EXHIBIT 4.5
SUBSIDIARY PLEDGE AGREEMENT (DOMESTIC)
(NOTE OBLIGATIONS)
PLEDGE AND SECURITY AGREEMENT, dated as of November 30, 2001,
made by REVLON INTERNATIONAL CORPORATION, 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 :
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WHEREAS, the Pledgor has guaranteed (the "Indenture
Guarantee") the obligations of Revlon Consumer Products Corporation (the
"Company") under the Indenture, dated as of November 26, 2001, among the
Company, the Guarantors identified on the signature pages thereto and Wilmington
Trust Company, as trustee (in such capacity, the "Trustee"), providing for the
issuance of 12% Senior Secured Notes Due 2005 of the Company; and
WHEREAS, the Pledgor is a party to a Subsidiaries Guarantee
(the "Bank Guarantee") referred to in the Second Amended and Restated Credit
Agreement entered into by the Company on the date hereof; and
WHEREAS, (i) to secure the Pledgor's guarantee of the Bank
Obligations (as defined below) pursuant to 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 in the
Collateral (as defined below) (the "First Pledge Lien"), and (ii) to secure the
Pledgor's guarantee of the Note Obligations pursuant to the Indenture Guarantee,
the Pledgor now intends hereby to grant to the Note Collateral Agent, for the
benefit of the holders of the Note Obligations, 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.
"Administrative Agent" has the meaning assigned such term in
the Collateral Agency Agreement.
"Bank Obligations" has the meaning assigned such term in the
Collateral Agency Agreement.
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"Bankruptcy Event of Default" has the meaning assigned to such
term in the Collateral Agency Agreement.
"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 Pledgor, JPMorgan Chase Bank, as 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.
"Contractual Obligation" means, with respect to, 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.
"Excluded Entities" means Madison (Services) Pty. Ltd.; Revlon
(Aust.) Services Pty. Ltd.; Revlon Professional Holding Company LLC; Revlon
Pension Trustee Company (U.K.) Limited; and Revlon (Maesteg) Pension Trustee
Company Limited.
"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.
"First Pledge Lien" has the meaning assigned such term in the
recitals hereto.
"First Pledge Lien Termination Date" means 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.
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"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.
"Investment Property" shall mean the collective reference to
(a) all "investment property" as such term is defined in Section 9-102(a)(49) of
the UCC which is located in, created in or arises or exists under the laws of
the United States or any State thereof and (b) whether or not constituting
"investment property" as so defined, all Pledged Stock; provided, that in no
event shall Investment Property include (i) any "investment property" as so
defined held by the Pledgor in respect of its obligations pursuant to any
employee benefit, welfare or pension plan or similar arrangement of the Pledgor
or any of its Subsidiaries, or (ii) the capital stock or other equity interests
of any Excluded Entity.
"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.
"Notice of an Actionable Event" has the meaning assigned such
term in the Collateral Agency Agreement.
"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
Issuers listed on Schedule 1 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.
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"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": as defined 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.
"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 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
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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:
(a) the Pledgor 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;
(b) this Pledge Agreement constitutes a legal, valid and
binding obligation of the Pledgor enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles;
(c) 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
Liens on any of the properties or assets of the Pledgor pursuant to the
provisions of any Contractual Obligation, except as contemplated hereby;
(d) 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), is required in connection with the execution, delivery,
performance, validity or enforceability of this Pledge Agreement, except for
UCC-1 financing statement filings with the appropriate Governmental Authorities
and such consents which have already been obtained;
(e) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the knowledge of the
Pledgor, threatened against the
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Pledgor or against any of its properties or assets with respect to this Pledge
Agreement or any of the transactions contemplated hereby;
(f) the shares of Pledged Stock of each Issuer listed on
Schedule 1, together with any additional shares of stock delivered by the
Pledgor to the Controlling Collateral Agent in accordance with this Pledge
Agreement, constitute all of the issued and outstanding shares of all classes of
the capital stock of such Issuer;
(g) all the shares of the Pledged Stock have been duly
authorized and validly issued and are fully paid and nonassessable;
(h) 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 Permitted
Liens;
(i) 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 and subject to other 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;
(j) 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
(k) 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:
(a) 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
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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 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).
(b) 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 the
right to purchase or exchange for any stock or other equity securities of any
nature of any 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 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 Permitted Liens.
(c) 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
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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.
(d) 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 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 the Issuers 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 Issuers, 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.
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(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 the Issuers 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
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 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, the Issuers 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 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 holders of 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
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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 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 Issuers to (i) execute and deliver, and use its best efforts to cause
the directors and officers of the Issuers 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 the Issuers to comply with the provisions of the
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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 Issuers to
register such securities for public sale under the Securities Act, or under
applicable state or foreign securities laws, even if the Issuers 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 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 thereof may be rescinded by the
Note Collateral Agent or such holder, and any of the Note Obligations continued,
and the Note Obligations, or the liability of the Pledgor 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
12
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.
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. 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.
14. 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.
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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 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 may be given by mail, hand delivery or by facsimile
transmission, addressed or transmitted to the Pledgor, Note Collateral Agent and
to any Issuer, respectively, as follows:
if to the Pledgor:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Senior Vice President and
General Counsel
Facsimile: 000-000-0000;
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if to the Note Collateral Agent:
Wilmington Trust Company
Xxxxxx Square North
0000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Facsimile: 000-000-0000; and
if to the Issuer at its address or transmission number set forth under its
signature on the Acknowledgement and Consent attached hereto 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 any Issuer 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 any 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 any Issuer shall be
fully protected in so complying.
21. Authority of Administrative 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. 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 INTERNATIONAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Secretary
WILMINGTON TRUST COMPANY,
as Note Collateral Agent
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
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(a) 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).
RIT INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Secretary
Address for Notices:
c/o Revlon Consumer Products Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Senior Vice President and
General Counsel
Facsimile: (000) 000-0000
SCHEDULE 1 to Subsidiary
Pledge Agreement (Domestic)
---------------------------
DESCRIPTION OF PLEDGED STOCK
----------------------------
Stock
Class of Certificate No. of
Issuer Stock No. Shares
------ ----- --- ------
RIT Inc. Common 1 1,000
