCPC or of such Debt by such Subsidiary;
(5) the Debt Issued pursuant to each of the RCPC Indentures
and Debt Issued to Refinance any Debt permitted by this clause (5);
provided, however, that, in the case of a Refinancing, the principal
amount of the Debt so Issued shall not exceed the principal amount of
the Debt so Refinanced plus any Refinancing Costs thereof;
(6) Debt (other than Debt described in clause (1), (2), (3),
(4) or (5) above or (11) below) outstanding on the Issue Date and
Debt Issued to Refinance any Debt permitted by this clause (6) or by
Section 4.04(a); provided, however, that, in the case of a
Refinancing, the principal amount of the Debt so Issued shall not
exceed the principal amount of the Debt so Refinanced plus any
Refinancing Costs thereof;
(7) Debt Issued and arising out of purchase money
obligations for property acquired in an amount not to exceed, for the
period through June 30, 1997, $15 million, plus for each period of
twelve consecutive months ending on June 30 thereafter, $15 million;
provided, however, that any such amounts which are available to be
utilized during any twelve-month period and are not so utilized may
be utilized during any succeeding period;
(8) Debt of a Subsidiary of RCPC Issued and outstanding on
or prior to the date on which such Subsidiary was acquired by RCPC
(other than Debt Issued as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions
47
pursuant to which such Subsidiary became a Subsidiary of RCPC or was
acquired by RCPC);
(9) Debt Issued to Refinance Debt referred to in the
foregoing clause (8) or this clause (9); provided, however, that the
principal amount of such Debt so Issued shall not exceed the
principal amount of the Debt so Refinanced plus any Refinancing Costs
thereof;
(10) Non-Recourse Debt of a Non-Recourse Subsidiary;
provided, however, that if any such Debt thereafter ceases to be
Non-Recourse Debt of a Non-Recourse Subsidiary, then such event shall
be deemed for the purpose of this Section 4.04 to constitute the
Issuance of such Debt by the Issuer thereof;
(11) Permitted Affiliate Debt; and
(12) Debt (other than Debt described in clauses (1) through
(11) above and in Section 4.04(a)) in an aggregate principal amount
outstanding at any time not to exceed $150 million.
(c) To the extent RCPC or any Subsidiary of RCPC Guarantees
any Debt of RCPC or of a Subsidiary of RCPC, such Guarantee and such Debt will
be deemed to be the same indebtedness and only the amount of the indebtedness
will be deemed to be outstanding.
SECTION 4.05. Limitation on Restricted Payments. (a) The
Company shall not, and shall not permit (i) Revlon, Inc., RCPC or any
Subsidiary of RCPC (other than a Non-Recourse Subsidiary), directly or
indirectly, or (ii) prior to the Merger, Revlon Worldwide, directly or
indirectly, to make any Restricted Payment if, at the time such Restricted
Payment is made:
(1) a Default shall have occurred or be continuing (or would
result therefrom); or
(2) the aggregate amount of such Restricted Payment and all
other Restricted Payments since the Issue Date would exceed the sum
of (i) 50% of Consolidated Net Income (or, if such aggregate
Consolidated Net Income is a deficit, minus 100% of such deficit) of
the Company accrued during the period (treated as one accounting
period) from January 1, 1997, to the end of the most recent fiscal
quarter ending at least 45 days prior to the date of such Restricted
Payment and (ii) the aggregate Net Cash
48
Proceeds from sales of Capital Stock of the Company (other than
Redeemable Stock or Exchangeable Stock) or cash capital contributions
made to the Company (other than Issuer Capital Contributions).
(b) Section 4.05(a) shall not prohibit the following (none
of which shall be included in the calculation of the amount of Restricted
Payments, except to the extent expressly provided in clause (v) below):
(i) so long as no Default has occurred and is continuing or
would result from such transaction, any Restricted Payment to the
extent it consists of Unrestricted Assets;
(ii) any purchase, repurchase, redemption, defeasance or
other acquisition by a Non-Recourse Subsidiary of Non-Recourse Debt
of such Non-Recourse Subsidiary;
(iii) dividends or distributions made by Revlon Worldwide,
Revlon, Inc. or RCPC to the Company, Revlon Worldwide, or Revlon, Inc.
and, if Revlon, Inc. (or, after any merger or consolidation of Revlon,
Inc. and RCPC with each other, RCPC) is not wholly owned, to its other
stockholders on a pro rata basis;
(iv) dividends or distributions made by a Subsidiary of RCPC
to the Company, Revlon Worldwide, Revlon, Inc., RCPC or a Subsidiary
of RCPC and, if a Subsidiary of RCPC is not wholly owned, to its
other stockholders to the extent they are not Affiliates of the
Company;
(v) dividends paid within 60 days after the date of
declaration thereof, or Restricted Payments made within 60 days after
the making of a binding commitment in respect thereof, if at such
date of declaration or commitment such dividend or other Restricted
Payment would have complied with this Section; provided, however,
that at the time of payment of such dividend or the making of such
Restricted Payment, no other Default shall have occurred and be
continuing (or will result therefrom); provided further, however,
that such dividend or other Restricted Payment shall be included in
the calculation of the amount of Restricted Payments; and
(vi) so long as no Default under the RCPC Indentures has
occurred and is continuing or would
49
result from such transaction, amounts paid or property transferred
pursuant to the Permitted Transactions.
(c) The Company, Revlon Worldwide, Revlon, Inc., RCPC or any
Subsidiary of RCPC may take actions to make a Restricted Payment in
anticipation of the occurrence of any of the events described in Section
4.05(b); provided, however, that the making of such Restricted Payment shall
be conditioned upon the occurrence of such event.
SECTION 4.06. Limitation on Restrictions on Distributions
from Subsidiaries. (a) The Company shall not, and shall not permit (i) Revlon,
Inc. or (ii) prior to the Merger, Revlon Worldwide, to, create or otherwise
cause or permit to exist or become effective any consensual encumbrance or
restriction on the ability of Revlon, Inc. to (x) pay dividends or make any
other distributions on its Capital Stock or pay any Debt owed to the Company
or, prior to the Merger, Revlon Worldwide, (y) make any loans or advances to
the Company or, prior to the Merger, Revlon Worldwide or (z) transfer any of
its property or assets to the Company or, prior to the Merger, Revlon
Worldwide, except:
(1) any encumbrance or restriction pursuant to an agreement
in effect at or entered into on the Issue Date;
(2) any encumbrance or restriction with respect to Revlon,
Inc. pursuant to an agreement effecting a Guarantee of Bank Debt or a
Refinancing of any Debt Issued pursuant to an agreement referred to
in clause (1) above or this clause (2) or contained in any amendment
to an agreement referred to in clause (1) above or this clause (2);
provided, however, that any such encumbrance or restriction with
respect to Revlon, Inc. is no less favorable to the Securityholders
than the least favorable of the encumbrances and restrictions with
respect to Revlon, Inc. contained in the agreements referred to in
clause (1) above; and
(3) any encumbrance or restriction relating to Unrestricted
Assets.
(b) The Company shall not, and shall not permit RCPC or any
Subsidiary of RCPC to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of RCPC or
any Subsidiary of RCPC to (i) pay dividends or make any other distributions on
its Capital Stock or pay any Debt owed to the Company or Revlon Worldwide,
(ii) make any loans or
50
advances to the Company or Revlon Worldwide or (iii) transfer any of its
property or assets to the Company or Revlon Worldwide, except as follows:
(1) any encumbrance or restriction pursuant to an
agreement in effect at or entered into on the Issue
Date;
(2) any encumbrance or restriction with respect to a
Subsidiary of RCPC pursuant to an agreement relating to any Debt
Issued by such Subsidiary on or prior to the date on which such
Subsidiary was acquired by RCPC (other than Debt Issued as
consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Subsidiary became a
Subsidiary of RCPC or was acquired by RCPC) and outstanding on such
date;
(3) any encumbrance or restriction with respect to RCPC or
any Subsidiary of RCPC pursuant to an agreement effecting an Issuance
of Bank Debt or a Refinancing of any other Debt Issued pursuant to an
agreement referred to in clause (1) or (2) above or this clause (3)
(or in the case of RCPC, an Issuance of any other Debt permitted to
be Issued under this Indenture) or contained in any amendment to an
agreement referred to in clause (1) or (2) above or this clause (3);
provided, however, that any such encumbrance or restriction with
respect to RCPC or any Subsidiary of RCPC, as the case may be, is no
less favorable to the Securityholders than the least favorable of the
encumbrances and restrictions with respect to RCPC or such Subsidiary
of RCPC, as the case may be, contained in the agreements referred to
in clause (1) or (2) above;
(4) any such encumbrance or restriction consisting of
customary nonassignment provisions in leases governing leasehold
interests to the extent such provisions restrict the transfer of the
lease;
(5) in the case of clause (iii) above, restrictions
contained in security agreements securing Debt of RCPC or a
Subsidiary of RCPC (other than security agreements securing Debt of a
Subsidiary of RCPC Issued in connection with any agreement referred
to in clause (1), (2) or (3) above) and restrictions contained in
agreements relating to a disposition of property of RCPC or a
Subsidiary of RCPC, to the extent
51
such restrictions restrict the transfer of the property subject to
such agreements;
(6) any encumbrance or restriction binding on a Foreign
Subsidiary contained in an agreement pursuant to which such Foreign
Subsidiary has issued Debt consisting of working capital borrowings;
and
(7) any encumbrance or restriction relating to a
Non-Recourse Subsidiary.
SECTION 4.07. Limitation on Liens and Sales of Assets and
Subsidiary Stock. (a) The Company shall not, and shall not permit (i) Revlon,
Inc. or (ii) prior to the Merger, Revlon Worldwide, to, make any Asset
Disposition. The Company shall not create, incur or suffer to exist a Lien on
the Collateral (other than the Lien of this Indenture), on the Escrowed
Property (other than the Lien of the Escrow Agreement) or on any Unrestricted
Assets (other than a Lien to secure a Secured Non-Recourse Guarantee).
(b) The Company shall not permit RCPC or any Subsidiary of
RCPC (other than a Non-Recourse Subsidiary) to make any Asset Disposition
unless:
(i) RCPC or such Subsidiary receives consideration at the
time of such Asset Disposition at least equal to the fair market
value, as determined in good faith by the Board of Directors of RCPC,
the determination of which shall be conclusive and evidenced by a
resolution of the Board of Directors of RCPC (including as to the
value of all non-cash consideration), of the Capital Stock and assets
subject to such Asset Disposition;
(ii) at least 75% of the consideration consists of cash,
cash equivalents, readily marketable securities which RCPC intends,
in good faith, to liquidate promptly after such Asset Disposition or
the assumption of liabilities (including, in the case of the sale of
the Capital Stock of a Subsidiary of RCPC, liabilities of such
Subsidiary) (provided, however, that in respect of an Asset
Disposition, more than 25% of the consideration may consist of
consideration other than cash, cash equivalents, such readily
marketable securities or such assumed liabilities if (x) such Asset
Disposition is approved by a majority of those members of the Board
of Directors of RCPC having no personal stake in such Asset
Disposition and (y) if such Asset Disposition involves aggregate
consideration in excess of $10 million (with the value of any
non-cash consideration being determined by a majority
52
of those members of the Board of Directors of RCPC having no personal
stake in such Asset Disposition), such Asset Disposition has been
determined, in the written opinion of a nationally recognized
investment banking firm, to be fair from a financial point of view to
RCPC or such Subsidiary, as the case may be); and
(iii) an amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by RCPC (or such Subsidiary, as the
case may be) at RCPC's election (1) to the prepayment, repayment or
repurchase of Debt of RCPC or Debt of a Wholly Owned Recourse
Subsidiary or, additionally in the case of an Asset Disposition by a
Subsidiary that is not a Wholly Owned Recourse Subsidiary, Debt of
such Subsidiary (in each case other than Debt owed to (i) an
Unrestricted Subsidiary, (ii) a Non-Recourse Subsidiary or (iii) an
Affiliate of the Company which is not a Subsidiary of the Company)
(whether or not the related loan commitment is permanently reduced in
connection therewith), (2) to the investment by RCPC or such Wholly
Owned Recourse Subsidiary (or, additionally in the case of an Asset
Disposition by a Subsidiary that is not a Wholly Owned Recourse
Subsidiary, the investment by such Subsidiary) in (x) assets to
replace the assets that were the subject of such Asset Disposition,
(y) assets that (as determined by the Board of Directors of RCPC, the
determination of which shall be conclusive and evidenced by a
resolution of such Board of Directors) will be used in the businesses
of RCPC and its Wholly Owned Recourse Subsidiaries (or, additionally
in the case of an Asset Disposition by a Subsidiary that is not a
Wholly Owned Recourse Subsidiary, the businesses of such Subsidiary)
existing on the Issue Date or in businesses reasonably related
thereto or (z) Temporary Cash Investments or (3) to make a Restricted
Payment to Revlon, Inc., Revlon Worldwide or the Company.
Notwithstanding the foregoing provisions of this Section 4.07(b),
RCPC and its Subsidiaries shall not be required to apply any Net Available
Cash in accordance with this Section 4.07(b) except to the extent that the
aggregate Net Available Cash from all Asset Dispositions made by RCPC and its
Subsidiaries which are not applied in accordance with this Section 4.07(b)
exceed $10 million.
SECTION 4.08. Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit (i) Revlon, Inc., RCPC or any
Subsidiary of RCPC (other than a Non-Recourse Subsidiary) or (ii) prior to the
Merger, Revlon Worldwide, to, conduct any business or enter
53
into any transaction or series of similar transactions (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Company or any legal or beneficial owner of
10% or more of the voting power of the Voting Stock of the Company or with an
Affiliate of any such owner.
(b) The provisions of Section 4.08(a) shall not prohibit:
(i) any Restricted Payment permitted to be paid pursuant to
Section 4.05;
(ii) any transaction between the Company and any of its
Subsidiaries; provided, however, that no portion of any minority
interest in any such Subsidiary is owned by (x) any Affiliate (other
than the Company, Revlon Worldwide, Revlon, Inc., RCPC or a Wholly
Owned Recourse Subsidiary) of the Company or (y) any legal or
beneficial owner of 10% or more of the voting power of the Voting
Stock of the Company or any Affiliate of such owner (other than the
Company, Revlon Worldwide, Revlon, Inc., RCPC or any Wholly Owned
Recourse Subsidiary);
(iii) any transaction between Subsidiaries of the Company;
provided, however, that no portion of any minority interest in any
such Subsidiary is owned by (x) any Affiliate (other than the
Company, Revlon Worldwide, Revlon, Inc., RCPC or a Wholly Owned
Recourse Subsidiary) of the Company or (y) any legal or beneficial
owner of 10% or more of the voting power of the Voting Stock of the
Company or any Affiliate of such owner (other than the Company,
Revlon Worldwide, Revlon, Inc., RCPC or any Wholly Owned Recourse
Subsidiary);
(iv) any transaction between Revlon, Inc., RCPC or a
Subsidiary of RCPC and its own employee stock ownership plan;
(v) any transaction with an officer or director of RCPC or
any Subsidiary of RCPC entered into in the ordinary course of
business (including compensation or employee benefit arrangements
with any such officer or director); provided, however, such officer
holds, directly or indirectly, no more than 10% of the outstanding
Capital Stock of the Company;
(vi) any Permitted Transaction;
54
(vii) the Merger; and
(viii) with respect to RCPC and its Subsidiaries, any
transaction permitted by paragraph (a) of the covenant limiting
transactions with Affiliates included in any of the RCPC Indentures.
SECTION 4.09. Change of Control. (a) Upon a Change of
Control, each Holder shall have the right to require that the Company
repurchase such Holder's Securities at a purchase price in cash equal to their
Put Amount as of the date of purchase, in accordance with the terms
contemplated in Section 4.09(b).
(b) Within 45 days following any Change of Control, the
Company shall mail a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that such
Holder has the right to require the Company to purchase all or any
part of such Holder's Securities at a purchase price in cash equal to
their Put Amount as of the date of purchase;
(2) the circumstances and relevant facts regarding
such Change of Control;
(3) the repurchase date (which shall be no earlier than 30
days nor later than 60 days from the date such notice is mailed); and
(4) the instructions determined by the Company, consistent
with this Section, that a Holder must follow in order to have its
Securities purchased.
(c) Holders electing to have a Security purchased will be
required to surrender the Security, with an appropriate form duly completed,
to the Company at the address specified in the notice at least 10 Business
Days prior to the purchase date. Holders will be entitled to withdraw their
election if the Trustee or the Company receives not later than three Business
Days prior to the purchase date, a facsimile transmission or letter setting
forth the name of the Holder, the Principal Amount at Maturity of the Security
which was delivered for purchase by the Holder and a statement that such
Holder is withdrawing his election to have such Security purchased.
(d) On the purchase date, all Securities purchased by the
Company under this Section shall be delivered to the Trustee for cancelation,
and the Company
55
shall pay the purchase price to the Holders entitled thereto. Upon surrender
of a Security that is repurchased under this Section in part, the Company
shall execute and the Trustee shall authenticate for the Holder thereof (at
the Company's expense) a new Security having a Principal Amount at Maturity
equal to the Principal Amount at Maturity of the Security surrendered less the
portion of the Principal Amount at Maturity of the Security purchased.
(e) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Securities pursuant
to this Section. To the extent that the provisions of any securities laws or
regulations conflict with provisions of this Section, the Company shall comply
with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section by virtue thereof.
SECTION 4.10. Limitation on Other Business Activities. (a)
The Company shall not (i) prior to the Merger, engage in any trade or business
other than (A) the ownership of the Capital Stock of Revlon Worldwide and (B)
the ownership of the Capital Stock of one or more Unrestricted Subsidiaries,
and (ii) thereafter, engage in any trade or business other than (A) the
ownership of the Capital Stock of Revlon, Inc. and (B) the ownership of the
Capital Stock of one or more Unrestricted Subsidiaries. The Company shall not
permit any Unrestricted Subsidiary to engage in any business other than the
ownership of Capital Stock of one or more Unrestricted Subsidiaries and the
ownership of Unrestricted Assets.
(b) Unless Revlon, Inc. and RCPC have merged with each other
or have otherwise consolidated with each other, the Company shall not permit
Revlon, Inc. to (i) engage in any trade or business other than the ownership
of the Capital Stock of RCPC or (ii) fail to own 100% of the Capital Stock of
RCPC. After any such merger or consolidation, the provisions of this Article
IV restricting the activities of Revlon, Inc. (but not RCPC) shall not be
applicable to the surviving corporation.
SECTION 4.11. The Escrow Release and the Merger. (a) As soon
as practicable after the Company's receipt of the Issuer Capital
Contributions, the Company shall deliver to the Escrow Agent the Officers'
Certificate contemplated by the first paragraph of Section 2(a) of the Escrow
Agreement. Upon the release of the Escrowed Property, the Company shall
irrevocably deposit such Escrowed Property
56
with the Trustee (as defined in the Revlon Worldwide Indenture) and shall
cause Revlon Worldwide to immediately take all actions required to be taken by
it for the consummation of the Revlon Worldwide Notes Defeasance to the extent
such actions can be taken at such time.
(b) The Company shall cause the Merger to occur as promptly
as practicable after the 123rd day after the deposit of the Escrowed Property
with the Trustee (as defined in the Revlon Worldwide Notes Indenture), but in
any event not later than the Business Day immediately following the 130th day
after such deposit.
SECTION 4.12. Minimum Collateral Percentage. The Company
shall not at any time after the Merger permit the number of Revlon, Inc.
Pledged Shares to constitute less than the Minimum Collateral Percentage of the
number of shares of Common Stock of Revlon, Inc. outstanding at such time
(treating all shares of Common Stock of all classes as a single class). The
"Minimum Collateral Percentage" at any time shall equal 25% multiplied by a
fraction, the numerator of which is the aggregate Principal Amount at Maturity
of the Securities (other than any Securities the payment of which has been
provided pursuant to clause (i) of Section 10.05(g)) Outstanding at such time,
and the denominator of which is $770,000,000.
SECTION 4.13. Maintenance of Non-Investment Company Status.
The Company will not at any time be or become an "investment company"
registered or required to become so registered under the Investment Company
Act of 1940 or any successor law, rule or regulation.
SECTION 4.14. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of
the Company an Officers' Certificate stating that in the course of the
performance by the signers of their duties as Officers of the Company they
would normally have knowledge of any Default by the Company and whether or not
the signers know of any Default that occurred during such period. If they do,
the certificate shall describe the Default, its status and what action the
Company is taking or proposes to take with respect thereto. The Company also
shall comply with TIA ss. 314(a)(4). The Trustee shall have no responsibility
or obligation to monitor the Company's compliance with its obligations set
forth in Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.10, 4.11, 4.12 or 4.13
or whether a Change of Control has occurred.
57
SECTION 4.15. Further Instruments and Acts. Upon request of
the Trustee, the Company will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets. The
Company shall not consolidate with or merge with or into, or convey, transfer
or lease all or substan tially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (if not
the Company) shall be a Person organized and existing under the laws
of the United States of America, any State thereof or the District of
Columbia and such Person shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under
the Securities and this Indenture;
(ii) except in the case of the Merger, immediately after
giving effect to such transaction (and treating any Debt which
becomes an obligation of the resulting, surviving or transferee
Person or any of its Subsidiaries as a result of such transaction as
having been Issued by such Person or such Subsidiary at the time of
such transaction), no Default shall have occurred and be continuing;
(iii) except in the case of the Merger, immediately after
giving effect to such transaction, the resulting, surviving or
transferee Person shall have a Consolidated Net Worth in an amount
which is not less than the Consolidated Net Worth of the Company
immediately prior to such transaction; and
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental
indenture (if any) comply with this Indenture.
The resulting, surviving or transferee Person shall be the
successor Company and shall succeed to, and be substituted for, and may
exercise every right and power of,
58
the Company under this Indenture, and thereafter, except in the case of a
lease, the Company shall be discharged from all obligations and covenants under
the Indenture and the Securities.
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default. An "Event of Default"
occurs if:
(1) the Company defaults in any payment of interest, if any,
on any Security when the same becomes due and payable and such
default continues for a period of 30 days;
(2) the Company (i) defaults in the payment of the Principal
of any Security when the same becomes due and payable at its Stated
Maturity, upon redemption, upon declaration or otherwise or (ii)
fails to redeem or purchase Securities when required pursuant to this
Indenture or the Securities;
(3) (i) the Company fails to comply with Section 5.01, (ii)
the Company fails to comply with Section 4.11, 4.12 or 4.13 or (iii)
the Trustee shall fail to have a perfected security interest in the
Revlon Worldwide Collateral or the Revlon, Inc.
Collateral;
(4) the Company fails to comply with Section 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09 (other than a failure to purchase
Securities) or 4.10 and such failure continues for 30 days after the
notice specified below;
(5) the Company fails to comply with any of its agreements
in the Securities or this Indenture or the Escrow Agreement (other
than those referred to in (1), (2), (3) or (4) above) and such
failure continues for, or any of the Company's representations and
warranties set forth in Section 10.03 proves to have been materially
false at the time it was made and is not cured within, 60 days after
the notice specified below;
(6) Debt of the Company or any Significant Subsidiary is not
paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default, the total
59
principal amount of the portion of such Debt that is unpaid or
accelerated exceeds $25,000,000 or its foreign currency equivalent
and such default continues for 10 days after the notice specified
below;
(7) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of
it or for any substantial part of its property; or
(D) makes a general assignment for the benefit of
its creditors;
or takes any comparable action under any foreign laws
relating to insolvency;
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or
any Significant Subsidiary or for any substantial
part of its property; or
(C) orders the winding up or liquidation of
the Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days; or
(9) any judgment or decree for the payment of money in
excess of $25,000,000 is entered against the Company or any
Significant Subsidiary and is not discharged and either (A) an
enforcement proceeding has been commenced by any creditor upon such
judgment or decree or (B) there is a period of 60 days following the
entry of such judgment or decree during which such judgment or decree
is not discharged, waived or the execution thereof stayed and, in the
case of (B), such
60
default continues for 10 days after the notice specified below.
The foregoing will constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx
Code, or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
A Default under clause (4), (5), (6) or (9)(B) is not an
Event of Default until the Trustee or the Holders of at least 25% in Principal
Amount at Maturity of the Securities notify the Company of the Default and the
Company does not cure such Default within the time specified after receipt of
such Notice. Such Notice must specify the Default, demand that it be remedied
and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days
after the occurrence thereof, written notice in the form of an Officers'
Certificate of any event which with the giving of notice and the lapse of time
would become an Event of Default under clause (4), (5), (6) or (9), its status
and what action the Company is taking or proposes to take with respect
thereto.
SECTION 6.02. Acceleration. If an Event of Default (other
than an Event of Default specified in Section 6.01(7) or (8) with respect to
the Company) occurs and is continuing, the Trustee by notice to the Company or
the Holders of at least 25% in Principal Amount at Maturity of the Securities
by notice to the Company and the Trustee may declare the Accreted Value of and
accrued interest (if any) on all the Securities as of the date of such
declaration (the "Default Amount") to be due and payable immediately. If an
Event of Default specified in Section 6.01(7) or (8) with respect to the
Company occurs, the Default Amount on all the Securities as of the date of
such Event of Default shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in Principal Amount at Maturity of
the Securities by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any
61
judgment or decree and if all existing Events of Default have been cured or
waived except nonpayment of Principal or interest that has become due solely
because of acceleration. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of Principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in Principal Amount at Maturity of the Securities by notice to the
Trustee may waive an existing Default and its consequences except (i) a
Default in the payment of the Principal of or interest on a Security or (ii) a
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Securityholder affected. When a Default is waived,
it is deemed cured, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
in Principal Amount at Maturity of the Securities may direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or of exercising any trust or power conferred on the Trustee. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or, subject to Section 7.01, that the Trustee determines is unduly
prejudicial to the rights of other Securityholders or would involve the
Trustee in personal liability; provided, however, that the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with
such direction. Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.
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SECTION 6.06. Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in Principal Amount at
Maturity of the Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in Principal Amount at
Maturity of the Securities do not give the Trustee a direction
inconsistent with the request during such 60- day period.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over
another Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of Principal of and interest, if any, on the Securities
held by such Holder, on or after the respective due dates expressed in the
Securities, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default in payment of interest or Principal specified in Section 6.01(l) or
(2) occurs and is continuing, the Trustee may recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
Principal and interest remaining unpaid (together with interest on such unpaid
interest to the extent lawful) and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Securityholders
63
allowed in any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee
under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money
or property pursuant to this Article VI, it shall pay out the money or property
in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Securityholders for amounts due and unpaid on the
Securities for Principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for Principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section. At least 15 days before
such record date, the Company shall mail to each Securityholder and the
Trustee a notice that states the record date, the payment date and amount to
be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any
party litigant in the suit, having due regard to the merits and good faith of
the claims or defenses made by the party litigant. This Section does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a
suit by Holders of more than 10% in Principal Amount at Maturity of the
Securities.
64
SECTION 6.12. Waiver of Stay or Extension Laws. The Company
(to the extent it may lawfully do so) shall not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and shall not hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent man would exercise or use under the
circumstances in the conduct of such man's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture or are
contemplated to be performed by the Trustee in the Escrow Agreement,
and no implied covenants or obligations shall be read into this
Indenture or the Escrow Agreement against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, in the case of any such opinions or
certificates which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
65
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own wilful
misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section.
(e) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section and to the provisions of
the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on
and shall be protected in acting or refraining from acting on any document
believed by it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an
66
Opinion of Counsel. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on the Officers' Certificate or
Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute wilful misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel of its selection,
and the advice or opinion of counsel with respect to legal matters relating to
this Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
SECTION 7.03. Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for
any statement of the Company in this Indenture or in any document Issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and
is continuing and if it is known to the Trustee,
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the Trustee shall mail to each Securityholder notice of the Default within 90
days after it occurs and, if the Escrowed Property has not yet been released,
shall mail to the Escrow Agent notice of the Default within one Business Day
after the Trustee has knowledge of such Default. Except in the case of a
Default in payment of Principal of or interest, if any, on any Security, the
Trustee may withhold the notice to Securityholders if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the Issue
Date, and in any event prior to July 15 in each year, the Trustee shall mail
to each Securityholder a brief report dated as of May 15 if required by, and
in compliance with, TIA ss. 313(a). The Trustee also shall comply with TIA ss.
313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange (if any)
on which the Securities are listed. The Company agrees to notify promptly the
Trustee whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time such compensation as shall be agreed to
in writing from time to time by the Company and the Trustee for its services.
The Trustee's compensation shall not be limited by any law on compensation of
a trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its
services. Such expenses shall include the reasonable compensation and
expenses, disbursements and advances of the Trustee's agents, counsel,
accountants and experts. The Company shall indemnify the Trustee against any
and all loss, liability, damage, claim or expense (including attorneys' fees
and expenses) incurred by it in connection with the acceptance or
administration of this trust and the performance of its duties hereunder. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder. The Company shall defend the claim
and the Trustee may have separate counsel and the Company shall pay the fees
and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss,
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liability or expense incurred by the Trustee through the Trustee's own wilful
misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay Principal of and interest, if any, on particular Securities.
The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs
expenses after the occurrence of a Default specified in Section 6.01(7) or (8)
with respect to the Company, the expenses are intended to constitute expenses
of administration under the Bankruptcy Law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Company. The Holders of a majority in
Principal Amount at Maturity of the Securities may remove the Trustee by so
notifying the Trustee and may appoint a successor Trustee. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company, is
removed by Holders of a majority in Principal Amount at Maturity of the
Securities and they do not promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The
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retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in Principal Amount at Maturity of the
Securities may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of
the successor to the Trustee; and in all such cases such certificates shall
have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA ss. 310(a). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA ss. 310(b); provided, however, that there shall be excluded
from the operation of TIA
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ss. 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Securities;
Defeasance. (a) When (i) the Company delivers to the Trustee all Outstanding
Securities (other than Securities replaced pursuant to Section 2.07) for
cancelation or (ii) all Outstanding Securities have become due and payable and
the Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity all Outstanding Securities, including interest thereon, if any (other
than Securities replaced pursuant to Section 2.07), and if in either case the
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Sections 8.01(c) and 8.06, cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Company
at any time may terminate (i) all its obligations under the Securities and
this Indenture ("legal defeasance option") or (ii) its obligations under
Sections 4.02, 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12,
4.13, 5.01(iii) and Article X and the operation of Section 6.01(3)(ii) or
(iii), 6.01(4), 6.01(6), 6.01(7) (with respect to Significant Subsidiaries
only), 6.01(8) (with respect to Significant Subsidiaries only) and 6.01(9)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option,
payment of the Securities may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, payment of
the Securities
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may not be accelerated because of an Event of Default specified in Section
6.01(3)(ii) or (iii), 6.01(4), 6.01(6), 6.01(7) (with respect to Significant
Subsidiaries only), 6.01(8) (with respect to Significant Subsidiaries only)
and 6.01(9) or because of the failure of the Company to comply with clause
(iii) of Section 5.01 or with Article X.
Upon satisfaction of the conditions set forth herein and
upon request of the Company, the Trustee shall acknowledge in writing the
discharge of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05
and 8.06 shall survive until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections 7.07, 8.04 and 8.05 shall
survive.
SECTION 8.02. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the
Trustee money or U.S. Government Obligations for the payment of
Principal and interest, if any, on the Securities to maturity or
redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing
their opinion that the payments of principal and interest when due
and without reinvestment on the deposited U.S. Government Obligations
plus any deposited money without investment will provide cash at such
times and in such amounts as will be sufficient to pay Principal and
interest, if any, when due on all the Securities to maturity or
redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(7) or (8) with
respect to the Company occurs which is continuing at the end of the
period; provided, however, that the foregoing condition need not be
met if at the time of the deposit, the Company delivers to the
Trustee either (x) an Officers' Certificate to the effect set forth
in clause (y)(II) below together with an Opinion of Counsel (which
may rely on such Officers' Certificate as to the matters stated
therein) to the effect that such deposit would
72
not constitute a preference that could be avoided under Xxxxxxx 000
xx Xxxxx 00, Xxxxxx Xxxxxx Code, notwithstanding that 123 days have
not passed since the date of the deposit, or (y) an Officers'
Certificate to the effect that the Market Value, determined as of the
date of the deposit, of the Revlon, Inc. Collateral (I) is greater
than the Accreted Value of the then- Outstanding Securities at the
end of such 123-day period and (II) is greater than the fair market
value, determined as of the date of deposit, of the money or U.S.
Government Obligations being deposited;
(4) no Default has occurred and is continuing on the date of
such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company;
(6) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the trust resulting from the deposit does
not constitute, or is qualified as, a regulated investment company
under the Investment Company Act of 1940;
(7) in the case of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (ii) since the date of
this Indenture there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Securityholders will
not recognize income, gain or loss for Federal income tax purposes as
a result of such defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;
(8) in the case of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Securityholders will not recognize income, gain
or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred; and
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(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance and discharge of the
Securities as contemplated by this Article VIII have been complied
with.
Notwithstanding the foregoing provisions of this Section,
the conditions set forth in the foregoing paragraphs (2), (3), (4), (5), (6),
(7) and (8) need not be satisfied so long as, at the time the Company makes
the deposit described in paragraph (1), (i) no Default under Section 6.01(l),
6.01(2), 6.01(7) or 6.01(8) has occurred and is continuing on the date of such
deposit and after giving effect thereto and (ii) either (x) a notice of
redemption has been mailed pursuant to Section 3.03 providing for redemption
of all the Securities not more than 40 days after such mailing and the
provisions of Section 3.01 with respect to such redemption shall have been
complied with or (y) the Stated Maturity of the Securities will occur within
40 days. If the conditions in the preceding sentence are satisfied, the
Company shall be deemed to have exercised its covenant defeasance option.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date
in accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant
to this Article VIII. It shall apply the deposited money and the money from
U.S. Government Obligations through the Paying Agent and in accordance with
this Indenture to the payment of Principal of and interest, if any, on the
Securities.
SECTION 8.04. Repayment to Company. The Trustee and the
Paying Agent shall promptly turn over to the Company upon request any excess
money or securities held by them at any time.
Subject to any applicable abandoned property law, the
Trustee and the Paying Agent shall pay to the Company upon request any money
held by them for the payment of Principal or interest, if any, that remains
unclaimed for two years, and, thereafter, Securityholders entitled to the
money must look to the Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the
74
Trustee against any tax, fee or other charge imposed on or assessed against
deposited U.S. Government Obligations or the Principal and interest received on
such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent
is unable to apply any money or U.S. Government Obligations in accordance with
this Article VIII by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article VIII; provided,
however, that, if the Company has made any payment of interest, if any, on or
Principal of any Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders. The Company and
the Trustee may amend this Indenture or the Securities without notice to or
consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to
or in place of certificated Securities; provided, however, that the
uncertificated Securities are Issued in registered form for purposes
of Section 163(f) of the Code or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of
the Code;
(4) to add Guarantees with respect to the Securities or to
secure (or provide additional security for) the Securities;
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(5) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(6) to provide for issuance of the Exchange Notes, which
will have terms substantially identical in all material respects to
the Initial Notes (except that the cash interest provisions and
transfer restrictions contained in the Initial Notes will be modified
or eliminated, as appropriate), and which will be treated together
with any Outstanding Initial Notes, as a single issue of securities;
(7) to comply with any requirements of the SEC in connection
with qualifying this Indenture under the TIA; or
(8) to make any change that does not adversely affect the
rights of any Securityholder.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any
defect therein, shall not impair or affect the validity of an amendment under
this Section.
SECTION 9.02. With Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to any
Securityholder but with the written consent of the Holders of at least a
majority in Principal Amount at Maturity of the Outstanding Securities.
However, without the consent of each Securityholder affected, an amendment may
not:
(1) reduce the Principal Amount at Maturity of Securities
whose Holders must consent to an amendment;
(2) reduce the rate of or extend the time for payment of
interest, if any, on any Security;
(3) reduce the Principal of or extend the Stated Maturity of
any Security or reduce the Accreted Value, Put Amount, Due Amount or
Default Amount of any Security;
(4) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article III;
76
(5) make any Security payable in money other than that stated
in the Security;
(6) make any change in Article X that adversely affects such
Securityholder;
(7) make any change in Section 6.04, 6.07 or the second
sentence of this Section; or
(8) make any change to paragraph 6 of the Securities.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed amendment,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the
Company shall mail to Securityholders a notice briefly describing such
amendment. The failure to give such notice to all Securityholders, or any
defect therein, shall not impair or affect the validity of an amendment under
this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers.
Any amendment to this Indenture or the Securities shall become effective in
accordance with its terms when executed and delivered by the Company and the
Trustee provided that the Company has received the requisite consents prior
thereto. The Company shall not be obligated to execute any such amendment
regardless of whether such consents have been received. Any waiver shall
become effective when the requisite consents have been received or such later
time as the Company may elect by notice to the Trustee. A consent to an
amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation
of the consent or waiver is not made on the Security. However, any such Holder
or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation prior to the time that the Company receives the requisite number of
consents to such proposed amendment or waiver. After an amendment or waiver
becomes effective, it shall bind every Securityholder. A consent to any
77
amendment or waiver hereunder by any Holder given in connection with a tender
of such Holder's Securities shall not be rendered invalid by such tender.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to
be taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and
only those Persons, shall be entitled to give such consent or to revoke any
consent previously given or to take any such action, whether or not such
Persons continue to be Holders after such record date. No such consent shall
be valid or effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder
of the Security to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security regarding the changed terms and return it
to the Holder. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall Issue and the Trustee shall
authenticate a new Security that reflects the changed terms. Failure to make
the appropriate notation or to Issue a new Security shall not affect the
validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article IX if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company, any
Affiliate of the Company nor any Subsidiary shall, directly or indirectly, pay
or cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the
Securities unless such consideration is offered to be paid or agreed to be
paid to all Holders which so consent, waive or agree to amend in the time
frame set
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forth in solicitation documents relating to such consent, waiver or amendment.
ARTICLE X
Security And Pledge Of Collateral
SECTION 10.01. Grant of Security Interest. (a) To secure the
full and punctual payment when due and the full and punctual performance of
the Obligations, the Company hereby grants to the Trustee, for the benefit of
the Trustee and the Holders, a security interest in all its right, title and
interest in and to the following, other than such of the following which are
released from the Lien of this Indenture pursuant to Section 10.05 (the
"Revlon Worldwide Collateral"):
(i) 471 shares of Revlon Worldwide Common Stock plus 47.1%
of any additional shares of Revlon Worldwide Common Stock issued
after the Issue Date and prior to the Merger (collectively, the
"Revlon Worldwide Pledged
Shares");
(ii) all certificates representing any of the Revlon
Worldwide Pledged Shares; and
(iii) all dividends, cash, instruments and other property
and proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any of the foregoing.
(b) To secure the full and punctual payment when due and the
full and punctual performance of the Obligations, the Company hereby grants to
the Trustee, for the benefit of the Trustee and the Holders, a security
interest in all its right, title and interest in and to the following, whether
now owned or hereafter acquired, other than such of the following which are
released from the Lien of this Indenture pursuant to Section 10.05 (the
"Revlon, Inc. Collateral"):
(i) A number of shares of Common Stock of Revlon, Inc. equal
to the Revlon, Inc. Collateral Number and delivered to the Trustee
pursuant to Section 10.04(ii) (collectively, the "Revlon, Inc. Pledged
Shares," which term shall exclude any Withdrawn Shares);
(ii) all certificates representing any of the Revlon, Inc.
Pledged Shares; and
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(iii) all dividends, cash, instruments and other property
and proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any of the foregoing.
(c) To secure the full and punctual payment when due and the
full and punctual performance of the Obligations, the Company hereby grants to
the Trustee, for the benefit of the Trustee and the Holders, a security
interest in all its right, title and interest in and to the following, other
than such of the following which are released from the Lien of this Indenture
pursuant to Section 10.05 (the "Substitute Collateral"):
(i) all money and securities deposited with the Trustee
pursuant to Section 10.05(g); and
(ii) all dividends, cash, instruments and other property and
proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for the foregoing.
(d) Revlon Worldwide Collateral, Revlon, Inc. Collateral and
Substitute Collateral are hereinafter collectively referred to as "Collateral"
and Revlon Worldwide Pledged Shares and Revlon, Inc. Pledged Shares are
hereinafter collectively referred to as the "Pledged Shares".
SECTION 10.02. Delivery of Collateral. Any and all
certificates or instruments representing or evidencing Revlon Worldwide
Collateral or Revlon, Inc. Collateral shall be delivered to and held by or on
behalf of the Trustee and shall be in suitable form for transfer by delivery,
or shall be accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance satisfactory to the Trustee. The Trustee
shall have the right, at any time after the occurrence and during the
continuance of an Event of Default, in its discretion and without notice to
the Company, to transfer to or to register in the name of the Trustee or any
of its nominees any or all of the Collateral. In addition, the Trustee shall
have the right at any time to exchange certificates or instruments
representing or evidencing Collateral for certificates or instruments of
different denominations.
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SECTION 10.03. Representations and Warranties. The Company
hereby represents and warrants on the Issue Date as follows:
(a) It is the record and beneficial owner of the Revlon
Worldwide Pledged Shares described on Schedule I, free and clear of any Lien,
except for the Lien created by this Indenture; and effective as of the Merger
the Company will be the record and beneficial owner of the Revlon, Inc.
Pledged Shares described on Schedule I as revised pursuant to Section
10.04(ii), free and clear of any Lien, except for the Lien created by this
Indenture.
(b) It has full corporate power, authority and legal right
to pledge all the Collateral pledged by it pursuant to this Indenture.
(c) The Revlon Worldwide Pledged Shares described on
Schedule I have been, and the Revlon, Inc. Pledged Shares that will be
described on Schedule I as revised pursuant to Section 10.04(ii) will be, duly
authorized and are validly issued, fully paid and non-assessable.
(d) The pledge in accordance with the terms of this
Indenture creates a valid and perfected first priority Lien on the Revlon
Worldwide Collateral and, at the time of the Merger, will create a valid and
perfected first priority Lien on the Revlon, Inc. Collateral, in each case
securing the payment and performance of the Obligations.
(e) The shares described in Schedule I hereto represent
47.1% of the shares of Revlon Worldwide Common Stock owned by the Company on
the Issue Date.
(f) The number of shares of Common Stock of Revlon, Inc.
that will be described in Schedule I as revised pursuant to Section 10.04(ii)
will at the time of the Merger be sufficient to result in the Company's
compliance with Section 4.12 at such time.
SECTION 10.04. Further Assurances. The Company agrees that
at any time and from time to time, at the expense of the Company, the Company
will promptly execute and deliver all further instruments and documents and
take all further action that may be necessary or that the Trustee may
reasonably request in order to perfect and protect any Lien granted or
purported to be granted hereby or to enable the Trustee to exercise and
enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the foregoing, the Company shall, (i) prior to the Merger, at
the time of the issuance by Revlon Worldwide of any
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shares of Revlon Worldwide Common Stock after the Issue Date, deliver 47.1% of
such shares to the Trustee as Revlon Worldwide Collateral and provide to the
Trustee a revised Schedule I, (ii) upon consummation of the Merger, deliver to
the Trustee a number of shares of Common Stock of Revlon, Inc. equal to the
Revlon, Inc. Collateral Number and provide to the Trustee a revised Schedule I
and (iii) at the time of any release of Revlon, Inc. Pledged Shares pursuant
to Section 10.05, provide to the Trustee a revised Schedule I. The shares
delivered pursuant to Section 10.04(ii) will consist of Class A shares and
Class B shares of Revlon, Inc. Common Stock in such proportions as the Company
shall elect. Any such revised Schedule shall reflect any changes made
necessary by the applicable acquisition or release, at which time the Company
shall be deemed to make its representations and warranties set forth in
paragraphs (a)-(d) and (f) of Section 10.03 with respect to such Schedule, as
so revised.
SECTION 10.05. Dividends; Voting Rights; Substitution of
Collateral. (a) The Company shall promptly deliver to the Trustee all
dividends and other distributions paid in respect of the Pledged Shares owned
by the Company. All such dividends and other distributions shall be held by
the Trustee as Collateral and shall, if received by the Company, be received
in trust for the benefit of the Trustee, be segregated from the other property
or funds of the Company and be forthwith delivered to the Trustee as
Collateral in the same form as so received (with any necessary endorsement).
Any cash dividends or distributions delivered to or otherwise held by the
Trustee pursuant to this Section 10.05, and any other cash constituting
Collateral delivered to the Trustee, shall be invested, at the written
direction of the Company, by the Trustee in Temporary Cash Investments.
(b) Upon the occurrence and during the continuance of a
Default and upon written notice thereof from the Trustee to the Company, the
Trustee shall be entitled to receive and retain as Collateral all dividends
paid and distributions made in respect of the Pledged Shares, whether so paid
or made before or after any Default. Any such dividends shall, if received by
the Company, be received in trust for the benefit of the Trustee, be
segregated from the other property or funds of the Company and be forthwith
delivered to the Trustee as Collateral in the same form as so received (with
any necessary endorsement).
(c) As long as no Default shall have occurred and be
continuing and until written notice thereof from the Trustee to the Company,
the Company shall be entitled to
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exercise any and all voting and other consensual rights relating to Pledged
Shares or any part thereof for any purpose; provided, however, that no vote
shall be cast, and no consent, waiver or ratification given or action taken,
which would be inconsistent with or violate any provision of this Indenture or
the Securities.
(d) Upon the occurrence and during the continuance of a
Default, all rights of the Company to exercise the voting and other consensual
rights that it would otherwise be entitled to exercise pursuant to Section
10.05(c) shall cease upon notice from the Trustee to the Company and upon the
giving of such notice all such rights shall thereupon be vested in the Trustee
who shall thereupon have the sole right to exercise such voting and other
consensual rights.
(e) In order to permit the Trustee to exercise the voting
and other consensual rights which it may be entitled to exercise pursuant to
Section 10.05(d), and to receive all dividends and distributions which it may
be entitled to receive under Section 10.05(a) and 10.05(b), the Company shall,
if necessary, upon written notice of the Trustee, from time to time execute
and deliver to the Trustee such instruments as the Trustee may reasonably
request.
(f) From and after the effective time of the Merger, as long
as no Default shall have occurred and be continuing, prior to the discharge or
defeasance of this Indenture, the Company shall be entitled from time to time
to request the Trustee to release all or a portion of the Revlon, Inc.
Collateral subject to the Lien of this Indenture; provided, however, that (i)
such request (a "Collateral Release Request") must be in writing and
accompanied by an Officers' Certificate and an Opinion of Counsel stating that
all conditions precedent to the release of such Revlon, Inc. Collateral
pursuant to this Section 10.05(f) have been complied with, (ii) the date of
such Collateral Release Request (the "Determination Date") is not more than
five Business Days prior to the date of the release requested thereunder and
(iii) either (A) the conditions set forth in Section 10.05(g) are met or (B)
the conditions set forth in Section 10.05(h) are met. Any Revlon, Inc. Pledged
Shares included in the Revlon, Inc. Collateral to be released shall consist of
Class A or Class B shares of Revlon, Inc. Common Stock in such proportions as
the Company shall elect. Any such Collateral Release Request shall specify (x)
whether the Company intends to meet the conditions set forth in Section
10.05(g) or 10.05(h) and (y) how many shares of each class of Revlon,
83
Inc. Common Stock are to be released. Upon satisfaction of the foregoing
conditions, the Lien of this Indenture on all Revlon, Inc. Collateral to be
released shall terminate and all such Revlon, Inc. Collateral shall be
released without any further action on the part of the Trustee or any other
Person.
(g) No Revlon, Inc. Collateral shall be released from the
Lien of this Indenture pursuant to any Collateral Release Request which
specifies that the conditions of this Section 10.05(g) are to be met unless:
(i) the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of the Principal
Amount at Maturity and interest, if any, on the Securities or
the Applicable Portion thereof;
(ii) the Company delivers to the Trustee a
certificate from a nationally recognized firm of independent
accountants expressing their opinion that the payments of
principal and interest when due and without reinvestment on
the deposited U.S. Government Obligations plus any deposited
money without reinvestment will provide cash at such times
and in such amounts as will be sufficient to pay the
Principal Amount at Maturity and any interest, if any, when
due on all the Securities or the Applicable Portion thereof
to maturity;
(iii) no Default or Event of Default has occurred
and is continuing on the date of such deposit after giving
effect thereto;
(iv) the ratio of (A) the Market Value, determined
as of the Determination Date relating to such Collateral
Release Request, of the Revlon, Inc. Collateral that will
remain, if any, subject to the Lien of this Indenture
immediately following such release to (B) the aggregate
Accreted Value of the Securities (other than the Applicable
Portion thereof and other than any Securities the payment of
which has theretofore been provided pursuant to clause (i)
of this Section 10.05(g)) Outstanding as of such
Determination Date is (x) at least equal to the ratio of the
Market Value, determined as of such Determination Date, of
the Revlon, Inc. Collateral subject to the Lien of this
Indenture immediately prior to such release to the aggregate
Accreted Value of the Securities (including the Applicable
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Portion thereof but excluding Securities the payment of
which has theretofore been provided pursuant to clause (i)
of this Section 10.05(g)) Outstanding as of such
Determination Date, but is (y) in no event less than 1.5 to
1.00;
(v) the Market Value, determined as at the
Determination Date relating to such Collateral Release
Request, of the Revlon, Inc. Collateral that will remain, if
any, subject to the Lien of this Indenture immediately
following such release is at least equal to the aggregate
Principal Amount at Maturity of the Securities (other than
the Applicable Portion thereof and other than any Securities
the payment of which has theretofore been provided pursuant
to clause (i) of this Section 10.05(g)) Outstanding as of
such Determination Date;
(vi) as of the Determination Date relating to such
Collateral Release Request, the Company will be in
compliance with Section 4.12 after giving effect to such
release and to the deposit pursuant to clause (i) of this
Section 10.05(g) with respect to the Applicable Portion of
the Securities;
(vii) unless the Company provides an Officers'
Certificate to the effect that the Market Value, determined
as of such Determination Date, of the Revlon, Inc.
Collateral to be released pursuant to such Collateral
Release Request (the "Applicable Collateral") is greater
than the fair market value, determined as of such
Determination Date, of the money or U.S. Government
Obligations being deposited, 123 days pass after the deposit
is made and during the 123-day period no Default specified
in Section 6.01(7) or (8) with respect to the Company occurs
which is continuing at the end of the period;
(viii) the Company delivers to the Trustee an
Opinion of Counsel to the effect that the Person providing
such Substitute Collateral does not constitute, or is
qualified as, a regulated investment company under the
Investment Company Act of 1940;
(ix) the deposit does not constitute a default
under any other agreement binding on the Company;
and
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(x) the Company shall have delivered to the Trustee
an Opinion of Counsel to the effect that the Securityholders
will not recognize income, gain or loss for Federal income
tax purposes as a result of such deposit of U.S. Government
Obligations and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such deposit had not occurred.
For purposes of this Section 10.05, the "Applicable Portion" shall
mean, with respect to any Collateral Release Request, Securities
having an aggregate Principal Amount at Maturity equal to the product
of (x) the aggregate Principal Amount at Maturity of Securities
Outstanding as of the Determination Date relating to such Collateral
Release Request (after deducting therefrom the aggregate Principal
Amount at Maturity of Securities the payment of which has theretofore
been provided pursuant to clause (i) of this Section 10.05(g)) and
(y) a fraction, the numerator of which is the Market Value,
determined as of such Determination Date, of the Applicable
Collateral and the denominator of which is the aggregate Market Value
of all Revlon, Inc. Collateral at such time.
(h) In connection with or after (x) any redemption
of less than all the Securities or (y) any delivery by the Company of
less than all the Securities for cancelation, as long as no Default
shall have occurred and be continuing, the Company shall be entitled
to deliver a Collateral Release Request to the Trustee to release a
portion of the Revlon, Inc. Collateral subject to this Indenture;
provided, however, that:
(i) the ratio of (A) the Market Value, determined
as of the Determination Date relating to such Collateral
Release Request, of the Revlon, Inc. Collateral that will
remain subject to the Lien of this Indenture immediately
following such release to (B) the aggregate Accreted Value
of the Securities (other than Securities the payment of
which has theretofore been provided pursuant to clause (i)
of Section 10.05(g)) Outstanding as of such Determination
Date after giving effect to such redemption or delivery for
cancelation shall be (I) at least equal to the ratio of the
Market Value, determined as of such Determination Date,
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of the Revlon, Inc. Collateral subject to the Lien of this
Indenture immediately prior to such release to the aggregate
Accreted Value of the Securities (other than Securities the
payment of which has theretofore been provided pursuant to
clause (i) of Section 10.05(g)) Outstanding as of such
Determination Date prior to giving effect to such redemption
or delivery, but shall (II) in no event be less than 1.5 to
1.00;
(ii) the Market Value, determined as at the
Determination Date relating to such Collateral Release
Request, of the Revlon, Inc. Collateral that will remain, if
any, subject to the Lien of this Indenture immediately
following such release is at least equal to the aggregate
Principal Amount at Maturity of the Securities (other than
any Securities the payment of which has theretofore been
provided pursuant to clause (i) of Section 10.05(g))
Outstanding as of such Determination Date after giving
effect to such redemption or delivery; and
(iii) as of the Determination Date relating to such
Collateral Release Request, the Company will be in
compliance with Section 4.12 after giving effect to such
release and to such redemption or delivery;
(i) After the effective time of the Merger, in
connection with a redemption of Securities pursuant to Section 5 of
the Securities, in connection with any purchase of Securities
pursuant to Section 4.09 or in connection with the payment at
maturity of the Principal Amount at Maturity of the Securities, the
Company shall be entitled to request the Trustee to release
Substitute Collateral having a fair market value on such redemption
date, purchase date or maturity date equal to an amount necessary in
whole or in part to pay the redemption price or purchase price of the
Securities to be redeemed or purchased or to pay at maturity the
Principal Amount at Maturity of the Securities. Notwithstanding the
foregoing, the Trustee shall be entitled to receive, as a condition
to any release of Substitute Collateral under this Section 10.05(i),
an Officers' Certificate to the effect that such release will not
result in a Default hereunder. Upon the release of Substitute
Collateral pursuant to this Section 10.05(i), the Principal Amount at
Maturity and Accreted Value of Securities the payment of which has
theretofore been provided pursuant
87
to clause (i) of Section 10.05(g) after giving effect to such
redemption or repurchase shall be deemed to be reduced by the
Principal Amount at Maturity or Accreted Value, respectively, of the
Securities so redeemed or repurchased with such Substitute
Collateral.
(j) So long as no Default has occurred and is
continuing and so long as the Class A Shares of Common Stock of
Revlon, Inc. and the Class B Shares of Common Stock of Revlon, Inc.
are substantially identical except with respect to voting rights, the
Company may request the Trustee to release from the Lien of this
Indenture a number of shares of one class of Common Stock of Revlon,
Inc. upon the deposit with the Trustee of an equal number of shares
of the other class of Common Stock of Revlon, Inc. in substitution
therefor. Such substituted shares shall thereafter constitute
"Revlon, Inc. Pledged Shares" for all purposes. Upon satisfaction of
the foregoing conditions, the Lien of this Indenture on all Revlon,
Inc. Pledged Shares to be released shall terminate and all such
Collateral shall be released without any further action on the part
of the Trustee or any other Person.
(k) Notwithstanding anything to the contrary in
Section 10.05(f), (g), (h), (i) or (j), upon satisfaction by the
Company of the conditions set forth in Article VIII to its legal
defeasance option, its covenant defeasance option or to the discharge
of this Indenture, the Lien of this Indenture on all the Collateral
shall terminate and all the Collateral shall be released without any
further action on the part of the Trustee or any other Person.
(l) Any Pledged Shares which are released from the
Lien of this Indenture shall be referred to herein as "Withdrawn
Shares" and, together with any cash or instruments or other
Collateral which are released from the Lien of this Indenture
(including pursuant to the Escrow Agreement), as "Withdrawn
Collateral". Upon the release of any Collateral, the Trustee shall
execute and deliver to the Company an instrument or instruments
acknowledging the release of such Collateral from this Indenture and
the discharge of the Lien on such Collateral created by this Article
X, and will duly assign, transfer and deliver to the Company (without
recourse and without any representation or warranty) the Withdrawn
Collateral.
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(m) At the Company's reasonable request, the
Trustee will execute and deliver such documents and take such other
actions as may be reasonably requested to facilitate the release of
the Escrowed Property in accordance with the terms of the Escrow
Agreement.
SECTION 10.06. Trustee Appointed Attorney- in-Fact.
The Company hereby appoints the Trustee as the Company's
attorney-in-fact, with full authority in the place and stead of the
Company and in the name of the Company or otherwise, from time to
time in the Trustee's discretion but only after the occurrence and
during the continuance of an Event of Default, to take any action and
to execute any instrument which the Trustee may deem necessary or
advisable in order to accomplish the purposes of this Article X,
including to receive, endorse and collect all instruments made
payable to the Company representing any dividend, interest payment or
other distribution in respect of the Collateral or any part thereof
and to give full discharge for the same. This power, being coupled
with an interest, is irrevocable.
SECTION 10.07. Trustee May Perform. If the Company
fails to perform any agreement contained in this Article X, the
Trustee may itself perform, or cause performance of, such agreement,
and the expenses of the Trustee incurred in connection therewith
shall be payable by the Company under Section 7.07.
SECTION 10.08. Trustee's Duties. The powers
conferred on the Trustee under this Article X are solely to protect
its interest in the Collateral and shall not impose any duty upon it
to exercise any such powers. Except for the safe custody of any
Collateral in its possession and the accounting for moneys actually
received by it hereunder, the Trustee shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve
rights against prior parties or any other rights pertaining to any
Collateral.
SECTION 10.09 Remedies Upon Event of Default. If
any Event of Default shall have occurred and be continuing, the
Trustee may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies provided a secured party upon the
default of a debtor under the Uniform Commercial Code at that time,
and the Trustee may also, without notice except as specified below,
sell the Collateral or any part thereof in one or more parcels
89
at public or private sale, at any exchange, broker's board or at any
of the Trustee's offices or elsewhere, for cash, on credit or for
future delivery, upon such terms as the Trustee may determine to be
commercially reasonable, and the Trustee or any Securityholder may be
the purchaser of any or all of the Collateral so sold and thereafter
hold the same, absolutely, free from any right or claim of whatsoever
kind. The Company agrees that, to the extent notice of sale shall be
required by law, at least 10 days' notice to the Company of the time
and place of any public sale or the time after which any private sale
is to be made shall constitute reasonable notification. The Trustee
shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Trustee may adjourn any public
or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned. The Trustee
shall incur no liability as a result of the sale of the Collateral,
or any part thereof, at any private sale conducted in a commercially
reasonable manner. The Company hereby waives any claims against the
Trustee arising by reason of the fact that the price at which any
Collateral may have been sold at such a private sale was less than
the price which might have been obtained at a public sale, even if
the Trustee accepts the first offer received and does not offer such
Collateral to more than one offeree.
The Company recognizes that, by reason of certain
prohibitions contained in the Securities Act and applicable state
securities laws, the Trustee may be compelled, with respect to any
sale of all or any part of the Collateral, to limit purchasers to
those who will agree, among other things, to acquire such securities
for their own account, for investment, and not with a view to the
distribution or resale thereof. The Company acknowledges and agrees
that any such sale may result in prices and other terms less
favorable to the seller than if such sale were a public sale without
such restrictions and, notwithstanding such circumstances, agrees
that any such sale shall be deemed to have been made in a
commercially reasonable manner. The Trustee shall be under no
obligation to delay the sale of any of the Pledged Shares for the
period of time necessary to permit the Company to register such
securities for public sale under the Securities Act, or under
applicable state securities laws, even if the Company would agree to
do so.
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SECTION 10.10. Application of Proceeds. Upon the
occurrence and during the continuance of an Event of Default and
after the acceleration of the Securities pursuant to Section 6.02 (so
long as such acceleration has not been rescinded), any cash held by
the Trustee as Collateral and all cash proceeds received by the
Trustee in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral, shall be applied
by the Trustee in the manner specified in Section 6.10.
SECTION 10.11. Continuing Lien. Except as provided
in Section 10.05, this Indenture shall create a continuing Lien on
the Collateral that shall (i) remain in full force and effect until
payment in full of the Securities, (ii) be binding upon the Company
and its successors and assigns and (iii) enure to the benefit of the
Trustee and its successors, transferees and assigns.
SECTION 10.12. Certificates and Opinions. The
Company shall comply with (a) TIA ss. 314(b), relating to Opinions of
Counsel regarding the Lien of this Indenture and (b) TIA ss. 314(d),
relating to the release of Collateral from the Lien of this Indenture
and Officers' Certificates or other documents regarding fair value of
the Collateral, to the extent such provisions are applicable. Any
certificate or opinion required by TIA ss. 314(d) may be executed and
delivered by an Officer of the Company to the extent permitted by TIA
ss. 314(d).
SECTION 10.13. Additional Agreements. The Company
agrees that, upon the occurrence and during the continuance of a
Default hereunder, it will, at any time and from time to time, upon
the written request of the Trustee, use its best efforts to take or to
cause the issuer of the Revlon, Inc. Pledged Shares and any other
securities distributed in respect of the Revlon, Inc. Pledged Shares
(collectively with the Revlon, Inc. Pledged Shares, the "Pledged
Securities") to take such action and prepare, distribute or file such
documents, as are required or advisable in the reasonable opinion of
counsel for the Trustee to permit the public sale of such Pledged
Securities. The Company further agrees to indemnify, defend and hold
harmless the Trustee, each Holder, any underwriter and their
respective officers, directors, affiliates and controlling persons
from and against all loss, liability, expenses, costs of counsel
(including reasonable fees and expenses of legal counsel to the
Trustee), and claims (including the costs of investigation) that they
may incur insofar as
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such loss, liability, expense or claim arises out of or is based upon
any alleged untrue statement of a material fact contained in any
prospectus (or any amendment or supplement thereto) or in any
notification or offering circular, or arises out of or is based upon
any alleged omission to state a material fact required to be stated
therein or necessary to make the statements in any thereof not
misleading, except insofar as the same may have been caused by any
untrue statement or omission based upon information furnished in
writing to the Company or the issuer of such Pledged Securities by
the Trustee or any Holder expressly for use therein. The Company
further agrees, upon such written request referred to above, to use
its best efforts to qualify, file or register, or cause the issuer of
such Pledged Securities to qualify, file or register, any of the
Pledged Securities under the Blue Sky or other securities laws of
such states as may be requested by the Trustee and keep effective, or
cause to be kept effective, all such qualifications, filings or
registrations. The Company will bear all costs and expenses of
carrying out its obligations under this Section 10.13. The Company
acknowledges that there is no adequate remedy at law for failure by
it to comply with the provisions of this Section 10.13 and that such
failure would not be adequately compensable in damages, and therefore
agree that their agreements contained in this Section 10.13 may be
specially enforced.
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture
by the TIA, the required provision shall control.
SECTION 11.02. Notices. Any notice or
communication shall be in writing and delivered in Person or mailed
by first-class mail addressed as follows:
If to the Company:
Revlon Worldwide (Parent) Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Trustee or the Escrow Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Corporate Trust Trustee
Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Company or the Trustee by notice to the other
may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a
Securityholder shall be sent by first-class mail to the
Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given
if so mailed within the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency
with respect to other Securityholders. If a notice or communication
is mailed to a Securityholder in the manner provided above, it is
duly given, whether or not the addressee receives it.
SECTION 11.03. Communication by Holders with Other
Holders. Securityholders may communicate pursuant to TIA ss. 312(b)
with other Securityholders with respect to their rights under this
Indenture or the Securities. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA ss. 312(c).
SECTION 11.04. Certificate and Opinion as to
Conditions Precedent. Upon any request or application by the Company
to the Trustee to take or refrain from taking any action under this
Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee
93
stating that, in the opinion of such counsel, all such
conditions precedent have been complied with;
provided, however, that, in the case of such application or request
as to which the furnishing of such documents, certificates or
opinions is specifically required by any provision of this Indenture
relating to such particular application or request, no additional
certificate or opinion need be furnished.
SECTION 11.05. Statements Required in Certificate
or Opinion. Each certificate or opinion with respect to compliance
with a covenant or condition provided for in this Indenture shall
include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or
condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such
Person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether or not, in the
opinion of such Person, such covenant or condition has been
complied with.
SECTION 11.06. When Securities Disregarded. In
determining whether the Holders of the required Principal Amount of
Maturity of Securities have concurred in any direction, waiver or
consent, Securities owned by the Company or by any Person directly or
indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not
to be Outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows
are so owned shall be so disregarded. Also, subject to the foregoing,
only Securities Outstanding at the time shall be considered in any
such determination.
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SECTION 11.07. Rules by Trustee, Paying Agent and
Registrar. The Trustee may make reasonable rules for action by or a
meeting of Securityholders. The Registrar and the Paying Agent may
make reasonable rules for their functions.
SECTION 11.08. Legal Holidays. If a payment date is
a Legal Holiday, payment shall be made on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a regular record date is a Legal Holiday, the
record date shall not be affected.
SECTION 11.09. Governing Law. This Indenture and
the Securities shall be governed by, and construed in accordance
with, the laws of the State of New York but without giving effect to
applicable principles of conflicts of law to the extent that the
application of the laws of another jurisdiction would be required
thereby.
SECTION 11.10. No Recourse Against Others. A
director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder shall waive and release all
such liability. The waiver and release shall be part of the
consideration for the Issue of the Securities.
SECTION 11.11. Successors. All agreements of the
Company in this Indenture and the Securities shall bind its
successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 11.12. Multiple Originals. The parties may
sign any number of copies of this Indenture. Each signed copy shall
be an original, but all of them together represent the same agreement.
One signed copy is enough to prove this Indenture.
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SECTION 11.13. Table of Contents; Headings. The
table of contents, cross-reference sheet and headings of the Articles
and Sections of this Indenture have been inserted for convenience of
reference only, are not intended to be considered a part hereof and
shall not modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed as of the date first written above.
REVLON WORLDWIDE
(PARENT) CORPORATION,
by /s/ Xxxxx X. Xxxxxx
---------------------------
Name:
Title:
THE BANK OF NEW YORK, as
Trustee,
by /s/ Xxxx Xxxx Xxxxxxxxx
---------------------------
Name: Xxxx Xxxx Xxxxxxxxx
Title: Vice President
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH
IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
ONLY (1) IF IT IS AN INITIAL INVESTOR IN THE NOTES, (A) TO THE
COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER
(IF AVAILABLE) AND (2) IF IT IS A SUBSEQUENT INVESTOR IN THE NOTES,
(A) AS SET FORTH IN (1) ABOVE AND (B) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (A)(2), (A)(3)
OR (A)(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR", FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT (AND IF ACQUIRING THE
SECURITIES FROM SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR", IS
ACQUIRING SECURITIES HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS
THAN $250,000), PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE
THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSES (1)(D), (1)(E) OR (2)(B) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND
2
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, (ii) AND IN EACH OF
THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING
ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS
ORIGINAL ISSUE DISCOUNT. FOR PURPOSES OF SECTION 1273 OF THE CODE,
THE ISSUE PRICE IS $655.90 AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT
IS $344.10 IN EACH CASE PER $1,000 PRINCIPAL AMOUNT AT MATURITY OF
THIS SECURITY. FOR PURPOSES OF SECTION 1275 OF THE CODE, THE ISSUE
DATE OF THIS SECURITY IS MARCH 5, 1997. FOR PURPOSES OF SECTION 1272
OF THE CODE, THE YIELD TO MATURITY (COMPOUNDED SEMI-ANNUALLY) IS
10-3/4%. IN ADDITION, THERE MAY BE CONTINGENT INTEREST PAYABLE ON
THIS SECURITY.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER REPRESENTATIVE OF DTC AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY 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 SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 2.12 AND
2.13 OF THE INDENTURE.](1)
--------
(1) Bracketed language is the Global Note Legend to be included only on the
Global Notes.
3
CUSIP
No. $
REVLON WORLDWIDE (PARENT) CORPORATION
Senior Secured Discount Note Due 2001
Principal Amount at Maturity $______________________
Revlon Worldwide (Parent) Corporation, a
Delaware corporation, promises to pay to
, or registered assigns, the
principal sum of Dollars on March 15, 2001.
4
Additional provisions of this Security are set
forth on the other side of this Security.
Dated:
REVLON WORLDWIDE (PARENT)
CORPORATION,
by
--------------------------------
President
--------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York,
as Trustee, certifies [Seal]
that this is one of
the Securities referred
to in the Indenture.
Dated:
by
--------------------
Authorized Signatory
5
[FORM OF REVERSE SIDE OF INITIAL NOTE]
REVLON WORLDWIDE (PARENT) CORPORATION
Senior Secured Discount Note Due 2001
1. Interest
In the event that (1) by the 45th day following the
Deposit Date (or if such day is not a Business Day, the first
Business Day thereafter), a registration statement has not been filed
with the Securities and Exchange Commission with respect to the
proposed Registered Exchange Offer or the resale of the Initial
Notes, then Revlon Worldwide (Parent) Corporation, a Delaware
corporation (such corporation, and its successors and assigns under
the Indenture hereinafter referred to, being herein called the
"Company"), promises to pay interest on this Security from and
including the 45th day following the Deposit Date until but excluding
the earlier of (i) the date such registration statement is filed and
(ii) the 180th day following the Deposit Date (or if such day is not
a Business Day, the first Business Day thereafter) or (2) by the
180th day following the Deposit Date (or if such day is not a
Business Day, the first Business Day thereafter), neither (i) a
Registered Exchange Offer is consummated nor (ii) a Shelf
Registration Statement with respect to the resale of the Initial
Notes is declared effective, the Company promises to pay interest on
this Security from and including the 180th day following the Deposit
Date (or if such day is not a Business Day, the first Business Day
thereafter) until but excluding the earlier of (i) the consummation
of the Registered Exchange Offer and (ii) the effective date of such
Shelf Registration Statement, in each case payable in cash
semiannually in arrears on March 15 and September 15, commencing
September 15, 1997, at a rate per annum equal to .50% of the Accreted
Value of this Security as of the Semi-Annual Accrual Date immediately
preceding the date on which such interest is payable. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
Except as provided above, there will be no periodic payments of
interest. The Company shall pay interest on overdue Principal at the
rate of 11-3/4% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
6
2. Method of Payment
The Company will pay interest, if any, referred to
in paragraph 1 above (except defaulted interest) on the Securities to
the persons who are registered holders of Securities (including
Exchange Notes issued in respect of Initial Notes pursuant to the
Registered Exchange Offer) at the close of business on the March 1 or
September 1 next preceding the interest payment date even if
Securities are canceled after the record date and on or before the
interest payment date. Holders must surrender Securities to a Paying
Agent to collect Principal payments. The Company will pay Principal
in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company
may pay Principal and interest, if any, by check payable in such
money.
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking
corporation ("Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Company, Revlon Worldwide, Revlon,
Inc., RCPC or any of its domestically incorporated Wholly Owned
Recourse Subsidiaries may act as Paying Agent, Registrar,
co-registrar or transfer agent.
4. Indenture
The Company issued the Securities under an
Indenture dated as of March 1, 1997 ("Indenture"), between the
Company 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.C. xx.xx.
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act").
Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and Securityholders are referred to the
Indenture and the Act for a statement of those terms.
The Securities are secured obligations of the
Company limited to $770,000,000 aggregate Principal Amount at Maturity
(subject to Section 2.07 of the Indenture). This Security is one of
the Initial Notes referred to in the Indenture. The Securities
include
7
the Initial Notes and any Exchange Notes issued in exchange for the
Initial Notes pursuant to the Indenture. The Initial Notes and the
Exchange Notes are treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations on, among other
things, the issuance of debt and redeemable stock by the Company, the
issuance of debt and preferred stock by Revlon Worldwide, Revlon,
Inc., RCPC and its Subsidiaries, the payment of dividends and other
distributions and acquisitions or retirements of the Company's
Capital Stock, the sale or transfer of assets and Subsidiary stock
and transactions with Affiliates. In addition, the Indenture limits
the ability of the Company and its Subsidiaries to restrict
distributions and dividends from such Subsidiaries.
5. Optional Redemption
The Securities may be redeemed at the option of the
Company in connection with the occurrence of a Change of Control as a
whole at a redemption price equal to the sum of (i) the Accreted
Value thereof at the date of redemption, plus (ii) the Applicable
Premium at the date of redemption.
On and after March 15, 2000, the Securities may be
redeemed, at the option of the Company, in whole or from time to time
in part at 102.6875% of the Accreted Value thereof as of the
redemption date.
6. Mandatory Redemption
In the event that (i) the Required Actions have not
occurred on or prior to June 5, 1997 or (ii) the Revlon Worldwide
Notes have been accelerated pursuant to Section 6.02 of the Revlon
Worldwide Indenture prior to the release of the Escrowed Property,
the Company shall redeem all the Securities at a redemption price in
cash equal to 100% of the Accreted Value thereof as of the redemption
date on (a) June 25, 1997, in the event that the Required Actions
have not occurred on or prior to June 5, 1997, or (b) the 20th day
(or if such day is not a Business Day, the next following Business
Day) following the occurrence of such acceleration, in the event of
an acceleration.
8
7. Notice of Redemption
Notice of redemption pursuant to paragraph 5 above
will be mailed at least 30 days but not more than 60 days before the
redemption date and notice of redemption pursuant to paragraph 6 will
be mailed promptly after June 5, 1997 or following the acceleration
of the Revlon Worldwide Notes, as applicable, to each Holder of
Securities to be redeemed at his or her registered address.
Securities in denominations larger than $1,000 Principal Amount at
Maturity may be redeemed in part but only in whole multiples of
$1,000 Principal Amount at Maturity. If money sufficient to pay the
redemption price of all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent on
or before the redemption date and certain other conditions are
satisfied, on and after such date Accreted Value ceases to increase,
and interest, if any, ceases to accrue, on such Securities (or such
portions thereof) called for redemption.
8. Put Provisions
Upon a Change of Control, any Holder of Securities
will have the right to cause the Company to repurchase all or any
part of the Securities of such Holder at a repurchase price equal to
the Put Amount of the Securities to be repurchased as provided in,
and subject to the terms of, the Indenture.
9. Security
To secure the due and punctual payment of the
Principal and interest, if any, on the Securities and all other
amounts payable by the Company under the Indenture and the Securities
when and as the same shall be due and payable, whether at maturity,
by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Company has granted a security
interest in the Collateral to the Trustee for the benefit of the
Holders of Securities pursuant to the Indenture. The Collateral is
subject to release from the Lien of the Indenture to the extent
provided therein.
9
10. Denominations; Transfer; Exchange
The Securities are in registered form without
coupons in denominations of Principal Amount at Maturity of $1,000
and whole multiples 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 or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for
redemption (except, in the case of a Security to be redeemed in part,
the portion of the Security not to be redeemed) or any Securities for
a period of 15 days before a selection of Securities to be redeemed.
11. Persons Deemed Owners
The registered Holder of this Security may be
treated as the owner of it for all purposes.
12. Unclaimed Money
If money for the payment of Principal or interest,
if any, remains unclaimed for two years, the Trustee or Paying Agent
shall pay the money back to the Company at its request unless an
abandoned property law designates another person. After any such
payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment.
13. Defeasance
Subject to certain conditions, the Company at any
time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee
money or U.S. Government Obligations for the payment of Principal and
interest, if any, on the Securities to redemption or maturity, as the
case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended with
the written consent of the Holders of at least a majority in
Principal Amount at Maturity
10
outstanding of the Securities and (ii) any default or noncompliance
with any provision may be waived with the written consent of the
Holders of a majority in Principal Amount at Maturity outstanding of
the Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company and
the Trustee may amend the Indenture or the Securities to cure any
ambiguity, omission, defect or inconsistency, or to comply with
Article V of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated Securities, or
to add guarantees with respect to the Securities or to secure (or
provide additional security for) the Securities, or to add additional
covenants or surrender rights and powers conferred on the Company, or
to provide for the issuance of the Exchange Notes, or to comply with
any request of the SEC in connection with qualifying the Indenture
under the Act, or to make any change that does not adversely affect
the rights of any Securityholder. A consent to any amendment or
waiver of any provision in the Indenture or in the Securities by any
Holder given in connection with a tender of such Holder's Securities
shall not be rendered invalid by such tender.
15. Defaults and Remedies
Under the Indenture, Events of Default include (i)
default for 30 days in payment of interest, if any, on the
Securities; (ii) default in payment of Principal on the Securities at
maturity, upon redemption pursuant to paragraph 5 or paragraph 6 of
the Securities, upon declaration or otherwise, or failure by the
Company to redeem or purchase Securities when required; (iii) failure
by the Company to comply with other agreements in the Indenture or
the Escrow Agreement or the Securities, in certain cases subject to
notice and lapse of time; (iv) certain accelerations (including
failure to pay within any grace period after final maturity) of other
Debt of the Company or any Significant Subsidiary if the total
principal amount on the portion of such Debt that is accelerated (or
so unpaid) exceeds $25,000,000 and continues for 10 days after the
required notice to the Company; (v) certain events of bankruptcy or
insolvency with respect to the Company or any Significant Subsidiary;
and (vi) certain judgments or decrees for the payment of money in
excess of $25,000,000. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in Principal
Amount at Maturity of the Securities may
11
declare the Default Amount of all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are
Events of Default which will result in the Default Amount of the
Securities being due and payable immediately upon the occurrence of
such Events of Default.
Securityholders 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
reasonable indemnity or security. Subject to certain limitations,
Holders of a majority in Principal Amount at Maturity of the
Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of Principal or
interest) if it determines that withholding notice is in their
interest.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act,
the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Company
or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as
such, of the Company or the Trustee shall not have any liability for
any obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the
Securities.
18. Authentication
This Security shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent)
manually signs the certificate of authentication on the other side of
this Security.
12
19. Abbreviations
Customary abbreviations may be used in the name of
a Securityholder or an assignee, such as TEN COM (= tenants in
common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants
with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
20. 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 Securities and has
directed the Trustee to use CUSIP numbers in notices of redemption as
a convenience to Securityholders. No representation is made as to the
accuracy of such numbers either as printed on the Securities 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 Securityholder upon
written request and without charge to the Securityholder a copy of
the Indenture which has in it the text of this Security in larger
type. Requests may be made to: Revlon Worldwide (Parent) Corporation,
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: General Counsel.
13
------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent
to transfer this Security on the books of the
Company. The agent may substitute another to
act for him.
Date:_______________ Your Signature:____________________
------------------------------------------------------------------------------
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL CERTIFICATES EXCEPT PERMANENT
OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note
occurring prior to the date that is the earlier of (i) the date of an
effective registration statement with respect to the Registered
Exchange Offer or the resale of the Initial Notes and (ii) March 5,
1999, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[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
accordance with (a) above and documents are being
furnished that comply with the conditions of
transfer set forth in this Note and the Indenture.
14
If neither of the foregoing boxes is checked, the Trustee or other
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 307 of the Indenture shall have been satisfied.
Date: ____________ __________________________
NOTICE: The signature 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: ______________________________________
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
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.
15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased
by the Company pursuant to Section 4.09 of the Indenture, check the
box:
[ ]
If you want to elect to have only part of this
Security purchased by the Company pursuant to Section 4.09 of the
Indenture, state the Principal Amount at Maturity: $
Date:___________________ Your Signature:_______________________
(Sign exactly as your name
appears on the other side of
the Security)
Signature Guarantee:_________________________________
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
FOR PURPOSES OF SECTION 1273 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"), THIS SECURITY HAS ORIGINAL
ISSUE DISCOUNT. FOR PURPOSES OF SECTION 1273 OF THE CODE, THE ISSUE
PRICE IS $655.90 AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $344.10
IN EACH CASE PER $1000 PRINCIPAL AMOUNT AT MATURITY OF THIS SECURITY.
FOR PURPOSES OF SECTION 1275 OF THE CODE, THE ISSUE DATE OF THIS
SECURITY IS MARCH 5, 1997. FOR PURPOSES OF SECTION 1272 OF THE CODE,
THE YIELD TO MATURITY (COMPOUNDED SEMI-ANNUALLY) IS 10-3/4%. IN
ADDITION, THERE MAY BE CONTINGENT INTEREST PAYABLE ON THIS SECURITY.
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER REPRESENTATIVE OF DTC AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY 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 SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 2.12 AND
2.13 OF THE INDENTURE.](1)
--------
(1) Bracketed language is the Global Note Legend to be included only in the
Global Notes.
2
CUSIP
No. $
REVLON WORLDWIDE (PARENT) CORPORATION
Series B Senior Secured Discount Note Due 2001
Principal Amount at Maturity $_________________
Revlon Worldwide (Parent) Corporation, a Delaware
corporation, promises to pay to , or registered assigns, the
principal sum of Dollars on March 15, 2001.
3
Additional provisions of this Security are set forth
on the other side of this Security.
Dated:
REVLON WORLDWIDE (PARENT)
CORPORATION,
by
--------------------
President
--------------------
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York
as Trustee, certifies
that this is one of [Seal]
the Securities referred
to in the Indenture.
Dated:
by
-------------------------
Authorized Signatory
4
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
REVLON WORLDWIDE (PARENT) CORPORATION
Series B Senior Secured Discount Note Due 2001
1. Interest
There will be no periodic payments of interest. The
Company shall pay interest on overdue Principal at the rate of
11-3/4% per annum, and it shall pay interest on overdue installments
of interest at the same rate to the extent lawful.
2. Method of Payment
Holders must surrender Securities to a Paying Agent
to collect Principal payments. The Company will pay Principal in
money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company
may pay Principal and interest, if any, by check payable in such
money.
3. Paying Agent and Registrar
Initially, The Bank of New York, a New York banking
corporation ("Trustee"), will act as Paying Agent and Registrar. The
Company may appoint and change any Paying Agent, Registrar or
co-registrar without notice. The Company, Revlon Worldwide, Revlon,
Inc., RCPC or any of its domestically incorporated Wholly Owned
Recourse Subsidiaries may act as Paying Agent, Registrar,
co-registrar or transfer agent.
4. Indenture
The Company issued the Securities under an
Indenture dated as of March 1, 1997 ("Indenture"), between the
Company 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.C. xx.xx.
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act").
Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture. The Securities are
subject to all such terms, and
5
Securityholders are referred to the Indenture and the Act for a
statement of those terms.
The Securities are secured obligations of the
Company limited to $770,000,000 aggregate Principal Amount at
Maturity (subject to Section 2.07 of the Indenture). This Security is
one of the Exchange Notes referred to in the Indenture. The
Securities include the Initial Notes and any Exchange Notes issued in
exchange for the Initial Notes pursuant to the Indenture. The Initial
Notes and the Exchange Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain
limitations on, among other things, the issuance of debt and
redeemable stock by the Company, the issuance of debt and preferred
stock by Revlon Worldwide, Revlon, Inc., RCPC and its Subsidiaries,
the payment of dividends and other distributions and acquisitions or
retirements of the Company's Capital Stock, the sale or transfer of
assets and Subsidiary stock and transactions with Affiliates. In
addition, the Indenture limits the ability of the Company and its
Subsidiaries to restrict distributions and dividends from such
Subsidiaries.
5. Optional Redemption
The Securities may be redeemed at the option of the
Company in connection with the occurrence of a Change of Control as a
whole at a redemption price equal to the sum of (i) the Accreted
Value thereof at the date of redemption, plus (ii) the Applicable
Premium at the date of redemption.
On and after March 15, 2000, the Securities may be
redeemed, at the option of the Company, in whole or from time to time
in part at 102.6875% of the Accreted Value thereof as of the
redemption date.
6
6. Mandatory Redemption
In the event that (i) the Required Actions have not
occurred on or prior to June 5, 1997 or (ii) the Revlon Worldwide
Notes have been accelerated pursuant to Section 6.02 of the Revlon
Worldwide Indenture prior to the release of the Escrowed Property,
the Company shall redeem all the Securities at a redemption price in
cash equal to 100% of the Accreted Value thereof as of the redemption
date on (a) June 25, 1997, in the event that the Required Actions
have not occurred on or prior to June 5, 1997, or (b) the 20th day
(or if such day is not a Business Day, the next following Business
Day) following the occurrence of such acceleration, in the event of
an acceleration.
7. Notice of Redemption
Notice of redemption pursuant to paragraph 5 above
will be mailed at least 30 days but not more than 60 days before the
redemption date and notice of redemption pursuant to paragraph 6 will
be mailed promptly after June 5, 1997 or following the acceleration
of the Revlon Worldwide Notes, as applicable, to each Holder of
Securities to be redeemed at his or her registered address.
Securities in denominations larger than $1,000 Principal Amount at
Maturity may be redeemed in part but only in whole multiples of
$1,000 Principal Amount at Maturity. If money sufficient to pay the
redemption price of all Securities (or portions thereof) to be
redeemed on the redemption date is deposited with the Paying Agent on
or before the redemption date and certain other conditions are
satisfied, on and after such date Accreted Value ceases to increase,
and interest, if any, ceases to accrue, on such Securities (or such
portions thereof) called for redemption.
8. Put Provisions
Upon a Change of Control, any Holder of Securities
will have the right to cause the Company to repurchase all or any
part of the Securities of such Holder at a repurchase price equal to
the Put Amount of the Securities to be repurchased as provided in,
and subject to the terms of, the Indenture.
7
9. Security
To secure the due and punctual payment of the
Principal and interest, if any, on the Securities and all other
amounts payable by the Company under the Indenture and the Securities
when and as the same shall be due and payable, whether at maturity,
by acceleration or otherwise, according to the terms of the
Securities and the Indenture, the Company has granted a security
interest in the Collateral to the Trustee for the benefit of the
Holders of Securities pursuant to the Indenture. The Collateral is
subject to release from the Lien of the Indenture to the extent
provided therein.
10. Denominations; Transfer; Exchange
The Securities are in registered form without
coupons in denominations of Principal Amount at Maturity of $1,000
and whole multiples 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 or transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for
redemption (except, in the case of a Security to be redeemed in part,
the portion of the Security not to be redeemed) or any Securities for
a period of 15 days before a selection of Securities to be redeemed.
11. Persons Deemed Owners
The registered Holder of this Security may be
treated as the owner of it for all purposes.
12. Unclaimed Money
If money for the payment of Principal or interest,
if any, remains unclaimed for two years, the Trustee or Paying Agent
shall pay the money back to the Company at its request unless an
abandoned property law designates another person. After any such
payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment.
8
13. Defeasance
Subject to certain conditions, the Company at any
time may terminate some or all of its obligations under the
Securities and the Indenture if the Company deposits with the Trustee
money or U.S. Government Obligations for the payment of Principal and
interest, if any, on the Securities to redemption or maturity, as the
case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities may be amended with
the written consent of the Holders of at least a majority in
Principal Amount at Maturity outstanding of the Securities and (ii)
any default or noncompliance with any provision may be waived with
the written consent of the Holders of a majority in Principal Amount
at Maturity outstanding of the Securities. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture
or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article V of the Indenture, or to
provide for uncertificated Securities in addition to or in place of
certificated Securities, or to add guarantees with respect to the
Securities or to secure (or provide additional security for) the
Securities, or to add additional covenants or surrender rights and
powers conferred on the Company, or to provide for the issuance of
the Exchange Notes, or to comply with any request of the SEC in
connection with qualifying the Indenture under the Act, or to make
any change that does not adversely affect the rights of any
Securityholder. A consent to any amendment or waiver of any provision
in the Indenture or in the Securities by any Holder given in
connection with a tender of such Holder's Securities shall not be
rendered invalid by such tender.
15. Defaults and Remedies
Under the Indenture, Events of Default include (i)
default for 30 days in payment of interest, if any, on the
Securities; (ii) default in payment of Principal on the Securities at
maturity, upon redemption pursuant to paragraph 5 or paragraph 6 of
the Securities, upon declaration or otherwise, or
9
failure by the Company to redeem or purchase Securities when
required; (iii) failure by the Company to comply with other
agreements in the Indenture or the Escrow Agreement or the
Securities, in certain cases subject to notice and lapse of time;
(iv) certain accelerations (including failure to pay within any grace
period after final maturity) of other Debt of the Company or any
Significant Subsidiary if the total principal amount on the portion
of such Debt that is accelerated (or so unpaid) exceeds $25,000,000
and continues for 10 days after the required notice to the Company;
(v) certain events of bankruptcy or insolvency with respect to the
Company or any Significant Subsidiary; and (vi) certain judgments or
decrees for the payment of money in excess of $25,000,000. If an
Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in Principal Amount at Maturity of the Securities may
declare the Default Amount of all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are
Events of Default which will result in the Default Amount of the
Securities being due and payable immediately upon the occurrence of
such Events of Default.
Securityholders 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
reasonable indemnity or security. Subject to certain limitations,
Holders of a majority in Principal Amount at Maturity of the
Securities may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of Principal or
interest) if it determines that withholding notice is in their
interest.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act,
the Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may
otherwise deal with and collect obligations owed to it by the Company
or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
10
17. No Recourse Against Others
A director, officer, employee or stockholder, as
such, of the Company or the Trustee shall not have any liability for
any obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the
Securities.
18. Authentication
This Security shall not be valid until an
authorized signatory of the Trustee (or an authenticating agent)
manually signs the certificate of authentication on the other side of
this Security.
19. Abbreviations
Customary abbreviations may be used in the name of
a Securityholder or an assignee, such as TEN COM (=tenants in
common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants
with rights of survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
20. 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 Securities and has
directed the Trustee to use CUSIP numbers in notices of redemption as
a convenience to Securityholders. No representation is made as to the
accuracy of such numbers either as printed on the Securities 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 Securityholder upon
written request and without charge to the Securityholder a copy of
the Indenture which has in it the text of this Security in larger
type. Requests may be made to: Revlon Worldwide (Parent) Corporation,
00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000, Attention: General Counsel.
11
------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent
to transfer this Security on the books of the
Company. The agent may substitute another to act
for him.
Date:___________________ Your Signature:___________________________
------------------------------------------------------------------------------
12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security
purchased by the Company pursuant to Section 4.09 of the Indenture,
check the box:
[ ]
If you want to elect to have only part of this
Security purchased by the Company pursuant to Section 4.09 of the
Indenture, state the Principal Amount at Maturity: $
Date:_______________ Your Signature:________________
(Sign exactly as
your name appears
on the other side
of the Security)
Signature Guarantee:__________________________________________
(Signature must be guaranteed)
EXHIBIT C
[FORM OF CERTIFICATE TO BE DELIVERED UPON TERMINATION
OF RESTRICTED PERIOD]
On or after April 14, 0000
Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: REVLON WORLDWIDE (PARENT) CORPORATION
(the "Company") Senior Secured Discount
Notes due 2001 (the "Initial Notes") and
Series B Senior Secured Discount Notes
due 2001 (the "Exchange Notes" and,
together with the Initial Notes, the
"Notes")
---------------------------------------
Ladies and Gentlemen:
This letter relates to Notes represented by a
temporary global note certificate (the "Temporary Certificate").
Pursuant to Section 2.01 of the Indenture dated as of March 1, 1997
relating to the Notes (the "Indenture"), we hereby certify that (1)
we are the beneficial owner of $[ ] principal amount of Initial Notes
represented by the Temporary Certificate and (2) we are a person
outside the United States to whom the Initial Notes could be
transferred in accordance with Rule 904 of Regulation S promulgated
under the Securities Act of 1933, as amended. Accordingly, you are
hereby requested to issue a Certificated Note representing the
undersigned's interest in the principal amount of Initial Notes
represented by the Temporary Certificate, all in the manner provided
by the Indenture.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in
2
any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate
have the meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By:____________________________
Authorized Signature
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS]
[date]
Revlon Worldwide (Parent) Corporation
x/x Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Dear Sirs:
This certificate is delivered to request a transfer
of $ aggregate principal amount at maturity of Senior Secured
Discount Notes due 2001 (the "Notes") of Revlon Worldwide (Parent)
Corporation (the "Company").
The undersigned represents and warrants to you
that:
(1) We are an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the
account of such an institutional "accredited investor," and
we are acquiring the Notes not with a view to, or for offer
or sale in connection with, any distribution in violation of
the Securities Act or other applicable securities law and we
have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks
of our investment in the Notes and invest in or purchase
securities similar to the Notes in the normal course of our
business. We and any accounts for which we are acting are
each able to bear the economic risk of our or its
investment.
(2) We understand and acknowledge that the Notes
have not been registered under the Securities Act, or any
other applicable securities law and unless so registered,
may not be sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any
investor account for which we are purchasing Notes
2
to offer, sell or otherwise transfer such Notes prior to the
date which is two years after the later of the date of
original issue and the last date on which the Company or any
affiliate of the Company was the owner of such Notes (or any
predecessor thereto) (the "Resale Restriction Termination
Date") only (a) if it is an initial investor in the Notes,
(i) to the Company, (ii) pursuant to a registration
statement which has been declared effective under the
Securities Act, (iii) in a transaction complying with the
requirements of Rule 144A under the Securities Act, to a
person we reasonably believe is a "Qualified Institutional
Buyer" within the meaning of Rule l44A (a "QIB") that
purchases for its own account or for the account of a QIB
and to whom notice is given that the transfer is being made
in reliance on Rule 144A, (iv) pursuant to offers and sales
that occur outside the United States within the meaning of
Regulation S under the Securities Act, or (v) pursuant to an
exemption from registration under the Securities Act
provided by Rule 144 thereunder (if available), and (b) if
it is a subsequent investor in the Notes, (i) as set forth
in (a) above and (ii) to an institutional "accredited
investor" within the meaning of subparagraphs (a)(1),
(a)(2), (a)(3) or (a)(7) of Rule 501 under the Securities
Act that is purchasing the Notes for its own account or for
the account of such an institutional "accredited investor",
in each case, in a transaction involving a minimum purchase
price of $250,000 for such Notes, subject in each of the
foregoing cases to any requirement of law that the
disposition of our property or the property of such investor
account or accounts be at all times within our or their
control and in compliance with any applicable state
securities laws. The foregoing restrictions on resale will
not apply subsequent to the Resale Restriction Termination
Date. If any resale or other transfer of the Notes is
proposed to be made pursuant to clause (b)(ii) above prior
to the Resale Restriction Termination Date, the transferor
shall deliver to the Company and the trustee under the
Indenture pursuant to which the Notes are issued a letter
from the transferee substantially in the form of this
letter, which shall provide, among other things, that the
transferee is an institutional "accredited investor" within
the meaning of subparagraphs (a)(1), (a)(2), (a)(3) or
(a)(7) of Rule 501 under the Securities Act and that it is
3
acquiring such Notes for investment purposes and not for
distribution in violation of the Securities Act. We
acknowledge that the Company and the Trustee reserve the
right prior to any offer, sale or other transfer of the
Notes pursuant to clauses (a)(iv), (a)(v) or (b)(ii) above
prior to the Resale Restriction Termination Date to require
the delivery of an opinion of counsel, certifications and/or
other information satisfactory to the Company and the
Trustee.
(3) We are acquiring the Notes purchased by us for
our own account or for one or more accounts as to each of
which we exercise sole investment discretion.
(4) You are entitled to rely upon this letter and
you are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
By: (Name of Purchaser)
Date:
Upon transfer the Notes would be registered in the name of the new
beneficial owner as follows:
TAXPAYER
ID
NAME ADDRESS NUMBER:
---- ------- ------
EXHIBIT E
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S]
[date]
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Revlon Worldwide (Parent) Corporation
(the "Company") Senior Secured Discount
Notes due 2001 (the "Notes")
---------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $________
aggregate principal amount of the Notes, we confirm that such sale
has been effected pursuant to and in accordance with Regulation S
under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a
person in the United States;
(2) either (a) at the time the buy order was
originated, the transferee was outside the United States or
we and any person acting on our behalf reasonably believed
that the transferee was outside the United States or (b) the
transaction was executed in, on or through the facilities of
a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction
has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been
made in the United States in contravention of the
requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or
scheme to evade the registration requirements of
the Securities Act.
2
In addition, if the sale is made during a
restricted period and the provisions of Rule 903(c)(3) or Rule
904(c)(1) of Regulation S are applicable thereto, we confirm that
such sale has been made in accordance with the applicable provisions
of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered
hereby. Terms used in this certificate have the meanings set forth in
Regulation S.
Very truly yours,
[Name of Transferor]
By:_______________________
Authorized Signature
EXHIBIT F
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 000X]
Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, 00-X
Xxx Xxxx, XX 00000
[date]
Re: Revlon Worldwide (Parent) Corporation
(the "Company") Senior Secured Discount
Notes due 2001 (the "Notes")
--------------------------------------
Ladies and Gentlemen:
In connection with our proposed sale of $_______
aggregate principal amount at maturity of the Notes, we hereby
certify that such transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we hereby
further certify that the Notes are being transferred to a person that
we reasonably believe is purchasing the Notes for its own account, or
for one or more accounts with respect to which such person exercises
sole investment discretion, and such person and each such account is
a "qualified institutional buyer" within the meaning of Rule 144A in
a transaction meeting the requirements of Rule 144A and such Notes
are being transferred in compliance with any applicable blue sky
securities laws of any state of the United States.
You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered
hereby.
Very truly yours,
--------------------------
[Name of Transferor]
By:
--------------------------
Authorized Signature
SCHEDULE I
Pledged Shares
--------------
Class of No. of
Issuer Security Shares
------ -------- ------
Revlon Worldwide Common Stock 471
SCHEDULE II
Permitted Transactions
1. Asset Transfer Agreement by and Among Revlon,
Inc., Xxxxxxx of the Ritz Group Ltd., New Revlon,
Inc. and Revlon Consumer Products Corporation
dated June 24, 1992 (and the ancillary agreements
thereto).
2. Real Property Asset Transfer Agreement by and
among Revlon, Inc., (now known as Revlon Holdings
Inc., New Revlon, Inc. (now known as Revlon, Inc.)
and Revlon Consumer Products Corporation.
3. Benefit Plans Assumption Agreement dated as of
July 1, 1992 by and among Revlon Holdings Inc.
(formerly known as Revlon, Inc.) , Revlon, Inc.,
(formerly known as New Revlon, Inc) and Revlon
Consumer Products Corporation.
4. Second Amended and Restated Operating Services
Agreement by and among Revlon Holdings Inc.,
Revlon, Inc. and Revlon Consumer Products
Corporation dated June 24, 1996 (Amended and
Restated as of January 1, 1996).
5. Reimbursement and Expense Allocation Agreement
dated May 3, 1996 by and among MacAndrews & Forbes
Holdings Inc., Revlon, Inc. and Revlon Consumer
Products Corporation.
6. Reimbursement Agreement by and among MacAndrews &
Forbes Holdings Inc., New Revlon, Inc. and Revlon
Consumer Products Corporation dated June 24, 1992.
7. Reimbursement Agreement by and among MacAndrews &
Forbes Holdings Inc. and Revlon Worldwide
Corporation dated March 25, 1993.
8. Tax Sharing Agreement by and among Mafco Holdings,
Inc., Revlon Holdings Inc., Revlon, Inc. and
Revlon Consumer Products Corporation, as amended
by the First Amendment dated as of February 28,
1995 and the Second Amendment dated as of January
1, 1997.
9. Tax Sharing Agreement between Revlon Worldwide
Corporation and Mafco Holdings Inc. dated
March 17, 1993, as amended to the Issue Date.
2
10. Registration Rights Agreement dated as of March 5,
1996 between Revlon Worldwide Corporation and
Revlon, Inc.
11. Purchase and Sale Agreement, as amended, dated as
of February 18, 1993 by and between Revlon
Consumer Products Corporation and Revlon Holdings
Inc. (Transfer of Edison facility).
12. Reassignment and Release Agreement dated as of
November 4, 1993 between Revlon Consumer Products
Corporation, Revlon Holdings Inc. and SJDH Xxxxxx
Drive Trust. (Transfer of 0 Xxxxxx Xxxxx, Xxxxxx,
Xxx Xxxxxx).
13. Lease Agreement between Revlon Holdings Inc. and
Revlon Consumer Products Corporation dated
April 2, 1993 (Edison R&D facility).
14. Sublease Agreement dated October 31, 1995 by and
between Revlon Consumer Products Corporation and
MacAndrews & Forbes Group Incorporated. (625
Madison Avenue)
15. Occupancy Agreement dated as of January 1, 1995
between Revlon Holdings Inc. and Revlon Consumer
Products Corporation (Administration Building,
Plant and Company store).
16. Lease Contract dated October 29, 1992 between
Revlon K.K. (now known as Revlon Real Estate K.K.)
and Marvel Entertainment Group, Inc. (as amended
April 14, 1994 and by letter agreement dated
October 13, 1994 and extension dated December 5,
1995.
17. Occupancy Memorandum dated as of February 28, 1995
between Revlon International Corporation and
MacAndrews & Forbes Group Incorporated (Occupancy
of 00 Xxxxx Xxxxxx).
18. Airplane Usage Memorandum dated November 16, 1994
between GDL Aviation Inc. and Revlon Consumer
Products Corporation.
19. Stock and Asset Purchase Agreement dated as of
January 1, 1994 by and between Revlon Consumer
Products Corporation and Revlon Holdings Inc. (New
Essentials)
20. Asset Transfer Agreement dated as of September 1,
1993 by and between Revlon Consumer Products
3
Corporation and Revlon Holdings Inc. (Xxxxxx
Advertising Division).
21. Lipstick Assembly Agreement dated February 1, 1993
between Revlon, Inc. and Tabacalera xx Xxxxxx,
X.X. as amended by First Amendment to Lipstick
Assembly Agreement dated as of January 1, 1994
between Revlon Consumer Products Corporation and
Tabacalera de Xxxxxx X.X.
22. License Agreement dated as of July 18, 1995
between Revlon Consumer Products Corporation and
Toy Biz, Inc.
23. Sublicense Agreement dated as of January 1, 1993
between Revlon Holdings Inc., as Sublicensor, and
Revlon Consumer Products Corporation, as
Sublicensee, (for all duty free shops throughout
the world and in all other channels of
distribution in countries of the world other than
the U.S.) (Sublicense of Xxxx Xxxxx trademark)
