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REV HOLDINGS LLC
13% Senior Secured Notes Due 2007
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INDENTURE
Dated as of December ___, 2003
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THE BANK OF NEW YORK,
Trustee
000 Xxxxxxx Xxxxxx, 0-X
Xxx Xxxx, Xxx Xxxx 00000
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions......................................................1
SECTION 1.02. Other Definitions...............................................12
SECTION 1.03. Incorporation by Reference of Trust Indenture Act...............12
SECTION 1.04. Rules of Construction...........................................13
ARTICLE II
The Notes
SECTION 2.01. Form and Dating.................................................14
SECTION 2.02. Execution and Authentication....................................14
SECTION 2.03. Registrar and Paying Agent......................................15
SECTION 2.04. Paying Agent To Hold Money in Trust.............................15
SECTION 2.05. Noteholder Lists................................................15
SECTION 2.06. Transfer and Exchange...........................................16
SECTION 2.07. Replacement Notes...............................................16
SECTION 2.08. Outstanding Notes...............................................17
SECTION 2.09. Temporary Notes.................................................17
SECTION 2.10. Cancellation....................................................17
SECTION 2.11. CUSIP Numbers...................................................17
SECTION 2.12. Book-Entry Provisions for the Global Note.......................18
SECTION 2.13. Defaulted Interest..............................................19
ARTICLE III
Redemption
SECTION 3.01. Notices to Trustee..............................................19
SECTION 3.02. Selection of Notes To Be Redeemed...............................20
SECTION 3.03. Notice of Redemption............................................20
SECTION 3.04. Effect of Notice of Redemption..................................21
SECTION 3.05. Deposit of Redemption Price.....................................21
SECTION 3.06. Notes Redeemed in Part..........................................21
i
ARTICLE IV
Covenants
SECTION 4.01. Payment of Notes................................................21
SECTION 4.02. SEC Reports.....................................................21
SECTION 4.03. Limitation on Debt of the Company...............................21
SECTION 4.04. Limitation on Restricted Payments...............................22
SECTION 4.05. Limitation on Liens and Sales of Assets and Subsidiary Stock....23
SECTION 4.06. Limitation on Transactions with Affiliates......................23
SECTION 4.07. Limitation on Other Business Activities.........................24
SECTION 4.08. Maintenance of Non-Investment Company Status....................25
SECTION 4.09. Compliance Certificate..........................................25
SECTION 4.10. Further Instruments and Acts....................................25
ARTICLE V
Successor Company
SECTION 5.01. When Company May Merge or Transfer Assets.......................25
ARTICLE VI
Defaults and Remedies
SECTION 6.01. Events of Default...............................................26
SECTION 6.02. Acceleration....................................................28
SECTION 6.03. Other Remedies..................................................28
SECTION 6.04. Waiver of Past Defaults.........................................28
SECTION 6.05. Control by Majority.............................................29
SECTION 6.06. Limitation on Suits.............................................29
SECTION 6.07. Rights of Holders To Receive Payment............................29
SECTION 6.08. Collection Suit by Trustee......................................29
SECTION 6.09. Trustee May File Proofs of Claim................................30
SECTION 6.10. Priorities......................................................30
SECTION 6.11. Undertaking for Costs...........................................30
SECTION 6.12. Waiver of Stay or Extension Laws................................30
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee...............................................31
SECTION 7.02. Rights of Trustee...............................................32
SECTION 7.03. Individual Rights of Trustee....................................33
ii
SECTION 7.04. Trustee's Disclaimer............................................33
SECTION 7.05. Notice of Defaults..............................................33
SECTION 7.06. Reports by Trustee to Holders...................................33
SECTION 7.07. Compensation and Indemnity......................................33
SECTION 7.08. Replacement of Trustee..........................................34
SECTION 7.09. Successor Trustee by Merger.....................................35
SECTION 7.10. Eligibility; Disqualification...................................35
SECTION 7.11. Preferential Collection of Claims Against Company...............35
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION 8.01. Discharge of Liability on Notes Defeasance......................36
SECTION 8.02. Conditions to Defeasance........................................36
SECTION 8.03. Application of Trust Money......................................38
SECTION 8.04. Repayment to Company............................................38
SECTION 8.05. Indemnity for Government Obligations............................38
SECTION 8.06. Reinstatement...................................................39
ARTICLE IX
Amendments
SECTION 9.01. Without Consent of Holders......................................39
SECTION 9.02. With Consent of Holders.........................................40
SECTION 9.03. Compliance with Trust Indenture Act.............................40
SECTION 9.04. Revocation and Effect of Consents and Waivers...................40
SECTION 9.05. Notation on or Exchange of Notes................................41
SECTION 9.06. Trustee To Sign Amendments......................................41
SECTION 9.07. Payment for Consent.............................................41
ARTICLE X
Security And Pledge Of Collateral
SECTION 10.01. Grant of Security Interest.....................................42
SECTION 10.02. Delivery of Collateral.........................................42
SECTION 10.03. Representations and Warranties.................................42
SECTION 10.04. Further Assurances.............................................43
SECTION 10.05. Dividends; Voting Rights; Substitution of Collateral...........43
SECTION 10.06. Trustee Appointed Attorney-in-Fact.............................47
iii
SECTION 10.07. Trustee May Perform............................................47
SECTION 10.08. Trustee's Duties...............................................47
SECTION 10.09. Remedies Upon Event of Default.................................47
SECTION 10.10. Application of Proceeds........................................48
SECTION 10.11. Continuing Lien................................................48
SECTION 10.12. Certificates and Opinions......................................48
SECTION 10.13. Additional Agreements..........................................48
ARTICLE XI
Miscellaneous
SECTION 11.01. Trust Indenture Act Controls...................................49
SECTION 11.02. Notices........................................................49
SECTION 11.03. Communication by Holders with Other Holders....................50
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.............50
SECTION 11.05. Statements Required in Certificate or Opinion..................50
SECTION 11.06. When Notes Disregarded.........................................51
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar...................51
SECTION 11.08. Legal Holidays.................................................51
SECTION 11.09. Governing Law..................................................51
SECTION 11.10. No Recourse Against Others.....................................51
SECTION 11.11. Successors.....................................................51
SECTION 11.12. Multiple Originals.............................................52
SECTION 11.13. Table of Contents; Headings....................................52
Exhibit A - Form of Notes
Schedule I - Pledged Shares
Schedule II - Permitted Transactions
iv
INDENTURE dated as of ___, 2003, between REV
HOLDINGS LLC, a Delaware limited liability company (the
"Company") and THE BANK OF NEW YORK, a banking corporation
duly organized under the laws of the State of New York
(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 13% Senior
Secured Notes Due 2007 (the "Notes"):
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01 Definitions.
"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 104 shares of Revlon, Inc. Common
Stock; provided, however, that in the event of (i) the distribution of a
dividend upon shares of Revlon, Inc. in shares of Revlon, Inc., (ii) the
combination of shares of Common Stock of Revlon, Inc. into a smaller number of
shares or other units, (iii) the subdivision of outstanding shares of Common
Stock of Revlon, Inc., (iv) the conversion or reclassification of shares of
Common Stock of 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 (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 of any Unrestricted Assets, (iii) a disposition of
Capital Stock of Revlon, Inc. to the Company, (iv) an issuance of employee stock
options and (v) a merger of Revlon, Inc. with or into RCPC or the Company.
"Board of Managers" means:
(1) with respect to a limited liability company, the board of managers of
the limited liability company or any committee thereof duly authorized to
act on behalf of such board;
(2) with respect to a company or corporation, the board of directors of the
company or corporation or any committee thereof duly authorized to act on
behalf of such board;
(3) with respect to a partnership, the board of directors of the general
partner of the partnership or any committee thereof duly authorized to act
on behalf of such board; and
(4) with respect to any other Person, the board or committee of such Person
serving a similar function.
"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 or limited liability company membership interests, 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 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.
2
"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.
"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;
3
(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 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.
4
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Debt or other obligation of any
other Person and any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Debt or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Debt or other obligation of
the payment thereof or to protect such obligee against loss in respect thereof
(in whole or in part); provided, however, that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Holder" or "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 Managers
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 Managers, 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 [ ],
2003, 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.
5
"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
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 Managers of the Company (the determination of which shall be conclusive
and shall be evidenced by a resolution of such Board of Managers), 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.
"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 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 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.
6
"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 4.09 shall be the principal executive, financial or accounting
officer of the Company.
"Old Notes" means the 12% Senior Secured Notes Due 2004 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 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, Revlon, Inc.,
RCPC or any Subsidiary of RCPC, on the one hand, and any Affiliate of the
Company or any legal or beneficial owner of 10% or more of the voting power of
Voting Stock of the Company or an Affiliate of any such owner, on the other
hand, existing on, or pursuant to an agreement in effect on, the Issue Date and
disclosed in Schedule II to this Indenture and 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.
"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.
7
"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, the Indenture dated as of November 6, 1998, and the Senior Secured Notes
Indenture dated as of November 26, 2001, 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.
"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.
8
"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.
"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.
9
"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
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
Subsidiary not joined in such consolidated or combined returns, but instead had
filed returns including only the Company or its Subsidiaries (provided that any
such agreement may provide that, if the Company or any such Subsidiary ceases to
be a member of the affiliated group of corporations of which Mafco Holdings is
the common parent for purposes of filing a consolidated federal income tax
return (such cessation, a "Deconsolidation Event"), then the Company or such
Subsidiary shall indemnify such direct or indirect shareholder with respect to
any federal, state or local income, franchise or other tax liability (including
any related interest, additions or penalties) imposed on such shareholder as the
result of an audit or other adjustment with respect to any period prior to such
Deconsolidation Event that is attributable to the Company, such Subsidiary or
any predecessor business thereof (computed as if the Company, such Subsidiary or
such predecessor business, as the case may be, were a stand-alone entity that
filed separate tax returns as an independent corporation), but only to the
extent that any such tax liability exceeds any liability for taxes recorded on
the books of the Company or such Subsidiary with respect to any such period).
"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 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
10
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.ss.ss.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, 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.
"Unrestricted Subsidiary" means a Subsidiary of the Company, other
than Revlon, Inc. or any of its Subsidiaries, which (i) is acquired or organized
by the Company or any other Unrestricted Subsidiary (or any combination of the
foregoing), (ii) is capitalized only with Unrestricted Assets and (iii) does not
have any Debt (A) which is held by the Company, (B) as to which the Company or
any of its Subsidiaries (other than an Unrestricted Subsidiary) have provided
credit support (other than any Secured Non-Recourse Guarantee) or (C) any
default 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
11
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
Subsidiaries.
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(b)
"Collateral Release Request"..................................... 10.05(f)
"covenant defeasance option"..................................... 8.01(b)
"CUSIP".......................................................... 2.11
"Custodian"...................................................... 6.01
"Default Amount"................................................. 6.02
"Determination Date"............................................. 10.05(f)
"Global Note".................................................... 2.01(b)
"legal defeasance option"........................................ 8.01(b)
"Outstanding".................................................... 2.08
"Paying Agent"................................................... 2.03
"Physical Note".................................................. 2.01(b)
"Pledged Shares"................................................. 10.01(a)
"Pledged Securities"............................................. 10.13
"Registrar"...................................................... 2.03
"Revlon, Inc. Collateral"........................................ 10.01(a)
"Substitute Collateral".......................................... 10.01(a)
"Withdrawn Collateral"........................................... 10.05(k)
"Withdrawn Shares"............................................... 10.05(k)
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.
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"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.
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(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
13
(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.
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 (i) 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, and (ii) one or more permanent certificated Notes in registered form
in substantially the form set forth in Exhibit A (each a "Physical Note"), in
each case 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 $[80,502,000] 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 authenticated. The aggregate
14
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, Revlon, Inc., RCPC or any of its domestically incorporated Wholly Owned
Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the 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
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
15
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
co-registrar with a request to register a transfer, the Registrar shall register
the transfer as requested if the requirements of Section 8-401(l) of the Uniform
Commercial Code are met. When 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.
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
16
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 cancellation 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 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 Cancellation. The Company at any time may deliver
Notes to the Trustee for cancellation. 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 cancellation 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 cancellation.
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
17
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
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. If
required to do so pursuant to any applicable law or regulation, beneficial
owners may obtain Physical Notes in exchange for their beneficial interests in a
Global Note upon written request in accordance with the Depositary's and the
Registrar's procedures. In addition, 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 any transfer of a portion of the beneficial
interest in a Global Note pursuant to subsection (b) of this Section to
beneficial owners who are required to hold Physical Notes, the Registrar shall
reflect on its books and records the date and a decrease in the Principal Amount
of such Global Note in an amount equal to the Principal Amount of the beneficial
interest in the Global Note to be transferred, and the Company shall execute,
and the Trustee shall authenticate and deliver, one or more Physical Notes of
like tenor and amount.
18
(d) 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.
(e) In connection with the transfer of a Physical Note for an interest
in a Global Note, upon receipt by the Registrar of instructions given in
accordance with the Depositary's and the Registrar's procedures therefor, the
Registrar shall reflect on its books and records the date and an increase in the
principal amount of such Global Note in an amount equal to the principal amount
of the Physical Note to be transferred, and the Trustee shall cancel the
Physical Note so transferred.
(f) 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
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.
19
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.
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.
20
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.04 Effect of Notice of Redemption. Once notice of redemption
is mailed, Notes called for redemption become due and payable on the redemption
date and at the redemption price stated in the notice. Upon surrender to the
Paying Agent, such 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
cancellation.
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
ss.314(a).
SECTION 4.03 Limitation on Debt of the Company.
(a) The Company shall not Issue any Debt; provided, however, that the
foregoing shall not prohibit the Issuance of the following Debt:
21
(1) the Notes, the Old Notes and Debt Issued by the Company in
exchange for, or the proceeds of which are used to Refinance, any Debt
permitted by this clause (1); provided, however, that in the case of any
Debt Issued in connection 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; and
(3) any Debt incurred in connection with the Keepwell Agreement.
SECTION 4.04 Limitation on Restricted Payments.(a) The Company shall
not, directly or indirectly, make any Restricted Payment if, at the time such
Restricted Payment is made:
(1) a Default shall have occurred or be continuing (or would result
therefrom); or
(2) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Issue Date would exceed the sum of (i) 50% of
Consolidated Net Income (or, if such aggregate Consolidated Net Income is a
deficit, minus 100% of such deficit) of the Company accrued during the
period (treated as one accounting period) from December 31, 2003, 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
22
payment of such dividend or the making of such Restricted Payment, no other
Default shall have occurred and be continuing (or will result therefrom);
provided further, however, that such dividend or other Restricted Payment
shall be included in the calculation of the amount of Restricted Payments;
and
(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.
(c) The Company 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.
SECTION 4.05 Limitation on Liens and Sales of Assets and Subsidiary
Stock. The Company shall not make any Asset Disposition. The Company shall not
create, incur or suffer to exist a Lien on the Collateral (other than the Lien
of this Indenture).
SECTION 4.06 Limitation on Transactions with Affiliates. (a) The
Company shall not 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 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 which is permitted
under Section 4.03) is known by the Board of Managers of the Company, as
applicable, to involve an Affiliate of the Company, 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 Managers of the Company having no personal stake in such business,
transaction or series of transactions and (B) with respect to a transaction
or series of
23
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 Managers of the Company having no personal
stake in such business, transaction or series of transactions), such
transaction or series of related transactions 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.
(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, 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, Revlon, Inc., RCPC, any Wholly Owned Recourse Subsidiary or an
Unrestricted Affiliate);
(iii) 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;
(iv) any Permitted Transaction;
(v) any business or transactions with an Unrestricted Affiliate;
(vi) the Keepwell Agreement; and
(vii) 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. and (B) the ownership of the Capital Stock of one
or more Unrestricted Subsidiaries. The Company shall not permit any Unrestricted
Subsidiary to en-
24
gage 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 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 4.09 Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default by the Company and whether or not the signers know of
any Default that occurred during such period. If they do, the certificate shall
describe the Default, its status and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with TIA
ss. 314(a)(4). The Trustee shall have no responsibility or obligation to monitor
the Company's compliance with its obligations set forth in Sections 4.03, 4.04,
4.05, 4.06, 4.07 or 4.08.
SECTION 4.10 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) immediately after giving effect to such transaction (and treating
any Debt which becomes an obligation of the resulting, surviving or transferee
Person or any of its Subsidiaries as a result of such transaction as having been
Issued by such Person or such Subsidiary at the time of such transaction), no
Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
resulting, surviving or transferee Person shall have a Consolidated Net Worth in
an amount which
25
is not less than the Consolidated Net Worth of the Company immediately prior to
such transaction; and
(iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture (if any) comply with this
Indenture.
The resulting, surviving or transferee Person shall be the successor
Company and shall succeed to, and be substituted for, and may exercise every
right and power of, 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 4.08 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 or 4.07 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 the Company's representations
and warranties set forth in Section 10.03 proves to have been materially
false at the time it was made and is not cured within, 60 days after the
notice specified below;
(6) Debt of the Company or any Significant Subsidiary is not paid
within any applicable grace period after final maturity or is accelerated
by the holders thereof because of a default, the total principal amount of
the portion of such Debt that is unpaid or accelerated exceeds
26
$25,000,000 or its foreign currency equivalent and such default continues
for 10 days after the notice specified below;
(7) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days; or
(9) any judgment or decree for the payment of money in excess of
$25,000,000 is entered against the Company or any Significant Subsidiary
and is not discharged and either (A) an enforcement proceeding has been
commenced by any creditor upon such judgment or decree or (B) there is a
period of 60 days following the entry of such judgment or decree during
which such judgment or decree is not discharged, waived or the execution
thereof stayed and, in the case of (B), such 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.
27
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 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
28
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.
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 continu-
29
ing, 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 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 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
30
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
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in the case of any such opinions or certificates which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
31
(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) In the absence of bad faith, negligence or willful misconduct on
the part of the Trustee, the Trustee shall not be responsible for the
application of any money by any Paying Agent other than the Trustee.
(i) 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.
(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
willful 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
32
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.
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 ss.
313(a). The Trustee also shall comply with TIA ss. 313(b).
A copy of each report at the time of its mailing to 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
33
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 willful 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 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
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to 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.
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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.
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 ss. 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b); provided, however, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
SECTION 7.11 Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
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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 cancellation 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, 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 Company to comply with clause (iii) of Section
5.01 or with Article X.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and
8.06 shall survive until the 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;
36
(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;
(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;
37
(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 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
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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 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.
39
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 9.02 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 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
40
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 proposed 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, 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.
41
ARTICLE X
Security And Pledge Of Collateral
SECTION 10.01 Grant of Security Interest. (a) To secure the full and
punctual payment when due and the full and punctual performance of the
Obligations, the Company hereby grants to the Trustee, for the benefit of the
Trustee and the Holders, a security interest in all its right, title and
interest in and to the following, other than such of the following which are
released from the Lien of this Indenture pursuant to Section 10.05 (the "Revlon,
Inc. Collateral"):
(i) The shares of Revlon, Inc. Class A 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);
(ii) all certificates representing any of the Pledged Shares;
(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 the foregoing; and
(iv) 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 (iv), the "Substitute Collateral").
(b) Revlon, Inc. Collateral and Substitute Collateral are hereinafter
collectively referred to as "Collateral."
SECTION 10.02 Delivery of Collateral. On the Issue Date, the Company
shall deliver to the Trustee, for each $1,000 aggregate Principal Amount of
Notes Issued hereunder, a number of Class A 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.
SECTION 10.03 Representations and Warranties. The Company hereby
represents and warrants on the Issue Date as follows:
42
(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
Obligations.
SECTION 10.04 Further Assurances. The Company 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) The Company shall promptly deliver to the Trustee all dividends and other
distributions paid in respect of the Pledged Shares owned by the Company, as
applicable. All such dividends and other distributions shall be held by the
Trustee as Collateral and shall, if received by the Company, be received in
trust for the benefit of the Trustee, be segregated from the other property or
funds of the Company, 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 delivered to or otherwise held by the
Trustee pursuant to this Section 10.05, and any other cash constituting
Collateral delivered to the Trustee, shall be invested, at the written direction
of the Company, 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
Company, be received in trust for the benefit of the Trustee, be segregated from
the other property or funds of the Company, as applicable, and be forthwith
delivered to the Trustee as Collateral in the same form as so received (with any
necessary endorsement).
43
(c) As long as no Default shall have occurred and be continuing and
until written notice thereof from the Trustee to the Company, the Company shall
be entitled to 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 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 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 Company shall, if
necessary, upon written notice of the Trustee, from time to time execute and
deliver to the Trustee such instruments as the Trustee may reasonably request.
(f) As long as no Default shall have occurred and be continuing, prior
to the discharge or defeasance of this Indenture, the Company shall be entitled
from time to time to request the Trustee to release all or a portion of the
Revlon, Inc. Collateral subject to the Lien of this Indenture; provided,
however, that (i) such request (a "Collateral Release Request") must be in
writing and accompanied by an Officers' Certificate and an Opinion of Counsel
stating that all conditions precedent to the release of such Revlon, Inc.
Collateral pursuant to this Section 10.05(f) have been complied with, (ii) the
date of such Collateral Release Request (the "Determination Date") is not more
than five Business Days prior to the date of the release requested thereunder
and (iii) either (A) the conditions set forth in Section 10.05(g) are met or (B)
the conditions set forth in Section 10.05(h) are met. Any 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:
44
(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
deposited 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
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 in-
45
come 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
cancellation, as long as no Default shall have occurred and be continuing, the
Company shall be entitled to deliver a Collateral Release Request to the Trustee
to release a portion of the Revlon, Inc. Collateral subject to this Indenture;
provided, however, that 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 cancellation (other than any
Notes the payment of which has theretofore been provided pursuant to clause (i)
of Section 10.05(g));
(i) In connection with a redemption of Notes pursuant to paragraph 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) Notwithstanding anything to the contrary in Section 10.05(f), (g),
(h), or (i), upon satisfaction by the Company of the conditions set forth in
Article VIII to its legal defeasance option, its covenant defeasance option or
to the discharge of this Indenture, the Lien of this Indenture on all the
Collateral shall terminate and all the Collateral shall be released without any
further action on the part of the Trustee or any other Person.
(k) 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 cre-
46
ated 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. 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 Company, representing any dividend, interest payment or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same. This power, being coupled with an interest, is
irrevocable.
SECTION 10.07 Trustee May Perform. If the Company fails to perform any
agreement contained in this Article X, the Trustee may itself perform, or cause
performance of, such agreement, and the expenses of the Trustee incurred in
connection therewith shall be payable by the Company under Section 7.07.
SECTION 10.08 Trustee's Duties. The powers conferred on the Trustee
under this Article X are solely to protect its interest in the Collateral and
shall not impose any duty upon it to exercise any such powers. Except for the
safe custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Trustee shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral.
SECTION 10.09 Remedies Upon Event of Default. If any Event of Default
shall have occurred and be continuing, the Trustee may exercise in respect of
the Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies provided a secured party
upon the default of a debtor under the Uniform Commercial Code at that time, and
the Trustee may also, without notice except as specified below, sell the
Collateral or any part thereof in one or more parcels 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. 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. 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
47
the Trustee accepts the first offer received and does not offer such Collateral
to more than one offeree.
The Company recognizes that, by reason of certain prohibitions
contained in the Securities Act and applicable state securities laws, the
Trustee may be compelled, with respect to any sale of all or any part of the
Collateral, to limit purchasers to those who will agree, among other things, to
acquire such securities for their own account, for investment, and not with a
view to the distribution or resale thereof. The Company acknowledges and agrees
that any such sale may result in prices and other terms less favorable to the
seller than if such sale were a public sale without such restrictions and,
notwithstanding such circumstances, agrees that any such sale shall be deemed to
have been made in a commercially reasonable manner. The Trustee shall be under
no obligation to delay the sale of any of the Pledged Shares for the period of
time necessary to permit the Company to register such securities for public sale
under the Securities Act, or under applicable state securities laws, even if the
Company would agree to do so.
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 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 ss. 314(b), relating to Opinions of Counsel regarding the Lien of this
Indenture and (b) TIA ss. 314(d), relating to the release of Collateral from the
Lien of this Indenture and Officers' Certificates or other documents regarding
fair value of the Collateral, to the extent such provisions are applicable. Any
certificate or opinion required by TIA ss. 314(d) may be executed and delivered
by an Officer of the Company to the extent permitted by TIA ss. 314(d).
SECTION 10.13 Additional Agreements. The Company agrees that, upon the
occurrence and during the continuance of a Default hereunder, it will, at any
time and from time to time, upon the written request of the Trustee, use its
best efforts to take or to cause the issuer of the 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
48
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 notification or offering
circular, or arises out of or is based upon any alleged omission to state a
material fact required to be stated therein or necessary to make the statements
in any thereof not misleading, except insofar as the same may have been caused
by any untrue statement or omission based upon information furnished in writing
to the Company or the issuer of such Pledged Securities by the Trustee or any
Holder expressly for use therein. The Company further agrees, upon such written
request referred to above, to use its best efforts to qualify, file or register,
or cause the issuer of such Pledged Securities to qualify, file or register, any
of the Pledged Securities under the Blue Sky or other securities laws of such
states as may be requested by the Trustee and keep effective, or cause to be
kept effective, all such qualifications, filings or registrations. The Company
will bear all costs and expenses of carrying out its obligations under this
Section 10.13. The Company acknowledges that there is no adequate remedy at law
for failure by it to comply with the provisions of this Section 10.13 and that
such failure would not be adequately compensable in damages, and therefore agree
that their agreements contained in this Section 10.13 may be specially enforced.
ARTICLE XI
Miscellaneous
SECTION 11.01 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02 Notices. Any notice or communication shall be in writing
and delivered in Person or mailed by first-class mail addressed as follows:
If to the Company:
REV Holdings LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
Confirm: (000) 000-0000
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
49
Attention: Corporate Trust Division
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a 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 11.03 Communication by Holders with Other Holders. Noteholders
may communicate pursuant to TIA ss. 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 ss. 312(c).
SECTION 11.04 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with;
provided, however, that, in the case of such application or request as to which
the furnishing of such documents, certificates or opinions is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
SECTION 11.05 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
50
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
SECTION 11.06 When 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 11.07 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 11.08 Legal Holidays. If a payment date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If a regular record
date is a Legal Holiday, the record date shall not be affected.
SECTION 11.09 Governing Law. This Indenture and the 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 11.10 No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the 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 11.11 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.
51
SECTION 11.12 Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 11.13 Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
52
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
REV HOLDINGS LLC
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee,
By:
----------------------------------
Name:
Title:
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.
CUSIP:
No. $
REV HOLDINGS LLC
13% Senior Secured Note Due 2007
REV Holdings LLC, a Delaware limited liability company, promises to
pay to , or registered assigns, the principal sum of Dollars on [
], 2007.
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 LLC
by
---------------------------------
President
---------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
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 LLC
13% Senior Secured Note Due 2007
1. Interest
REV Holdings LLC., a Delaware limited liability company (such company,
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 13% per annum from [ ] 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 13% 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 Delaware corporation
("Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company,
Revlon, 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 [
], 2003 ("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. xx.xx. 77aaa-77bbbb)
as in effect on the date of the Indenture (the "Act"). Capitalized terms used
herein and not defined herein have
4
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 $[80,502,000]
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 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. 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, the Company has granted 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
5
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.
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
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
6
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
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.
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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 LLC, 00
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel.
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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: __________________________________
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