EXHIBIT 4.2
REVLON PLEDGE AGREEMENT
(Note Obligations)
PLEDGE AND SECURITY AGREEMENT, dated as of November 30, 2001,
made by REVLON, INC., a Delaware corporation (the "Pledgor"), in favor of
WILMINGTON TRUST COMPANY, as collateral agent (in such capacity and as further
defined below, the "Note Collateral Agent") for the holders of the Note
Obligations (as hereinafter defined).
W I T N E S S E T H
WHEREAS, Revlon Consumer Products Corporation, a Delaware
corporation (the "Company"), and Wilmington Trust Company, as trustee (in such
capacity, the "Trustee"), are parties to the Indenture dated as of November 26,
2001 (as amended, supplemented or otherwise modified from time to time, the
"Indenture"), providing for the issuance of the Company's 12% Senior Secured
Notes Due 2005 (the "Notes"); and
WHEREAS, the Company is party to the Second Amended and
Restated Credit Agreement dated as of the date hereof (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement") among the
Company, the local borrowing subsidiaries party thereto, the financial
institutions party thereto, JPMorgan Chase Bank ("Chase"), as administrative
agent (in such capacity, the "Bank Agent"), the other agents party thereto and
the arranger party thereto; and
WHEREAS, the Pledgor has guaranteed, respectively, (i) the
Bank Obligations (as defined below) pursuant to the Second Amended and Restated
Revlon Guarantee, dated the date hereof, made by the Pledgor in favor of the
Administrative Agent (as defined below) for the benefit of the holders of the
Bank Obligations (the "Bank Guarantee") and (ii) the Company's Obligations under
the Indenture (the "Indenture Guarantee"); and
WHEREAS, to secure its obligations under the Bank Guarantee,
the Pledgor has granted to the Administrative Agent (as defined below), for the
benefit of the holders of the Bank Obligations, a first priority security
interest (the "First Pledge Lien") in the Collateral (as defined below) and now
intends hereby to grant to the Note Collateral Agent, for the benefit of the
holders of the Note Obligations (as defined below), to secure its obligations
under the Indenture Guarantee, a second priority security interest in the
Collateral (it being understood that the relative rights and priorities of the
grantees in respect of the Collateral are governed by the Collateral Agency
Agreement referred to herein).
NOW, THEREFORE, the Pledgor agrees with the Note Collateral
Agent for the benefit of the holders of the Note Obligations as follows:
1. Defined Terms. The following terms shall have the
following meanings:
"Actionable Event" has the meaning assigned such term in the
Collateral Agency Agreement.
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"Administrative Agent" has the meaning assigned such term in
the Collateral Agency Agreement.
"Bank Agent" has the meaning assigned such term in the
recitals hereto.
"Bank Guarantee" has the meaning assigned such term in the
recitals hereto.
"Bank Obligations" has the meaning assigned such term in the
Collateral Agency Agreement.
"Bankruptcy Event of Default" has the meaning assigned to such
term in the Collateral Agency Agreement.
"Chase" has the meaning assigned such term in the recitals
hereto.
"Collateral" means all of the Pledgor's right, title and
interest, whether now owned or hereafter acquired, in the Pledged Stock, all
Investment Property and all Proceeds with respect thereto.
"Collateral Account" has the meaning assigned such term in the
Collateral Agency Agreement.
"Collateral Agency Agreement" means the Amended and Restated
Collateral Agency Agreement, dated as of May 30, 1997 and as further amended and
restated as of the date hereof, among the Company, the Bank Agent, the
Administrative Agent, the Trustee and the Note Collateral Agent, as the same may
be amended, supplemented or otherwise modified from time to time.
"Company" has the meaning assigned such term in the recitals
hereto.
"Contractual Obligation": of any Person, any provision of any
material debt security or of any material preferred stock or other equity
interest issued by such Person or of any material indenture, mortgage,
agreement, instrument or undertaking to which such Person is a party or by which
it or any of its material property is bound.
"Controlling Collateral Agent" means (i) with respect to
Collateral that is also subject to Liens granted under any First Lien Document:
at all times prior to the First Pledge Lien Termination Date, the Administrative
Agent and, thereafter, the Note Collateral Agent: and (ii) with respect to
Collateral that is not subject to any Lien granted under any First Lien
Document; at all times, the Note Collateral Agent.
"Credit Agreement" has the meaning assigned such term in the
recitals hereto.
"First Lien Documents" has the meaning assigned such term in
the Collateral Agency Agreement.
"First Lien Termination Date" has the meaning assigned such
term in the Collateral Agency Agreement.
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"First Pledge Lien" has the meaning assigned such term in the
recitals hereto.
"First Pledge Lien Termination Date": either (a) the date on
which the First Pledge Lien is released in accordance with the terms of the
Collateral Agency Agreement or (b) the date on which all Bank Obligations are
Fully Satisfied (as defined in the Collateral Agency Agreement), whichever shall
first occur; provided, however, that if a First Lien Termination Date is deemed
not to have occurred under Section 5.2(f) of the Collateral Agency Agreement,
any First Pledge Lien Termination Date that has occurred shall likewise be
deemed not to have occurred, and such event shall be governed by the terms and
provisions of Section 5.2(f) of the Collateral Agency Agreement.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government (including, without limitation, any governmental
department, commission, board, bureau, agency or instrumentality, or other court
or arbitrator, in each case whether of the United States or foreign) and the
National Association of Insurance Commissioners.
"Guarantee Obligations" means the obligations of the Pledgor
under the Indenture Guarantee.
"Indenture" has the meaning assigned such term in the recitals
hereto.
"Investment Property" shall mean the collective reference to
(i) all "investment property" as such term is defined in Section 9-102(a)(49) of
the UCC and (ii) whether or not constituting "investment property" as so
defined, all Pledged Stock; provided, that in no event shall Investment Property
include more than 66% of the total outstanding Voting Stock of any Subsidiary of
the Pledgor organized in a jurisdiction other than any State of the United
States.
"Issuer" means Revlon Consumer Products Corporation and any
other issuer of any Investment Property.
"Liens" has the meaning assigned such term in the Indenture.
"Note Collateral Agent" means Wilmington Trust Company and any
successors thereof appointed in accordance with the terms of the Collateral
Agency Agreement, in each case as collateral agent for the holders of the Note
Obligations.
"Note Obligation Document" has the meaning assigned such term
in the Collateral Agency Agreement.
"Note Obligations" has the meaning assigned such term in the
Collateral Agency Agreement.
"Notes" has the meaning assigned such term in the recitals
hereto.
"Notice of an Actionable Event" has the meaning assigned such
term in the Collateral Agency Agreement.
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"Permitted Liens" has the meaning assigned such term in the
Indenture.
"Person" has the meaning assigned such term in the Indenture.
"Pledge Agreement" means this Pledge and Security Agreement,
as amended, supplemented or otherwise modified from time to time.
"Pledged Stock" means the shares of capital stock of the
Issuer listed on Schedule I hereto, together with the stock certificates
representing such shares, or stock dividends, options, warrants or rights of any
nature whatsoever that may be received or receivable by or otherwise distributed
to the Pledgor in respect of or in exchange for any or all of such shares while
this Pledge Agreement is in effect.
"Pledgor" has the meaning assigned such term in the preamble
hereto.
"Proceeds" means all "proceeds" as such term is defined in
Section 9-102(a)(64) of the UCC on the date hereof and, in any event, shall
include, without limitation, all dividends or other income from the Pledged
Stock, collections thereon or distributions with respect thereto.
"Requirements of Law" means the Certificate of Incorporation
and By-Laws or other organizational or governing documents of the Pledgor, and
any law, treaty, rule or regulation, or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon the Pledgor or any of its material property or to which the Pledgor or any
of its material property is subject.
"Secured Obligations" has the meaning assigned such term in
the Collateral Agency Agreement.
"Subsidiary" has the meaning assigned such term in the
Indenture.
"Termination Date" means the earlier of (a) the date on which,
pursuant to Section 8 of the Collateral Agency Agreement, the Note Collateral
Agent is required to release its security interest in all collateral security
pledged or otherwise granted to it by the Pledgor pursuant to this Pledge
Agreement, or (b) the date on which the Indenture Obligations have been Fully
Satisfied (each as defined in the Collateral Agency Agreement), whichever shall
first occur.
"Trustee" has the meaning assigned such term in the recitals
hereto.
"UCC" means the Uniform Commercial Code from time to time in
effect in the State of New York.
2. Grant of Security Interest; Collateral Agency Agreement
Controls.
(a) Grant. The Pledgor hereby pledges to the Note Collateral
Agent, for the benefit of the holders of the Note Obligations, and delivers (or
has delivered) to the Controlling Collateral Agent, for the benefit of the
holders of the Note Obligations and the other Secured Obligations, all the
Pledged Stock and hereby grants to the Note Collateral Agent, for the benefit
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of the holders of the Note Obligations, a second priority security interest in
the Collateral, as collateral security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Guarantee Obligations. Notwithstanding anything to the
contrary contained herein, the Collateral described herein shall constitute
collateral security only for those Guarantee Obligations with respect to which
the Proceeds of such Collateral are applied pursuant to Section 4.2(b) (or, if
applicable, 4.8) and 4.2(e) of the Collateral Agency Agreement and the Lien and
security interest provided hereby shall encumber the Collateral only to the
extent of such Guarantee Obligations.
(b) Collateral Agency Agreement Controls. Notwithstanding anything
to the contrary contained in this Pledge Agreement but subject to the last
sentence of this Section 2(b), all of the rights and obligations of the parties
hereto set forth herein are subject to the terms of the Collateral Agency
Agreement, which shall be controlling. Without limiting the generality of the
foregoing, the rights of the Note Collateral Agent and the holders of the Note
Obligations set forth herein relating to (i) the release of or realization upon
Collateral that is subject to Liens granted under the First Lien Documents, (ii)
amendments to or waivers in respect of this Pledge Agreement or any other Note
Obligation Document, (iii) the exercise of remedies with respect to Collateral
that is subject to Liens granted under the First Lien Documents, (iv) the right
to receive, hold and apply Proceeds that are subject to Liens granted under the
First Lien Documents and (v) all other matters addressed herein are granted
subject to, and shall be exercised in accordance with, the terms of the
Collateral Agency Agreement. The terms of this Section 2(b) shall not prevent
the Note Collateral Agent from taking such actions or reasonably requesting the
Pledgor to take such actions as are necessary to perfect or maintain the
perfection of the Note Collateral Agent's security interest in the Collateral,
nor shall such terms mitigate the Pledgor's obligations hereunder to take such
actions, provide such information and deliver such documents, instruments and
certificates as may be necessary to perfect or maintain the perfection of such
security interest.
3. Stock Powers. Unless such stock power previously has been
delivered to the Controlling Collateral Agent, the Pledgor shall deliver an
undated stock power covering each certificate representing one or more shares of
Pledged Stock concurrently with the delivery to the Controlling Collateral Agent
of such certificate, duly executed in blank by the Pledgor with, if the
Controlling Collateral Agent so reasonably requests, signature guaranteed.
4. Representations and Warranties. The Pledgor represents and
warrants to the Note Collateral Agent that:
(i) the Pledgor is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority and the legal
right to execute and deliver, to perform its obligations under, and
to grant the Lien on the Collateral pursuant to, this Pledge
Agreement and has taken all necessary corporate action to authorize
its execution, delivery and performance of, and grant of the Lien on
the Collateral pursuant to, this Pledge Agreement;
(ii) this Pledge Agreement constitutes a legal, valid
and binding obligation of the Pledgor enforceable in accordance with
its terms, except as enforceability may be
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limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and general equitable principles;
(iii) the execution, delivery and performance of this
Pledge Agreement will not violate any Contractual Obligation or
material Requirement of Law of the Pledgor and will not result in
the creation or imposition of any Lien on any of the properties or
assets of the Pledgor pursuant to the provisions of any Contractual
Obligation, except as contemplated hereby;
(iv) no consent or authorization of, filing with, or
other act by or in respect of, any arbitrator or Governmental
Authority and no consent of any other Person (including, without
limitation, any stockholder or creditor of the Pledgor or the
Issuer), is required in connection with the execution, delivery,
performance, validity or enforceability of this Pledge Agreement,
except for (a) such consents which have been obtained prior to the
date hereof and remain in full force and effect and (b) the timely
filing of UCC-1 financing statements with the appropriate
Governmental Authorities;
(v) [Reserved]
(vi) the shares of Pledged Stock listed on Schedule I,
together with any additional shares of stock delivered by the
Pledgor to the Controlling Collateral Agent in accordance with this
Pledge Agreement, constitute all the issued and outstanding shares
of all classes of the capital stock of each Issuer listed therein
other than the Series A Preferred Stock, par value $1.00 per share
of the Company;
(vii) all the shares of the Pledged Stock have been duly
authorized and validly issued and are fully paid and nonassessable;
(viii) the Pledgor is the record and beneficial owner
of, and has good title to, the Pledged Stock listed on Schedule I,
together with any additional shares of stock delivered by the
Pledgor to the Controlling Collateral Agent in accordance with this
Pledge Agreement, free of any and all Liens or options in favor of,
or claims of, any other Person, except Liens of the type which
constitute Permitted Liens;
(ix) upon delivery to the Controlling Collateral Agent
of the stock certificates evidencing the Pledged Stock and the
filing of a UCC-1 financing statement in the filing office in which
a secured party would be required to file a financing statement
under the UCC in order to perfect its security interest in
Investment Property, the Lien granted pursuant to this Pledge
Agreement will constitute a valid, perfected second priority Lien on
the Collateral subject to the Lien of a securities intermediary or
commodities intermediary (as each such term is defined in the UCC)
if any, in Investment Property (other than the Pledged Stock) and
subject to such Lien and other Liens of the type which constitute
Permitted Liens, and enforceable as such against all creditors of
the Pledgor and any Persons purporting to purchase any Collateral
from the Pledgor, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by
general equitable principles;
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(x) no Default or Event of Default has occurred and is
continuing on the date hereof and no Default or Event of Default
will occur as a result of consummation of the transactions
contemplated hereby; and
(xi) the pledge of the Collateral pursuant to this
Pledge Agreement does not violate Regulations T, U or X of the
Federal Reserve Board or any successors to such regulations as of
the date hereof.
5. Covenants. The Pledgor covenants and agrees with the
Note Collateral Agent that, from and after the date of this Pledge Agreement
until the Termination Date:
(i) If the Pledgor shall, as a result of its ownership
of the Pledged Stock, become entitled to receive or shall receive
any stock certificate (including, without limitation, any
certificate representing a stock dividend or a distribution in
connection with any reclassification, increase or reduction of
capital or any certificate issued in connection with any
reorganization), option or rights, whether in addition to, in
substitution of, as a conversion of, or in exchange for any shares
of the Pledged Stock, or otherwise in respect thereof, the Pledgor
shall accept the same as the agent of the Controlling Collateral
Agent and the holders of the Secured Obligations (or, if the Note
Collateral Agent is the Controlling Collateral Agent, the Note
Obligations), hold the same in trust for the Controlling Collateral
Agent and the holders of the Secured Obligations (or, if the Note
Collateral Agent is the Controlling Collateral Agent, the Note
Obligations) and deliver the same forthwith to the Controlling
Collateral Agent in the exact form received, duly indorsed by the
Pledgor to the Controlling Collateral Agent, if required, together
with an undated stock power covering such certificate duly executed
in blank by the Pledgor and with, if the Controlling Collateral
Agent so reasonably requests, signature guaranteed, to be held by
the Controlling Collateral Agent, subject to the terms hereof and
the terms of the Collateral Agency Agreement, as additional
collateral security for the Secured Obligations (or, if the Note
Collateral Agent is the Controlling Collateral Agent, the Guarantee
Obligations). Except as otherwise permitted by the Indenture, any
sums paid upon or in respect of the Pledged Stock upon the
liquidation or dissolution of any Issuer and any sums paid in
connection with the redemption of, or in exchange for, collateral
shall be paid over to the Controlling Collateral Agent for deposit
by it in the Collateral Account, until such monies are disbursed in
accordance with the Collateral Agency Agreement, and in case any
distribution of capital shall be made on or in respect of the
Pledged Stock or any property shall be distributed upon or with
respect to the Pledged Stock pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the
reorganization thereof, the property so distributed shall be
delivered to the Controlling Collateral Agent to be held by it
hereunder as additional collateral security for the Secured
Obligations (or, if the Note Collateral Agent is the Controlling
Collateral Agent, the Guarantee Obligations) subject to the terms of
the Collateral Agency Agreement. If any sums of money or property so
paid or distributed in respect of the Pledged Stock shall be
received by the Pledgor, the Pledgor shall, until such money or
property is paid or delivered to the Controlling Collateral Agent,
hold such money or property in trust for the Controlling Collateral
Agent and the holders of the Secured Obligations (or, if the Note
Collateral Agent is the Controlling Collateral Agent, the Note
Obligations) subject to the Collateral Agency Agreement, segregated
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from other funds of the Pledgor, as additional collateral security
for the Secured Obligations (or, if the Note Collateral Agent is the
Controlling Collateral Agent, the Guarantee Obligations).
(ii) The Pledgor will not (i) vote to enable, or take
any other action to permit, any Issuer to issue any stock or other
equity securities of any nature or to issue any other securities
convertible into or granting any right to purchase or exchange for
any stock or other equity securities of any nature of the Issuer
which in any such case would be in violation of the terms of the
Indenture, (ii) sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Collateral in
violation of the terms of the Indenture, or (iii) create, incur or
permit to exist any Lien or option in favor of, or any claim of any
Person with respect to, any of the Collateral, or any interest
therein, except for the Lien provided for by this Pledge Agreement
and Liens of the type which constitute Permitted Liens. The Pledgor
will defend the right, title and interest of the Note Collateral
Agent and the holders of the Note Obligations in and to the
Collateral against the claims and demands of all Persons whomsoever
other than in the case of Liens of the type which constitute
Permitted Liens.
(iii) At any time and from time to time, upon the
written request of the Note Collateral Agent, and at the sole
expense of the Pledgor, the Pledgor will promptly and duly execute
and deliver such further instruments and documents and take such
further actions as may be necessary or that the Note Collateral
Agent may reasonably request for the purposes of perfecting or
protecting any security interest granted hereby or to enable the
Note Collateral Agent to obtain or preserve the full benefits of
this Pledge Agreement and of the rights and powers herein granted.
(iv) The Pledgor agrees to pay, and to save the Note
Collateral Agent and the holders of the Note Obligations harmless
from, any and all liabilities with respect to, or resulting from any
delay in paying, any and all stamp, excise, sales or other taxes
which may be payable or determined to be payable with respect to any
of the Collateral or in connection with any of the transactions
contemplated by this Pledge Agreement.
6. Dividends; Voting Rights. Unless a Notice of an Actionable Event
shall have been given and remains outstanding and the Controlling Collateral
Agent shall have given notice to the Pledgor of the Controlling Collateral
Agent's intent to exercise its corresponding rights pursuant to paragraph 7
(except in the case of a Bankruptcy Event of Default, in which case no such
notice shall be required), the Pledgor shall be permitted to receive all
dividends (whether in cash or evidenced by a note or chattel paper but other
than stock dividends) free of the Lien created by this Pledge Agreement, to the
extent that such dividends are permitted under the Indenture, in respect of the
Pledged Stock and to exercise all voting and corporate rights with respect to
the Pledged Stock; provided, however, that no vote shall be cast or corporate
right exercised or other action taken which, in the Controlling Collateral
Agent's reasonable judgment, would impair the Collateral or which would be
inconsistent with or result in any violation of any provision of this Pledge
Agreement or the Indenture.
7. Rights of the Controlling Collateral Agent and the Holders of the
Note Obligations. (a) If a Notice of an Actionable Event shall have been given
and remains
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outstanding and the Controlling Collateral Agent shall have given notice of its
intent to exercise such rights to the Pledgor (except in the case of a
Bankruptcy Event of Default, in which case no such notice shall be required),
(i) the Controlling Collateral Agent shall have the right to receive any and all
dividends (whether in cash or evidenced by a note or chattel paper) paid in
respect of the Pledged Stock and shall, pursuant to the Collateral Agency
Agreement, deposit the proceeds of such cash dividends in the Collateral
Account, until such monies are disbursed in accordance with the Collateral
Agency Agreement, and (ii) all shares of the Pledged Stock shall be registered
in the name of the Controlling Collateral Agent or its nominee, and the
Controlling Collateral Agent or its nominee may thereafter exercise (A) all
voting, corporate and other rights pertaining to such shares of the Pledged
Stock at any meeting of shareholders of any Issuer or otherwise and (B) any and
all rights of conversion, exchange, subscription and any other rights,
privileges or options pertaining to such shares of the Pledged Stock as if it
were the absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Stock upon the merger,
consolidation, reorganization, recapitalization or other fundamental change in
the corporate structure of the relevant Issuer, or upon the exercise by the
Pledgor or the Controlling Collateral Agent of any right, privilege or option
pertaining to such shares of the Pledged Stock, and in connection therewith, the
right to deposit and deliver any and all of the Pledged Stock with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as it may determine), all without liability except to
account for property actually received by it, but the Controlling Collateral
Agent shall have no duty to the Pledgor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
(b) In order to permit the Controlling Collateral Agent to exercise
the voting and other rights which it is entitled to exercise pursuant to
paragraph 7(a)(ii) and to receive the dividends and distributions which it is
authorized to receive and retain pursuant to paragraph 7(a)(i), the Pledgor
shall, if necessary, upon written notice from the Controlling Collateral Agent
(except in the case of a Bankruptcy Event of Default, in which case no such
notice shall be required), from time to time execute and deliver (or cause to be
executed and delivered) to the Controlling Collateral Agent all such proxies,
dividend payment orders and other instruments as the Controlling Collateral
Agent may reasonably request.
(c) The rights of the Note Collateral Agent and the holders of the
Note Obligations hereunder shall not be conditioned or contingent upon the
pursuit by the Note Collateral Agent or any holder of the Note Obligations of
any right or remedy against any Issuer or the Company or against any other
Person which may be or become liable in respect of all or any part of the Note
Obligations or against any collateral security therefor, guarantee thereof or
right of offset with respect thereto. Neither the Note Collateral Agent nor any
other holder of the Note Obligations shall be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so, nor shall the Note Collateral Agent be under any obligation to sell or
otherwise dispose of any Collateral upon the request of the Pledgor or any other
Person or to take any other action whatsoever with regard to the Collateral or
any part thereof.
8. Remedies. If a Notice of an Actionable Event shall have been
given and remains outstanding, the Controlling Collateral Agent, on behalf of
the holders of the Secured Obligations (or, if the Note Collateral Agent is the
Controlling Collateral Agent, the Note
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Obligations), may exercise, in addition to all other rights and remedies granted
in this Pledge Agreement and in any other instrument or agreement securing,
evidencing or relating to the Guarantee Obligations but subject to the terms of
the Collateral Agency Agreement, all rights and remedies of a secured party
under the UCC. Without limiting the generality of the foregoing, the Controlling
Collateral Agent, without demand of performance or other demand, presentment,
protest, advertisement or notice of any kind (except any notice required by law
referred to below) to or upon the Pledgor, any Issuer or any other Person (all
and each of which demands, defenses, advertisements and notices are hereby
waived, to the extent permitted by applicable law), may in such circumstances,
but subject to the terms of the Collateral Agency Agreement, forthwith collect,
receive, appropriate and realize upon the Collateral, or any part thereof,
and/or may forthwith sell, assign, give option or options to purchase or
otherwise dispose of and deliver the Collateral or any part thereof (or contract
to do any of the foregoing), in one or more parcels at public or private sale or
sales, in the over-the-counter market, at any exchange, broker's board or office
of the Controlling Collateral Agent or elsewhere upon such terms and conditions
as it may deem advisable and at such prices as it may deem best, for cash or on
credit or for future delivery without assumption of any credit risk. The
Controlling Collateral Agent or any holder of the Secured Obligations (or, if
the Note Collateral Agent is the Controlling Collateral Agent, the Note
Obligations) shall have the right upon any such public sale or sales, and, to
the extent permitted by law, upon any such private sale or sales, to purchase
the whole or any part of the Collateral so sold, free of any right or equity of
redemption in the Pledgor, which right or equity is hereby waived or released.
The Controlling Collateral Agent shall, pursuant to the Collateral Agency
Agreement, deposit any Proceeds from time to time held by it and the net
proceeds of any such collection, recovery, receipt, appropriation, realization
or sale in the Collateral Account, until such monies are disbursed in accordance
with the Collateral Agency Agreement. In the absence of gross negligence or
willful misconduct, neither the Controlling Collateral Agent nor any holder of
the Note Obligations shall be deemed to assume any responsibility for or
obligation or duty with respect to any part or all of the Pledged Stock and the
other Collateral of any nature or kind or any matter or proceeding arising out
of or related thereto, but the same shall be at the Pledgor's sole risk at all
times. The Pledgor hereby releases the Controlling Collateral Agent, the Note
Collateral Agent and the other holders of the Note Obligations from any claims,
causes of action and demands at any time arising out of or with respect to this
Pledge Agreement, the Pledged Stock and the other Collateral and/or any actions
taken or omitted to be taken by the Controlling Collateral Agent, the Note
Collateral Agent and/or the holders of Note Obligations with respect thereto and
the Pledgor hereby agrees to hold the Controlling Collateral Agent, the Note
Collateral Agent and/or such holder of Note Obligations, as the case may be,
harmless from and with respect to any and all such claims, causes of action and
demands, except, in the case of the Controlling Collateral Agent, the Note
Collateral Agent or any holder of Note Obligations, to the extent of any gross
negligence or willful misconduct on the part of the Controlling Collateral
Agent, the Note Collateral Agent or such holder of Note Obligations, as the case
may be subject in each case to the terms of the Collateral Agency Agreement. If
any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least 10 days before such sale or other disposition. All waivers by the Pledgor
of rights (including rights to notice), and all rights and remedies afforded the
Controlling Collateral Agent herein, and all other provisions of this Pledge
Agreement, are expressly made subject to any applicable mandatory provisions of
law limiting, or imposing conditions (including conditions as to
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reasonableness) upon, such waivers or the effectiveness thereof or any such
rights and remedies. Any sale or other disposition of the Collateral and the
possession thereof by the Controlling Collateral Agent shall be in compliance
with all provisions of applicable law (including applicable securities laws and
applicable provisions of the UCC). The Pledgor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of Collateral are
insufficient to pay the Guarantee Obligations and the reasonable fees and
disbursements of any attorneys employed by the Controlling Collateral Agent, the
Note Collateral Agent or any holder of the Note Obligations to collect such
deficiency.
9. Registration Rights; Private Sales. (a) If the Controlling
Collateral Agent shall determine to exercise its right to sell any or all of the
Pledged Stock pursuant to paragraph 8 hereof, and if in the opinion of the
Controlling Collateral Agent it is necessary or advisable to have the Pledged
Stock, or that portion thereof to be sold, registered under the provisions of
the Securities Act of 1933, as amended (the "Securities Act"), the Pledgor will
cause the Issuer in respect of such Pledged Stock to (i) execute and deliver,
and use its best efforts to cause the directors and officers of such Issuer to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts as may be, in the reasonable opinion of the Controlling
Collateral Agent, necessary or advisable to register the Pledged Stock, or that
portion thereof to be sold, under the provisions of the Securities Act, (ii) use
its best efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of one year from the date of the
first public offering of the Pledged Stock, or that portion thereof to be sold,
and (iii) make all amendments thereto and/or to the related prospectus which, in
the reasonable opinion of the Controlling Collateral Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission applicable
thereto. The Pledgor agrees to cause such Issuer to comply with the provisions
of the securities or "Blue Sky" laws of any and all jurisdictions (including
foreign jurisdictions) which the Controlling Collateral Agent shall reasonably
designate and to make available to its security holders, as soon as practicable,
an earnings statement (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Securities Act.
(b) The Pledgor recognizes that the Controlling Collateral Agent may
be unable to effect a public sale of any or all the Pledged Stock, by reason of
certain prohibitions contained in the Securities Act and applicable state
securities laws or otherwise, and may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers which will be obliged
to 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
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Controlling
Collateral Agent shall be under no obligation to delay a sale of any of the
Pledged Stock for the period of time necessary to permit the relevant Issuer to
register such securities for public sale under the Securities Act, or under
applicable state or foreign securities laws, even if such Issuer would agree to
do so.
(c) The Pledgor further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make such sale or
sales of all or any portion of the
12
Pledged Stock pursuant to this paragraph 9 valid and binding and in compliance
with any and all other applicable Requirements of Law. The Pledgor further
agrees that a breach of any of the covenants contained in this paragraph 9 will
cause irreparable injury to the Controlling Collateral Agent, the Note
Collateral Agent and the holders of the Note Obligations, that the Controlling
Collateral Agent, the Note Collateral Agent and the holders of the Note
Obligations have no adequate remedy at law in respect of such breach and, as a
consequence, that each and every covenant contained in this paragraph 9 shall,
subject to the Collateral Agency Agreement, be specifically enforceable against
the Pledgor, and the Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants (to the extent
permitted by applicable law) except for a defense that no Actionable Event or
Bankruptcy Event of Default had occurred and was continuing at the time the
Controlling Collateral Agent gave notice pursuant to paragraph 7(a) hereof.
10. Amendments, etc. with respect to the Note Obligations. The
Pledgor shall remain obligated hereunder, and the Collateral shall remain
subject to the Lien granted hereby, notwithstanding that, without any
reservation of rights against the Pledgor, and without notice to or further
assent by the Pledgor, any demand for payment of any of the Note Obligations
made by the Note Collateral Agent or any holder of the Note Obligations may be
rescinded by the Note Collateral Agent or such holder of the Note Obligations,
and any of the Note Obligations continued, and the Note Obligations, or the
liability of the Company or any other Person upon or for any part thereof, or
any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered, or released by
the Note Collateral Agent or any holder of the Note Obligations and the Note
Obligation Documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or part, in accordance
with the provisions of the Indenture and the Collateral Agency Agreement, and
any guarantee, right of offset or other collateral security at any time held by
the Note Collateral Agent or any holder of the Note Obligations for the payment
of the Note Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Note Collateral Agent nor any holder of the Note Obligations shall
have any obligation to protect, secure, perfect or insure this or any other Lien
at any time held by it as security for the Note Obligations or any property
subject thereto. The Pledgor waives any and all notice of the creation, renewal,
extension or accrual of any of the Note Obligations and notice of or proof of
reliance by the Note Collateral Agent or any holder of the Note Obligations upon
this Pledge Agreement. The Pledgor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon any Issuer or
the Pledgor with respect to the Note Obligations.
11. Limitation on Duties Regarding Collateral. The Note Collateral
Agent's sole duty with respect to the custody, safekeeping and physical
preservation of the Collateral in its possession, under Section 9-207 of the UCC
or otherwise, shall be to deal with it in the same manner as the Note Collateral
Agent deals with similar securities and property for its own account. Neither
the Note Collateral Agent, any holder of the Note Obligations, nor any of their
respective directors, officers, employees, agents or advisors, shall be liable
for failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of the Pledgor or otherwise.
13
12. Powers Coupled with an Interest. All authorizations and agencies
herein contained with respect to the Collateral are irrevocable and constitute
powers coupled with an interest.
13. Attorney-in-Fact. Pledgor does hereby constitute the Note
Collateral Agent, its successors and assigns, such Pledgor's true and lawful
attorney, irrevocably, with full power (in the name of Pledgor or otherwise) to
file any claims or take any action (in law or equity or as otherwise deemed
appropriate by the Note Collateral Agent) which the Note Collateral Agent may
deem reasonably necessary or advisable in the premises to protect its security
interest pursuant to this Pledge Agreement but only after a Notice of an
Actionable Event has been given and remains outstanding or after Pledgor has
failed to take such action within a reasonable time after request therefor and
in each case subject to the terms of the Collateral Agency Agreement. The
Pledgor also hereby authorizes the Note Collateral Agent to file any financing
or continuation statements which the Note Collateral Agent in its sole and
reasonable discretion shall determine to be necessary, without the signature of
the Pledgor to the extent permitted by applicable law. The Note Collateral Agent
shall send a copy of each such financing or continuation statement to the
Pledgor. A carbon, photographic or other reproduction of this Pledge Agreement
shall be sufficient as a financing statement for filing in any jurisdiction.
14. Severability. Any provision of this Pledge Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. Paragraph Headings. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
16. No Waiver; Cumulative Remedies. Neither the Note Collateral
Agent nor any holder of the Note Obligations shall by any act (except as
provided in paragraph 17 hereof) be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Actionable Event or Bankruptcy Event of
Default or in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Note Collateral
Agent or any holder of the Note Obligations, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Note Collateral Agent or any holder of the Note Obligations of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the Note Collateral Agent or such holder of the Note
Obligations would otherwise have on any future occasion. The rights and remedies
herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
17. Waivers and Amendments; Successors and Assigns. None of the
terms or provisions of this Pledge Agreement may be waived, amended,
supplemented or otherwise
14
modified except in accordance with the terms of the Indenture and the Collateral
Agency Agreement. Without limiting the generality of the foregoing, amendments,
waivers and consents effected in respect of certain provisions of the First Lien
Documents shall, upon their effectiveness but only to the extent provided in the
Collateral Agency Agreement, apply with equal force to the comparable provisions
of this Pledge Agreement and become effective with respect thereto without the
consent of or any other action on the part of any Person. This Pledge Agreement
shall be binding upon the successors and assigns of the Pledgor and shall inure
to the benefit of the Controlling Collateral Agent, the Note Collateral Agent
and the holders of the Note Obligations and their respective successors and
assigns.
18. GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
19. Notices. Notices by the Note Collateral Agent to the Pledgor or
any Issuer or by the Pledgor or any Issuer to the Note Collateral Agent may be
given by mail, hand delivery or by facsimile transmission, addressed or
transmitted, as applicable, to the Pledgor at its address or transmission number
set forth under its signature below, to any Issuer at its address or
transmission number set forth under its signature on an Acknowledgment and
Consent, and to the Note Collateral Agent at Wilmington Trust Company, Xxxxxx
Square North, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: Corporate
Trust Administration, Facsimile: 000-000-0000, and shall be effective (a) in the
case of mail or hand delivery, when delivered, and (b) in the case of facsimile
notices, when sent. The Pledgor and the Issuers may change their respective
addresses and transmission numbers by written notice to the Note Collateral
Agent.
20. Irrevocable Authorization and Instruction to Issuers. The
Pledgor hereby authorizes and instructs each Issuer to comply with any
instruction received by it from the Controlling Collateral Agent in writing that
(a) states that a Notice of an Actionable Event has been given and is
outstanding and (b) is otherwise in accordance with the terms of this Pledge
Agreement and the Collateral Agency Agreement, without any other or further
instructions from the Pledgor, and the Pledgor agrees that such Issuer shall be
fully protected in so complying.
21. Authority of Note Collateral Agent. The Pledgor acknowledges
that the rights and responsibilities of the Note Collateral Agent under this
Pledge Agreement with respect to any action taken by the Note Collateral Agent
or the exercise or non-exercise by the Note Collateral Agent of any option,
voting right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Pledge Agreement shall, as between the Note
Collateral Agent and the holders of the Note Obligations, be governed by the
Indenture and by the Collateral Agency Agreement, but, as between the Note
Collateral Agent and the Pledgor, the Note Collateral Agent shall be
conclusively presumed to be acting with full and valid authority so to act or
refrain from acting, and neither the Pledgor nor any Issuer shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.
22. SUBMISSION TO JURISDICTION; WAIVERS. (a) THE PLEDGOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
15
(I) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS PLEDGE AGREEMENT, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT HEREOF, TO
THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK, THE COURTS OF THE UNITED STATES FOR THE SOUTHERN DISTRICT
OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(II) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(III) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION
OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY
REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF
MAIL), POSTAGE PREPAID, TO IT AT ITS ADDRESS SET FORTH UNDER ITS
SIGNATURE BELOW OR AT SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE
AGENT SHALL HAVE BEEN NOTIFIED PURSUANT TO PARAGRAPH 19 HEREOF;
(IV) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT
TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION; AND
(V) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW,
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR
PROCEEDING REFERRED TO IN THIS PARAGRAPH ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES
(B) THE PLEDGOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN PARAGRAPH (A) ABOVE.
23. Release of Collateral and Termination. The Collateral shall be
released from the Lien created hereby, and this Pledge Agreement and all
obligations of the Note Collateral Agent and the Pledgor hereunder shall
terminate in accordance with the provisions of Sections 8 and 10.6 of the
Collateral Agency Agreement.
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IN WITNESS WHEREOF, the undersigned has caused this Pledge
Agreement to be duly executed and delivered as of the date first above written.
REVLON, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
Address for Notices:
Revlon, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President,
General Counsel and Secretary
Facsimile: (000) 000-0000
WILMINGTON TRUST COMPANY,
as Note Collateral Agent
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SCHEDULE I to
Revlon Pledge
Agreement
-------------
DESCRIPTION OF PLEDGED STOCK
CLASS OF STOCK NO. OF
ISSUER STOCK CERTIFICATE NO. SHARES
------------------------------------ --------------- ----------------- -----------
Revlon Consumer Products Corporation Common 1 1,000
Revlon Consumer Products Corporation Series A Preferred 2 546
ACKNOWLEDGEMENT AND CONSENT
The undersigned, being one of the Issuers referred to in the
foregoing Pledge Agreement, hereby acknowledges receipt of a copy thereof and
agrees to be bound thereby and to comply with the terms thereof insofar as such
terms are applicable to it. The undersigned agrees to notify the Controlling
Collateral Agent and the Note Collateral Agent promptly in writing of the
occurrence of any of the events described in paragraph 5(i) of the Pledge
Agreement. The undersigned further agrees that the terms of paragraph 9(c) of
the Pledge Agreement shall apply to it, mutatis mutandis, with respect to all
actions that may be required of it under or pursuant to or arising out of
paragraph 9 of the Pledge Agreement.
The undersigned will comply with any instruction received by
it from the Controlling Collateral Agent that (a) states that a Notice of an
Actionable Event has been given and remains outstanding and (b) is otherwise in
accordance with the terms of the applicable Pledge Agreement and the Collateral
Agency Agreement, without any other or further instructions from the Pledgor of
its capital stock. Compliance with such instructions shall include, if so
requested, without limitation, making any dividend or other payments with
respect to the Pledged Stock of the undersigned directly to the Controlling
Collateral Agent, for the benefit of the holders of the Secured Obligations (or,
if the Note Collateral Agent is the Controlling Collateral Agent, the Note
Obligations).
REVLON CONSUMER PRODUCTS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Address for Notices:
c/o Revlon, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Senior Vice President and
General Counsel
Facsimile: (000) 000-0000
