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REV HOLDINGS INC.
12% Senior Secured Notes Due 2004
INDENTURE
Dated as of _________, 2001
WILMINGTON TRUST COMPANY,
Trustee
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TABLE OF CONTENTS
Page
ARTICLE IDefinitions and Incorporation by Reference
SECTION 1.01. Definitions ....................................................1
SECTION 1.02. Other Definitions .............................................14
SECTION 1.03. Incorporation by Reference of Trust Indenture Act .............15
SECTION 1.04. Rules of Construction .........................................16
ARTICLE IIThe Notes
SECTION 2.01. Form and Dating ...............................................17
SECTION 2.02. Execution and Authentication ..................................17
SECTION 2.03. Registrar and Paying Agent ....................................18
SECTION 2.04. Paying Agent To Hold Money in Trust ...........................18
SECTION 2.05. Noteholder Lists ..............................................19
SECTION 2.06. Transfer and Exchange .........................................19
SECTION 2.07. Replacement Notes .............................................20
SECTION 2.08. Outstanding Notes .............................................20
SECTION 2.09. Temporary Notes ...............................................21
SECTION 2.10. Cancelation ...................................................21
SECTION 2.11. CUSIP Numbers .................................................21
SECTION 2.12. Book-Entry Provisions for the Global Note .....................22
SECTION 2.13. Defaulted Interest ............................................23
ARTICLE IIIRedemption
SECTION 3.01. Notices to Trustee ............................................23
SECTION 3.02. Selection of Notes To Be Redeemed .............................23
SECTION 3.03. Notice of Redemption ..........................................24
SECTION 3.04. Effect of Notice of Redemption ................................25
SECTION 3.05. Deposit of Redemption Price ...................................25
SECTION 3.06. Notes Redeemed in Part ........................................25
ARTICLE IVCovenants
SECTION 4.01. Payment of Notes ..............................................25
SECTION 4.02. SEC Reports ...................................................26
SECTION 4.03. Limitation on Debt of the Company and the Guarantor;
Limitation on Preferred Stock of the Guarantor ..............26
SECTION 4.04. Limitation on Restricted Payments .............................27
SECTION 4.05. Limitation on Liens and Sales of Assets and Subsidiary
Stock ......................................................28
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SECTION 4.06. Limitation on Transactions with Affiliates ....................28
SECTION 4.07. Limitation on Other Business Activities .......................30
SECTION 4.08. The Merger ....................................................30
SECTION 4.09. Maintenance of Non-Investment Company Status ..................30
SECTION 4.10. Compliance Certificate ........................................31
SECTION 4.11. Further Instruments and Acts ..................................31
ARTICLE VSuccessor Company
SECTION 5.01. When Company May Merge or Transfer Assets .....................31
ARTICLE VIDefaults and Remedies
SECTION 6.01. Events of Default .............................................32
SECTION 6.02. Acceleration ..................................................34
SECTION 6.03. Other Remedies ................................................35
SECTION 6.04. Waiver of Past Defaults .......................................35
SECTION 6.05. Control by Majority ...........................................35
SECTION 6.06. Limitation on Suits ...........................................36
SECTION 6.07. Rights of Holders To Receive Payment ..........................36
SECTION 6.08. Collection Suit by Trustee ....................................36
SECTION 6.09. Trustee May File Proofs of Claim ..............................37
SECTION 6.10. Priorities ....................................................37
SECTION 6.11. Undertaking for Costs .........................................37
SECTION 6.12. Waiver of Stay or Extension Laws ..............................38
ARTICLE VIITrustee
SECTION 7.01. Duties of Trustee .............................................38
SECTION 7.02. Rights of Trustee .............................................39
SECTION 7.03. Individual Rights of Trustee ..................................40
SECTION 7.04. Trustee's Disclaimer ..........................................40
SECTION 7.05. Notice of Defaults ............................................41
SECTION 7.06. Reports by Trustee to Holders .................................41
SECTION 7.07. Compensation and Indemnity ....................................41
SECTION 7.08. Replacement of Trustee ........................................42
SECTION 7.09. Successor Trustee by Merger ...................................43
SECTION 7.10. Eligibility; Disqualification .................................43
SECTION 7.11. Preferential Collection of Claims Against Company .............44
ARTICLE VIIIDischarge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Notes Defeasance ....................44
SECTION 8.02. Conditions to Defeasance ......................................45
SECTION 8.03. Application of Trust Money ....................................47
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SECTION 8.04. Repayment to Company ..........................................47
SECTION 8.05. Indemnity for Government Obligations ..........................47
SECTION 8.06. Reinstatement .................................................47
ARTICLE IXAmendments
SECTION 9.01. Without Consent of Holders ....................................48
SECTION 9.02. With Consent of Holders .......................................49
SECTION 9.03. Compliance with Trust Indenture Act ...........................49
SECTION 9.04. Revocation and Effect of Consents and Waivers .................50
SECTION 9.05. Notation on or Exchange of Notes ..............................50
SECTION 9.06. Trustee To Sign Amendments ....................................51
SECTION 9.07. Payment for Consent ...........................................51
ARTICLE XSecurity And Pledge Of Collateral
SECTION 10.01. Grant of Security Interest ...................................51
SECTION 10.02. Delivery of Collateral .......................................52
SECTION 10.03. Representations and Warranties ...............................53
SECTION 10.04. Further Assurances ...........................................53
SECTION 10.05. Dividends; Voting Rights; Substitution of Collateral .........53
SECTION 10.06. Trustee Appointed Attorney-in-Fact ...........................58
SECTION 10.07. Trustee May Perform ..........................................58
SECTION 10.08. Trustee's Duties .............................................58
SECTION 10.09. Remedies Upon Event of Default ...............................59
SECTION 10.10. Application of Proceeds ......................................60
SECTION 10.11. Continuing Lien ..............................................60
SECTION 10.12. Certificates and Opinions ....................................60
SECTION 10.13 Additional Agreements .........................................60
ARTICLE XI Non-Recourse Guaranty
SECTION 11.01. Non-Recourse Guaranty.........................................61
SECTION 11.02. Guaranty Absolute.............................................62
SECTION 11.03. Waivers.......................................................64
SECTION 11.04. Waiver of Subrogation and Contribution........................64
SECTION 11.05. Certain Agreements............................................65
SECTION 11.06. No Waiver; Cumulative Remedies................................65
SECTION 11.07. Continuing Guaranty...........................................66
SECTION 11.08. Severability..................................................66
ARTICLE XIIMiscellaneous
SECTION 12.01. Trust Indenture Act Controls .................................66
SECTION 12.02. Notices ......................................................66
SECTION 12.03. Communication by Holders with Other Holders ..................67
SECTION 12.04. Certificate and Opinion as to Conditions Precedent ...........67
SECTION 12.05. Statements Required in Certificate or Opinion ................68
SECTION 12.06. When Notes Disregarded .......................................68
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar .................68
SECTION 12.08. Legal Holidays ...............................................68
SECTION 12.09. Governing Law ................................................69
SECTION 12.10. No Recourse Against Others ...................................69
SECTION 12.11. Successors ...................................................69
SECTION 12.12. Multiple Originals ...........................................69
iii
SECTION 12.13. Table of Contents; Headings ..................................69
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Exhibit A - Form of Notes
Schedule I - Pledged Shares
Schedule II - Permitted Transactions
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INDENTURE dated as of _________, 2001, between
REV HOLDINGS INC., a Delaware corporation (the "Com-
pany") and WILMINGTON TRUST COMPANY, a
______________ banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Company's 12% Senior Secured
Notes Due 2004 (the "Notes"):
ARTICLE I
Definitions and Incorporation by Reference
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SECTION 1.01. Definitions.
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"Affiliate" of any specified Person means (i) any other Person which,
directly or indirectly, is in control of, is controlled by or is under common
control with such specified Person or (ii) any other Person who is a director or
officer (A) of such specified Person, (B) of any subsidiary of such specified
Person or (C) of any Person described in clause (i) above. For purposes of this
definition, control of a Person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such Person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Share Number" means 52 shares of Revlon, Inc. Common Stock;
provided, however, that in the event of (i) the distribution of a dividend upon
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shares of Revlon, Inc. in shares of Revlon, Inc., (ii) the combination of shares
of Common Stock of Revlon, Inc. into a smaller number of shares or other units,
(iii) the subdivision of outstanding shares of Common Stock of Revlon, Inc.,
(iv) the conversion or reclassification of shares of Common Stock of Revlon,
Inc. by issuance or exchange of other securities or (v) a consolidation,
merger or binding shares exchange, the Applicable Share Number in effect
immediately prior to such action shall be adjusted to equal the number of shares
of Common Stock of Revlon, Inc. that would have constituted the Applicable Share
Number immediately after such action.
"Asset Disposition" means any sale, lease, transfer or other disposition
(or series of related sales, leases, transfers or dispositions) of shares of
Capital
Stock of a Subsidiary of the Company or the Guarantor (other than directors'
qualifying shares and other than Capital Stock of an Unrestricted Subsidiary
or a Non-Recourse Subsidiary), property or other assets (each referred to for
the purposes of this definition as a "disposition") by the Company (including
any disposition by means of a merger, consolidation or similar transaction)
other than (i) a disposition subject to or permitted by Section 4.04, (ii) a
disposition by the Company or the Guarantor of any Unrestricted Assets, (iii) a
disposition of Capital Stock of Revlon, Inc. to the Company or the Guarantor,
(iv) an issuance of employee stock options, (v) a merger of Revlon, Inc. with or
into RCPC or the Company, and (vi) the Merger.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person or any committee thereof duly authorized to act on
behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligations" of a Person means any obligation which is
required to be classified and accounted for as a capital lease on the face of a
balance sheet of such Person prepared in accordance with GAAP; the amount of
such obligation shall be the capitalized amount thereof, determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into or exchangeable for
such equity.
"Closing Price" on any Trading Day with respect to the per share price of
any Capital Stock means the last reported sales price regular way or, in case no
such reported sale takes place on such Trading Day, the average of the reported
closing bid and asked prices regular way, on the principal national securities
exchange on which such Capital Stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on the
National Association of Securities Dealers Automated Quotations National Market
System or, if such Capital Stock is not listed or admitted to trading on any
national securities exchange or quoted on such National Market System, the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange
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member firm that is selected from time to time by the Company for that purpose
and is reasonably acceptable to the Trustee.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor and, for purposes of any
provision contained herein and required by the TIA, each other obligor on the
indenture securities.
"Consolidated Net Income" means with respect to any Person, for any period,
the consolidated net income (or loss) of such Person and its consolidated
Subsidiaries for such period as determined in accordance with GAAP, adjusted to
the extent included in calculating such net income (or loss), by excluding (i)
all extraordinary gains or losses; (ii) the portion of net income (or loss) of
such Person and its consolidated Subsidiaries attributable to minority interests
in unconsolidated Persons except to the extent that, in the case of net income,
cash dividends or distributions have actually been received by such Person or
one of its consolidated Subsidiaries (subject, in the case of a dividend or
distribution received by a Subsidiary of such Person, to the limitations
contained in clause (v) below) and, in the case of net loss, such Person or any
Subsidiary of such Person has actually contributed, lent or transferred cash to
such unconsolidated Person; (iii) net income (or loss) of any other Person
attributable to any period prior to the date of combination of such other Person
with such Person or any of its Subsidiaries on a "pooling of interests" basis;
(iv) net gains or losses in respect of dispositions of assets by such Person or
any of its Subsidiaries (including pursuant to a sale-and-leaseback arrangement)
other than in the ordinary course of business; (v) the net income of any
Subsidiary of such Person to the extent that the declaration of dividends or
distributions by that Subsidiary of that income is not at the time permitted,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulations applicable to that Subsidiary or its shareholders; (vi) any net
income or loss of any Non-Recourse Subsidiary, except that such Person's equity
in the net income of any such Non-Recourse Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Non-Recourse Subsidiary during such period to such
Person as a dividend or other distribution; and (vii) the cumulative effect of a
change in accounting principles; provided, however, that in calculating
Consolidated Net Income of the Company, net income of a Subsidiary of the type
described in clause (v) of this definition shall not be excluded.
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"Consolidated Net Worth" of any Person means, at any date, all amounts
which would, in conformity with GAAP, be included under shareholders' equity on
a consolidated balance sheet of such Person as at such date, less (x) any
amounts attributable to Redeemable Stock and (y) any amounts attributable to
Exchangeable Stock.
"Debt" of any Person means, without duplication,
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of
such Person and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable and other accrued current
liabilities arising in the ordinary course of business);
(iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations (other than obligations described in (i) through (iii)
above) entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the third
Business Day following receipt by such Person of a demand for reimbursement
following payment on the letter of credit);
(v) the amount of all obligations of such Person with respect to
the redemption, repayment (including liquidation preference) or other
repurchase of, any Redeemable Stock (but excluding in each case any accrued
dividends);
(vi) all obligations of the type referred to in clauses (i)
through (v) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable,
directly
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or indirectly, as obligor, guarantor or otherwise, including Guarantees of
such obligations and dividends; and
(vii) all obligations of the type referred to in clauses (i)
through (vi) of other Persons secured by any Lien on any property or asset
of such Person (whether or not such obligation is assumed by such Person),
the amount of such obligation being deemed to be the lesser of the value of
such property or assets or the amount of the obligation so secured.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its nominees and
successors.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchangeable Stock" means any Capital Stock of a Person which by its terms
or otherwise is required to be exchanged or converted or is exchangeable or
convertible at the option of the holder into another security (other than
Capital Stock of such Person which is neither Exchangeable Stock nor Redeemable
Stock).
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, as in effect from time to
time.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt or other obligation of any other
Person and any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation of such other Person (whether arising
by virtue of partnership arrangements, or by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not include
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endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
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"Guarantor" means REV Guarantor Corp., a Delaware corporation.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Registrar's books.
"Investment" in any Person means any loan or advance to, any net payment on
a guarantee of, any acquisition of Capital Stock, equity interest, obligation or
other security of, or capital contribution or other investment in, such Person.
Investments shall exclude advances to customers and suppliers in the ordinary
course of business. The term "Invest" used as a verb has a corresponding
meaning. For purposes of the definitions of "Non-Recourse Subsidiary,"
"Unrestricted Subsidiary" and "Restricted Payment" and for purposes of Section
4.04, any property transferred to a Non-Recourse Subsidiary or an Unrestricted
Subsidiary shall be valued at its fair market value at the time of such
transfer, in each case as determined in good faith by the Board of Directors of
the Company (or of RCPC in the case of a Non-Recourse Subsidiary), and if such
property so transferred (including in a series of related transactions) has a
fair market value, as so determined by such Board of Directors, in excess of $10
million, such determination shall be confirmed by an independent appraiser.
"Issue" means issue, assume, Guarantee, incur or otherwise become liable
for. The term "Issuance" or "Issued" has a corresponding meaning.
"Issue Date" means the date of original issue of the Notes.
"Keepwell Agreement" means that certain keepwell agreement
dated , 2001, between the Company and GSB Investments Corp.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions are not required to be open in the State of New York or in any
place of payment.
"Lien" means any mortgage, pledge, security interest, conditional sale or
other title retention agreement or other similar lien.
"Mafco Holdings" means Mafco Holdings Inc., a Delaware corporation.
"Market Value" means as of any date the sum of (i) in respect of Pledged
Shares, an amount equal to the product of (x) the average of the Closing
6
Prices per share of the Class A Common Stock of Revlon, Inc. during the five
Trading Days ending immediately prior to such date and (y) the number of Pledged
Shares, (ii) as to Collateral consisting of cash, the amount of such cash, (iii)
as to any other Collateral having a purported value equal to or less than $5
million, the fair market value thereof as of such date as determined by the
Board of Directors of the Company (the determination of which shall be
conclusive and shall be evidenced by a resolution of such Board of Directors),
and (iv) as to any other Collateral having a purported value of more than $5
million, the fair market value thereof as of such date as determined by an
independent appraiser.
"Merger" means the merger of the Guarantor with and into the Company.
"Net Cash Proceeds", with respect to any issuance or sale of Capital Stock,
means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or estimated in good
faith to be payable as a result thereof.
"Non-Convertible Capital Stock" means, with respect to any corporation, any
non-convertible Capital Stock of such corporation and any Capital Stock of such
corporation convertible solely into non-convertible common stock of such
corporation; provided, however, that Non-Convertible Capital Stock shall not
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include any Redeemable Stock or Exchangeable Stock.
"Non-Recourse Debt" means Debt or that portion of Debt (i) as to which
neither RCPC nor its Subsidiaries (other than a Non-Recourse Subsidiary) (A)
provide credit support (including any undertaking, agreement or instrument which
would constitute Debt), (B) is directly or indirectly liable or (C) constitute
the lender and (ii) no default with respect to which (including any rights which
the holders thereof may have to take enforcement action against the assets of a
Non-Recourse Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Debt of RCPC or its Subsidiaries (other than Non-Recourse
Subsidiaries) to declare a default on such other Debt or cause the payment
thereof to be accelerated or payable prior to its Stated Maturity.
"Non-Recourse Subsidiary" means a Subsidiary of RCPC (i) which has been
designated as such by RCPC, (ii) which has no Debt other than Non-Recourse Debt
and (iii) which is in the same line of business as RCPC and its
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Wholly Owned Recourse Subsidiaries existing on the Issue Date or in businesses
reasonably related thereto.
"Obligations" means (a) the full and punctual payment of Principal of and
interest on the Notes when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Company under
this Indenture and the Notes and (b) the full and punctual performance of all
other obligations of the Company under this Indenture and the Notes.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer, an Assistant Treasurer or the Secretary or an
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, Vice Chairman, the President or a Vice President (regardless of Vice
Presidential designation), and by the Treasurer, an Assistant Treasurer,
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee. One of the Officers signing an Officers' Certificate delivered pursuant
to Section 4.10 shall be the principal executive, financial or accounting
officer of the Company.
"Old Notes" means the Senior Secured Discount Notes Due 2001 of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company (or its Parent or one of its Subsidiaries) or the
Trustee.
"Parent" means Revlon Holdings Inc., a Delaware corporation, and any other
Person which acquires or owns directly or indirectly 80% or more of the voting
power of the Voting Stock of the Company.
"Permitted Affiliate" means any individual that is a director or officer of
the Company, of the Guarantor, of Revlon, Inc., of a Subsidiary of Revlon, Inc.
or of an Unrestricted Affiliate; provided, however, that such individual is not
also an officer or a director of Mafco Holdings or any Person that controls
Mafco Holdings.
"Permitted Transactions" means (i) any transaction or series of similar
transactions (including the purchase, sale, lease or exchange of any property or
the rendering of any service) between the Company, the Guarantor, Revlon, Inc.,
RCPC or any Subsidiary of RCPC, on the one hand, and any Affiliate of the
Company or
8
any legal or beneficial owner of 10% or more of the voting power of Voting Stock
of the Company or an Affiliate of any such owner, on the other hand, existing
on, or pursuant to an agreement in effect on, the Issue Date and disclosed in
Schedule II to this Indenture and any amendments thereto which do not adversely
affect the rights of the holders of the Notes and (ii) any Tax Sharing
Agreement.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof or any
other entity.
"Physical Notes" means one or more permanent certificated Notes in
registered form substantially in the form set forth in Exhibit A.
"Preferred Stock", as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Principal" of a Note as of any date means the principal amount of the Note
as of such date.
"RCPC" means Revlon Consumer Products Corporation, a Delaware corporation
which is a wholly owned direct Subsidiary of Revlon, Inc. on the Issue Date, and
its successors.
"RCPC Indentures" means the Senior Notes Indenture, dated as of February 1,
1998, the Senior Subordinated Indenture dated as of February 1, 1998, and the
Indenture dated as of November 6, 1998, each between RCPC and the trustee
thereunder, and in each case as in effect on the Issue Date; provided, however,
for purposes of interpreting provisions of this Indenture that refer to the RCPC
Indentures, the provisions of the RCPC Indentures (but not the Debt Issued
thereunder) shall be deemed to be in effect whether or not such Indentures have
been discharged.
"Redeemable Stock" means any Capital Stock that by its terms or otherwise
is required to be redeemed on or prior to the first anniversary of the Stated
Maturity of the Notes or is redeemable at the option of the holder thereof at
any time on or prior to the first anniversary of the Stated Maturity of the
Notes.
9
"Refinance" means, in respect of any Debt, to refinance, extend, renew,
refund, repay, prepay, redeem, defease or retire, or to Issue Debt in exchange
or replacement for, such Debt. "Refinanced" and "Refinancing" shall have
correlative meanings.
"Refinancing Costs" means, with respect to any Debt or Preferred Stock
being Refinanced, any premium actually paid thereon and reasonable costs and
expenses, including underwriting discounts, in connection with such Refinancing;
provided, that if any Debt Issued in connection with such a Refinancing is
Issued at a discount, Refinancing Costs shall be an amount equal to the accreted
value (as of the Stated Maturity of the Debt being Refinanced) of the portion of
such Debt used to pay such premiums, costs and expenses.
"Restricted Payment" means, as to any Person making a Restricted Payment,
(i) any dividend or any distribution on or in respect of the Capital Stock of
such Person (including any payment in connection with any merger or
consolidation involving such Person) or to the holders of the Capital Stock of
such Person (except dividends or distributions payable solely in the
Non-Convertible Capital Stock of such Person or in options, warrants or other
rights to purchase the Non-Convertible Capital Stock of such Person), (ii) any
purchase, redemption or other acquisition or retirement for value of any Capital
Stock of the Company or of any direct or indirect parent of the Company or (iii)
any Investment in (A) any Affiliate of the Company other than a Subsidiary of
the Company and other than an Affiliate of the Company which will become a
Subsidiary of the Company as a result of any such Investment, or (B) a
Non-Recourse Subsidiary or (C) an Unrestricted Subsidiary.
"Revlon, Inc." means Revlon, Inc., a Delaware corporation which is the
immediate parent corporation of RCPC on the Issue Date, and its successors.
"Revlon, Inc. Nonpledged Shares" means the Capital Stock of Revlon, Inc.
that does not constitute Revlon, Inc. Collateral.
"SEC" means the Securities and Exchange Commission.
"Secured Non-Recourse Guarantee" means any Guarantee by the Company or an
Unrestricted Subsidiary of obligations of any other Person in respect of which
Guarantee the holders thereof have no recourse to any assets of the Company or
its Subsidiaries, other than Unrestricted Assets.
"Securities Act" means the Securities Act of 1933, as amended.
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"Significant Subsidiary" means (i) any Subsidiary (other than a
Non-Recourse Subsidiary and other than an Unrestricted Subsidiary) of the
Company which at the time of determination either (A) had assets which, as of
the date of RCPC's most recent quarterly consolidated balance sheet, constituted
at least 5% of RCPC's total assets on a consolidated basis as of such date, in
each case determined in accordance with Generally Accepted Accounting
Principles, or (B) had revenues for the 12-month period ending on the date of
RCPC's most recent quarterly consolidated statement of income which constituted
at least 5% of RCPC's total revenues on a consolidated basis for such period, or
(ii) any Subsidiary of the Company (other than a Non-Recourse Subsidiary and
other than an Unrestricted Subsidiary) which, if merged with all Defaulting
Subsidiaries (as defined below) of the Company, would at the time of
determination either (A) have had assets which, as of the date of RCPC's most
recent quarterly consolidated balance sheet, would have constituted at least 10%
of RCPC's total assets on a consolidated basis as of such date or (B) have had
revenues for the 12-month period ending on the date of RCPC's most recent
quarterly consolidated statement of income which would have constituted at least
10% of RCPC's total revenues on a consolidated basis for such period (each such
determination being made in accordance with Generally Accepted Accounting
Principles). "Defaulting Subsidiary" means any Subsidiary of the Company (other
than a Non-Recourse Subsidiary and other than an Unrestricted Subsidiary) with
respect to which an event described under Section 6.01(6), 6.01(7), 6.01(8) or
6.01(9) has occurred and is continuing.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the principal of such security is
due and payable, including pursuant to any mandatory redemption provision (but
excluding any provision providing for the repurchase of such security at the
option of the holder thereof upon the happening of any contingency).
"Subsidiary" means, with respect to any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned, directly or indirectly, by (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person or (iii) one or more
Subsidiaries of such Person.
"Tax Sharing Agreements" means (i) that certain agreement dated June 24,
1992, as amended, among, Revlon Holdings Inc., RCPC, certain of its
Subsidiaries, Revlon, Inc. and Mafco Holdings and (ii) any other tax allocation
11
agreement between the Company or any of its Subsidiaries with the Company,
Revlon, Inc., RCPC or any direct or indirect shareholder of the Company with
respect to consolidated or combined tax returns including the Company or any of
its Subsidiaries but only to the extent that amounts payable from time to time
by the Company or any such Subsidiary under any such agreement do not exceed the
corresponding tax payments that the Company or such Subsidiary would have been
required to make to any relevant taxing authority had the Company or such Subsid
iary not joined in such consolidated or combined returns, but instead had filed
returns including only the Company or its Subsidiaries (provided that any such
agreement may provide that, if the Company or any such Subsidiary ceases to be a
member of the affiliated group of corporations of which Mafco Holdings is the
common parent for purposes of filing a consolidated federal income tax return
(such cessation, a "Deconsolidation Event"), then the Company or such Subsidiary
shall indemnify such direct or indirect shareholder with respect to any federal,
state or local income, franchise or other tax liability (including any related
interest, additions or penalties) imposed on such shareholder as the result of
an audit or other adjustment with respect to any period prior to such
Deconsolidation Event that is attributable to the Company, such Subsidiary or
any predecessor business thereof (computed as if the Company, such Subsidiary or
such predecessor business, as the case may be, were a stand-alone entity that
filed separate tax returns as an independent corporation), but only to the
extent that any such tax liability exceeds any liability for taxes recorded on
the books of the Company or such Subsidiary with respect to any such period).
"Temporary Cash Investments" means any of the following: (i) any investment
in direct obligations of the United States of America or any agency thereof or
obligations Guaranteed by the United States of America or any agency thereof, in
each case, maturing within 360 days of the date of acquisition thereof, (ii)
investments in time deposit accounts, certificates of deposit and money market
deposits maturing within 180 days of the date of acquisition thereof issued by a
bank or trust company (including the Trustee) which is organized under the laws
of the United States of America, any state thereof or any foreign country
recognized by the United States having capital, surplus and undivided profits
aggregating in excess of $250,000,000 and whose debt is rated "A" (or such
similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act) or any money-market fund sponsored by any registered broker dealer or
mutual fund distributor, (iii) repurchase obligations with a term of not more
than 30 days for underlying securities of the types described in clause (i)
above entered into with a nationally recognized broker-dealer or a bank meeting
the qualifications described in clause (ii) above, (iv) investments in
commercial paper, maturing not more than 90 days after the date of acquisition,
issued by a
12
corporation (other than an Affiliate or Subsidiary of the Company) organized and
in existence under the laws of the United States of America or any foreign
country recognized by the United States of America with a rating at the time as
of which any investment therein is made of "P-2" (or higher) according to
Xxxxx'x Investors Service, Inc. or "A-2" (or higher) according to Standard and
Poor's Corporation, (v) securities with maturities of six months or less from
the date of acquisition backed by standby or direct pay letters of credit issued
by any bank satisfying the requirements of clause (ii) above and (vi) securities
with maturities of six months or less from the date of acquisition issued or
fully Guaranteed by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof, and rated
at least "A" by Standard & Poor's Corporation or "A" by Xxxxx'x Investors
Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. 77aaa- 77bbbb) as in
effect on the Issue Date.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and Friday,
other than any day on which securities are not traded on the applicable
securities exchange or in the applicable securities market.
"Trustee" means the party named as such in this Indenture until a successor
replaces it and, thereafter, means the successor.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code as in
effect from time to time.
"Unrestricted Affiliate" means a Person (other than a Subsidiary of the
Company) controlled (as defined in the definition of an "Affiliate") by the
Company, in which no Affiliate of the Company (other than (v) Revlon, Inc., (w)
a wholly-owned Subsidiary of the Company, the Guarantor or Revlon, Inc., (x) a
Wholly Owned Recourse Subsidiary of RCPC, (y) a Permitted Affiliate and (z)
another Unrestricted Affiliate) has an Investment.
"Unrestricted Assets" means (i) the Revlon, Inc. Nonpledged Shares, (ii)
Capital Stock of Unrestricted Subsidiaries and (iii) all dividends, cash and
other property and proceeds (including proceeds of sale) from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any of the foregoing.
13
"Unrestricted Subsidiary" means a Subsidiary of the Company, other than the
Guarantor or Revlon, Inc. or any of its Subsidiaries, which (i) is acquired or
organized by the Company or any other Unrestricted Subsidiary (or any
combination of the foregoing), (ii) is capitalized only with Unrestricted Assets
and (iii) does not have any Debt (A) which is held by the Company, (B) as to
which the Company or any of its Subsidiaries (other than an Unrestricted
Subsidiary) have provided credit support (other than any Secured Non-Recourse
Guarantee) or (C) any default as to which would permit any holder (whether upon
notice, after lapse of time or both) of any Debt of the Company or any of its
Subsidiaries (other than an Unrestricted Subsidiary) to declare a default on
such Debt or to cause the payment thereof to be accelerated prior to its Stated
Maturity.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable at the issuer's option.
"Voting Stock" of a corporation means all classes of Capital Stock of such
corporation then outstanding and normally entitled to vote in the election of
directors.
"Wholly Owned Recourse Subsidiary" means a Subsidiary of RCPC (other than a
Non-Recourse Subsidiary) all the Capital Stock of which (other than directors'
qualifying shares) is owned by (i) RCPC, (ii) RCPC or one or more Wholly Owned
Recourse Subsidiaries or (iii) one or more Wholly Owned Recourse Subsid- iaries.
SECTION 1.02. Other Definitions.
-----------------
Defined in
Term Section
---- -------
"Agent Members" ................................. 2.12(a)
"Applicable Collateral" ......................... 10.05(g)
"Applicable Portion" ............................ 10.05(g)
"Bankruptcy Law" ................................ 6.01
"Collateral" .................................... 10.01(c)
"Collateral Release Request" .................... 10.05(f)
"covenant defeasance option" .................... 8.01(b)
"CUSIP" ......................................... 2.11
14
Defined in
Term Section
---- -------
"Custodian" ................................... 6.01
"Default Amount" .............................. 6.02
"Determination Date" .......................... 10.05(f)
"Global Note" ................................. 2.01(a)
"legal defeasance option" ..................... 8.01(b)
"Non-Recourse Guaranty" ....................... 11.01
"Outstanding" ................................. 2.08
"Paying Agent" ................................ 2.03
"Pledged Shares" .............................. 10.01(a)
"Pledged Securities" .......................... 10.13
"Registrar" ................................... 2.03
"Revlon, Inc. Collateral" ..................... 10.01(a)
"Substitute Collateral" ....................... 10.01(b)
"Withdrawn Collateral" ........................ 10.05(l)
"Withdrawn Shares" ............................ 10.05(l)
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
15
SECTION 1.04. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP and all accounting calculations will be
determined in accordance with such principles;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured debt shall not be deemed to be subordinate or junior to
secured debt merely by virtue of its nature as unsecured debt;
(7) the principal amount of any noninterest bearing or other discount
security at any date of Issuance shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP and accretion of principal on such security shall be
deemed to be the Issuance of Debt; provided, however, that the accretion of
principal on such security shall not be deemed to be the Issuance of Debt
if the issuer elects, at the time of original Issuance of such security, to
treat such accretion as if, on such date of original Issuance, there were
an additional Issuance of Debt in an aggregate principal amount equal to
the excess of the principal amount at maturity of such security over the
principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP (except to the
extent otherwise provided in Section 4.03(a)(1)), and, unless repaid or
redeemed, the amount of such additional Issuance of Debt shall be treated
as being outstanding for all purposes under this Indenture until such
security is paid in full; and
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
16
ARTICLE II
The Notes
---------
SECTION 2.01. Form and Dating. (a) The Notes and the Trustee's certificate
---------------
of authentication thereon shall be substantially in the form of Exhibit A, which
is hereby incorporated in and expressly made a part of this Indenture, and as
otherwise provided in this Article II. The Notes may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Company is subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). Each Note shall be dated
the date of its authentication. The terms of the Notes set forth in Exhibit A
are part of the terms of this Indenture.
(b) The Notes will be issued on the Issue Date in the form of one or more
permanent global Notes substantially in the form set forth in Exhibit A (each a
"Global Note") deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of each Global Note may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
SECTION 2.02. Execution and Authentication. Two Officers shall sign the
----------------------------
Notes for the Company by manual or facsimile signature. The Company's seal shall
be impressed, affixed, imprinted or reproduced on the Notes and may be in
facsimile form.
If an Officer whose signature is on a Note no longer holds that office at
the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate and make available for delivery Notes for
original issue in an aggregate Principal Amount of $ upon a written order
of the Company signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company. Such order shall specify the
amount of the Notes to be authenticated and the date on which the Notes are to
be
17
authenticated. The aggregate Principal Amount of Notes outstanding at any time
may not exceed that amount except as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate the Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as any Registrar, Paying Agent or agent for service of notices and
demands. The Company agrees to pay to any authenticating agent compensation for
its services hereunder.
SECTION 2.03. Registrar and Paying Agent. The Company shall
--------------------------
maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where Notes
may be presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Notes and of their transfer and exchange. The Company may have
one or more co-registrars and one or more additional paying agents. The term
"Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company, the Guarantor, Revlon, Inc., RCPC or any of its domestically
incorporated Wholly Owned Subsid- iaries may act as Paying Agent, Registrar,
co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Notes.
SECTION 2.04. Paying Agent To Hold Money in Trust. On or prior to
-----------------------------------
each due date of the Principal and interest on any Note, the Company shall
deposit with the Paying Agent a sum sufficient to pay such Principal and
interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Noteholders or the Trustee all money held by the Paying
Agent for the payment of Principal of or interest on the Notes and shall notify
the Trustee of any default by the Company in making any such payment. If the
Company or a
18
Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee and to account
for any funds disbursed by the Paying Agent. Upon complying with this Section,
the Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.05. Noteholder Lists. The Trustee shall preserve in
----------------
as current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Noteholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each Interest Payment Date, as of the relevant record date,
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Noteholders.
SECTION 2.06. Transfer and Exchange. The Notes shall be
---------------------
issued in registered form and shall be transferable only upon the surrender of a
Note for registration of transfer. When a Note is presented to the Registrar or
a coregistrar with a request to register a transfer, the Registrar shall
register the transfer as requested if the requirements of Section 8-401(l) of
the Uniform Commercial Code are met. When Notes are presented to the Registrar
or a co-registrar with a request to exchange them for an equal Principal Amount
of Notes of other denominations, the Registrar shall make the exchange as
requested if the same requirements are met. To permit registration of transfers
and exchanges, the Company shall execute and the Trustee shall authenticate
Notes at the Registrar's or co-registrar's request. The Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges in connection with any transfer or exchange pursuant to this Section.
The Company shall not be required to make and the Registrar need not register
transfers or exchanges of Notes selected for redemption (except, in the case of
Notes to be redeemed in part, the portion thereof not to be redeemed) or any
Notes for a period of 15 days before a selection of Notes to be redeemed or 15
days before an Interest Payment Date.
Prior to the due presentation for registration of transfer of any Note, the
Company, the Trustee, the Paying Agent, the Registrar or any co-registrar may
deem and treat the Person in whose name a Note is registered as the absolute
owner of such Note for the purpose of receiving payment of Principal of and
interest on such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and none of the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar shall be affected by notice to the contrary.
19
Any Holder of a Global Note shall, by acceptance of such Global Note, agree
that transfers of beneficial interest in such Global Note may be effected only
through a book-entry system maintained by the Holder of such Global Note (or its
agent), and that ownership of a beneficial interest in such Global Note shall be
required to be reflected in a book entry.
All Notes issued upon any transfer or exchange pursuant to this Section
2.06 will evidence the same debt and will be entitled to the same benefits under
this Indenture as the Notes surrendered upon such transfer or exchange.
SECTION 2.07. Replacement Notes. If a mutilated Note is
-----------------
surrendered to the Registrar or if the Holder of a Note claims that the Note has
been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Note if the requirements of Section
8-405 of the Uniform Commercial Code are met and the Holder satisfies any other
reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Company and the Trustee to protect the Company, the Trustee, the Paying
Agent, the Registrar and any co-registrar from any loss which any of them may
suffer if a Note is replaced. The Company and the Trustee may charge the Holder
for their expenses in replacing a Note.
In case any such mutilated, destroyed, lost or stolen Note has become due
and payable, the Company, in its discretion, may instead of issuing a new Note,
pay such Note.
Every replacement Note is an additional obligation of the Company.
SECTION 2.08. Outstanding Notes. Notes outstanding
-----------------
("Outstanding") at any time are all Notes authenticated and delivered by the
Trustee except for those canceled by it, those delivered to it for cancelation
and those described in this Section as not Outstanding. A Note does not cease to
be Outstanding because the Company or an Affiliate of the Company holds the
Note.
If a Note is paid or replaced pursuant to Section 2.07, it ceases to be
Outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this
Indenture, on a redemption date or maturity date money sufficient to pay all
20
Principal and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, then on and
after that date such Notes (or portions thereof) cease to be Outstanding and
interest on such Notes ceases to accrue.
SECTION 2.09. Temporary Notes. Until definitive Notes are ready for
---------------
delivery, the Company may execute and the Trustee shall authenticate temporary
Notes. Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Company considers appropriate for temporary
Notes. Without unreasonable delay, the Company shall execute and the Trustee
shall authenticate definitive Notes and deliver them in exchange for temporary
Notes upon surrender of such temporary Notes at the office or agency of the
Company, without charge to the Holder.
SECTION 2.10. Cancelation. The Company at any time may deliver Notes
-----------
to the Trustee for cancelation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel Notes surrendered
for registration of transfer, exchange, payment or cancelation and deliver such
canceled Notes to the Company upon the Company's written request. The Company
may not Issue new Notes to replace Notes it has redeemed, paid or delivered to
the Trustee for cancelation.
SECTION 2.11. CUSIP Numbers. The Company in issuing the Notes may use
-------------
"CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers.
SECTION 2.12. Book-Entry Provisions for the Global Note.
-----------------------------------------
(a) Each Global Note initially shall (i) be registered in the name of the
Depositary for such Global Note or the nominee of such Depositary and (ii) be
delivered to the Trustee as custodian for such Depositary.
Members of, or participants in, the Depositary ("Agent Members") shall have
no rights under this Indenture with respect to any Global Note held on
21
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of such Global
Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of such Global
Note in whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in a Global Note may be
transferred in accordance with the rules and procedures of the Depositary.
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in a Global Note if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Note or the Depositary ceases to be a clearing agency registered under the
Exchange Act, at a time when the Depositary is required to be so registered in
order to act as Depositary, and in each case a successor depositary is not
appointed by the Company within 90 days of such notice or, (ii) the Company
executes and delivers to the Trustee and Note Registrar an Officers' Certificate
stating that such U.S. Global Note shall be so exchangeable or (iii) an Event of
Default has occurred and is continuing and the Registrar has received a request
from the Depositary.
(c) In connection with the transfer of an entire Global Note to beneficial
owners pursuant to subsection (b) of this Section, such Global Note shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
such Global Note, an equal aggregate Principal Amount of Physical Notes of
authorized denominations.
(d) The registered holder of a Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.13. Defaulted Interest. If the Company defaults in a
------------------
payment of interest on the Notes, the Company shall pay defaulted interest (plus
22
interest on such defaulted interest to the extent lawful) in any lawful manner.
The Company may pay the defaulted interest to the Persons who are Noteholders on
a subsequent special record date. The Company shall fix or cause to be fixed any
such special record date and payment date to the reasonable satisfaction of the
Trustee and shall promptly mail to each Noteholder a notice that states the
special record date, the payment date and the amount of defaulted interest to be
paid.
ARTICLE III
Redemption
----------
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
------------------
Notes pursuant to paragraph 5 of the Notes, it shall notify
the Trustee in writing of the redemption date and the Principal Amount of Notes
to be redeemed.
The Company shall give the notice to the Trustee provided for in this
Section at least 60 days before the redemption date unless the Trustee consents
to a shorter period. Any such notice shall be accompanied by an Officers'
Certificate to the effect that such redemption will comply with the conditions
herein. If fewer than all the Notes are to be redeemed, the record date relating
to such redemption for determining the Holders to whom notice of redemption will
be sent pursuant to Section 3.03 shall be selected by the Company and given to
the Trustee, which record date shall be not less than 15 days after the date of
notice to the Trustee unless the Trustee consents to a shorter period.
SECTION 3.02. Selection of Notes To Be Redeemed. If fewer than all
---------------------------------
the Notes are to be redeemed, the Trustee in its discretion shall select the
Notes to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances. The
Trustee shall make the selection from Outstanding Notes not previously called
for redemption. The Trustee may select for redemption portions of the Principal
Amount of Notes that have denominations larger than $1,000. Notes and portions
of them the Trustee selects shall be in amounts of Principal Amount of $1,000 or
a whole multiple of $1,000. Provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for redemption. The
Trustee shall notify the Company promptly of the Notes or portions of Notes to
be redeemed.
23
SECTION 3.03. Notice of Redemption. At least 30 days but not more
--------------------
than 60 days before a date for redemption of Notes, the Company shall mail a
notice of redemption by first-class mail to each Holder of Notes to be redeemed.
Any notice delivered pursuant to this Section 3.03 shall identify the Notes
to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(5) if fewer than all the Outstanding Notes are to be redeemed, the
identification of the particular Notes to be redeemed as well as the
aggregate Principal Amount of Notes to be redeemed and if any Note is being
redeemed in part, the portion of the Principal Amount of such Note to be
redeemed and that after the redemption date and upon surrender of such Note a
new Note or Notes will be issued having a Principal Amount equal to the
Principal Amount of the Note surrendered less the Principal Amount of the
portion of the Note redeemed;
(6) that, unless the Company defaults in making such redemption payment,
interest on the Notes ceases to accrue on and after the redemption date;
(7) the CUSIP number printed on the Notes being redeemed; and
(8) that no representation is made as to the correctness or accuracy of the
CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of redemp- tion
in the Company's name and at the Company's expense. In such event, the Company
shall provide the Trustee with the information required by this Section.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
------------------------------
redemption is mailed, Notes called for redemption become due and payable on the
24
redemption date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Notes shall be paid at the redemption price stated in
the notice, plus accrued interest to the redemption date. Failure to give notice
or any defect in the notice to any Holder shall not affect the validity of the
notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. On or prior to the
---------------------------
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest on all
Notes to be redeemed on that date other than Notes or portions of Notes called
for redemption which have been delivered by the Company to the Trustee for
cancelation.
SECTION 3.06. Notes Redeemed in Part. Upon surrender of a Note
----------------------
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate for the Holder (at the Company's expense) a new Note having a
Principal Amount equal to the Principal Amount of the Note surrendered less the
Principal Amount of the portion of the Note so redeemed.
ARTICLE IV
Covenants
---------
SECTION 4.01. Payment of Notes. The Company shall promptly pay the
----------------
Principal of and interest on the Notes on the dates and in the manner provided
in the Notes and in this Indenture. Principal and interest shall be considered
paid on the date due if on such date the Trustee or the Paying Agent holds in
accordance with this Indenture money sufficient to pay all Principal and
interest then due. The Company shall pay interest on overdue Principal at the
rate specified therefor in the Notes, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Whether or not required by the SEC, so
-----------
long as any Notes are Outstanding, the Company will file or cause to be filed
with the SEC and provide the Trustee and Noteholders with the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) specified in Sections 13 and
15(d) of the Exchange Act. The Company also will comply with the other
provisions of TIA 314(a).
25
SECTION 4.03. Limitation on Debt of the Company and the Guarantor;
---------------------------------------------------
Limitation on Preferred Stock of the Guarantor. (a) The Company shall not, and
----------------------------------------------
shall not permit, prior to the Merger, the Guarantor to Issue any Debt;
provided, however, that the foregoing shall not prohibit the Issuance of the
following Debt:
(1) the Notes, the Old Notes and the Non-Recourse Guaranty and Debt
Issued by the Company or the Guarantor, as applicable, in exchange for, or
the proceeds of which are used to Refinance, any Debt permitted by this
clause (1); provided, however, that in the case of any Debt Issued in
connec- tion with a Refinancing, (i) the principal amount (or, in the case
of Debt Issued at a discount, the accreted value) of the Debt so Issued as
of the date of the Stated Maturity of the Debt being Refinanced shall not
exceed the sum of (A) the principal amount (or if the Debt being Refinanced
was Issued at a discount, the accreted value) of the Debt being Refinanced
as of the date of the Stated Maturity of the Debt being Refinanced and (B)
any Refinancing Costs thereof, and (ii) the Stated Maturity of the Debt so
Issued shall be later than the Stated Maturity of the Notes;
(2) any Secured Non-Recourse Guarantee;
(3) Debt of the Guarantor acquired by the Company as a result of the
Merger; and
(4) any Debt incurred in connection with the Keepwell Agreement.
(b) The Company shall not permit, prior to the Merger, the Guarantor
to Issue any Preferred Stock.
SECTION 4.04. Limitation on Restricted Payments. (a) The
---------------------------------
Company shall not, and shall not permit, prior to the Merger, the Guarantor,
directly or indirectly, to make any Restricted Payment if, at the time such
Restricted Payment is made:
(1) a Default shall have occurred or be continuing (or would result
therefrom); or
26
(2) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Issue Date would exceed the sum of (i) 50% of
Consolidated Net Income (or, if such aggregate Consolidated Net Income is a
deficit, minus 100% of such deficit) of the Company accrued during the
period (treated as one accounting period) from April 1, 2001, to the end of
the most recent fiscal quarter ending at least 45 days prior to the date of
such Restricted Payment and (ii) the aggregate Net Cash Proceeds from sales
of Capital Stock of the Company (other than Redeemable Stock or
Exchangeable Stock) or cash capital contributions made to the Company.
(b) Section 4.04(a) shall not prohibit the following (none of which shall
be included in the calculation of the amount of Restricted Payments, except to
the extent expressly provided in clause (ii) below):
(i) so long as no Default has occurred and is continuing or would
result from such transaction, any Restricted Payment to the extent it
consists of Unrestricted Assets;
(ii) dividends paid within 60 days after the date of declaration
thereof, or Restricted Payments made within 60 days after the making of a
binding commitment in respect thereof, if at such date of declaration or
commitment such dividend or other Restricted Payment would have complied
with this Section; provided, however, that at the time of payment of such
dividend or the making of such Restricted Payment, no other Default shall
have occurred and be continuing (or will result therefrom); provided
further, however, that such dividend or other Restricted Payment shall be
included in the calculation of the amount of Restricted Payments;
(iii) so long as no Default under the RCPC Indentures has occurred and
is continuing or would result from such transaction, amounts paid or
property transferred pursuant to the Permitted Transactions; and
(iv) any payment by the Guarantor in respect of the Non- Recourse
Guaranty.
(c) The Company or the Guarantor may take actions to make a Restricted
Payment in anticipation of the occurrence of any of the events described in
Section 4.04(b); provided, however, that the making of such Restricted Payment
shall be conditioned upon the occurrence of such event.
27
SECTION 4.05. Limitation on Liens and Sales of Assets and Subsidiary
------------------------------------------------------
Stock. The Company shall not make any Asset Disposition. Prior to the Merger,
-----
the Guarantor will not make any Asset Disposition. The Company and, prior to the
Merger, the Guarantor shall not create, incur or suffer to exist a Lien on the
Collateral (other than the Lien of this Indenture).
SECTION 4.06. Limitation on Transactions with Affiliates. (a) The
------------------------------------------
Company shall not, and shall not permit, prior to the Merger, the Guarantor, to
conduct any business or enter into any transaction or series of similar
transactions (including the purchase, sale, lease or exchange of any property or
the rendering of any service) with any Affiliate of the Company or any legal or
beneficial owner of 10% or more of the voting power of the Voting Stock of the
Company or with an Affiliate of any such owner, unless
(i) the terms of such business, transaction or series of transactions are
(A) set forth in writing and (B) at least as favorable to the Company or
the Guarantor, as applicable, as terms that would be obtainable at the time
for a comparable transaction or series of similar transactions in
arm's-length dealings with an unrelated third person and
(ii) to the extent that such business, transaction or series of
transactions (other than Debt issued by the Company or the Guarantor which
is permitted under Section 4.03) is known by the Board of Directors of the
Company or the Guarantor, as applicable, to involve an Affiliate of the
Company or the Guarantor, as the case may be, or a legal or beneficial
owner of 10% or more of the voting power of the Voting Stock of the Company
or an Affiliate of such owner, then (A) with respect to a transaction or
series of related transactions, other than any purchase or sale of
inventory in the ordinary course of business (an "Inventory Transaction"),
involving aggregate payments or other consideration in excess of $5.0
million, such transaction or series of related transactions has been
approved (and the value of any noncash consideration has been determined)
by a majority of those members of the Board of Directors of the Company or
the Guarantor, as applicable, having no personal stake in such business,
transaction or series of transactions and (B) with respect to a transaction
or series of related transactions, other than any Inventory Transaction,
involving aggregate payments or other consideration in excess of $20.0
million (with the value of any noncash consideration being determined by a
majority of those members of the Board of Directors of the Company or the
Guarantor, as applicable, having no personal stake in such business,
transaction or series of transactions), such transaction or series of
related transac-
28
tions has been determined, in the written opinion of a nationally
recognized investment banking firm to be fair, from a financial point of
view, to the Company or the Guarantor, as the case may be.
(b) The provisions of Section 4.06(a) shall not prohibit:
(i) any Restricted Payment permitted to be paid pursuant to
Section 4.04;
(ii) any transaction between the Company and any of its
Subsidiaries; provided, however, that no portion of any minority
interest in any such Subsidiary is owned by (x) any Affiliate (other
than the Company, the Guarantor, Revlon, Inc., RCPC, a Wholly Owned
Recourse Subsidiary, a Permitted Affiliate or an Unrestricted
Affiliate) of the Company or (y) any legal or beneficial owner of 10%
or more of the voting power of the Voting Stock of the Company or any
Affiliate of such owner (other than the Company, the Guarantor,
Revlon, Inc., RCPC, any Wholly Owned Recourse Subsidiary or an
Unrestricted Affiliate);
(iii) any transaction between the Guarantor and any other
Subsidiaries of the Company; provided, however, that no portion of any
-------- -------
minority interest in any such Subsidiary is owned by (x) any Affiliate
(other than the Company, the Guarantor, Revlon, Inc., RCPC, a Wholly Owned
Recourse Subsidiary, a Permitted Affiliate or an Unrestricted Affiliate) of
the Company or (y) any legal or beneficial owner of 10% or more of the
voting power of the Voting Stock of the Company or any Affiliate of such
owner (other than the Company, the Guarantor, Revlon, Inc., RCPC, any
Wholly Owned Recourse Subsidiary or an Unrestricted Affiliate);
(iv) any transaction with an officer or director of the Company,
Revlon, Inc., RCPC or any Subsidiary of RCPC entered into in the
ordinary course of business (including compensation or employee
benefit arrangements with any such officer or director); provided,
however, that such officer holds, directly or indirectly, no more than
10% of the outstanding Capital Stock of the Company;
(v) any Permitted Transaction;
(vi) the Merger;
29
(vii) any business or transactions with an Unrestricted
Affiliate;
(viii) the Keepwell Agreement; and
(ix) any transaction pursuant to which Mafco Holdings will
provide the Company and its Subsidiaries at their request and at the cost
to Mafco Holdings with certain allocated services to be purchased from
third party providers, such as legal and accounting services, insurance
coverage and other services.
SECTION 4.07. Limitation on Other Business Activities. The Company
---------------------------------------
shall not engage in any trade or business other than (A) the ownership of the
Capital Stock of Revlon, Inc., (B) the ownership of the Capital Stock of one or
more Unrestricted Subsidiaries and (C) prior to the Merger, the ownership of the
Capital Stock of the Guarantor. The Guarantor will not engage in any trade or
business other than (A) the ownership of the Capital Stock of Revlon, Inc. and
(B) providing the Non-Recourse Guaranty. The Company shall not permit any
Unrestricted Subsidiary to engage in any business other than the ownership of
Capital Stock of one or more Unrestricted Subsidiaries and the ownership of
Unrestricted Assets.
SECTION 4.08. The Merger. The Company shall cause the Merger to
----------
occur as promptly as practicable after the indenture relating to the Old Notes
has been discharged in accordance with its terms.
SECTION 4.09. Maintenance of Non-Investment Company Status. The
--------------------------------------------
Company will not at any time be or become an "investment company" registered or
required to become so registered under the Investment Company Act of 1940 or any
successor law, rule or regulation.
SECTION 4.10. Compliance Certificate. The Company shall deliver to
----------------------
the Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default by the Company and whether or not the signers know of
any Default that occurred during such period. If they do, the certificate shall
describe the Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with TIA '
314(a)(4). The Trustee
30
shall have no responsibility or obligation to monitor the Company's compliance
with its obligations set forth in Sections 4.03, 4.04, 4.05, 4.06, 4.07, 4.08 or
4.09.
SECTION 4.11. Further Instruments and Acts. Upon request of the
----------------------------
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE V
Successor Company
-----------------
SECTION 5.01. When Company May Merge or Transfer Assets. The
-----------------------------------------
Company shall not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (if not the Company)
shall be a Person organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and such
Person shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of the Company under the Notes and this Indenture;
(ii) except in the case of the Merger, immediately after giving effect
to such transaction (and treating any Debt which becomes an obligation of
the resulting, surviving or transferee Person or any of its Subsid- iaries
as a result of such transaction as having been Issued by such Person or
such Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(iii) except in the case of the Merger, immediately after giving
effect to such transaction, the resulting, surviving or transferee Person
shall have a Consolidated Net Worth in an amount which is not less than the
Consolidated Net Worth of the Company immediately prior to such transac-
tion; and
(iv) except in the case of the Merger, the Company shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
31
Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture (if any) comply with this Indenture.
The resulting, surviving or transferee Person shall be the successor
Company and shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture, and thereafter, except in
the case of a lease, the Company shall be discharged from all obligations and
covenants under the Indenture and the Notes.
ARTICLE VI
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
-----------------
(1) the Company defaults in any payment of interest on any Note when the
same becomes due and payable and such default continues for a period of 30
days;
(2) the Company (i) defaults in the payment of the Principal of any Note
when the same becomes due and payable at its Stated Maturity, upon
redemption, upon declaration or otherwise or (ii) fails to redeem or purchase
Notes when required pursuant to this Indenture or the Notes;
(3) (i) the Company fails to comply with Section 5.01, (ii) the Company
fails to comply with Section 4.09 or (iii) the Trustee shall fail to have a
perfected security interest in the Revlon, Inc. Collateral;
(4) the Company fails to comply with Section 4.02, 4.03, 4.04, 4.05, 4.06,
4.07 or 4.08 and such failure continues for 30 days after the notice
specified below;
(5) the Company fails to comply with any of its agreements in the Notes or
this Indenture (other than those referred to in (1), (2), (3) or (4) above)
and such failure continues for, or any of the Guarantor's or the Company's
representations and warranties set forth in Section 10.03 proves to have been
materially false at the time it was made and is not cured within, 60 days
after the notice specified below;
32
(6) Debt of the Company or any Significant Subsidiary is not paid within
any applicable grace period after final maturity or is accelerated by the
holders thereof because of a default, the total principal amount of the
portion of such Debt that is unpaid or accelerated exceeds $25,000,000 or its
foreign currency equivalent and such default continues for 10 days after the
notice specified below;
(7) the Company or any Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors; or
takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against the Company or any Significant Subsidiary in
an involuntary case;
(B) appoints a Custodian of the Company or any Signifi- cant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days; or
33
(9) any judgment or decree for the payment of money in excess of
$25,000,000 is entered against the Company or any Significant Subsidiary
and is not discharged and either (A) an enforcement proceeding has been
commenced by any creditor upon such judgment or decree or (B) there is a
period of 60 days following the entry of such judgment or decree during
which such judgment or decree is not discharged, waived or the execution
thereof stayed and, in the case of (B), such default continues for 10 days
after the notice specified below.
The foregoing will constitute Events of Default whatever the reason for any
such Event of Default and whether it is voluntary or involuntary or is effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body.
The term "Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (4), (5), (6) or (9)(B) is not an Event of Default
until the Trustee or the Holders of at least 25% in Principal Amount of the
Notes notify the Company of the Default and the Company does not cure such
Default within the time specified after receipt of such Notice. Such Notice must
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (4), (5), (6) or (9), its status and what action
the Company is taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than an
------------
Event of Default specified in Section 6.01(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company or the
Holders of at least 25% in Principal Amount of the Notes by notice to the
Company and the Trustee may declare the Principal Amount of and accrued interest
on all the Notes as of the date of such declaration (the "Default Amount") to be
due and payable immediately. If an Event of Default specified in Section 6.01(7)
or (8) with respect to the Company occurs, the Default Amount on all the Notes
as of the date of such
34
Event of Default shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Noteholders. The Holders of a majority in Principal Amount of the Notes by
notice to the Trustee may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of Principal or
interest that has become due solely because of acceleration. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
--------------
continuing, the Trustee may pursue any available remedy to collect the payment
of Principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Noteholder in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
-----------------------
Principal Amount of the Notes by notice to the Trustee may waive an existing
Default and its consequences except (i) a Default in the payment of the
Principal of or interest on a Note or (ii) a Default in respect of a provision
that under Section 9.02 cannot be amended without the consent of each Noteholder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
-------------------
Principal Amount of the Notes may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Noteholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
35
SECTION 6.06. Limitation on Suits. A Noteholder may not pursue any
-------------------
remedy with respect to this Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice stating that an Event of
Default is continuing;
(2) the Holders of at least 25% in Principal Amount of the Notes make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in Principal Amount of the Notes do not give
the Trustee a direction inconsistent with the request during such 60- day
period.
A Noteholder may not use this Indenture to prejudice the rights of another
Noteholder or to obtain a preference or priority over another Noteholder.
SECTION 6.07. Rights of Holders To Receive Payment. Notwithstanding any
------------------------------------
other provision of this Indenture, the right of any Holder to receive payment of
Principal of and interest on the Notes held by such Holder, on or after the
respective due dates expressed in the Notes, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default in
--------------------------
payment of interest or Principal specified in Section 6.01(l) or (2) occurs and
is continuing, the Trustee may recover judgment in its own name and as trustee
of an express trust against the Company for the whole amount of Principal and
interest remaining unpaid (together with interest on such unpaid interest to the
extent lawful) and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
--------------------------------
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Noteholders allowed
in
36
any judicial proceedings relative to the Company, its creditors or its property
and, unless prohibited by law or applicable regulations, may vote on behalf of
the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
----------
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
First: to the Trustee for amounts due under Section 7.07;
-----
Second: to Noteholders for amounts due and unpaid on the Notes for
------
Principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for Principal and
interest, respectively; and
Third: to the Company.
-----
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section. At least 15 days before such record date,
the Company shall mail to each Noteholder and the Trustee a notice that states
the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
---------------------
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in Principal Amount of the Notes.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company (to the
--------------------------------
extent it may lawfully do so) shall not at any time insist upon, or
37
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE VII
Trustee
-------
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
-----------------
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the circumstances in
the conduct of such man's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclu- sively
rely, as to the truth of the statements and the correctness of the opin- ions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case of any
such opinions or certificates which by any provision hereof are specifi- cally
required to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own wilful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
38
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Trust Officer unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability in the performance of
any of its duties hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
(h) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section and to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may rely on and
-----------------
shall be protected in acting or refraining from acting on any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
39
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct, negligence or bad faith.
(e) The Trustee may consult with counsel of its selection, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
----------------------------
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or its affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
--------------------
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in this Indenture or in any document Issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
------------------
continuing and if it is known to the Trustee, the Trustee shall mail to each
Noteholder notice of the Default within 90 days after it occurs. Except in the
case of a Default in payment of Principal of or interest on any Note, the
Trustee may withhold the notice to Noteholders if and so long as a committee of
its Trust Officers in good faith determines that withholding the notice is in
the interests of Noteholders.
40
SECTION 7.06. Reports by Trustee to Holders. As promptly as
-----------------------------
practicable after each May 15 beginning with the May 15 following the Issue
Date, and in any event prior to July 15 in each year, the Trustee shall mail to
each Noteholder a brief report dated as of May 15 if required by, and in
compliance with, TIA ' 313(a). The Trustee also shall comply with TIA ' 313(b).
A copy of each report at the time of its mailing to Noteholders shall be
filed with the SEC and each stock exchange (if any) on which the Notes are
listed. The Company agrees to notify promptly the Trustee whenever the Notes
become listed on any stock exchange and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay
--------------------------
to the Trustee from time to time such compensation as shall be agreed to in
writing from time to time by the Company and the Trustee for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services.
Such expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Trustee's agents, counsel, accountants and
experts. The Company shall indemnify the Trustee against any and all loss,
liability, damage, claim or expense (including attorneys' fees and expenses)
incurred by it in connection with the acceptance or administration of this trust
and the performance of its duties hereunder. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee may
have separate counsel and the Company shall pay the fees and expenses of such
counsel. The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through the Trustee's own
wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Notes on all money or property held or collected
by the Trustee other than money or property held in trust to pay Principal of
and interest on particular Notes.
The Company's payment obligations pursuant to this Section shall survive
the discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(7) or (8) with respect to the
41
Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any
----------------------
time by so notifying the Company. The Holders of a majority in Principal Amount
of the Notes may remove the Trustee by so notifying the Trustee and may appoint
a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company, is removed by Holders of
a majority in Principal Amount of the Notes and they do not promptly appoint a
successor Trustee, or if a vacancy exists in the office of Trustee for any
reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appoint- ment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Noteholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in Principal Amount of the Notes may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
42
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section,
the Company's obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
---------------------------
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Notes shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor to the Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all
-----------------------------
times satisfy the requirements of TIA ' 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA '
310(b); provided, however, that there shall be excluded from the operation of
TIA ' 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA ' 310(b)(1)
are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
-------------------------------------------------
Trustee shall comply with TIA 311(a), excluding any creditor relationship
listed in TIA 311(b). A Trustee who has resigned or been removed shall be
subject to TIA 311(a) to the extent indicated.
43
ARTICLE VIII
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Notes Defeasance. (a) When
------------------------------------------
(i) the Company delivers to the Trustee all Outstanding Notes (other than Notes
replaced pursuant to Section 2.07) for cancelation or (ii) all Outstanding Notes
have become due and payable and the Company irrevocably deposits with the
Trustee funds sufficient to pay at maturity all Outstanding Notes, including
interest thereon, if any (other than Notes replaced pursuant to Section 2.07),
and if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Sections 8.01(c) and 8.06, cease
to be of further effect. The Trustee shall acknowledge satisfaction and
discharge of this Indenture on demand of the Company accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of the
Company.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Company at any time may
terminate (i) all its obligations under the Notes and this Indenture ("legal
defeasance option") or (ii) its obligations under Sections 4.02, 4.03, 4.04,
4.05, 4.06, 4.07, 4.08, 4.09, 5.01(iii) and Article X and the operation of
Section 6.01(3)(ii) or (iii), 6.01(4), 6.01(6), 6.01(7) (with respect to
Significant Subsidiaries only), 6.01(8) (with respect to Significant
Subsidiaries only) and 6.01(9) ("covenant defeasance option"). The Company may
exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the Notes
may not be accelerated because of an Event of Default. If the Company exercises
its covenant defeasance option, payment of the Notes may not be accelerated
because of an Event of Default specified in Section 6.01(3)(ii) or (iii),
6.01(4), 6.01(6), 6.01(7) (with respect to Significant Subsidiaries only),
6.01(8) (with respect to Significant Subsidiaries only) and 6.01(9) or because
of the failure of the Com- pany to comply with clause (iii) of Section 5.01 or
with Article X.
Upon satisfaction of the conditions set forth herein and upon request of
the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's obligations in
Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and 8.06
44
shall survive until the Notes have been paid in full. Thereafter, the Company's
obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may exercise its legal
defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of Principal and interest on
the Notes to maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any deposited
money without investment will provide cash at such times and in such amounts
as will be sufficient to pay Principal and interest when due on all the Notes
to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.01(7) or (8) with respect to the
Company occurs which is continuing at the end of the period; provided,
however, that the foregoing condition need not be met if at the time of the
deposit, the Company delivers to the Trustee either (x) an Officers'
Certificate to the effect set forth in clause (y)(II) below together with
an Opinion of Counsel (which may rely on such Officers' Certificate as to
the matters stated therein) to the effect that such deposit would not
constitute a preference that could be avoided under Xxxxxxx 000 xx Xxxxx 00,
Xxxxxx Xxxxxx Code, notwithstanding that 123 days have not passed since the
------------------
date of the deposit, or (y) an Officers' Certificate to the effect that the
Market Value, determined as of the date of the deposit, of the Revlon, Inc.
Collateral (I) is greater than the aggregate Principal Amount of the then-
Outstanding Notes at the end of such 123-day period and (II) is greater than
the fair market value, determined as of the date of deposit, of the money or
U.S. Government Obligations being deposited;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company;
45
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(7) in the case of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Noteholders will not recognize income, gain or loss for Federal income
tax purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred;
(8) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Noteholders will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Notes as contemplated by this Article VIII
have been complied with.
Notwithstanding the foregoing provisions of this Section, the conditions
set forth in the foregoing paragraphs (2), (3), (4), (5), (6), (7) and (8) need
not be satisfied so long as, at the time the Company makes the deposit described
in paragraph (1), (i) no Default under Section 6.01(l), 6.01(2), 6.01(7) or
6.01(8) has occurred and is continuing on the date of such deposit and after
giving effect thereto and (ii) either (x) a notice of redemption has been mailed
pursuant to Section 3.03 providing for redemption of all the Notes not more than
60 days after such mailing and the provisions of Section 3.01 with respect to
such redemption shall have been complied with or (y) the Stated Maturity of the
Notes will occur within 60 days. If
46
the conditions in the preceding sentence are satisfied, the Company shall be
deemed to have exercised its covenant defeasance option. Before or after a
deposit, the Company may make arrangements satisfactory to the Trustee for the
redemption of Notes at a future date in accordance with Article III.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
--------------------------
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of Principal of and interest on the Notes.
SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent
--------------------
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of Principal or interest that remains unclaimed for two years, and,
thereafter, Noteholders entitled to the money must look to the Company for
payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Company shall
------------------------------------
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the Principal
and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
-------------
to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to this Article VIII until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article VIII; provided, however, that, if the Company has
-------- -------
made any payment of interest on or Principal of any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such
47
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE IX
Amendments
----------
SECTION 9.01. Without Consent of Holders. The Company and the Trustee
--------------------------
may amend this Indenture or the Notes without notice to or consent of any
Noteholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Notes in addition to or in place of
certificated Notes; provided, however, that the uncertificated Notes are
Issued in registered form for purposes of Section 163(f) of the Code or in a
manner such that the uncertificated Notes are described in Section 163(f)(2)
(B) of the Code;
(4) to add Guarantees with respect to the Notes or to secure (or provide
additional security for) the Notes;
(5) to add to the covenants of the Company for the benefit of the Holders
or to surrender any right or power herein conferred upon the Company;
(6) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA or to otherwise comply with the TIA;
or
(7) to make any change that does not adversely affect the rights of any
Noteholder.
After an amendment under this Section becomes effective, the Company shall
mail to Noteholders a notice briefly describing such amendment. The failure to
give such notice to all Noteholders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section.
48
SECTION 9.02. With Consent of Holders. The Company and the Trustee may
-----------------------
amend this Indenture or the Notes without notice to any Noteholder but with the
written consent of the Holders of at least a majority in Principal Amount of the
Outstanding Notes. However, without the consent of each Noteholder affected, an
amendment may not:
(1) reduce the Principal Amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on any
Note;
(3) reduce the Principal of or extend the Stated Maturity of any Note or
reduce the Default Amount of any Note;
(4) make any Note payable in money other than that stated in the Note;
(5) make any change in Article X that adversely affects such Noteholder; or
(6) make any change in Section 6.04, 6.07 or the second sentence of this
Section.
It shall not be necessary for the consent of the Holders under this Section
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Company shall
mail to Noteholders a notice briefly describing such amendment. The failure to
give such notice to all Noteholders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment to
-----------------------------------
this Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. Any
---------------------------------------------
amendment to this Indenture or the Notes shall become effective in accordance
with its terms when executed and delivered by the Company and the
49
Trustee provided that the Company has received the requisite consents prior
--------
thereto. The Company shall not be obligated to execute any such amendment
regardless of whether such consents have been received. Any waiver shall become
effective when the requisite consents have been received or such later time as
the Company may elect by notice to the Trustee. A consent to an amendment or a
waiver by a Holder of a Note shall bind the Holder and every subsequent Holder
of that Note or portion of the Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent or waiver is not made
on the Note. However, any such Holder or subsequent Holder may revoke the
consent or waiver as to such Holder's Note or portion of the Note if the Trustee
receives the notice of revocation prior to the time that the Company receives
the requisite number of consents to such pro- posed amendment or waiver. After
an amendment or waiver becomes effective, it shall bind every Noteholder. A
consent to any amendment or waiver hereunder by any Holder given in connection
with a tender of such Holder's Notes shall not be rendered invalid by such
tender.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Noteholders entitled to give their consent or take
any other action described above or required or permitted to be taken pursuant
to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Noteholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.05. Notation on or Exchange of Notes. If an
--------------------------------
amendment changes the terms of a Note, the Trustee may require the Holder of the
Note to deliver it to the Trustee. The Trustee may place an appropriate notation
on the Note regarding the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Note shall Issue and the Trustee shall authenticate a new Note
that reflects the changed terms. Failure to make the appropriate notation or to
Issue a new Note shall not affect the validity of such amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee
--------------------------
shall sign any amendment authorized pursuant to this Article IX if the amendment
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive,
50
and (subject to Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company, any Affiliate
-------------------
of the Company nor any Subsidiary shall, directly or indirectly, pay or cause to
be paid any consideration, whether by way of interest, fee or otherwise, to any
Holder for or as an inducement to any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Notes unless such consideration is
offered to be paid or agreed to be paid to all Holders which so consent, waive
or agree to amend in the time frame set forth in solicitation documents relating
to such consent, waiver or amendment.
ARTICLE X
Security And Pledge Of Collateral
---------------------------------
SECTION 10.01. Grant of Security Interest. (a) To secure the full and
--------------------------
punctual payment when due and the full and punctual performance of the
Guaranteed Obligations, the Guarantor hereby grants to the Trustee, for the
benefit of the Trustee and the Holders, a security interest in all its right,
title and interest in and to the following, other than such of the following
which are released from the Lien of this Indenture pursuant to Section 10.05
(the "Revlon, Inc. Collateral"):
(i) The shares of Revlon, Inc. Class B Common Stock identified on
Schedule I hereto and delivered to the Trustee pursuant to Section 10.02
(collectively, the "Pledged Shares" which term shall exclude any Withdrawn
Shares but shall include any shares of Revlon, Inc. Common Stock delivered
to the Trustee pursuant to Section 10.05(j));
(ii) all certificates representing any of the Pledged Shares; and
(iii) all dividends, cash, instruments and other property and proceeds
from time to time received, receivable or otherwise distributed in respect
of or in exchange for any of the foregoing.
(b) To secure the full and punctual payment when due and the full and
punctual performance of the Obligations, the Company agrees that, upon
51
consummation of the Merger, the Company shall execute and deliver to the Trustee
a confirmatory grant whereby it (i) acknowledges that it has acquired its
interest in the Revlon, Inc. Collateral subject to the grant made hereunder by
the Guarantor and (ii) grants to the Trustee, for the benefit of the Trustee and
the Holders, a security interest in all its right, title and interest in and to
the following, whether now owned or hereafter acquired, other than such of the
following which are released from the Lien of this Indenture pursuant to Section
10.05:
(i) The Pledged Shares and all certificates representing any of the
Pledged Shares;
(ii) all dividends, cash, instruments and other property and proceeds
from time to time received, receivable or otherwise distributed in respect
of or in exchange for any of the foregoing, and
(iii) all money and securities deposited with the Trustee pursuant to
Section 10.05(g) and all dividends, cash, instruments and other property
and proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for the foregoing (all collateral
under this clause (iii), the "Substitute Collateral").
(c) Revlon, Inc. Collateral and Substitute Collateral are hereinafter
collectively referred to as "Collateral."
SECTION 10.02. Delivery of Collateral. On the Issue Date, the
----------------------
Guarantor shall deliver to the Trustee, for each $1,000 aggregate Principal
Amount of Notes Issued hereunder, a number of Class B shares of Common Stock of
Revlon, Inc. equal to the Applicable Share Number. Any and all certificates or
instruments representing or evidencing Revlon, Inc. Collateral shall be
delivered to and held by or on behalf of the Trustee and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Trustee. The Trustee shall have the right, at any time after
the occurrence and during the continuance of an Event of Default, in its
discretion and without notice to the Company, to transfer to or to register in
the name of the Trustee or any of its nominees any or all of the Collateral. In
addition, the Trustee shall have the right at any time to exchange certificates
or instruments representing or evidencing Collateral for certificates or
instruments of different denominations.
52
SECTION 10.03. Representations and Warranties. The Guarantor hereby
------------------------------
represents and warrants on the Issue Date as follows:
(i) It is the record and beneficial owner of the Pledged Shares
described on Schedule I, free and clear of any Lien, except for the Lien
created by this Indenture.
(ii) It has full corporate power, authority and legal right to pledge
all the Collateral pledged by it pursuant to this Indenture.
(iii) The Pledged Shares described on Schedule I have been duly
authorized and are validly issued, fully paid and non-assessable.
(iv) The pledge in accordance with the terms of this Indenture creates
a valid and perfected first priority Lien on the Revlon, Inc. Collateral,
securing the payment and performance of the Guaranteed Obliga- tions.
SECTION 10.04. Further Assurances. Each of the Company and the
------------------
Guarantor agrees that at any time and from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents and take all
further action that may be necessary or that the Trustee may reasonably request
in order to perfect and protect any Lien granted or purported to be granted
hereby or to enable the Trustee to exercise and enforce its rights and remedies
hereunder with respect to any Collateral. Without limiting the foregoing, the
Company shall at the time of any release of Pledged Shares pursuant to Section
10.05, provide to the Trustee a revised Schedule I. Any such revised Schedule
shall reflect any changes made necessary by the applicable release, at which
time the Company shall be deemed to make the representations and warranties set
forth in clauses (i)-(iv) of Section 10.03 with respect to such Schedule, as so
revised.
SECTION 10.05. Dividends; Voting Rights; Substitution of Collateral.
----------------------------------------------------
(a) Each of the Guarantor and the Company shall promptly deliver to the Trustee
all dividends and other distributions paid in respect of the Pledged Shares
owned by the Guarantor or the Company, as applicable. All such dividends and
other distributions shall be held by the Trustee as Collateral and shall, if
received by the Guarantor or the Company, be received in trust for the benefit
of the Trustee, be segregated from the other property or funds of the Guarantor
or the Company, as applicable, and be forthwith delivered to the Trustee as
Collateral in the same form as so received (with any necessary endorsement). Any
cash dividends or distributions
53
delivered to or otherwise held by the Trustee pursuant to this Section 10.05,
and any other cash constituting Collateral delivered to the Trustee, shall be
invested, at the written direction of the Guarantor or the Company, as
applicable, by the Trustee in Temporary Cash Investments.
(b) Upon the occurrence and during the continuance of a Default and upon
written notice thereof from the Trustee to the Company, the Trustee shall be
entitled to receive and retain as Collateral all dividends paid and
distributions made in respect of the Pledged Shares, whether so paid or made
before or after any Default. Any such dividends shall, if received by the
Guarantor or the Company, be received in trust for the benefit of the Trustee,
be segregated from the other property or funds of the Guarantor or the Company,
as applicable, and be forthwith delivered to the Trustee as Collateral in the
same form as so received (with any necessary endorsement).
(c) As long as no Default shall have occurred and be continuing and until
written notice thereof from the Trustee to the Company, the Guarantor or
Company, as applicable, shall be entitled to exercise any and all voting and
other consensual rights relating to Pledged Shares or any part thereof for any
purpose; provided, however, that no vote shall be cast, and no consent, waiver
or ratification given or action taken, which would be inconsistent with or
violate any provision of this Indenture or the Notes.
(d) Upon the occurrence and during the continuance of a Default, all rights
of the Guarantor or the Company, as applicable, to exercise the voting and other
consensual rights that it would otherwise be entitled to exercise pursuant to
Section 10.05(c) shall cease upon notice from the Trustee to the Guarantor or
the Company, as applicable, and upon the giving of such notice all such rights
shall thereupon be vested in the Trustee who shall thereupon have the sole right
to exercise such voting and other consensual rights.
(e) In order to permit the Trustee to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to Section
10.05(d), and to receive all dividends and distributions which it may be
entitled to receive under Section 10.05(a) and 10.05(b), the Guarantor or the
Company, as applicable, shall, if necessary, upon written notice of the Trustee,
from time to time execute and deliver to the Trustee such instruments as the
Trustee may reasonably request.
(f) From and after the effective time of the Merger, as long as no Default
shall have occurred and be continuing, prior to the discharge or defeasance of
54
this Indenture, the Company shall be entitled from time to time to request the
Trustee to release all or a portion of the Revlon, Inc. Collateral subject to
the Lien of this Indenture; provided, however, that (i) such request (a
"Collateral Release Request") must be in writing and accompanied by an Officers'
Certificate and an Opinion of Counsel stating that all conditions precedent to
the release of such Revlon, Inc. Collateral pursuant to this Section 10.05(f)
have been complied with, (ii) the date of such Collateral Release Request (the
"Determination Date") is not more than five Business Days prior to the date of
the release requested thereunder and (iii) either (A) the conditions set forth
in Section 10.05(g) are met or (B) the conditions set forth in Section 10.05(h)
are met. Any Pledged Shares included in the Revlon, Inc. Collateral to be
released shall consist of Class A or Class B shares of Revlon, Inc. Common Stock
in such proportions as the Company shall elect. Any such Collateral Release
Request shall specify (x) whether the Company intends to meet the conditions
set forth in Section 10.05(g) or 10.05(h) and (y) how many shares of each class
of Revlon, Inc. Common Stock are to be released. Upon satisfaction of the
foregoing conditions, the Lien of this Indenture on all Revlon, Inc. Collateral
to be released shall terminate and all such Revlon, Inc. Collateral shall be
released without any further action on the part of the Trustee or any other
Person.
(g) No Revlon, Inc. Collateral shall be released from the Lien of this
Indenture pursuant to any Collateral Release Request which specifies that the
conditions of this Section 10.05(g) are to be met unless:
(i) the Company deposits with the Trustee money or U.S. Government
Obligations for the payment of the Principal Amount and interest on the
Notes or the Applicable Portion thereof;
(ii) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any depos
ited money without reinvestment will provide cash at such times and in such
amounts as will be sufficient to pay the Principal Amount and any interest
when due on all the Notes or the Applicable Portion thereof to maturity;
(iii) no Default or Event of Default has occurred and is continuing on
the date of such deposit after giving effect thereto;
(iv) the number of shares of Revlon, Inc. Collateral that will remain,
if any, subject to the Lien of this Indenture following such
55
release shall equal not less than Applicable Share Number for each $1,000 of
Principal Amount of the Notes Outstanding as of the Determination Date
(other than the Applicable Portion thereof and other than any Notes the
payment of which has theretofore been provided pursuant to clause (i) of this
Section 10.05(g));
(v) unless the Company provides an Officers' Certificate to the effect
that the Market Value, determined as of such Determination Date, of the
Revlon, Inc. Collateral to be released pursuant to such Collateral Release
Request (the "Applicable Collateral") is greater than the fair market
value, determined as of such Determination Date, of the money or U.S.
Government Obligations being deposited, 123 days pass after the deposit is
made and during the 123-day period no Default specified in Section 6.01(7)
or (8) with respect to the Company occurs which is continuing at the end of
the period;
(vi) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the Person providing such Substitute Collateral does not
constitute, or is qualified as, a regulated investment company under the
Investment Company Act of 1940;
(vii) the deposit does not constitute a default under any other
agreement binding on the Company; and
(viii) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Noteholders will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit of U.S.
Government Obligations and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such deposit had not occurred.
For purposes of this Section 10.05, the "Applicable Portion" shall mean, with
respect to any Collateral Release Request, the aggregate Principal Amount of
Notes the payment of which will be provided for pursuant to clause (i) of this
Section 10.05(g).
(h) In connection with or after (x) any redemption of less than all the
Notes or (y) any delivery by the Company of less than all the Notes for
cancelation, as long as no Default shall have occurred and be continuing, the
Company shall be entitled to deliver a Collateral Release Request to the Trustee
to release a portion of the Revlon, Inc. Collateral subject to this Indenture;
provided, however,
-------- -------
56
that the number of shares of Revlon, Inc. Collateral that will remain, if any,
subject to the Lien of this Indenture following such release shall equal not
less than Applicable Share Number for each $1,000 of Principal Amount of the
Notes Outstanding as of the Determination Date after giving effect to such
redemption or delivery for cancelation (other than any Notes the payment of
which has theretofore been provided pursuant to clause (i) of Section 10.05(g));
(i) After the effective time of the Merger, in connection with a redemption
of Notes pursuant to Section 5 of the Notes or in connection with the payment at
maturity of the Principal Amount of the Notes, the Company shall be entitled to
request the Trustee to release Substitute Collateral having a fair market value
on such redemption date, purchase date or maturity date equal to an amount
necessary in whole or in part to pay the redemption price or purchase price of
the Notes to be redeemed or purchased or to pay at maturity the Principal Amount
of the Notes. Notwithstanding the foregoing, the Trustee shall be entitled to
receive, as a condition to any release of Substitute Collateral under this
Section 10.05(i), an Officers' Certificate to the effect that such release will
not result in a Default hereunder. Upon the release of Substitute Collateral
pursuant to this Section 10.05(i), the Principal Amount of Notes the payment of
which has theretofore been provided pursuant to clause (i) of Section 10.05(g)
after giving effect to such redemption or repurchase shall be deemed to be
reduced by the Principal Amount of the Notes so redeemed or repurchased with
such Substitute Collateral.
(j) So long as no Default has occurred and is continuing and so long as the
Class A Shares of Common Stock of Revlon, Inc. and the Class B Shares of Common
Stock of Revlon, Inc. are substantially identical except with respect to voting
rights, the Company may request the Trustee to release from the Lien of this
Indenture a number of shares of one class of Common Stock of Revlon, Inc. upon
the deposit with the Trustee of an equal number of shares of the other class of
Common Stock of Revlon, Inc. in substitution therefor. Such substituted shares
shall thereafter constitute "Pledged Shares" for all purposes. Upon satisfaction
of the foregoing conditions, the Lien of this Indenture on all Pledged Shares to
be released shall terminate and all such Collateral shall be released without
any further action on the part of the Trustee or any other Person.
(k) Notwithstanding anything to the contrary in Section 10.05(f), (g), (h),
(i) or (j), upon satisfaction by the Company of the conditions set forth in
Article VIII to its legal defeasance option, its covenant defeasance option or
to the discharge of this Indenture, the Lien of this Indenture on all the
Collateral shall
57
terminate and all the Collateral shall be released without any further action on
the part of the Trustee or any other Person.
(l) Any Pledged Shares which are released from the Lien of this Indenture
shall be referred to herein as "Withdrawn Shares" and, together with any cash or
instruments or other Collateral which are released from the Lien of this
Indenture, as "Withdrawn Collateral". Upon the release of any Collateral, the
Trustee shall execute and deliver to the Company an instrument or instruments
acknowledging the release of such Collateral from this Indenture and the
discharge of the Lien on such Collateral created by this Article X, and will
duly assign, transfer and deliver to the Company (without recourse and without
any representation or warranty) the Withdrawn Collateral.
SECTION 10.06. Trustee Appointed Attorney-in-Fact. Each of the
----------------------------------
Guarantor and the Company hereby appoints the Trustee as its attorney-in-fact,
with full authority in the place and stead and in its name or otherwise, from
time to time in the Trustee's discretion but only after the occurrence and
during the continuance of an Event of Default, to take any action and to execute
any instrument which the Trustee may deem necessary or advisable in order to
accomplish the purposes of this Article X, including to receive, endorse and
collect all instruments made payable to the Guarantor or Company, as applicable,
representing any dividend, interest payment or other distribution in respect of
the Collateral or any part thereof and to give full discharge for the same. This
power, being coupled with an interest, is irrevocable.
SECTION 10.07. Trustee May Perform. If any of the Guarantor or the
-------------------
Company fails to perform any agreement contained in this Article X, the Trustee
may itself perform, or cause performance of, such agreement, and the expenses of
the Trustee incurred in connection therewith shall be payable by the Company
under Section 7.07.
SECTION 10.08. Trustee's Duties. The powers conferred on the Trustee
----------------
under this Article X are solely to protect its interest in the Collateral and
shall not impose any duty upon it to exercise any such powers. Except for the
safe custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Trustee shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral.
58
SECTION 10.09. Remedies Upon Event of Default. If any Event of Default
------------------------------
shall have occurred and be continuing, the Trustee may exercise in respect of
the Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies provided a secured party
upon the default of a debtor under the Uniform Commercial Code at that time, and
the Trustee may also, without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at any exchange, broker's board or at any of the Trustee's offices or elsewhere,
for cash, on credit or for future delivery, upon such terms as the Trustee may
determine to be commercially reasonable, and the Trustee or any Noteholder may
be the purchaser of any or all of the Collateral so sold and thereafter hold the
same, absolutely, free from any right or claim of whatsoever kind. Each of the
Guarantor and the Company agrees that, to the extent notice of sale shall be
required by law, at least 10 days' notice to it of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Trustee shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The
Trustee may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned. The Trustee shall
incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale conducted in a commercially reasonable manner. Each
of the Guarantor and the Company hereby waives any claims against the Trustee
arising by reason of the fact that the price at which any Collateral may have
been sold at such a private sale was less than the price which might have been
obtained at a public sale, even if the Trustee accepts the first offer received
and does not offer such Collateral to more than one offeree.
Each of the Guarantor and the Company recognizes that, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws, the Trustee may be compelled, with respect to any sale of all or any part
of the Collateral, to limit purchasers to those who will agree, among other
things, to acquire such securities for their own account, for investment, and
not with a view to the distribution or resale thereof. Each of the Guarantor and
the Company acknowledges and agrees that any such sale may result in prices and
other terms less favorable to the seller than if such sale were a public sale
without such restrictions and, notwith- standing such circumstances, agrees that
any such sale shall be deemed to have been made in a commercially reasonable
manner. The Trustee shall be under no obliga- tion to delay the sale of any of
the Pledged Shares for the period of time necessary to permit the Company to
register such securities for public sale under the Securities
59
Act, or under applicable state securities laws, even if the Guarantor or the
Company would agree to do so.
SECTION 10.10. Application of Proceeds. Upon the occurrence and during
-----------------------
the continuance of an Event of Default and after the acceleration of the Notes
pursuant to Section 6.02 (so long as such acceleration has not been rescinded),
any cash held by the Trustee as Collateral and all cash proceeds received by the
Trustee in respect of any sale of, collection from, or other realization upon,
all or any part of the Collateral, shall be applied by the Trustee in the manner
specified in Section 6.10.
SECTION 10.11. Continuing Lien. Except as provided in Section 10.05,
---------------
this Indenture shall create a continuing Lien on the Collateral that shall (i)
remain in full force and effect until payment in full of the Notes, (ii) be
binding upon the Guarantor and the Company and their successors and assigns and
(iii) enure to the benefit of the Trustee and its successors, transferees and
assigns.
SECTION 10.12. Certificates and Opinions. The Company shall comply
-------------------------
with (a) TIA 314(b), relating to Opinions of Counsel regarding the Lien of this
Indenture and (b) TIA ' 314(d), relating to the release of Collateral from the
Lien of this Indenture and Officers' Certificates or other documents regarding
fair value of the Collateral, to the extent such provisions are applicable. Any
certificate or opinion required by TIA ' 314(d) may be executed and delivered by
an Officer of the Company to the extent permitted by TIA ' 314(d).
SECTION 10.13 Additional Agreements. The Company agrees that, upon
---------------------
the occurrence and during the continuance of a Default hereunder, it will, at
any time and from time to time, upon the written request of the Trustee, use its
best efforts to take or to cause the issuer of the Pledged Shares and any other
securities distributed in respect of the Pledged Shares (collectively with the
Pledged Shares, the "Pledged Securities") to take such action and prepare,
distribute or file such documents, as are required or advisable in the
reasonable opinion of counsel for the Trustee to permit the public sale of such
Pledged Securities. The Company further agrees to indemnify, defend and hold
harmless the Trustee, each Holder, any underwriter and their respective
officers, directors, affiliates and controlling persons from and against all
loss, liability, expenses, costs of counsel (including reasonable fees and
expenses of legal counsel to the Trustee), and claims (including the costs of
investigation) that they may incur insofar as such loss, liability, expense or
claim arises out of or is based upon any alleged untrue statement of a material
fact contained in any prospectus (or any amendment or supplement thereto) or in
any
60
notification or offering circular, or arises out of or is based upon any alleged
omission to state a material fact required to be stated therein or necessary to
make the statements in any thereof not misleading, except insofar as the same
may have been caused by any untrue statement or omission based upon information
furnished in writing to the Company or the issuer of such Pledged Securities by
the Trustee or any Holder expressly for use therein. The Company further agrees,
upon such written request referred to above, to use its best efforts to qualify,
file or register, or cause the issuer of such Pledged Securities to qualify,
file or register, any of the Pledged Securities under the Blue Sky or other
securities laws of such states as may be requested by the Trustee and keep
effective, or cause to be kept effective, all such qualifications, filings or
registrations. The Company will bear all costs and expenses of carrying out its
obligations under this Section 10.13. The Company acknowledges that there is no
adequate remedy at law for failure by it to comply with the provisions of this
Section 10.13 and that such failure would not be adequately compensable in
damages, and therefore agree that their agreements contained in this Section
10.13 may be specially enforced.
ARTICLE XI
Non-Recourse Guaranty
---------------------
SECTION 11.01. Guaranty. The Guarantor, as primary obligor and not
--------
merely as surety, hereby irrevocably and unconditionally guarantees the punctual
payment when due, whether at Stated Maturity, by acceleration or otherwise, of
all Obligations of the Company now or hereafter existing under this Indenture
whether for Principal of or interest on the Notes, expenses, indemnification or
otherwise (all such Obligations guaranteed hereby by the Guarantor being the
"Guaranteed Obligations"). The guaranty of the Guarantor under this Article XI
is herein referred to as the "Non-Recourse Guaranty."
Notwithstanding anything herein to the contrary, the Guarantor's liability
under this Article XI and Article X shall be limited to the Collateral and the
proceeds realized by the Trustee upon the sale or other realization of such
Collateral, it being understood that it is the intention of the foregoing that
this Non-Recourse Guaranty otherwise is a non-recourse obligation of the
Guarantor and that the Trustee's and the Holders' rights to recover against the
Guarantor hereunder shall be limited solely to the Collateral and the proceeds
realized by the Trustee upon the sale or other realization of Collateral pledged
pursuant to Article X.
61
Subject to the limited recourse set forth in the immediately preceding
paragraph, the Guarantor agrees to pay, in addition to the amount stated above,
any and all expenses (including reasonable counsel fees and expenses) incurred
by the Trustee or the Holders in enforcing any rights under this Article XI with
respect to the Guarantor.
Without limiting the generality of the foregoing, this Non-Recourse
Guaranty guarantees, to the extent provided herein, the payment of all amounts
which constitute part of the Guaranteed Obligations and would be owed by the
Company under this Indenture or the Notes but for the fact that they are
unenforce- able or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
SECTION 11.02. Guaranty Absolute. This Non-Recourse Guaranty is
-----------------
irrevocable, absolute, present and unconditional. The Guarantor guarantees that
the Guaranteed Obligations will be paid strictly in accordance with the terms of
this Indenture, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Trustee or the Holders with respect thereto. The obligations of the Guarantor
under this Non-Recourse Guaranty are independent of the Guaranteed Obligations,
and a separate action or actions may be brought and prosecuted against the
Guarantor to enforce this Non-Recourse Guaranty, irrespective of whether any
action is brought against the Company or any other guarantor or whether the
Company or any other guarantor is joined in any such action or actions. The
liability of the Guarantor under this Non-Recourse Guaranty shall be absolute
and unconditional irrespective of:
(a) any lack of validity or enforceability of this Indenture or the Notes
with respect to the Company or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations, or any other amendment or
waiver of or any consent to departure from this Indenture, including any
increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Company or otherwise;
(c) the failure to give notice to the Guarantor of the occurrence of a
Default under the provisions of this Indenture or the Notes;
62
(d) any taking, exchange, release or nonperfection of any Collateral, or
any taking, release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Guaranteed Obligations;
(e) any manner of application of Collateral, or proceeds thereof, to all or
any of the Guaranteed Obligations, or any manner of sale or other disposition
of any Collateral or any other assets of the Company;
(f) any failure, omission, delay by or inability on the part of the Trustee
or the Holders to assert or exercise any right, power or remedy conferred on
the Trustee or the Holders in this Indenture or the Notes;
(g) any change in the corporate structure, or termination, dissolution,
consolidation or merger of the Company or any guarantor with or into any other
entity (other than pursuant to the Merger), the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or substantially
all the assets of the Company or any guarantor, the marshalling of the assets
and liabilities of the Company or any guarantor, the receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors, or readjustment of, or other similar
proceedings affecting the Company or any guarantor, or any of the assets of
any of them;
(h) the assignment of any right, title or interest of the Trustee or any
Holder in this Indenture or the Notes to any other Person; or
(i) any other event or circumstance (including any statute of limitations),
whether foreseen or unforeseen and whether similar or dissimilar to any of the
foregoing, that might otherwise constitute a defense available to, or a
discharge of, the Company or a guarantor, other than payment in full of the
Guaranteed Obligations; it being the intent of the Guarantor that its
obligations hereunder shall not be discharged except by payment of all amounts
owing pursuant to this Indenture or the Notes, subject to the second paragraph
of Section 11.01.
This Non-Recourse Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment or performance with respect to
any of the Guaranteed Obligations is rescinded or must otherwise be returned by
the Trustee, any Holder or any other Person upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such
63
payment or performance had not been made or occurred. The obligations of the
Guarantor under this Non-Recourse Guaranty shall not be subject to reduction,
termination or other impairment by any set-off, recoupment, counterclaim or
defense or for any other reason.
SECTION 11.03. Waivers. The Guarantor hereby irrevocably waives, to
-------
the extent permitted by applicable law:
(a) promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Obligations and this Non- Recourse Guaranty;
(b) any requirement that the Trustee, any Holder or any other Person
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against the Company or any other Person
or any Collateral, or obtain any relief pursuant to this Indenture or pursue
any other available remedy;
(c) all right to trial by jury in any action, proceeding or counter- claim
arising out of or relating to this Indenture or the Notes;
(d) any defense arising by reason of any claim or defense based upon an
election of remedies by the Trustee or any Holder which in any manner impairs,
reduces, releases or otherwise adversely affects its subrogation, contribution
or reimbursement rights or other rights to proceed against the Company or any
other Person or any Collateral; and
(e) any duty on the part of the Trustee or any Holder to disclose to the
Guarantor any matter, fact or thing relating to the business, operation or
condition of the Company and its assets now known or hereafter known by the
Trustee or such Holder.
SECTION 11.04. Waiver of Subrogation and Contribution. The Guarantor
--------------------------------------
hereby irrevocably waives any claim or other right which it may now or hereafter
acquire against the Company or any guarantor that arises from the existence,
payment, performance or enforcement of its obligations under this Non- Recourse
Guaranty, including any right of subrogation, reimbursement, exoneration,
contribution, indemnification, any right to participate in any claim or remedy
of the Trustee or any Holder against the Company or any guarantor or any
Collateral which the Trustee or any Holder now has or hereafter acquires,
whether or not such claims,
64
remedy or right arises in equity, or under contract, statute or common law,
including the right to take or receive from the Company, directly or indirectly,
in cash or other property or by setoff or in any other manner, payment or
security on account of such claim or other rights. If any amount shall be paid
to the Guarantor in violation of the preceding sentence and the Guaranteed
Obligations shall not have been paid in full, such amount shall be deemed to
have been paid in full to the Guarantor for the benefit of, and held in trust
for the benefit of, the Trustee and the Holders, and shall forthwith be paid to
the Trustee for the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms of this Indenture. The Guarantor acknowledges that it
will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waivers set forth in this Section
11.04 are knowingly made in contemplation of such benefits.
SECTION 11.05. Certain Agreements. The Guarantor covenants and agrees
------------------
that, as a condition to the acceptability of this Non-Recourse Guaranty to the
Trustee and the Holders, it will:
(a) comply in all material respects with all applicable laws, rules,
regulations and orders, such compliance to include paying when due all taxes,
assessments and governmental charges imposed upon it or upon its property
except to the extent contested in good faith; and
(b) other than in connection with the Merger, preserve and maintain its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Guarantor shall not be required to preserve any right or
franchise if the Board of Directors of the Guarantor shall determine that the
preservation thereof is no longer desirable in the conduct of its business and
the loss thereof is not disadvantageous in any material respect to the
Guarantor or the Holders.
SECTION 11.06. No Waiver; Cumulative Remedies. No failure on the part
------------------------------
of the Trustee or any Holder to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. The Trustee and the Holders
shall have all the rights and remedies granted in this Indenture and available
at law or in equity, and these same rights and remedies may be pursued
separately, successively or concurrently against the Company or the Guarantor,
or any Collateral, subject in the
65
case of the Guarantor to the limited recourse set forth in the second paragraph
of Section 11.01.
SECTION 11.07. Continuing Guaranty. This Non-Recourse Guaranty is a
-------------------
continuing guaranty and shall (a) retain in full force and effect until the
earlier of (i) the Merger, (ii) the release of all the Collateral, pursuant to
Article X and (iii) the sale or other disposition of all the Collateral and the
application of the proceeds thereof in accordance with this Indenture, (b) be
binding upon the Guarantor and (c) inure to the benefit of and be enforceable by
the Trustee, the Holders and their successors, transferees and assigns.
SECTION 11.08. Severability. Any provision of this Article XI which is
------------
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization, without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
ARTICLE XII
Miscellaneous
-------------
SECTION 12.01. Trust Indenture Act Controls. If any provision of this
----------------------------
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 12.02. Notices. Any notice or communication shall be in
-------
writing and delivered in Person or mailed by first-class mail addressed as
follows:
If to the Company:
REV Holdings Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
Confirm: (000) 000-0000
66
If to the Trustee:
Wilmington Trust Company
Attn:
Telephone:
Facsimile:
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be sent by
first-class mail to the Noteholder at the Noteholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in
it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication is mailed to a Noteholder in the manner provided above,
it is duly given, whether or not the addressee receives it.
SECTION 12.03. Communication by Holders with Other Holders.
-------------------------------------------
Noteholders may communicate pursuant to TIA ' 312(b) with other Noteholders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA '
312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee stating that, in the opinion of such counsel, all such conditions
precedent have been complied with;
67
provided, however, that, in the case of such application or request as to which
-------- -------
the furnishing of such documents, certificates or opinions is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
SECTION 12.05. Statements Required in Certificate or Opinion. Each
---------------------------------------------
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has read
such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such
covenant or condition has been complied with.
SECTION 12.06. When Notes Disregarded. In determining whether the
----------------------
Holders of the required Principal Amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
Outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Notes Outstanding at the time shall be considered
in any such determination.
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar. The
--------------------------------------------
Trustee may make reasonable rules for action by or a meeting of Noteholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 12.08. Legal Holidays. If a payment date is a Legal Holiday,
--------------
payment shall be made on the next succeeding day that is not a Legal
68
Holiday, and no interest shall accrue for the intervening period. If a regular
record date is a Legal Holiday, the record date shall not be affected.
SECTION 12.09. Governing Law. This Indenture and the Notes shall be
-------------
governed by, and construed in accordance with, the laws of the State of New York
but without giving effect to applicable principles of conflicts of law to the
extent that the application of the laws of another jurisdiction would be
required thereby.
SECTION 12.10. No Recourse Against Others. A director, officer,
--------------------------
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Notes or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Noteholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
Issue of the Notes.
SECTION 12.11. Successors. All agreements of the Company in this
----------
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
SECTION 12.12. Multiple Originals. The parties may sign any number of
------------------
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 12.13. Table of Contents; Headings. The table of contents,
---------------------------
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
69
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
REV HOLDINGS INC.
By:_________________________________
Name:
Title:
WILMINGTON TRUST COMPANY,
as Trustee,
By:__________________________________
Name:
Title:
70
The Guarantor has caused this Indenture to be duly executed as of the date
first written above solely to acknowledge and accept its obligations set forth
above in Articles X and XI herein.
REV GUARANTOR CORP.
By:_______________________________
Name:
Title:
71
EXHIBIT A
[FORM OF FACE OF NOTE]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF DTC AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE SECTION 2.12 OF THE
INDENTURE.](1)
--------------------------
1 Bracketed language is to be included only on the Global Notes.
1
CUSIP:
No. $
REV HOLDINGS INC.
12% Senior Secured Note Due 2004
Principal Amount $__________
REV Holdings Inc., a Delaware corporation, promises to pay to ,
or registered assigns, the principal sum of Dollars on
, 2004.
Interest Payment Dates: and .
Record Dates: and .
2
Additional provisions of this Note are set forth on the other side of this
Note.
Dated:
REV HOLDINGS INC.
by_________________________________
President
_________________________________
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
WILMINGTON TRUST COMPANY,
as Trustee, certifies [Seal]
that this is one of
the Notes referred
to in the Indenture.
Dated:
by:
__________________________
Authorized Signatory
3
[FORM OF REVERSE SIDE OF NOTE]
REV HOLDINGS INC.
12% Senior Secured Note Due 2004
1. Interest
--------
REV Holdings Inc., a Delaware corporation (such corporation, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Company"), promises to pay interest on the principal amount of this
Note at 12% per annum from________, 2001 until maturity. The Company shall pay
interest semi-annually in arrears on_______ and _________ of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each an
"Interest Payment Date"). Interest on the Notes shall accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the Issue Date. Interest shall be computed on the basis of a 360-day year
of twelve 30-day months. The Company shall pay interest on overdue Principal at
the rate of 12% per annum, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
2. Method of Payment
-----------------
The Company will pay interest referred to in paragraph 1 above (except
defaulted interest) on the Notes to the persons who are registered holders of
Notes at the close of business on the or next preceding the
Interest Payment Date even if Notes are canceled after the record date and on or
before the Interest Payment Date. Holders must surrender Notes to a Paying Agent
to collect Principal payments. The Company will pay Principal in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. However, the Company may pay Principal and interest by check
payable in such money.
3. Paying Agent and Registrar
--------------------------
Initially, Wilmington Trust Company, a __________ banking corporation
("Trustee"), will act as Paying Agent and Registrar. The Company may appoint
4
and change any Paying Agent, Registrar or co-registrar without notice. The
Company, the Guarantor, Revlon, Inc., RCPC or any of its domestically
incorporated Wholly Owned Recourse Subsidiaries may act as Paying Agent,
Registrar, co- registrar or transfer agent.
4. Indenture
---------
The Company issued the Notes under an Indenture dated as of ,
2001 ("Indenture"), between the Company and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S.C. 77aaa-77bbbb) as in
effect on the date of the Indenture (the "Act"). Capitalized terms used herein
and not defined herein have the meanings ascribed thereto in the Indenture. The
Notes are subject to all such terms, and Noteholders are referred to the
Indenture and the Act for a statement of those terms.
The Notes are obligations of the Company limited to $ aggregate
Principal Amount (subject to Section 2.07 of the Indenture). This Note is one of
the Notes referred to in the Indenture. The Indenture imposes certain
limitations on, among other things, the issuance of debt and redeemable stock by
the Company, the payment of dividends and other distributions and acquisitions
or retirements of the Company's Capital Stock, the sale or transfer of assets
and Subsidiary stock and transactions with Affiliates.
5. Optional Redemption
-------------------
The Notes may be redeemed at any time, at the option of the Company, in
whole or from time to time in part at 100% of the Principal Amount thereof plus
accrued and unpaid interest as of the redemption date.
6. Notice of Redemption
--------------------
Notice of redemption pursuant to paragraph 5 above will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at his or her registered address. Notes in denominations
larger than $1,000 Principal Amount may be redeemed in part but only in whole
multiples of $1,000 Principal Amount. If money sufficient to pay the redemption
price of all
5
Notes (or portions thereof) to be redeemed on the redemption date is deposited
with the Paying Agent on or before the redemption date and certain other
conditions are satisfied, on and after such date interest ceases to accrue, on
such Notes (or such portions thereof) called for redemption.
7. Guarantee; Security
-------------------
To secure the due and punctual payment of the Principal and interest on the
Notes and all other amounts payable by the Company under the Indenture and the
Notes when and as the same shall be due and payable, whether at maturity, by
acceleration or otherwise, according to the terms of the Notes and the
Indenture, (i) REV Guarantor Corp. (the "Guarantor") has guaranteed the
Guaranteed Obligations on a non-recourse basis pursuant to the terms of the
Indenture, (ii) the Guarantor has granted a security interest in the Collateral
to the Trustee for the benefit of the Holders of Notes pursuant to the Indenture
and (iii) the Company has agreed that, upon consummation of the Merger, it will
have acquired its interest in the Collateral subject to the grant made by the
Guarantor and it will grant a security interest in the Collateral to the Trustee
for the benefit of the Holders of Notes pursuant to the Indenture. The
Collateral is subject to release from the Lien of the Indenture to the extent
provided therein.
8. Denominations; Transfer; Exchange
---------------------------------
The Notes are in registered form without coupons in denominations of
Principal Amount of $1,000 and whole multiples of $1,000. A Holder may transfer
or exchange Notes in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any Notes
selected for redemption (except, in the case of a Note to be redeemed in part,
the portion of the Note not to be redeemed) or any Notes for a period of 15 days
before a selection of Notes to be redeemed.
9. Persons Deemed Owners
---------------------
The registered Holder of this Note may be treated as the owner of it for
all purposes.
6
10. Unclaimed Money
---------------
If money for the payment of Principal or interest remains unclaimed for two
years, the Trustee or Paying Agent shall pay the money back to the Company at
its request unless an abandoned property law designates another person. After
any such payment, Holders entitled to the money must look only to the Company
and not to the Trustee for payment.
11. Defeasance
----------
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Notes and the Indenture if the Company
deposits with the Trustee money or U.S. Government Obligations for the payment
of Principal and interest on the Notes to redemption or maturity, as the case
may be.
12. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Notes may be amended with the written consent of the Holders of at least
a majority in Principal Amount outstanding of the Notes and (ii) any default or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in Principal Amount outstanding of the Notes. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Noteholder, the Company and the Trustee may amend the Indenture or the Notes to
cure any ambiguity, omission, defect or inconsistency, or to comply with Article
V of the Indenture, or to provide for uncertificated Notes in addition to or in
place of certificated Notes, or to add guarantees with respect to the Notes or
to secure (or provide additional security for) the Notes, or to add additional
covenants or surrender rights and powers conferred on the Company, or to comply
with any request of the SEC in connection with qualifying the Indenture under
the Act, or to make any change that does not adversely affect the rights of any
Noteholder. A consent to any amendment or waiver of any provision in the
Indenture or in the Notes by any Holder given in connection with a tender of
such Holder's Notes shall not be rendered invalid by such tender.
13. Defaults and Remedies
---------------------
7
Under the Indenture, Events of Default include (i) default for 30 days in
payment of interest on the Notes; (ii) default in payment of Principal on the
Notes at maturity, upon redemption pursuant to paragraph 5 of the Notes, upon
declaration or otherwise, or failure by the Company to redeem or purchase Notes
when required; (iii) failure by the Company to comply with other agreements in
the Indenture or the Notes, in certain cases subject to notice and lapse of
time; (iv) certain accelerations (including failure to pay within any grace
period after final maturity) of other Debt of the Company or any Significant
Subsidiary if the total principal amount on the portion of such Debt that is
accelerated (or so unpaid) exceeds $25,000,000 and continues for 10 days after
the required notice to the Company; (v) certain events of bankruptcy or
insolvency with respect to the Company or any Significant Subsidiary; and (vi)
certain judgments or decrees for the payment of money in excess of $25,000,000.
If an Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in Principal Amount of the Notes may declare the Default Amount of
all the Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Default Amount of the
Notes being due and payable immediately upon the occurrence of such Events of
Default.
Noteholders may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes
unless it receives reasonable indemnity or security. Subject to certain
limitations, Holders of a majority in Principal Amount of the Notes may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Noteholders notice of any continuing Default (except a Default in payment of
Principal or interest) if it determines that withholding notice is in their
interest.
14. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the Act, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
--------------------------
8
A director, officer, employee or stockholder, as such, of the Company or
the Trustee shall not have any liability for any obligations of the Company
under the Notes or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Note, each
Noteholder waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Notes.
16. Authentication
--------------
This Note shall not be valid until an authorized signatory of the Trustee
(or an authenticating agent) manually signs the certificate of authentication on
the other side of this Note.
17. Abbreviations
-------------
Customary abbreviations may be used in the name of a Noteholder or an
assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
18. CUSIP Numbers
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Noteholders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Noteholder upon written request and without
charge to the Noteholder a copy of the Indenture which has in it the text of
this Note in larger type. Requests may be made to: REV Holdings Inc., 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel.
9
-------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Note on the books of the Company. The agent
may substitute another to act for him.
Date:_______________________ Your Signature:______________________________
_____________________________________________________________________________
10
SCHEDULE I
Pledged Shares
--------------
Issuer Class of Security No. of Shares
------ ----------------- -------------
11
SCHEDULE II
Permitted Transactions
----------------------
1. Asset Transfer Agreement dated as of June 24, 1992 among Revlon, Inc. (now
known as Revlon Holdings Inc.), Xxxxxxx of the Ritz Group Ltd., National
Health Care Group Inc., New Revlon, Inc. (now known as Revlon, Inc.) and
Revlon Consumer Products Corporation (and the ancillary agreements
thereto).
2. Real Property Asset Transfer Agreement dated as of June 24, 1992among
Revlon, Inc. (now known as Revlon Holdings Inc.), New Revlon, Inc. (now
known as Revlon, Inc.) and Revlon Consumer Products Corporation.
3. Benefit Plans Assumption Agreement dated as of July 1, 1992 among Revlon
Holdings Inc. (formerly known as Revlon, Inc.), Revlon, Inc. (formerly
known as New Revlon, Inc.) and Revlon Consumer Products Corporation.
4. Second Amended and Restated Operating Services Agreement dated June 24,
1992 among Revlon Holdings Inc., Revlon, Inc. and Revlon Consumer Products
Corporation (Amended and Restated as of January 1, 1996) (the "Operating
Services Agreement").
5. Amendment to the Operating Services Agreement dated as of July 1, 1997.
6. Reimbursement and Expense Allocation Agreement dated May 3, 1996 among
MacAndrews & Forbes Holdings Inc., Revlon, Inc. and Revlon Consumer
Products Corporation.
7. Reimbursement Agreement dated June 24, 1992 among MacAndrews & Forbes
Holdings Inc., New Revlon, Inc. (now known as Revlon, Inc.) and Revlon
Consumer Products Corporation.
8. Tax Sharing Agreement among Mafco Holdings Inc., Revlon Holdings Inc.,
Revlon, Inc. and Revlon Consumer Products Corporation, as amended by the
First Amendment dated as of February 28, 1995, the Second Amendment
1
dated as of January 1, 1997 and the Third Amendment dated as of January 1,
2001.
9. Purchase and Sale Agreement, as amended, dated as of February 18, 1993
between Revlon Consumer Products Corporation and Revlon Holdings Inc.
(Transfer of Edison facility).
10. Reassignment and Release Agreement dated as of November 4, 1993 among
Revlon Consumer Products Corporation, Revlon Holdings Inc. and SJDH Xxxxxx
Drive Trust (Transfer of 0 Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx).
11. Lease Agreement dated April 2, 1993 between Revlon Holdings Inc. and Revlon
Consumer Products Corporation (Edison R&D facility).
12. Occupancy Memorandum dated as of February 1, 1999 between MacAndrews &
Forbes Group Incorporated and Revlon Consumer Products Corporation (625
Madison Avenue).
13. Occupancy Agreement dated as of January 1, 1995 between Revlon Holdings
Inc. and Revlon Consumer Products Corporation (Administration Building,
Plant and Company store).
14. Occupancy Memorandum dated as of February 28, 1995 between Revlon
International Corporation and MacAndrews & Forbes Group Incorporated
(Occupancy of 00 Xxxxx Xxxxxx).
15. Airplane Usage Memorandum dated November 16, 1994 between GDL Aviation Inc.
and Revlon Consumer Products Corporation.
16. Stock and Asset Purchase Agreement dated as of January 1, 1994 between
Revlon Consumer Products Corporation and Revlon Holdings Inc. (New
Essentials).
17. Asset Transfer Agreement dated as of September 1, 1993 between Revlon
Consumer Products Corporation and Revlon Holdings Inc. (Xxxxxx Advertising
Division).
18. Assumption Agreement dated as of February 18, 1993 between Revlon Holdings
Inc. and Revlon Consumer Products Corporation as amended (Edison Facility).
2
19. Assignment, Assumption and Indemnification Agreement (Xxxx Xxxxx) dated as
of July 1, 1997 between Revlon Holdings Inc. and Revlon Consumer Products
Corporation.
20. Transfer Agreement dated as of March 31, 1997 between Revlon Consumer
Products Corporation and The Xxxxxxx Company, Inc. (Coleman Japan).
21. Reimbursement Agreement dated March 25, 1993 between MacAndrews & Forbes
Holdings Inc. and Revlon Worldwide Corporation (now known as REV Holdings
Inc.).
22. Tax Sharing Agreement dated March 17, 1993 between Mafco Holdings Inc. and
Revlon Worldwide Corporation (now known as REV Holdings Inc.).
3
